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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of September 24, 2018, between Cannabics Pharmaceuticals Inc., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I. DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd) Trading Day following the date hereof.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company Counsel” means David E. Price Esq. Attorney at Law.
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“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed to an earlier time by the Placement Agent and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed to an earlier time by the Placement Agent.
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.12(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA” shall have the meaning ascribed to such term in Section 3.1(hh).
“FDCA” shall have the meaning ascribed to such term in Section 3.1(hh).
“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Participation Maximum” shall have the meaning ascribed to such term in Section 4.11(a).
“Per Share Purchase Price” equals $0.75, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
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“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical Product” shall have the meaning ascribed to such term in Section 3.1(hh).
“Placement Agent” means A.G.P./Alliance Global Partners.
“Pro Rata Portion” shall have the meaning ascribed to such term in Section 4.11(e).
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Prospectus” means the final base prospectus filed for the Registration Statement.
“Prospectus Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the Company to each Purchaser at the Closing.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration Statement” means the effective registration statement with Commission file No. 333-216845 which registers the sale of the Securities.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Securities” means the Shares, the Warrants and the Warrant Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares” means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares and Warrants purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.
“Subsequent Financing” shall have the meaning ascribed to such term in Section 4.11(a).
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“Subsequent Financing Notice” shall have the meaning ascribed to such term in Section 4.11(b).
“Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the OTCQB, OTCQX, NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Warrants, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means ClearTrust, LLC, the current transfer agent of the Company, with a mailing address of 16540 Pointe Village Dr., Suite 210, Lutz, Florida 33558, and any successor transfer agent of the Company.
“Variable Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b).
“Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Warrants shall be exercisable immediately upon issuance and have a term of exercise equal to five years, in the form of Exhibit A attached hereto.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE II. PURCHASE AND SALE
2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $7.5 million of Shares and Warrants. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designees. The Company shall deliver to each Purchaser its respective Shares and a Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company).
2.2 Deliveries.
(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a legal opinion of Company Counsel, in a form reasonably acceptable to the Placement Agent and Purchasers;
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(iii) the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(iv) subject to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;
(v) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50% of such Purchaser’s Shares, with an exercise price equal to $1.00, subject to adjustment therein; and
(vi) the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement duly executed by such Purchaser; and
(ii) such Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company or its designees.
2.3 Closing Conditions.
(a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
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(v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b) Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(d) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s) to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon in the time and manner required thereby, and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f) Issuance of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Warrants. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on April 21, 2017 (the “Effective Date”), including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements with respect to the aggregate market value of securities, as set forth in General Instruction I.B.1 of Form S-3. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Capitalization. The capitalization of the Company is as set forth on Schedule 3.1(g). The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
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(h) SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(i) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.
(j) Litigation. Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j) (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k) Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(l) Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
(m) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.
(o) Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries, and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p) Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
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(q) Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r) Transactions With Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
(s) Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended.
(v) Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
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(w) Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x) Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(y) Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z) No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(aa) Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.1(aa) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
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(bb) Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
(cc) Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd) Accountants. The Company’s independent registered public accounting firm is Weinstein & Co. To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending August 31, 2018.
(ee) Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(ff) Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(e) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.
(gg) Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement agent in connection with the placement of the Securities.
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(hh) FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
(ii) Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(jj) Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(kk) U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(ll) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(mm) Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
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3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(b) Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.
(d) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
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(f) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
ARTICLE IV. OTHER AGREEMENTS OF THE PARTIES
4.1 Warrant Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following the date hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration statement is not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and available for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep a registration statement (including the Registration Statement) registering the issuance or resale of the Warrant Shares effective during the term of the Warrants.
4.2 Furnishing of Information.
(a) Until the earlier of the time that (i) no Purchaser owns Securities and (ii) the Warrants have expired, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
(b) At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the Warrant Shares (assuming cashless exercise) may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Warrant Shares, an amount in cash equal to two percent (2.0%) of the aggregate Exercise Price of such Purchaser’s Warrants on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer required for the Purchasers to transfer the Warrant Shares pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.
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4.3 Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4 Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.5 Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6 Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
4.7 Use of Proceeds. Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
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4.8 Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct),. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9 Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.11 Participation in Future Financing.
(a) From the date hereof until the date that is the twelve (12) month anniversary of the Closing Date, upon any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of units thereof (a “Subsequent Financing”), each Purchaser shall have the right to participate in up to an amount of the Subsequent Financing equal to 50% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.
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(b) Between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the Trading Day immediately prior to the Trading Day of the expected announcement of the Subsequent Financing (or, if the Trading Day of the expected announcement of the Subsequent Financing is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Financing), the Company shall deliver to each Purchaser a written notice of the Company’s intention to effect a Subsequent Financing (a “Subsequent Financing Notice”), which notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet and transaction documents relating thereto as an attachment.
(c) Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date on which the Subsequent Financing Notice is delivered to such Purchaser (the “Notice Termination Time”) that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to have notified the Company that it does not elect to participate in such Subsequent Financing.
(d) If, by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.
(e) If, by the Notice Termination Time, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a Purchaser participating under this Section 4.11 and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Purchasers participating under this Section 4.11.
(f) The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.11, if the definitive agreement related to the initial Subsequent Financing Notice is not entered into for any reason on the terms set forth in such Subsequent Financing Notice within two (2) Trading Days after the date of delivery of the initial Subsequent Financing Notice.
(g) The Company and each Purchaser agree that, if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser shall be required to agree to any restrictions on trading as to any of the Securities purchased hereunder or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Purchaser. In addition, the Company and each Purchaser agree that, in connection with a Subsequent Financing, the transaction documents related to the Subsequent Financing shall include a requirement for the Company to issue a widely disseminated press release by 9:30 am (New York City time) on the Trading Day of execution of the transaction documents in such Subsequent Financing (or, if the date of execution is not a Trading Day, on the immediately following Trading Day) that discloses the material terms of the transactions contemplated by the transaction documents in such Subsequent Financing.
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(h) Notwithstanding anything to the contrary in this Section 4.11 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by 9:30 am (New York City time) on the second (2nd) Trading Day following date of delivery of the Subsequent Financing Notice. If by 9:30 am (New York City time) on such second (2nd) Trading Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.
(i) Notwithstanding the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance.
4.12 Subsequent Equity Sales.
(a) From the date hereof until 90 days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.
(b) From the date hereof until such time as no Purchaser holds any of the Warrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance.
4.13 Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.
4.14 Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
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4.15 Capital Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the Shares.
4.16 Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the Purchasers to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.17 Blue Sky Filings. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities, sale to the Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser.
4.18 Registration Statement. The Company shall use best efforts to keep the Registration Statement effective at all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof.
ARTICLE V. MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
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5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10 Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
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5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.
5.16 Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through the legal counsel of the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
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5.18 Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
5.19 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.20 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.21 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
CANNABICS Pharmaceuticals INC.
Address for Notice:
By:__________________________________________
Name:
Title:
With a copy to (which shall not constitute notice):
Fax:
E-mail:
[ADD]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO CNBX SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: ______________________________________________________
Signature of Authorized Signatory of Purchaser: _________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:_________________________________________
Facsimile Number of Authorized Signatory: __________________________________________
Address for Notice to Purchaser:
Address for Delivery of Warrants to Purchaser (if not same as address for notice):
DWAC for Shares:
Subscription Amount: $_________________
Shares: _________________
Warrant Shares: __________________
EIN Number: ____________________
o Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing shall occur by the second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the Closing Date.
[SIGNATURE PAGES CONTINUE]
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"Exhibit 10.1 SECURITIES PURCHASE AGREEMENT This Securities Purchase Agreement (this “Agreement”) is dated as of September 24, 2018, between Cannabics Pharmaceuticals Inc., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”). WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement. NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows: ARTICLE I. DEFINITIONS 1.1 Definitions.",
"In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1: “Acquiring Person” shall have the meaning ascribed to such term in Section 4.5. “Action” shall have the meaning ascribed to such term in Section 3.1(j). “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act. “Board of Directors” means the board of directors of the Company. “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. “Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.1.",
"“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd) Trading Day following the date hereof. “Commission” means the United States Securities and Exchange Commission. “Common Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.",
"“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock. “Company Counsel” means David E. Price Esq. Attorney at Law. 1 “Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith. “Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed to an earlier time by the Placement Agent and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed to an earlier time by the Placement Agent.",
"“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(s). “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.12(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.",
"“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended. “FDA” shall have the meaning ascribed to such term in Section 3.1(hh). “FDCA” shall have the meaning ascribed to such term in Section 3.1(hh). “GAAP” shall have the meaning ascribed to such term in Section 3.1(h). “Indebtedness” shall have the meaning ascribed to such term in Section 3.1(aa). “Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p). “Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction. “Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b). “Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).",
"“Participation Maximum” shall have the meaning ascribed to such term in Section 4.11(a). “Per Share Purchase Price” equals $0.75, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. 2 “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind. “Pharmaceutical Product” shall have the meaning ascribed to such term in Section 3.1(hh). “Placement Agent” means A.G.P./Alliance Global Partners. “Pro Rata Portion” shall have the meaning ascribed to such term in Section 4.11(e). “Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.",
"“Prospectus” means the final base prospectus filed for the Registration Statement. “Prospectus Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the Company to each Purchaser at the Closing. “Purchaser Party” shall have the meaning ascribed to such term in Section 4.8. “Registration Statement” means the effective registration statement with Commission file No. 333-216845 which registers the sale of the Securities. “Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e). “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule. “Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.",
"“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h). “Securities” means the Shares, the Warrants and the Warrant Shares. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. “Shares” means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement. “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock). “Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares and Warrants purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds. “Subsequent Financing” shall have the meaning ascribed to such term in Section 4.11(a). 3 “Subsequent Financing Notice” shall have the meaning ascribed to such term in Section 4.11(b). “Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.",
"“Trading Day” means a day on which the principal Trading Market is open for trading. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the OTCQB, OTCQX, NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing). “Transaction Documents” means this Agreement, the Warrants, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder. “Transfer Agent” means ClearTrust, LLC, the current transfer agent of the Company, with a mailing address of 16540 Pointe Village Dr., Suite 210, Lutz, Florida 33558, and any successor transfer agent of the Company. “Variable Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b). “Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Warrants shall be exercisable immediately upon issuance and have a term of exercise equal to five years, in the form of Exhibit A attached hereto.",
"“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants. ARTICLE II. PURCHASE AND SALE 2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $7.5 million of Shares and Warrants. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designees.",
"The Company shall deliver to each Purchaser its respective Shares and a Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company).",
"2.2 Deliveries. (a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement duly executed by the Company; (ii) a legal opinion of Company Counsel, in a form reasonably acceptable to the Placement Agent and Purchasers; 4 (iii) the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer; (iv) subject to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser; (v) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50% of such Purchaser’s Shares, with an exercise price equal to $1.00, subject to adjustment therein; and (vi) the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act). (b) On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following: (i) this Agreement duly executed by such Purchaser; and (ii) such Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company or its designees.",
"2.3 Closing Conditions. (a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); (ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and (iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.",
"(b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); (ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed; (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; (iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and 5 (v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing. ARTICLE III.",
"REPRESENTATIONS AND WARRANTIES 3.1 Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser: (a) Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a).",
"The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded. (b) Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.",
"Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. (c) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.",
"The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. 6 (d) No Conflicts.",
"The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.",
"(e) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s) to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon in the time and manner required thereby, and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).",
"(f) Issuance of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Warrants. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on April 21, 2017 (the “Effective Date”), including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement.",
"The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements with respect to the aggregate market value of securities, as set forth in General Instruction I.B.1 of Form S-3. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.",
"(g) Capitalization. The capitalization of the Company is as set forth on Schedule 3.1(g). The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities.",
"There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.",
"No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. 7 (h) SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.",
"As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. (i) Material Changes; Undisclosed Events, Liabilities or Developments.",
"Since the date of the latest audited financial statements included within the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information.",
"Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made. (j) Litigation. Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j) (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.",
"There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. (k) Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters.",
"The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 8 (l) Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.",
"(m) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.",
"(n) Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit. (o) Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries, and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties.",
"Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance. (p) Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).",
"None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights.",
"The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business. 9 (q) Insurance.",
"The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost. (r) Transactions With Affiliates and Employees.",
"Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.",
"(s) Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.",
"The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.",
"Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries. (t) Certain Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents. (u) Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.",
"The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended. (v) Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary. 10 (w) Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.",
"(x) Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities. (y) Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus Supplement.",
"The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.",
"(z) No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated. (aa) Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid.",
"The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.1(aa) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.",
"For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness. 11 (bb) Tax Status.",
"Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply.",
"There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim. (cc) Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. (dd) Accountants. The Company’s independent registered public accounting firm is Weinstein & Co. To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending August 31, 2018.",
"(ee) Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities.",
"The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives. (ff) Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(e) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted.",
"The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents. (gg) Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement agent in connection with the placement of the Securities. 12 (hh) FDA.",
"As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect.",
"The properties, business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed to be developed by the Company. (ii) Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.",
"(jj) Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”). (kk) U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.",
"(ll) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. (mm) Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.",
"13 3.2 Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date): (a) Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.",
"Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.",
"(b) Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business. (c) Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.",
"(d) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. (e) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.",
"Such Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser. 14 (f) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.",
"Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future. The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby.",
"Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future. ARTICLE IV. OTHER AGREEMENTS OF THE PARTIES 4.1 Warrant Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends.",
"If at any time following the date hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration statement is not then effective and thereafter shall promptly notify such holders when the registration statement is effective again and available for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use best efforts to keep a registration statement (including the Registration Statement) registering the issuance or resale of the Warrant Shares effective during the term of the Warrants.",
"4.2 Furnishing of Information. (a) Until the earlier of the time that (i) no Purchaser owns Securities and (ii) the Warrants have expired, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act. (b) At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the Warrant Shares (assuming cashless exercise) may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Warrant Shares, an amount in cash equal to two percent (2.0%) of the aggregate Exercise Price of such Purchaser’s Warrants on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer required for the Purchasers to transfer the Warrant Shares pursuant to Rule 144.",
"The payments to which a Purchaser shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. 15 4.3 Integration.",
"The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction. 4.4 Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act.",
"From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.",
"Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b). 4.5 Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.",
"4.6 Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.",
"To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.",
"4.7 Use of Proceeds. Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.",
"16 4.8 Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct),.",
"If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents.",
"The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law. 4.9 Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants. 4.10 Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant Shares on such Trading Market.",
"The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer. 4.11 Participation in Future Financing. (a) From the date hereof until the date that is the twelve (12) month anniversary of the Closing Date, upon any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of units thereof (a “Subsequent Financing”), each Purchaser shall have the right to participate in up to an amount of the Subsequent Financing equal to 50% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.",
"17 (b) Between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the Trading Day immediately prior to the Trading Day of the expected announcement of the Subsequent Financing (or, if the Trading Day of the expected announcement of the Subsequent Financing is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Financing), the Company shall deliver to each Purchaser a written notice of the Company’s intention to effect a Subsequent Financing (a “Subsequent Financing Notice”), which notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet and transaction documents relating thereto as an attachment. (c) Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date on which the Subsequent Financing Notice is delivered to such Purchaser (the “Notice Termination Time”) that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice.",
"If the Company receives no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to have notified the Company that it does not elect to participate in such Subsequent Financing. (d) If, by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice. (e) If, by the Notice Termination Time, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum.",
"“Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a Purchaser participating under this Section 4.11 and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Purchasers participating under this Section 4.11. (f) The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.11, if the definitive agreement related to the initial Subsequent Financing Notice is not entered into for any reason on the terms set forth in such Subsequent Financing Notice within two (2) Trading Days after the date of delivery of the initial Subsequent Financing Notice.",
"(g) The Company and each Purchaser agree that, if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser shall be required to agree to any restrictions on trading as to any of the Securities purchased hereunder or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Purchaser. In addition, the Company and each Purchaser agree that, in connection with a Subsequent Financing, the transaction documents related to the Subsequent Financing shall include a requirement for the Company to issue a widely disseminated press release by 9:30 am (New York City time) on the Trading Day of execution of the transaction documents in such Subsequent Financing (or, if the date of execution is not a Trading Day, on the immediately following Trading Day) that discloses the material terms of the transactions contemplated by the transaction documents in such Subsequent Financing. 18 (h) Notwithstanding anything to the contrary in this Section 4.11 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by 9:30 am (New York City time) on the second (2nd) Trading Day following date of delivery of the Subsequent Financing Notice.",
"If by 9:30 am (New York City time) on such second (2nd) Trading Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. (i) Notwithstanding the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance. 4.12 Subsequent Equity Sales. (a) From the date hereof until 90 days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents. (b) From the date hereof until such time as no Purchaser holds any of the Warrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.",
"“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price.",
"Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages. (c) Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance. 4.13 Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise. 4.14 Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4.",
"Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.",
"19 4.15 Capital Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the Shares. 4.16 Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the Purchasers to exercise their Warrants.",
"Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents. 4.17 Blue Sky Filings. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities, sale to the Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser.",
"4.18 Registration Statement. The Company shall use best efforts to keep the Registration Statement effective at all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof. ARTICLE V. MISCELLANEOUS 5.1 Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties). 5.2 Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.",
"The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers. 5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. 5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given.",
"The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. 20 5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.",
"Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company. 5.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. 5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.” 5.8 No Third-Party Beneficiaries.",
"The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8. 5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.",
"Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.",
"5.10 Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities. 5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. 21 5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.",
"5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).",
"5.14 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities. 5.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents.",
"The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate. 5.16 Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.",
"5.17 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents.",
"For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through the legal counsel of the Placement Agent. The legal counsel of the Placement Agent does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers. 22 5.18 Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled. 5.19 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.",
"5.20 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. 5.21 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.",
"(Signature Pages Follow) 23 IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above. CANNABICS Pharmaceuticals INC. Address for Notice: By:__________________________________________ Name: Title: With a copy to (which shall not constitute notice): Fax: E-mail: [ADD] [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOR PURCHASER FOLLOWS] 24 [PURCHASER SIGNATURE PAGES TO CNBX SECURITIES PURCHASE AGREEMENT] IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above. Name of Purchaser: ______________________________________________________ Signature of Authorized Signatory of Purchaser: _________________________________ Name of Authorized Signatory: _______________________________________________ Title of Authorized Signatory: ________________________________________________ Email Address of Authorized Signatory:_________________________________________ Facsimile Number of Authorized Signatory: __________________________________________ Address for Notice to Purchaser: Address for Delivery of Warrants to Purchaser (if not same as address for notice): DWAC for Shares: Subscription Amount: $_________________ Shares: _________________ Warrant Shares: __________________ EIN Number: ____________________ o Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing shall occur by the second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the Closing Date.",
"[SIGNATURE PAGES CONTINUE] 25"
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| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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MEMORANDUM OPINION
STARK, U.S. District Judge: I. INTRODUCTION Plaintiff Thornton Carroll (“Plaintiff’) filed this action on October 28, 2011, alleging employment discrimination, violations of his civil rights, and defamation. (D.I.2) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. In addition, Plaintiff asserts jurisdiction by reason of diversity of the parties. Presently before the Court are the parties’ cross-motions for summary judgment. (D.I.38, 39) For the reasons that follow, the Court will deny Plaintiffs motion and will grant Defendant’s motion. II. PROCEDURAL AND FACTUAL BACKGROUND The complaint alleges defamation, civil rights, race discrimination, wrongful termination, and retaliation. (D.I.2) In his opposition to Defendant’s motion for summary judgment (D.I.44), Plaintiff invokes 42 U.S.C. § 1983. Plaintiff was hired as a cleaner for Brandywine Building Services, Inc. (“BBS”). (D.I. 2; D.I. 40 Ex. A at 3) Plaintiff remained employed after BBS was acquired by Defendant ABM Janitorial Services-Mid Atlantic, Inc. (“Defendant”) on January 1, 2006. (D.I. 2; D.I. 40 Ex. A at 3-5) After Plaintiff became an employee of ABM, he was transferred to the Bank of America (“BOA”) worksite in Wilmington, Delaware as a supervisor. (D.I. 40 Ex. A at 5) Plaintiff acknowledged during his deposition that he was an at-will employee. (D.I. 47 Ex. AA at 3) Defendant terminated Plaintiffs employment on August 10, 2009. On January 1, 2006, Plaintiff received the ABM “Information for Employees” and signed a Statement of Acknowledgment. (D.I. 40 Ex. C at 9) The document provides in part that no employees are permitted to punch another employee’s time card and that punching another employee’s time card will result in immediate termination with cause. (Id. at Ex. C at 3-8) On the same date, Plaintiff received and signed for a copy of the “Employee Instructions Information and Work Rules” (“Work Rules”). (Id. at Ex. D at 2) The Work Rules warn that “[ujnder certain circumstances, an action may be serious enough to constitute misconduct, resulting-in immediate termination.” (Id.) In addition, the Work Rules state that “[a]ny tampering with your own or another’s attendance record is cause for termination.” (Id. at ¶ 3(b)) On February 2, 2006, Plaintiff signed an acknowledgment of receipt of *296the ABM Employee Handbook (“Handbook”). {Id. at Ex. B at 6) The Handbook sets forth performance expectations and standards of conduct for ABM employees, and identifies a number of violations which could lead to disciplinary action including termination. {Id. at Ex. B at 3-5) Plaintiff worked the evening shift, Monday through Friday, from 5:00 p.m. to 1:00 a.m. (D.I. 40 Ex. A at 6) Gary Cooper (“Cooper”) also worked the evening shift as a shift manager at the BOA site. {Id. at 12) Plaintiff and Cooper were lateral supervisors, and Plaintiff did not answer to Cooper, although Cooper was senior, having been at the facility for ten years. {Id.) Plaintiffs direct supervisors at the BOA site were project managers Ardrell Weaver (‘Weaver”) and Rob Bell (“Bell”). {Id. at 9) Weaver and Bell reported to ABM District Manager Richard Strazzella (“Strazzella”). {Id.) Plaintiffs job duties included supervising a staff of cleaners who cleaned several buildings at the BOA site. (D.I. 40 Ex. A at 7) His presence was required when the workers were there. {Id.) Plaintiff was responsible for overseeing performance, attendance and punctuality of staff, and “for hiring and firing employees,” subject to approval from one of the project managers. {Id. at 7-10) Plaintiff could call a project manager if a problem arose at night. {Id. at 11-12) On the evening of July 3, 2009, Plaintiff and Cooper were on duty. Plaintiff was supervising approximately ten employees that evening. (D.I. 40 Ex. A at 15-16) Around 9:30 p.m., Plaintiff saw employees under his supervision leaving early. {Id. at 17-19) Plaintiff did not see the employees clock out or question why they did not clock out. {Id. at 17, 20, 21) Nor did Plaintiff attempt to stop the employees or question their early departure but, instead, he went to other buildings under his supervision to determine why the employees were leaving early. {Id. at 17-18) Cooper indicates that on the evening in question, he had called Strazzella and told him the work was completed. (D.I. 38 Ex. J at 4) Strazzella’s response was, “OK Gary do what you need to do.” {Id.) Cooper states that he did not inform Plaintiff of his conversation with Strazzella or his decision to allow the staff to leave. (D.I. 38 Ex. K at 2) At some point, Plaintiff called Cooper, who told him that he had allowed the employees to leave early. (D.I. 40, Ex. A at 19) According to Cooper, it was common practice to allow employees to leave early on the evening before a holiday and to clock out the entire staff at the shift end. {Id.) Although Plaintiff saw that employees were leaving early, he did not notify the project managers or district manager prior to the end of the shift. (D.I. 40, Ex. A at 25) In the past, Plaintiff had seen Bell and Weaver, “the people in authority,” allow employees to leave early. {Id. at 12-15) Plaintiff left about an hour after the employees. {Id. at 11) Plaintiff did not check the employees’ timecards to make sure they clocked out at the appropriate time. {Id. at 23) Plaintiff testified that Cooper signed off on the time sheets to verify their accuracy. {Id. at 24) Defendant became aware of the July 3, 2009 early departures in early August, after an employee complained about her pay. (D.I. 40 Ex. A at 29) On August 4, 2009, Plaintiff and Cooper were called into a meeting with Weaver and Strazzella. (D.I. 38 Ex. C) They were each offered the opportunity of a separate interview, but declined. {Id.) A report of the investigation states that, because it was the day before a holiday, the complex was “pretty empty all day” and “the night’s work had been thoroughly completed.” {Id.) The report goes on to state that Cooper and *297Plaintiff made the decision to dismiss the remaining full-time staff at 10:30 p.m. instead of midnight, the normal shift end time. (Id.) Plaintiff testified that he admitted knowing the employees were leaving but that he did not know about it prior to their early departure. (Id. at D.I. 40, Ex. A at 30) The report states that Cooper and Plaintiff admitted their responsibility for the decision to allow the early shift end. (D.I. 38 Ex. B) Cooper admitted to “punching out employees’ timecards.” (Id.) According to Plaintiff, there was no mention of policy violations during the meeting. (D.I. 38 Ex. P) The report, authored by Strazzella, recommended suspensions for both Cooper and Plaintiff with a warning that future violations would result in immediate termination. (D.I. 38 Ex. C) On August 5, 2009, Plaintiff requested a second, and private, meeting with Strazzella. (D.I. 40 Ex. A at 31, Ex. F) During the meeting, Plaintiff was offered the opportunity to provide a written statement regarding the events of July 3, 2009, but he declined. (D.I. 40 Ex. A at 32, Ex. F) He did, however, indicate that the employees had actually left at 9:30 p.m. on the night of July 3rd, rather than 10:30 p.m., as had previously been indicated. (Id.) Plaintiff told Strazzella that he did not report the early departures because he wanted to maintain a harmonious working relationship with Cooper. (D.I. 40 Ex. A at 31) Plaintiff “didn’t want to get in a whole bunch of conflict and stuff because I had to work with Gary and you all did things the way you wanted to.” (Id. at 32) Plaintiff did not see the early departure as anything to report. (Id.) An internal ABM email dated August 6, 2009 states, “OK to term Cooper and Carroll. Call me to discuss EOM.” (D.I. 38 Ex. D) After Defendant completed its investigation, Strazzella and Senior District Manager Mark DeLucia (“DeLucia”) met with Plaintiff on August 10, 2009. (D.I. 38 Ex. O; D.I. 40 Ex. G) During the meeting, Plaintiff was advised that his employment with Defendant was being terminated effective August 10, 2009 for violation of company policies and procedures, as the result of his actions on July 3, 2009. (Id.) Strazzella told Plaintiff he was “being terminated because on Friday, July 03, 2009 employees were allowed to leave two [sic] hours early with pay.” (D.I. 40 Ex. H) Plaintiff requested a termination letter with the specific company policies that he violated. (D.I. 38 Ex. O) Cooper’s employment was also terminated on August 10, 2009. Cooper told Strazzella and DeLucia that Plaintiff had nothing to do with the employees leaving early and that he had allowed to the employees to leave early after he consulted with Strazzella. (D.I. 38 Ex. J at 3-4) According to Cooper, Strazzella was pressured by DeLucia to terminate him. (Id. at 4) On August 11, 2009, Jeanette Zimmer (“Zimmer”), ABM Mid-Atlantic Regional Human Resources Director, forwarded the August 6, 2009 email to William George (“George”). (D.I. 38 Ex. D) On August 13, 2009, Zimmer authored an email to George that referenced time records policy, standard of conduct policy, and code of conduct and ethics. (D.I. 38 Ex. E) Under a subheading of “reporting illegal or unethical behavior” Zimmer stated, “if either say that the other violated policy. Remember that employee was complacent and could have reported it to the hotline anonymously. (Id.) A few hours later, Strazzella authored an email to George that stated, “Hey, when you have a firmer handle on all the documentation/situation, Mr. Carroll requested a termination letter. Jeanette had said that we need not supply him with one at the time of termination.” (D.I. 38 Ex. F) On August 14, 2009, Clay Adams *298(“Adams”), PHR Manager of Employee Relations, authored an email to George that stated, “if you and Jeanette feel that it was a solid investigation and all the facts are straight, there shouldn’t be a problem defending the termination decision.... I also, don’t know what he is saying about his and Cooper’s working relationship. It’s one thing if they are peers, but if Carroll looks at Cooper as being ‘senior’ and a person of authority, you will want to look at it, even if they have the same job title.” (D.I. 38 Ex. G) Plaintiff filed a claim for unemployment benefits with the Delaware Department of Labor (“DDOL”), Division of Unemployment Insurance. (D.I. 38 Ex. H) Defendant opposed the claim and it was initially denied, but the decision was reversed by the Appeals Referee. (Id.) On June 2, 2010, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging Defendant discriminated against him by reason of race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC issued a right to sue notice on August 2, 2011. (D.I. 2 Ex. M) Plaintiff testified during his deposition that he is not claiming race discrimination. (D.I. 40 Ex. A51-52) When asked about the claims raised in the Complaint, Plaintiff testified that he was wrongfully terminated when he was accused of something he did not do. (D.I. 40 Ex. at 39) He testified that Defendant made false allegations and he was not given a fair opportunity to defend himself against the allegations. (Id. at 47) He acknowledged that in Delaware an employee can be fired for whatever reason the employer chooses. (Id. at 40) He further testified that he was defamed when Defendant sent a letter to the DDOL and the EEOC that Plaintiff had overstepped his authority. (Id. at 41-42) In addition, the letter was “published internally.” (Id. at 43) Plaintiff testified that he has shared the DDOL determination "with prospective employers. (Id. at 45-46) Finally, Plaintiff testified that retaliation occurred because he was not notified of his rights under ERISA and “things” he was entitled to upon his termination, and he was not allowed to return to his office to retrieve his personal belongings. (Id. at 50) Plaintiff testified that Defendant was “getting back at [him]” and that Defendant “just wanted to cause [him] additional harm.” (Id. at 50-51) III. LEGAL STANDARDS “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An assertion that a fact cannot be — or, alternatively, is — genuinely disputed must be supported either by citing to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation marks omitted). The Court will *299“draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; see also Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir.2005) (stating party opposing summary judgment “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue”) (internal quotation marks omitted). However, the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;” and a factual dispute is genuine only where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating entry of summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). Thus, the “mere existence of a scintilla of evidence” in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment; there must be “evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. IV. DISCUSSION Plaintiff moves' for summary judgment on the grounds that there is no genuine issue of material fact and he is entitled to summary judgment as a matter of law. Defendant moves for summary judgment on the grounds that: (1) Plaintiffs defamation, civil rights, due process, and retaliation claims fail as a matter of law; and (2) Plaintiff was an at-will employee and cannot maintain a claim for wrongful termination. A. Defamation The Complaint alleges that Defendant made slanderous, libelous, and derogatory false statements to the EEOC and the DDOL. In his motion for summary judgment, Plaintiff adds that internal communications were defamatory. Plaintiff moves for summary judgment on the grounds that, as a result of his termination, his character has been defamed by Defendant’s false accusations of fraud, theft, and dishonesty. Defendant moves for summary judgment on the grounds that the communications with the EEOC and the DDOL are protected by qualified privilege, the communications were not defamatory, the statements made were truthful, and it was Plaintiff who disseminated information to potential employers. Defamation is defined as “that which tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held.” Spence v. Funk, 396 A.2d 967, 969 (Del.1978). To establish a claim for defamation, Plaintiff must establish: (1) the defamatory character of the communication; (2) publication; (3) that the communication refers to Plaintiff; (4) the third party’s understanding of the communication’s defamatory character; *300and (5) injury. See Read v. Carpenter, 1995 WL 945544, at *2 (Del.Super.Ct. June 8,1995). In Delaware, an absolute privilege attaches to all statements made in the course of judicial proceedings. See Short v. News-Journal, 212 A.2d 718 (Del.1965). The absolute privilege protects attorneys and participants in litigation from actions for defamation. See id. at 410. The privilege affords absolute protection upon a showing that the statements were issued as part of a judicial proceeding and the alleged defamation is relevant to a matter at issue in the case. See id. The privilege is not confined to events inside a courtroom, but extends to all communications relating to the litigation, including communications with witnesses and the drafting and filing of pleadings. See Nix v. Sawyer, 466 A.2d 407, 410-11 (Del.Super.Ct.1983). The absolute privilege bars Plaintiffs defamation claims based upon communications made by Defendant, its attorneys, and employees during the course of the DDOL and EEOC litigation. In addition, Plaintiff has no defamation claim for the self-publication of the alleged defamatory information to potential employers and others. “Self-publication occurs when a plaintiff publishes an allegedly defamatory communication to a third party instead of the defendant publishing it to a third-party.” Gilliland v. St. Joseph’s at Providence Creek, 2006 WL 258259, at *8 (Del.Super.Ct. Jan. 27, 2006). In Delaware, self-publication does not satisfy the publication requirement for a defamation action. See id. Without publication, Plaintiff does not have a claim for defamation. No reasonable jury could find for Plaintiff on the defamation issue. In addition, the claim fails as a matter of law. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment on defamation. B. Civil Rights/42 U.S.C. § 1983 Plaintiff moves for summary judgment on the grounds that he was denied due process of law under the Fourteenth Amendment and he was not afforded an opportunity to be heard. Defendant moves for summary judgment on the grounds that, as an at-will employee of a private employer, Plaintiff had no legal entitlement to “due process” or an “opportunity to be heard.” To the extent that Plaintiff raises a claim pursuant to 42 U.S.C. § 1983, the claim fails as a matter of law. When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a federal right, and that the person who caused the deprivation acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). To act under “color of state law,” a defendant must be “clothed with the authority of state law.” Id. at 49, 108 S.Ct. 2250. Defendant is not a state actor and is not “clothed with the authority of state law.” Reichley v. Pennsylvania Dep’t of Agrie., 427 F.3d 236, 244-45 (3d Cir.2005); Biener v. Calio, 361 F.3d 206, 216-17 (3d Cir.2004). Defendant is corporation that employed Plaintiff. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment on the § 1983 claim. C. Title VII — Race Discrimination Defendant moves for summary judgment on the race discrimination claim on the grounds that Plaintiff has abandoned the claim. While Plaintiff filed a charge *301with the EEOC alleging employment discrimination by reason of race discrimination, during his deposition he testified that he was not pursuing the race discrimination claim. Accordingly, the Court will grant Defendant’s motion for summary judgment on the Title VII race discrimination claim. D. Wrongful Termination Plaintiff moves for summary judgment on the ground that he was not terminated for just cause. Defendant moves for summary judgment on the grounds that Plaintiff concedes that he was an at-will employee and there are no exceptions to the at-will doctrine that provide a basis for any wrongful termination claim. Plaintiff argues that was not terminated for just cause given that he is “innocent of the charges represented.” (D.I. 38 at 7) Defendant argues that Delaware is an at-will employment state and that it retained the right to terminate Plaintiffs employment, with or without cause and with or without notice. Ordinarily, employment in Delaware is considered employment at-will, terminable at the will of either party with or without cause. See Haney v. Laub, 312 A.2d 330, 332 (Del.Super.Ct.1973); Avallone v. Wilmington Med. Ctr., 553 F.Supp. 931, 936 (D.Del.1982). The existence of an employee handbook that is a unilateral statement of company policies and that does not set out a definite term of employment does not alter a plaintiffs at-will employment status. See e.g., Gibbs v. Allen’s Family Foods, 2012 WL 5830697 (Del.Super.Ct. Apr. 25, 2012). Although Delaware is an at-will employment state, an employer has an implied covenant of good faith and fair dealing with every employee, and a claim can be brought for a breach of this covenant. See E.I. DuPont Nemours v. Pressman, 679 A.2d 436 (Del.1996). The Delaware Supreme Court has explained the difference between the doctrine of employment at-will and the covenant of good faith and fair dealing as follows: “The [employment at-will] doctrine generally permits the dismissal of employees without cause and regardless of motive. Nevertheless, we hold that the covenant [of good faith and fair dealing] permits a cause of action against an employer for the deceitful acts of its agent in manufacturing materially false grounds to cause an employee’s dismissal.” Id. at 437. In this context, a breach of the covenant of good faith and fair dealing occurs in four limited circumstances: (1) termination of employment when the termination violates public policy; (2) where the employer misrepresents important facts, inducing an employee either to stay or accept a new position; (3) when an employer uses its superior bargaining power to deprive the employee of clearly identifiable compensation related to the employee’s past services; or (4) the employer falsifies or manipulates employment records to create fictitious grounds for termination. See Lord v. Souder, 748 A.2d 393, 400 (Del.2000). The record reflects that Plaintiff was discharged by Defendant for violation of timekeeping procedures. Plaintiff admitted he saw employees under his supervision leave the premises early and he did not see them punch their timecards when they left. Yet, he did not report the early departure to his superiors but, instead, spoke to the Cooper, the other supervisor on duty that evening. In failing to notify his superiors, and in also leaving the premises early, Plaintiff appears to have condoned the early departure, all of which was in derogation of Defendant’s timekeeping policies. The record does not reflect that any employee manufactured false allega*302tions, and the other exceptions to the at-will employment doctrine are inapplicable. Accordingly, Plaintiffs wrongful discharge claim falls outside the limited exception to the doctrine of at-will employment. Finally, having carefully reviewed the record, the Court finds that Plaintiff was an at-will employee at the time of his discharge from ABM’s employment. The portions of the employee handbook submitted in support of the motions for summary judgment did not alter Plaintiffs at-will employment status. See Heideck v. Kent Gen. Hosp., Inc., 446 A.2d 1095, 1096 (Del.1982). Plaintiffs wrongful discharge claim fails to state a cause of action for which a remedy is available under Delaware law. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment and on the wrongful discharge claim. E. Retaliation Plaintiff alleges retaliation occurred because he was unable to return to his office to retrieve personal belongings which were never returned to him, and he was not notified of the “things” (i.e., benefits) to which he was entitled upon his termination. Defendant moves for summary judgment on the grounds that Plaintiff did not engage in protected activity prior to his termination. Plaintiff does not indicate under what law his retaliation claim proceeds. To the extent that Plaintiff alleges a common law retaliation claim or a Title VII retaliation claim, the claims fail. In both instances, Plaintiff must demonstrate that the discharge occurred in retaliation for protected activities. See Griesbaum v. Aventis Phamn., 259 Fed.Appx. 459, 465, 2007 WL 4480624 (3d Cir. Dec. 24, 2007) (applying Title VII retaliation law when analyzing common law retaliation claim). To establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected employee activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action. See, e.g., Fasold v. Justice, 409 F.3d 178, 188 (3d Cir.2005). Here, the alleged retaliatory acts occurred prior to the time Plaintiff engaged in the protected activity, i.e., the filing of a charge of discrimination and a claim for unemployment insurance benefits.1 Plaintiff has failed to establish retaliation by Defendant. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment on the issue. VI. CONCLUSION For the above reasons, the Court will deny Plaintiffs Motion for Summary Judgment (D.I.38) and will grant Defendant’s Motion for Summary Judgment (D.I.39). An appropriate Order will be entered.
ORDER
At Wilmington this 17th day of September, 2013, consistent with the Memorandum Opinion issued this date, IT IS HEREBY ORDERED that: I. Plaintiffs Motion for Summary Judgment (D.I.38) is DENIED. *3032. Defendant’s Motion for Summary Judgment (D J.39) is GRANTED. 3. The Clerk of Court is directed to entered judgment in favor of Defendant and against Plaintiff.
. To the extent Plaintiff alleges retaliation by reason of Defendant's failure to notify him of benefits available upon his termination, the record reflects that Plaintiff's COBRA benefit notification claims were fully settled on May II, 2010. See Carroll v. Strazzella, Civ. No. 10-182-JJF-MPT (D.Del.). (See D.I. 2 Ex. L) | 11-26-2022 | [
"MEMORANDUM OPINION STARK, U.S. District Judge: I. INTRODUCTION Plaintiff Thornton Carroll (“Plaintiff’) filed this action on October 28, 2011, alleging employment discrimination, violations of his civil rights, and defamation. (D.I.2) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. In addition, Plaintiff asserts jurisdiction by reason of diversity of the parties. Presently before the Court are the parties’ cross-motions for summary judgment. (D.I.38, 39) For the reasons that follow, the Court will deny Plaintiffs motion and will grant Defendant’s motion. II. PROCEDURAL AND FACTUAL BACKGROUND The complaint alleges defamation, civil rights, race discrimination, wrongful termination, and retaliation. (D.I.2) In his opposition to Defendant’s motion for summary judgment (D.I.44), Plaintiff invokes 42 U.S.C.",
"§ 1983. Plaintiff was hired as a cleaner for Brandywine Building Services, Inc. (“BBS”). (D.I. 2; D.I. 40 Ex. A at 3) Plaintiff remained employed after BBS was acquired by Defendant ABM Janitorial Services-Mid Atlantic, Inc. (“Defendant”) on January 1, 2006. (D.I. 2; D.I. 40 Ex. A at 3-5) After Plaintiff became an employee of ABM, he was transferred to the Bank of America (“BOA”) worksite in Wilmington, Delaware as a supervisor. (D.I. 40 Ex. A at 5) Plaintiff acknowledged during his deposition that he was an at-will employee. (D.I. 47 Ex. AA at 3) Defendant terminated Plaintiffs employment on August 10, 2009. On January 1, 2006, Plaintiff received the ABM “Information for Employees” and signed a Statement of Acknowledgment.",
"(D.I. 40 Ex. C at 9) The document provides in part that no employees are permitted to punch another employee’s time card and that punching another employee’s time card will result in immediate termination with cause. (Id. at Ex. C at 3-8) On the same date, Plaintiff received and signed for a copy of the “Employee Instructions Information and Work Rules” (“Work Rules”). (Id. at Ex. D at 2) The Work Rules warn that “[ujnder certain circumstances, an action may be serious enough to constitute misconduct, resulting-in immediate termination.” (Id.) In addition, the Work Rules state that “[a]ny tampering with your own or another’s attendance record is cause for termination.” (Id. at ¶ 3(b)) On February 2, 2006, Plaintiff signed an acknowledgment of receipt of *296the ABM Employee Handbook (“Handbook”). {Id. at Ex. B at 6) The Handbook sets forth performance expectations and standards of conduct for ABM employees, and identifies a number of violations which could lead to disciplinary action including termination. {Id. at Ex.",
"B at 3-5) Plaintiff worked the evening shift, Monday through Friday, from 5:00 p.m. to 1:00 a.m. (D.I. 40 Ex. A at 6) Gary Cooper (“Cooper”) also worked the evening shift as a shift manager at the BOA site. {Id. at 12) Plaintiff and Cooper were lateral supervisors, and Plaintiff did not answer to Cooper, although Cooper was senior, having been at the facility for ten years. {Id.) Plaintiffs direct supervisors at the BOA site were project managers Ardrell Weaver (‘Weaver”) and Rob Bell (“Bell”). {Id. at 9) Weaver and Bell reported to ABM District Manager Richard Strazzella (“Strazzella”). {Id.) Plaintiffs job duties included supervising a staff of cleaners who cleaned several buildings at the BOA site. (D.I. 40 Ex.",
"A at 7) His presence was required when the workers were there. {Id.) Plaintiff was responsible for overseeing performance, attendance and punctuality of staff, and “for hiring and firing employees,” subject to approval from one of the project managers. {Id. at 7-10) Plaintiff could call a project manager if a problem arose at night. {Id. at 11-12) On the evening of July 3, 2009, Plaintiff and Cooper were on duty. Plaintiff was supervising approximately ten employees that evening. (D.I. 40 Ex. A at 15-16) Around 9:30 p.m., Plaintiff saw employees under his supervision leaving early. {Id. at 17-19) Plaintiff did not see the employees clock out or question why they did not clock out. {Id.",
"at 17, 20, 21) Nor did Plaintiff attempt to stop the employees or question their early departure but, instead, he went to other buildings under his supervision to determine why the employees were leaving early. {Id. at 17-18) Cooper indicates that on the evening in question, he had called Strazzella and told him the work was completed. (D.I. 38 Ex. J at 4) Strazzella’s response was, “OK Gary do what you need to do.” {Id.) Cooper states that he did not inform Plaintiff of his conversation with Strazzella or his decision to allow the staff to leave. (D.I. 38 Ex. K at 2) At some point, Plaintiff called Cooper, who told him that he had allowed the employees to leave early. (D.I. 40, Ex. A at 19) According to Cooper, it was common practice to allow employees to leave early on the evening before a holiday and to clock out the entire staff at the shift end. {Id.) Although Plaintiff saw that employees were leaving early, he did not notify the project managers or district manager prior to the end of the shift.",
"(D.I. 40, Ex. A at 25) In the past, Plaintiff had seen Bell and Weaver, “the people in authority,” allow employees to leave early. {Id. at 12-15) Plaintiff left about an hour after the employees. {Id. at 11) Plaintiff did not check the employees’ timecards to make sure they clocked out at the appropriate time. {Id. at 23) Plaintiff testified that Cooper signed off on the time sheets to verify their accuracy. {Id. at 24) Defendant became aware of the July 3, 2009 early departures in early August, after an employee complained about her pay. (D.I. 40 Ex. A at 29) On August 4, 2009, Plaintiff and Cooper were called into a meeting with Weaver and Strazzella. (D.I.",
"38 Ex. C) They were each offered the opportunity of a separate interview, but declined. {Id.) A report of the investigation states that, because it was the day before a holiday, the complex was “pretty empty all day” and “the night’s work had been thoroughly completed.” {Id.) The report goes on to state that Cooper and *297Plaintiff made the decision to dismiss the remaining full-time staff at 10:30 p.m. instead of midnight, the normal shift end time. (Id.)",
"Plaintiff testified that he admitted knowing the employees were leaving but that he did not know about it prior to their early departure. (Id. at D.I. 40, Ex. A at 30) The report states that Cooper and Plaintiff admitted their responsibility for the decision to allow the early shift end. (D.I. 38 Ex. B) Cooper admitted to “punching out employees’ timecards.” (Id.) According to Plaintiff, there was no mention of policy violations during the meeting. (D.I. 38 Ex.",
"P) The report, authored by Strazzella, recommended suspensions for both Cooper and Plaintiff with a warning that future violations would result in immediate termination. (D.I. 38 Ex. C) On August 5, 2009, Plaintiff requested a second, and private, meeting with Strazzella. (D.I. 40 Ex. A at 31, Ex. F) During the meeting, Plaintiff was offered the opportunity to provide a written statement regarding the events of July 3, 2009, but he declined. (D.I.",
"40 Ex. A at 32, Ex. F) He did, however, indicate that the employees had actually left at 9:30 p.m. on the night of July 3rd, rather than 10:30 p.m., as had previously been indicated. (Id.) Plaintiff told Strazzella that he did not report the early departures because he wanted to maintain a harmonious working relationship with Cooper. (D.I. 40 Ex. A at 31) Plaintiff “didn’t want to get in a whole bunch of conflict and stuff because I had to work with Gary and you all did things the way you wanted to.” (Id. at 32) Plaintiff did not see the early departure as anything to report. (Id.) An internal ABM email dated August 6, 2009 states, “OK to term Cooper and Carroll. Call me to discuss EOM.” (D.I. 38 Ex. D) After Defendant completed its investigation, Strazzella and Senior District Manager Mark DeLucia (“DeLucia”) met with Plaintiff on August 10, 2009. (D.I.",
"38 Ex. O; D.I. 40 Ex. G) During the meeting, Plaintiff was advised that his employment with Defendant was being terminated effective August 10, 2009 for violation of company policies and procedures, as the result of his actions on July 3, 2009. (Id.) Strazzella told Plaintiff he was “being terminated because on Friday, July 03, 2009 employees were allowed to leave two [sic] hours early with pay.” (D.I. 40 Ex. H) Plaintiff requested a termination letter with the specific company policies that he violated. (D.I. 38 Ex. O) Cooper’s employment was also terminated on August 10, 2009. Cooper told Strazzella and DeLucia that Plaintiff had nothing to do with the employees leaving early and that he had allowed to the employees to leave early after he consulted with Strazzella. (D.I.",
"38 Ex. J at 3-4) According to Cooper, Strazzella was pressured by DeLucia to terminate him. (Id. at 4) On August 11, 2009, Jeanette Zimmer (“Zimmer”), ABM Mid-Atlantic Regional Human Resources Director, forwarded the August 6, 2009 email to William George (“George”). (D.I. 38 Ex. D) On August 13, 2009, Zimmer authored an email to George that referenced time records policy, standard of conduct policy, and code of conduct and ethics. (D.I. 38 Ex. E) Under a subheading of “reporting illegal or unethical behavior” Zimmer stated, “if either say that the other violated policy. Remember that employee was complacent and could have reported it to the hotline anonymously. (Id.) A few hours later, Strazzella authored an email to George that stated, “Hey, when you have a firmer handle on all the documentation/situation, Mr. Carroll requested a termination letter. Jeanette had said that we need not supply him with one at the time of termination.” (D.I. 38 Ex.",
"F) On August 14, 2009, Clay Adams *298(“Adams”), PHR Manager of Employee Relations, authored an email to George that stated, “if you and Jeanette feel that it was a solid investigation and all the facts are straight, there shouldn’t be a problem defending the termination decision.... I also, don’t know what he is saying about his and Cooper’s working relationship. It’s one thing if they are peers, but if Carroll looks at Cooper as being ‘senior’ and a person of authority, you will want to look at it, even if they have the same job title.” (D.I.",
"38 Ex. G) Plaintiff filed a claim for unemployment benefits with the Delaware Department of Labor (“DDOL”), Division of Unemployment Insurance. (D.I. 38 Ex. H) Defendant opposed the claim and it was initially denied, but the decision was reversed by the Appeals Referee. (Id.) On June 2, 2010, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging Defendant discriminated against him by reason of race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC issued a right to sue notice on August 2, 2011.",
"(D.I. 2 Ex. M) Plaintiff testified during his deposition that he is not claiming race discrimination. (D.I. 40 Ex. A51-52) When asked about the claims raised in the Complaint, Plaintiff testified that he was wrongfully terminated when he was accused of something he did not do. (D.I. 40 Ex. at 39) He testified that Defendant made false allegations and he was not given a fair opportunity to defend himself against the allegations. (Id. at 47) He acknowledged that in Delaware an employee can be fired for whatever reason the employer chooses. (Id. at 40) He further testified that he was defamed when Defendant sent a letter to the DDOL and the EEOC that Plaintiff had overstepped his authority. (Id. at 41-42) In addition, the letter was “published internally.” (Id. at 43) Plaintiff testified that he has shared the DDOL determination \"with prospective employers. (Id. at 45-46) Finally, Plaintiff testified that retaliation occurred because he was not notified of his rights under ERISA and “things” he was entitled to upon his termination, and he was not allowed to return to his office to retrieve his personal belongings. (Id. at 50) Plaintiff testified that Defendant was “getting back at [him]” and that Defendant “just wanted to cause [him] additional harm.” (Id.",
"at 50-51) III. LEGAL STANDARDS “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct.",
"1348, 89 L.Ed.2d 538 (1986). An assertion that a fact cannot be — or, alternatively, is — genuinely disputed must be supported either by citing to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation marks omitted). The Court will *299“draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct.",
"2097, 147 L.Ed.2d 105 (2000). To defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; see also Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir.2005) (stating party opposing summary judgment “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue”) (internal quotation marks omitted). However, the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;” and a factual dispute is genuine only where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct.",
"2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating entry of summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). Thus, the “mere existence of a scintilla of evidence” in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment; there must be “evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.",
"IV. DISCUSSION Plaintiff moves' for summary judgment on the grounds that there is no genuine issue of material fact and he is entitled to summary judgment as a matter of law. Defendant moves for summary judgment on the grounds that: (1) Plaintiffs defamation, civil rights, due process, and retaliation claims fail as a matter of law; and (2) Plaintiff was an at-will employee and cannot maintain a claim for wrongful termination. A. Defamation The Complaint alleges that Defendant made slanderous, libelous, and derogatory false statements to the EEOC and the DDOL. In his motion for summary judgment, Plaintiff adds that internal communications were defamatory. Plaintiff moves for summary judgment on the grounds that, as a result of his termination, his character has been defamed by Defendant’s false accusations of fraud, theft, and dishonesty.",
"Defendant moves for summary judgment on the grounds that the communications with the EEOC and the DDOL are protected by qualified privilege, the communications were not defamatory, the statements made were truthful, and it was Plaintiff who disseminated information to potential employers. Defamation is defined as “that which tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held.” Spence v. Funk, 396 A.2d 967, 969 (Del.1978). To establish a claim for defamation, Plaintiff must establish: (1) the defamatory character of the communication; (2) publication; (3) that the communication refers to Plaintiff; (4) the third party’s understanding of the communication’s defamatory character; *300and (5) injury. See Read v. Carpenter, 1995 WL 945544, at *2 (Del.Super.Ct.",
"June 8,1995). In Delaware, an absolute privilege attaches to all statements made in the course of judicial proceedings. See Short v. News-Journal, 212 A.2d 718 (Del.1965). The absolute privilege protects attorneys and participants in litigation from actions for defamation. See id. at 410. The privilege affords absolute protection upon a showing that the statements were issued as part of a judicial proceeding and the alleged defamation is relevant to a matter at issue in the case. See id. The privilege is not confined to events inside a courtroom, but extends to all communications relating to the litigation, including communications with witnesses and the drafting and filing of pleadings. See Nix v. Sawyer, 466 A.2d 407, 410-11 (Del.Super.Ct.1983). The absolute privilege bars Plaintiffs defamation claims based upon communications made by Defendant, its attorneys, and employees during the course of the DDOL and EEOC litigation. In addition, Plaintiff has no defamation claim for the self-publication of the alleged defamatory information to potential employers and others.",
"“Self-publication occurs when a plaintiff publishes an allegedly defamatory communication to a third party instead of the defendant publishing it to a third-party.” Gilliland v. St. Joseph’s at Providence Creek, 2006 WL 258259, at *8 (Del.Super.Ct. Jan. 27, 2006). In Delaware, self-publication does not satisfy the publication requirement for a defamation action. See id. Without publication, Plaintiff does not have a claim for defamation. No reasonable jury could find for Plaintiff on the defamation issue. In addition, the claim fails as a matter of law. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment on defamation. B. Civil Rights/42 U.S.C. § 1983 Plaintiff moves for summary judgment on the grounds that he was denied due process of law under the Fourteenth Amendment and he was not afforded an opportunity to be heard.",
"Defendant moves for summary judgment on the grounds that, as an at-will employee of a private employer, Plaintiff had no legal entitlement to “due process” or an “opportunity to be heard.” To the extent that Plaintiff raises a claim pursuant to 42 U.S.C. § 1983, the claim fails as a matter of law. When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a federal right, and that the person who caused the deprivation acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). To act under “color of state law,” a defendant must be “clothed with the authority of state law.” Id.",
"at 49, 108 S.Ct. 2250. Defendant is not a state actor and is not “clothed with the authority of state law.” Reichley v. Pennsylvania Dep’t of Agrie., 427 F.3d 236, 244-45 (3d Cir.2005); Biener v. Calio, 361 F.3d 206, 216-17 (3d Cir.2004). Defendant is corporation that employed Plaintiff. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment on the § 1983 claim. C. Title VII — Race Discrimination Defendant moves for summary judgment on the race discrimination claim on the grounds that Plaintiff has abandoned the claim. While Plaintiff filed a charge *301with the EEOC alleging employment discrimination by reason of race discrimination, during his deposition he testified that he was not pursuing the race discrimination claim.",
"Accordingly, the Court will grant Defendant’s motion for summary judgment on the Title VII race discrimination claim. D. Wrongful Termination Plaintiff moves for summary judgment on the ground that he was not terminated for just cause. Defendant moves for summary judgment on the grounds that Plaintiff concedes that he was an at-will employee and there are no exceptions to the at-will doctrine that provide a basis for any wrongful termination claim. Plaintiff argues that was not terminated for just cause given that he is “innocent of the charges represented.” (D.I. 38 at 7) Defendant argues that Delaware is an at-will employment state and that it retained the right to terminate Plaintiffs employment, with or without cause and with or without notice. Ordinarily, employment in Delaware is considered employment at-will, terminable at the will of either party with or without cause. See Haney v. Laub, 312 A.2d 330, 332 (Del.Super.Ct.1973); Avallone v. Wilmington Med. Ctr., 553 F.Supp. 931, 936 (D.Del.1982).",
"The existence of an employee handbook that is a unilateral statement of company policies and that does not set out a definite term of employment does not alter a plaintiffs at-will employment status. See e.g., Gibbs v. Allen’s Family Foods, 2012 WL 5830697 (Del.Super.Ct. Apr. 25, 2012). Although Delaware is an at-will employment state, an employer has an implied covenant of good faith and fair dealing with every employee, and a claim can be brought for a breach of this covenant. See E.I. DuPont Nemours v. Pressman, 679 A.2d 436 (Del.1996). The Delaware Supreme Court has explained the difference between the doctrine of employment at-will and the covenant of good faith and fair dealing as follows: “The [employment at-will] doctrine generally permits the dismissal of employees without cause and regardless of motive. Nevertheless, we hold that the covenant [of good faith and fair dealing] permits a cause of action against an employer for the deceitful acts of its agent in manufacturing materially false grounds to cause an employee’s dismissal.” Id. at 437. In this context, a breach of the covenant of good faith and fair dealing occurs in four limited circumstances: (1) termination of employment when the termination violates public policy; (2) where the employer misrepresents important facts, inducing an employee either to stay or accept a new position; (3) when an employer uses its superior bargaining power to deprive the employee of clearly identifiable compensation related to the employee’s past services; or (4) the employer falsifies or manipulates employment records to create fictitious grounds for termination.",
"See Lord v. Souder, 748 A.2d 393, 400 (Del.2000). The record reflects that Plaintiff was discharged by Defendant for violation of timekeeping procedures. Plaintiff admitted he saw employees under his supervision leave the premises early and he did not see them punch their timecards when they left. Yet, he did not report the early departure to his superiors but, instead, spoke to the Cooper, the other supervisor on duty that evening. In failing to notify his superiors, and in also leaving the premises early, Plaintiff appears to have condoned the early departure, all of which was in derogation of Defendant’s timekeeping policies. The record does not reflect that any employee manufactured false allega*302tions, and the other exceptions to the at-will employment doctrine are inapplicable. Accordingly, Plaintiffs wrongful discharge claim falls outside the limited exception to the doctrine of at-will employment.",
"Finally, having carefully reviewed the record, the Court finds that Plaintiff was an at-will employee at the time of his discharge from ABM’s employment. The portions of the employee handbook submitted in support of the motions for summary judgment did not alter Plaintiffs at-will employment status. See Heideck v. Kent Gen. Hosp., Inc., 446 A.2d 1095, 1096 (Del.1982). Plaintiffs wrongful discharge claim fails to state a cause of action for which a remedy is available under Delaware law. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment and on the wrongful discharge claim. E. Retaliation Plaintiff alleges retaliation occurred because he was unable to return to his office to retrieve personal belongings which were never returned to him, and he was not notified of the “things” (i.e., benefits) to which he was entitled upon his termination. Defendant moves for summary judgment on the grounds that Plaintiff did not engage in protected activity prior to his termination.",
"Plaintiff does not indicate under what law his retaliation claim proceeds. To the extent that Plaintiff alleges a common law retaliation claim or a Title VII retaliation claim, the claims fail. In both instances, Plaintiff must demonstrate that the discharge occurred in retaliation for protected activities. See Griesbaum v. Aventis Phamn., 259 Fed.Appx. 459, 465, 2007 WL 4480624 (3d Cir. Dec. 24, 2007) (applying Title VII retaliation law when analyzing common law retaliation claim). To establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected employee activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action. See, e.g., Fasold v. Justice, 409 F.3d 178, 188 (3d Cir.2005). Here, the alleged retaliatory acts occurred prior to the time Plaintiff engaged in the protected activity, i.e., the filing of a charge of discrimination and a claim for unemployment insurance benefits.1 Plaintiff has failed to establish retaliation by Defendant. Therefore, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant’s motion for summary judgment on the issue.",
"VI. CONCLUSION For the above reasons, the Court will deny Plaintiffs Motion for Summary Judgment (D.I.38) and will grant Defendant’s Motion for Summary Judgment (D.I.39). An appropriate Order will be entered. ORDER At Wilmington this 17th day of September, 2013, consistent with the Memorandum Opinion issued this date, IT IS HEREBY ORDERED that: I. Plaintiffs Motion for Summary Judgment (D.I.38) is DENIED. *3032. Defendant’s Motion for Summary Judgment (D J.39) is GRANTED. 3. The Clerk of Court is directed to entered judgment in favor of Defendant and against Plaintiff. . To the extent Plaintiff alleges retaliation by reason of Defendant's failure to notify him of benefits available upon his termination, the record reflects that Plaintiff's COBRA benefit notification claims were fully settled on May II, 2010.",
"See Carroll v. Strazzella, Civ. No. 10-182-JJF-MPT (D.Del.). (See D.I. 2 Ex. L)"
]
| https://www.courtlistener.com/api/rest/v3/opinions/8711385/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment
This action is responsive to amendment filed on March 8, 2021. Claims 1-4, 6-14, 16-20 are pending. Server claim 20 is interpreted in view of par. 14 of the application defined as one or more computing devices.
Claim Objections Claim 20 is objected to because of the following informalities: Defeining and subseqnet at least are misspelled and must be corrected, respectively. Appropriate correction is required.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the
Claims 1-4, 6-14, 16-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hariharan et al (USPN. 2016/0019281) in view of Seiden et al (USPN. 2020/0089796).
1 and 11. A medium and method of updating a spreadsheet using a dynamic database query, the method comprising (abstract): receiving a request to update an initial query cell in the spreadsheet, the request including an initial value or initial formula for the initial query cell that corresponds to an initial data source query (par. 18, 25 and 49, request to modify data); updating the initial query cell to include the initial value or initial formula (par. 18, 25 and 49, request to modify data); identifying a plurality of additional cells that depend on the initial query cell (figs. 5 and 6, pars. 49-50, query for subcomponents), the plurality of additional cells comprising: a subsequent query cell (fig. 6, multiple cells), and a set of result cells comprising at least a first group and a second group (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups), obtaining a dependency hierarchy for the plurality of additional cells that identifies that (pars. 49-50, hierarchical child entries): the first group of result cells depends on the initial query cell (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups),, the subsequent query cell depends on the first group or results cells (pars. 49-50, sub parts of hierarchies of data), and the second group of results cells depends on the subsequent query cell (pars. 49-50, sub parts of hierarchies of data, shown by different color thus a plurality of groups);
updating the plurality of additional cells according to the dependency hierarchy, wherein the updating comprises (pars. 49-50, updating data based on hierarchy): To the degree that Hariharan does not explicitly teach “dynamically defining a data source query”, populating additional fields requires defining a structure/query to aggregate/update the relevant cells. One such system, Seiden teaches dynamically defining a data source query (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par. 33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” par. 41, Seiden). Hence it would have been obvious to one of ordinary skill in the field at the effective filing date of the application to “define a data source query” in Hariharan’s modifying of modifying data from one or more databases including a relational database to (par. 28, Hariharan). One would have been motivated to aggregate data (par. 41, aggregate rows and columns in a spreadsheet, Seiden). Hariharan/Seiden combination teach, dynamically defining the initial data source query using the initial value or initial formula in the initial query cell (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating, Seiden) automatically updating the first group or results cells with the current values resulting from the initial data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows, Seiden); dynamically defining a subsequent data source query in the subsequent query cell using current values in the automatically updated first group of results cells (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating for another set of hierarchical columns, i.e., for windowing function in the third calculation, Seiden), and automatically updating the second group of results cells with current values resulting from the subsequent data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows for the third calculation, Seiden); and providing the spreadsheet for display (figs. 5-6, entries related to subcomponents are highlighted, par. 54, plurality of columns may be formatted for display on the spreadsheet, Hariharan).
2. Hariharan/Seiden combination teach, method of claim 1, wherein a server performs the method, the request is received by the server from a client device, and the spreadsheet is provided for display by the server to the client device (fig. 10, par. 73,server and device, Hariharan).
3. Hariharan/Seiden combination teach, method of claim 1, wherein identifying the additional cells that depend on the initial query cell comprises accessing a pre-existing calculation graph for the spreadsheet, the preexisting calculation graph indicating dependencies between cells (pars. 49 and 104, child relationship and graphic tablets, Hariharan).
4. Hariharan/Seiden combination teach, determining whether the second group of cells are second generation child cells (par. 47, aggregation based on hierarchical relationship between columns requires determining of a relationship, note that hierarchical relationships between multiple columns comprise multiple generation data, Seiden); and responsive to determining at least one is a second-generation child cell, updating the at least one second-generation child cell (par. 47, aggregation based on hierarchical relationship between
6. Hariharan/Seiden combination teach, method of claim 1, wherein the data source query returns M attributes for each of N rows in the data source, wherein M and N are integers greater than 1, and the M attributes for each of N rows are inserted into a corresponding block of M by N cells in the spreadsheet (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par. 33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” requires a given set of attributes for respective rows and columns, par. 41, Seiden).
7. Hariharan/Seiden combination teach, method of claim 6, wherein a top-left corner of the block of M by N cells in a first cell in the first group of results cells in the plurality of additional cells and the current value included in the first cell is a first parameter of the M attributes from a first row of the N rows (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par. 33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” requires a given set of attributes for respective rows and columns, par. 41, Seiden).
8. Hariharan/Seiden combination teach, method of claim 1, wherein providing the spreadsheet for display comprises causing first-generation children cells of a selected cell to be displayed with highlighting relative to the selected cell wherein the first generation children cells are those a single level lower than the selected cell in the dependency
9. Hariharan/Seiden combination teach, method of claim 8, wherein providing the spreadsheet for display further comprises causing second-generation children cells of the selected cell to be displayed with visually distinguishable highlighting relative to the selected cell and the first-generation children cells wherein the second generation children cells are those two levels lower than the selected cell in the dependency hierarchy (par. 49, highlight additional relevant data includes hierarchical data, data is highlighted to distinguish from other data, Hariharan and relationship based dependency, par. 70, Seiden).
10. Hariharan/Seiden combination teach, method of claim 8, wherein providing the spreadsheet for display further comprises providing controls configured to enable a user to select a number of generations of children and parent cells to highlight and causing the selected number of generations of children and parent cells to be displayed with highlighting indicating their generation relative to the selected cell (par. 49, user zoom-in command to highlight additional relevant data, Hariharan).
20. A server comprising (fig. 1, server): a spreadsheet engine configured to (fig 1, server): receiving a request to update an initial query cell in the spreadsheet, the request including an initial value or initial formula for the initial query cell that corresponds to an initial data source query (par. 18, 25 and 49, request to modify data);
identifying a plurality of additional cells that depend on the initial query cell (figs. 5 and 6, pars. 49-50, query for subcomponents), the plurality of additional cells comprising: a subsequent query cell (fig. 6, multiple cells), and a set of result cells comprising at least a first group and a second group (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups), obtaining a dependency hierarchy for the plurality of additional cells that identifies that (pars. 49-50, hierarchical child entries): the first group of result cells depends on the initial query cell (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups),, the subsequent query cell depends on the first group or results cells (pars. 49-50, sub parts of hierarchies of data), and the second group of results cells depends on the subsequent query cell (pars. 49-50, sub parts of hierarchies of data, shown by different color thus a plurality of groups); updating the plurality of additional cells according to the dependency hierarchy, wherein the updating comprises (pars. 49-50, updating data based on hierarchy): To the degree that Hariharan does not explicitly teach “dynamically defining a data source query”, populating additional fields requires defining a structure/query to aggregate/update the relevant cells. One such system, Seiden teaches dynamically defining a data source query (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par. 33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” par. 41, Seiden). Hence it would have been obvious to one of ordinary skill in the field at the effective filing date of the application to “define a data source query” in Hariharan/Seiden combination teach, dynamically defining the initial data source query using the initial value or initial formula in the initial query cell (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating, Seiden) automatically updating the first group or results cells with the current values resulting from the initial data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows, Seiden); dynamically defining a subsequent data source query in the subsequent query cell using current values in the automatically updated first group of results cells (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating for another set of hierarchical columns, i.e., for windowing function in the third calculation, Seiden), and automatically updating the second group of results cells with current values resulting from the subsequent data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows for the third calculation, Seiden); and providing the spreadsheet for display (figs. 5-6, entries related to subcomponents are highlighted, par. 54, plurality of columns may be formatted for display on the spreadsheet, Hariharan). Hariharan/Seiden combination further teach, provide the spreadsheet for display (figs. 5-6, entries related to subcomponents are highlighted, par. 54, plurality of columns may be formatted for display on the spreadsheet, Hariharan); a data source configured to (figs. 3 and 10, DB and client, Hariharan): receive the initial data source query and the subsequent data source query (pars. 64-65, client running a browser, Hariharan);
return the one or more results to the spreadsheet engine in response to the initial data source query or the subsequent data source query (fig. 9, par. 63, user interacts with results wherein modifications to the entries may be submitted by the user, Hariharan).
Regarding medium claims 12-14, 16-19, they comprise substantially the same subject matter as rejected method claims 2-4, 6-10 above, and are therefore rejected on the merits.
Response to Arguments Applicant's arguments filed 3/8/21 have been fully considered but they are not persuasive. Please see remarks below:
Applicant alleges that the newly amended features of “dynamically defines a subsequent data source query…” differs from Hariharan or other cited prior art. Examiner disagrees. Hariharan/Seiden combination teach, “dynamically defining the initial data source query using the initial value or initial formula in the initial query cell (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating, Seiden) automatically updating the first group or results cells with the current values resulting from the initial data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows, Seiden); dynamically defining a subsequent data source query in the subsequent query cell using current values in the automatically updated first group of results cells (figs. 6 and 8, pars. 13 and 70-71, For example, Hariharan/Seiden combined teach generating a plurality of queries and calculations based on discovered relationships between columns of data, wherein any data applied to one of the columns is recalculated for the number of associated columns are aggregated accordingly (see Seiden, pars. 70-71). As such, all the allegations are believed moot.
Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARCIN R FILIPCZYK whose telephone number is (571)272-4019. The examiner can normally be reached on M-F 7-4 EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BORIS GORNEY can be reached on 571-270-5626. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
April 7, 2021 /MARCIN R FILIPCZYK/Primary Examiner, Art Unit 2158 | 2021-04-13T05:35:34 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment This action is responsive to amendment filed on March 8, 2021. Claims 1-4, 6-14, 16-20 are pending. Server claim 20 is interpreted in view of par. 14 of the application defined as one or more computing devices. Claim Objections Claim 20 is objected to because of the following informalities: Defeining and subseqnet at least are misspelled and must be corrected, respectively. Appropriate correction is required. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C.",
"102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the Claims 1-4, 6-14, 16-20 is/are rejected under 35 U.S.C.",
"103 as being unpatentable over Hariharan et al (USPN. 2016/0019281) in view of Seiden et al (USPN. 2020/0089796). 1 and 11. A medium and method of updating a spreadsheet using a dynamic database query, the method comprising (abstract): receiving a request to update an initial query cell in the spreadsheet, the request including an initial value or initial formula for the initial query cell that corresponds to an initial data source query (par. 18, 25 and 49, request to modify data); updating the initial query cell to include the initial value or initial formula (par. 18, 25 and 49, request to modify data); identifying a plurality of additional cells that depend on the initial query cell (figs. 5 and 6, pars. 49-50, query for subcomponents), the plurality of additional cells comprising: a subsequent query cell (fig. 6, multiple cells), and a set of result cells comprising at least a first group and a second group (pars.",
"49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups), obtaining a dependency hierarchy for the plurality of additional cells that identifies that (pars. 49-50, hierarchical child entries): the first group of result cells depends on the initial query cell (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups),, the subsequent query cell depends on the first group or results cells (pars. 49-50, sub parts of hierarchies of data), and the second group of results cells depends on the subsequent query cell (pars. 49-50, sub parts of hierarchies of data, shown by different color thus a plurality of groups); updating the plurality of additional cells according to the dependency hierarchy, wherein the updating comprises (pars. 49-50, updating data based on hierarchy): To the degree that Hariharan does not explicitly teach “dynamically defining a data source query”, populating additional fields requires defining a structure/query to aggregate/update the relevant cells. One such system, Seiden teaches dynamically defining a data source query (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par.",
"33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” par. 41, Seiden). Hence it would have been obvious to one of ordinary skill in the field at the effective filing date of the application to “define a data source query” in Hariharan’s modifying of modifying data from one or more databases including a relational database to (par. 28, Hariharan). One would have been motivated to aggregate data (par. 41, aggregate rows and columns in a spreadsheet, Seiden). Hariharan/Seiden combination teach, dynamically defining the initial data source query using the initial value or initial formula in the initial query cell (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating, Seiden) automatically updating the first group or results cells with the current values resulting from the initial data source query (figs. 6 and 8, pars.",
"13 and 70-71, generating a query aggregating hierarchical level column data into rows, Seiden); dynamically defining a subsequent data source query in the subsequent query cell using current values in the automatically updated first group of results cells (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating for another set of hierarchical columns, i.e., for windowing function in the third calculation, Seiden), and automatically updating the second group of results cells with current values resulting from the subsequent data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows for the third calculation, Seiden); and providing the spreadsheet for display (figs. 5-6, entries related to subcomponents are highlighted, par.",
"54, plurality of columns may be formatted for display on the spreadsheet, Hariharan). 2. Hariharan/Seiden combination teach, method of claim 1, wherein a server performs the method, the request is received by the server from a client device, and the spreadsheet is provided for display by the server to the client device (fig. 10, par. 73,server and device, Hariharan). 3. Hariharan/Seiden combination teach, method of claim 1, wherein identifying the additional cells that depend on the initial query cell comprises accessing a pre-existing calculation graph for the spreadsheet, the preexisting calculation graph indicating dependencies between cells (pars.",
"49 and 104, child relationship and graphic tablets, Hariharan). 4. Hariharan/Seiden combination teach, determining whether the second group of cells are second generation child cells (par. 47, aggregation based on hierarchical relationship between columns requires determining of a relationship, note that hierarchical relationships between multiple columns comprise multiple generation data, Seiden); and responsive to determining at least one is a second-generation child cell, updating the at least one second-generation child cell (par. 47, aggregation based on hierarchical relationship between 6. Hariharan/Seiden combination teach, method of claim 1, wherein the data source query returns M attributes for each of N rows in the data source, wherein M and N are integers greater than 1, and the M attributes for each of N rows are inserted into a corresponding block of M by N cells in the spreadsheet (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par.",
"33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” requires a given set of attributes for respective rows and columns, par. 41, Seiden). 7. Hariharan/Seiden combination teach, method of claim 6, wherein a top-left corner of the block of M by N cells in a first cell in the first group of results cells in the plurality of additional cells and the current value included in the first cell is a first parameter of the M attributes from a first row of the N rows (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par.",
"33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” requires a given set of attributes for respective rows and columns, par. 41, Seiden). 8. Hariharan/Seiden combination teach, method of claim 1, wherein providing the spreadsheet for display comprises causing first-generation children cells of a selected cell to be displayed with highlighting relative to the selected cell wherein the first generation children cells are those a single level lower than the selected cell in the dependency 9.",
"Hariharan/Seiden combination teach, method of claim 8, wherein providing the spreadsheet for display further comprises causing second-generation children cells of the selected cell to be displayed with visually distinguishable highlighting relative to the selected cell and the first-generation children cells wherein the second generation children cells are those two levels lower than the selected cell in the dependency hierarchy (par. 49, highlight additional relevant data includes hierarchical data, data is highlighted to distinguish from other data, Hariharan and relationship based dependency, par. 70, Seiden). 10. Hariharan/Seiden combination teach, method of claim 8, wherein providing the spreadsheet for display further comprises providing controls configured to enable a user to select a number of generations of children and parent cells to highlight and causing the selected number of generations of children and parent cells to be displayed with highlighting indicating their generation relative to the selected cell (par.",
"49, user zoom-in command to highlight additional relevant data, Hariharan). 20. A server comprising (fig. 1, server): a spreadsheet engine configured to (fig 1, server): receiving a request to update an initial query cell in the spreadsheet, the request including an initial value or initial formula for the initial query cell that corresponds to an initial data source query (par. 18, 25 and 49, request to modify data); identifying a plurality of additional cells that depend on the initial query cell (figs. 5 and 6, pars. 49-50, query for subcomponents), the plurality of additional cells comprising: a subsequent query cell (fig. 6, multiple cells), and a set of result cells comprising at least a first group and a second group (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups), obtaining a dependency hierarchy for the plurality of additional cells that identifies that (pars.",
"49-50, hierarchical child entries): the first group of result cells depends on the initial query cell (pars. 49-50, sub parts of hierarchies of data, can be shown by different color thus a plurality of groups),, the subsequent query cell depends on the first group or results cells (pars. 49-50, sub parts of hierarchies of data), and the second group of results cells depends on the subsequent query cell (pars. 49-50, sub parts of hierarchies of data, shown by different color thus a plurality of groups); updating the plurality of additional cells according to the dependency hierarchy, wherein the updating comprises (pars. 49-50, updating data based on hierarchy): To the degree that Hariharan does not explicitly teach “dynamically defining a data source query”, populating additional fields requires defining a structure/query to aggregate/update the relevant cells.",
"One such system, Seiden teaches dynamically defining a data source query (pars. 33 and 41 “receiving a formula that aggregates a plurality of rows of the data set… data set may be within another column of the data set” par. 33, and “aggregating a plurality of rows of the data set based on the calculation for the third column” par. 41, Seiden). Hence it would have been obvious to one of ordinary skill in the field at the effective filing date of the application to “define a data source query” in Hariharan/Seiden combination teach, dynamically defining the initial data source query using the initial value or initial formula in the initial query cell (figs.",
"6 and 8, pars. 13 and 70-71, generating a query aggregating, Seiden) automatically updating the first group or results cells with the current values resulting from the initial data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows, Seiden); dynamically defining a subsequent data source query in the subsequent query cell using current values in the automatically updated first group of results cells (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating for another set of hierarchical columns, i.e., for windowing function in the third calculation, Seiden), and automatically updating the second group of results cells with current values resulting from the subsequent data source query (figs.",
"6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows for the third calculation, Seiden); and providing the spreadsheet for display (figs. 5-6, entries related to subcomponents are highlighted, par. 54, plurality of columns may be formatted for display on the spreadsheet, Hariharan). Hariharan/Seiden combination further teach, provide the spreadsheet for display (figs. 5-6, entries related to subcomponents are highlighted, par. 54, plurality of columns may be formatted for display on the spreadsheet, Hariharan); a data source configured to (figs. 3 and 10, DB and client, Hariharan): receive the initial data source query and the subsequent data source query (pars. 64-65, client running a browser, Hariharan); return the one or more results to the spreadsheet engine in response to the initial data source query or the subsequent data source query (fig.",
"9, par. 63, user interacts with results wherein modifications to the entries may be submitted by the user, Hariharan). Regarding medium claims 12-14, 16-19, they comprise substantially the same subject matter as rejected method claims 2-4, 6-10 above, and are therefore rejected on the merits. Response to Arguments Applicant's arguments filed 3/8/21 have been fully considered but they are not persuasive. Please see remarks below: Applicant alleges that the newly amended features of “dynamically defines a subsequent data source query…” differs from Hariharan or other cited prior art. Examiner disagrees. Hariharan/Seiden combination teach, “dynamically defining the initial data source query using the initial value or initial formula in the initial query cell (figs. 6 and 8, pars.",
"13 and 70-71, generating a query aggregating, Seiden) automatically updating the first group or results cells with the current values resulting from the initial data source query (figs. 6 and 8, pars. 13 and 70-71, generating a query aggregating hierarchical level column data into rows, Seiden); dynamically defining a subsequent data source query in the subsequent query cell using current values in the automatically updated first group of results cells (figs. 6 and 8, pars. 13 and 70-71, For example, Hariharan/Seiden combined teach generating a plurality of queries and calculations based on discovered relationships between columns of data, wherein any data applied to one of the columns is recalculated for the number of associated columns are aggregated accordingly (see Seiden, pars. 70-71). As such, all the allegations are believed moot. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action.",
"In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARCIN R FILIPCZYK whose telephone number is (571)272-4019. The examiner can normally be reached on M-F 7-4 EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BORIS GORNEY can be reached on 571-270-5626. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR.",
"Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. April 7, 2021 /MARCIN R FILIPCZYK/Primary Examiner, Art Unit 2158"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Allowable Subject Matter The following is an examiner’s statement of reasons for allowance: The prior art fails to teach or fairly suggest, alone or in combination, “estimating a boiling margin, which is a parameter related to a thermal margin when the refrigerant boils in the exhaust heat recovery device, and prohibiting forced regeneration of the filter as a boiling avoidance process when the boiling margin is less than or equal to a threshold value.”. The closest prior art of record are Styles et al. (US 2017/0218865) and Murata et al. (US 2016/0376970). Styles et al. (Styles) discloses a boiling prevention system for an exhaust heat recovery heat exchanger. (See Styles, Abstract). Murata et al. (Murata) discloses an exhaust heat recovery boiling suppression system. (See Murata, Abstract). However, neither Styles nor Murata, alone or in combination, teach or fairly suggest “estimating a boiling margin, which is a parameter related to a thermal margin when the refrigerant boils in the exhaust heat recovery device, and prohibiting forced regeneration of the filter as a boiling avoidance process when the boiling margin is less than or equal to a threshold value.”.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW THOMAS LARGI whose telephone number is (571)270-3512. The examiner can normally be reached on 8:00 - 4:00 M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Essama Omgba can be reached on (469) 295-9278. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. | 2021-06-25T15:04:47 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Allowable Subject Matter The following is an examiner’s statement of reasons for allowance: The prior art fails to teach or fairly suggest, alone or in combination, “estimating a boiling margin, which is a parameter related to a thermal margin when the refrigerant boils in the exhaust heat recovery device, and prohibiting forced regeneration of the filter as a boiling avoidance process when the boiling margin is less than or equal to a threshold value.”. The closest prior art of record are Styles et al. (US 2017/0218865) and Murata et al. (US 2016/0376970).",
"Styles et al. (Styles) discloses a boiling prevention system for an exhaust heat recovery heat exchanger. (See Styles, Abstract). Murata et al. (Murata) discloses an exhaust heat recovery boiling suppression system. (See Murata, Abstract). However, neither Styles nor Murata, alone or in combination, teach or fairly suggest “estimating a boiling margin, which is a parameter related to a thermal margin when the refrigerant boils in the exhaust heat recovery device, and prohibiting forced regeneration of the filter as a boiling avoidance process when the boiling margin is less than or equal to a threshold value.”. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW THOMAS LARGI whose telephone number is (571)270-3512. The examiner can normally be reached on 8:00 - 4:00 M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Essama Omgba can be reached on (469) 295-9278. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR.",
"Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000."
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-07-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
68 So.3d 963 (2011) Maxo BELIZAIRE, Appellant, v. The STATE of Florida, Appellee. No. 3D11-210. District Court of Appeal of Florida, Third District. August 24, 2011. Rehearing Denied September 30, 2011. Maxo Belizaire, in proper person. Pamela Jo Bondi, Attorney General, for appellee. Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge. WELLS, C.J. Maxo Belizaire appeals from an order denying a petition for writ of habeas corpus filed below in which he claimed error in the jury instructions given at his trial. Because Belizaire's petition raises only issues that should have been raised on direct appeal and because he does not claim that trial or appellate counsel was in any manner ineffective, we affirm the order denying relief. See Fla.R.Crim.P. 3.850(c)(6) ("This rule does not authorize relief based on grounds that could have or should have been raised at trial and if, properly preserved, on direct appeal of the judgment and sentence."); Wright v. State, 857 So.2d 861, 874 (Fla.2003) ("Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in post-conviction proceedings."); see also Wyatt v. State, ___ So.3d ___, ___ n. 12 (Fla. 2011) (confirming that claims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal not via a Rule 3.850 post-conviction motion). Affirmed. | 10-30-2013 | [
"68 So.3d 963 (2011) Maxo BELIZAIRE, Appellant, v. The STATE of Florida, Appellee. No. 3D11-210. District Court of Appeal of Florida, Third District. August 24, 2011. Rehearing Denied September 30, 2011. Maxo Belizaire, in proper person. Pamela Jo Bondi, Attorney General, for appellee. Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge. WELLS, C.J. Maxo Belizaire appeals from an order denying a petition for writ of habeas corpus filed below in which he claimed error in the jury instructions given at his trial. Because Belizaire's petition raises only issues that should have been raised on direct appeal and because he does not claim that trial or appellate counsel was in any manner ineffective, we affirm the order denying relief.",
"See Fla.R.Crim.P. 3.850(c)(6) (\"This rule does not authorize relief based on grounds that could have or should have been raised at trial and if, properly preserved, on direct appeal of the judgment and sentence. \"); Wright v. State, 857 So.2d 861, 874 (Fla.2003) (\"Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in post-conviction proceedings. \"); see also Wyatt v. State, ___ So.3d ___, ___ n. 12 (Fla. 2011) (confirming that claims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal not via a Rule 3.850 post-conviction motion). Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2489628/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The court decided that fees to the sheriff for bringing up a prisoner, a witness for the plaintiff, on a habeas corpus testificandum, should be computed for the distance -of both going to, and returning from the place of trial. (a)
Vid. 2 R. L. 20. | 01-09-2022 | [
"The court decided that fees to the sheriff for bringing up a prisoner, a witness for the plaintiff, on a habeas corpus testificandum, should be computed for the distance -of both going to, and returning from the place of trial. (a) Vid. 2 R. L. 20."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5464940/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION
JERRY LEE ROSS, § Plaintiff, § § CIVIL ACTION NO. 0:18-836-MGL § NORTH CAROLINA DEPARTMENT OF § REVENUE, § Defendant. §
ORDER ADOPTING THE REPORT AND RECOMMENDATION, DISMISSING THE COMPLAINT WITHOUT PREJUDICE AND WITHOUT ISSUANCE AND SERVICE OF PROCESS, AND RENDERING AS MOOT PLAINTIFF’S MOTIONS
This action involves a tax dispute between Plaintiff Jerry Lee Ross (Ross) and Defendant
North Carolina Department of Revenue (NCDR). Ross claims the Court has federal question
jurisdiction over the matter pursuant 28 U.S.C. § 1331. He is proceeding pro se.
The matter is before the Court for review of the Report and Recommendation (Report) of the
United States Magistrate Judge suggesting (1) Ross’s complaint be dismissed without prejudice and
without issuance and service of process and (2) his motion in limine and motion for a preliminary
injunction be rendered moot. The Report was made in accordance with 28 U.S.C. § 636 and Local
Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on September 13, 2018, and the Clerk of Court filed
Ross’s objections on September 27, 2018. The Court has reviewed the objections, but holds them
to be without merit. It will therefore enter judgment accordingly.
Ross makes seven objections to the Report. First, he objects to the Magistrate Judge’s
statement his “complaint fails to establish any viable ground for federal subject matter jurisdiction
under 28 U.S.C. § 1331.” Report 5. Ross appears to contend his claim of a “[v]iolation of right to
earn a fair wage” amounts to a colorable claim under the Court’s § 1331 jurisdiction. It does not.
Therefore, the Court will overrule this objection.
Second, Ross objects to the Magistrate Judge’s conclusion “[t]he allegations of [his]
complaint do not reference a violation of any federal statute or constitutional provision by {NCDR],
nor is any type of federal question jurisdiction otherwise evident from the face of the complaint.”
Report 5. According to Ross, however, “there are several federal question jurisdictions evident from
the face of the complaint. . . . [including,] [v]iolation of right to earn a fair wage, paper terrorism (18
U.S. CODE CHAPTER 113B § 2332d–Financial transactions) and violation of due process.”
Objections 2.
As to Ross’s fair wage claim, as noted above, there is no viable federal cause of action for
a “violation of right to earn a fair wage” here. Regarding his paper terrorism claim, that term
generally refers to the harassment by sovereign citizens of courts and government agencies with
numerous frivolous and sometime fraudulent filings. Gravatt v. United States, 100 Fed. Cl. 279, 283
2 n.2 (2011). And, the statute Ross lists in reference to paper terrorism is inapplicable. See 18 U.S.C.
§ 2332d (“Except as provided in regulations issued by the Secretary of the Treasury, in consultation
with the Secretary of State, whoever, being a United States person, knowing or having reasonable
cause to know that a country is designated under section 6(j) of the Export Administration Act of
1979 . . . as a country supporting international terrorism, engages in a financial transaction with the
government of that country, shall be fined under this title, imprisoned for not more than 10 years,
or both.”).
The mere listing of federal statutes and the constitution is insufficient to trigger the Court’s
federal question jurisdiction. Accordingly, “[a] claim invoking federal-question jurisdiction under
28 U.S.C. § 1331 . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable,
i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly
insubstantial and frivolous.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006).
Concerning Ross’s due process claim, “the Tax Injunction Act [TIA], 28 U.S.C. § 1341,
precludes this [C]ourt from exercising jurisdiction over [his] [due process] claim[ ].” Report 6. For
all these reasons, the Court will overrule this objection, too.
Third, Ross contends the Magistrate Judge erred by failing to conclude his claims of “Privacy
breach and confidentiality” and “Invasion of Privacy” provide the basis for the Court’s federal
question jurisdiction. But, these are state claims, not federal questions. Hence, the Court will
overrule this objection as well.
Fourth, Ross maintains the Magistrate Judge failed to mention any of his federal causes of
action when she stated his “complaint references state law causes of action, including slander,
negligence, fraud and other intentional tort claims.” Report 5. The Court has already addressed the
3 federal claims Ross listed at the beginning of Ross’s complaint and need not do so again here.
Suffice it to say the Court will also overrule this objection.
Fifth, Ross takes issue with the Magistrate Judge’s suggestion “the [TIA], 28 U.S.C. § 1341,
preludes this [C]ourt from exercising jurisdiction over [his] claims.” Report 6. According to Ross,
“[j]ust one day in court will determine if there was a violation of confidentiality and privacy breach,
violation of right to earn a fair wage, violation of due process (which are civil rights violations) or
other allegations mentioned has taken place.” Objections 5.
To summarize, Ross’s claims of a violation of confidentiality and privacy breach are state
law claims, his violation-of-right-to-earn-a-fair-wage claim is not viable, and his due process claim
is foreclosed by the TIA. Accordingly, the Court will overrule this objection, too.
Sixth, Ross claims the Magistrate Judge erred in asserting his “complaint fails to demonstrate
sufficient facts to satisfy the requirements of 28 U.S.C. 1332 for diversity jurisdiction, as he and
[NCDR] are both North Carolina citizens.” According to Ross, “the complaint also points to the
allegation of United States mail that was unlawfully opened to get a levy on [him] which was never
owed. If it happened on U.S. soil than the courts have jurisdiction in this case. In the report and
recommendation, the topic of unauthorized mail that was opened is not found anywhere.”
But, “there is no private right of action under criminal statutes pertaining to mail tampering.”
Whitney v. U.S. Postal Serv., 101 F.3d 686 (2d Cir. 1996). Even if there were, however, it would
not do anything to satisfy the requirement of section 1332 that the parties must be diverse.
Therefore, the Court will also overrule this objection.
4 And seventh, Ross maintains “everything that the complaint is clearly focused on should
have been mentioned[ ] ” in the Report Objections 7. Because, according to Ross, the Report failed
to address all the substantive matters in his complaint, it is inaccurate.
The Court has made a de novo review of the entire record in this case and has determined
the Magistrate Judge’s Report is both comprehensive and well-reasoned. Ross’s claim to the
contrary has no merit. Consequently, the Court will overrule this objection, too.
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court overrules Ross’s objections, adopts the Report, and incorporates it herein.
Therefore, it is the judgment of this Court Ross’s complaint is DISMISSED WITHOUT
PREJUDICE and without issuance and service of process. Therefore, his motion in limine and
motion for a preliminary injunction are RENDERED MOOT.
IT IS SO ORDERED.
Signed this 22nd day of October, 2018, in Columbia, South Carolina.
s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE
***** NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to the Federal Rules of Appellate Procedure.
5 | 2018-10-23 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION JERRY LEE ROSS, § Plaintiff, § § CIVIL ACTION NO. 0:18-836-MGL § NORTH CAROLINA DEPARTMENT OF § REVENUE, § Defendant. § ORDER ADOPTING THE REPORT AND RECOMMENDATION, DISMISSING THE COMPLAINT WITHOUT PREJUDICE AND WITHOUT ISSUANCE AND SERVICE OF PROCESS, AND RENDERING AS MOOT PLAINTIFF’S MOTIONS This action involves a tax dispute between Plaintiff Jerry Lee Ross (Ross) and Defendant North Carolina Department of Revenue (NCDR). Ross claims the Court has federal question jurisdiction over the matter pursuant 28 U.S.C. § 1331. He is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting (1) Ross’s complaint be dismissed without prejudice and without issuance and service of process and (2) his motion in limine and motion for a preliminary injunction be rendered moot. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight.",
"The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Magistrate Judge filed the Report on September 13, 2018, and the Clerk of Court filed Ross’s objections on September 27, 2018. The Court has reviewed the objections, but holds them to be without merit. It will therefore enter judgment accordingly. Ross makes seven objections to the Report. First, he objects to the Magistrate Judge’s statement his “complaint fails to establish any viable ground for federal subject matter jurisdiction under 28 U.S.C. § 1331.” Report 5. Ross appears to contend his claim of a “[v]iolation of right to earn a fair wage” amounts to a colorable claim under the Court’s § 1331 jurisdiction. It does not. Therefore, the Court will overrule this objection. Second, Ross objects to the Magistrate Judge’s conclusion “[t]he allegations of [his] complaint do not reference a violation of any federal statute or constitutional provision by {NCDR], nor is any type of federal question jurisdiction otherwise evident from the face of the complaint.” Report 5.",
"According to Ross, however, “there are several federal question jurisdictions evident from the face of the complaint. . . . [including,] [v]iolation of right to earn a fair wage, paper terrorism (18 U.S. CODE CHAPTER 113B § 2332d–Financial transactions) and violation of due process.” Objections 2. As to Ross’s fair wage claim, as noted above, there is no viable federal cause of action for a “violation of right to earn a fair wage” here. Regarding his paper terrorism claim, that term generally refers to the harassment by sovereign citizens of courts and government agencies with numerous frivolous and sometime fraudulent filings. Gravatt v. United States, 100 Fed.",
"Cl. 279, 283 2 n.2 (2011). And, the statute Ross lists in reference to paper terrorism is inapplicable. See 18 U.S.C. § 2332d (“Except as provided in regulations issued by the Secretary of the Treasury, in consultation with the Secretary of State, whoever, being a United States person, knowing or having reasonable cause to know that a country is designated under section 6(j) of the Export Administration Act of 1979 . . . as a country supporting international terrorism, engages in a financial transaction with the government of that country, shall be fined under this title, imprisoned for not more than 10 years, or both.”). The mere listing of federal statutes and the constitution is insufficient to trigger the Court’s federal question jurisdiction.",
"Accordingly, “[a] claim invoking federal-question jurisdiction under 28 U.S.C. § 1331 . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Concerning Ross’s due process claim, “the Tax Injunction Act [TIA], 28 U.S.C. § 1341, precludes this [C]ourt from exercising jurisdiction over [his] [due process] claim[ ].” Report 6. For all these reasons, the Court will overrule this objection, too.",
"Third, Ross contends the Magistrate Judge erred by failing to conclude his claims of “Privacy breach and confidentiality” and “Invasion of Privacy” provide the basis for the Court’s federal question jurisdiction. But, these are state claims, not federal questions. Hence, the Court will overrule this objection as well. Fourth, Ross maintains the Magistrate Judge failed to mention any of his federal causes of action when she stated his “complaint references state law causes of action, including slander, negligence, fraud and other intentional tort claims.” Report 5. The Court has already addressed the 3 federal claims Ross listed at the beginning of Ross’s complaint and need not do so again here. Suffice it to say the Court will also overrule this objection. Fifth, Ross takes issue with the Magistrate Judge’s suggestion “the [TIA], 28 U.S.C. § 1341, preludes this [C]ourt from exercising jurisdiction over [his] claims.” Report 6. According to Ross, “[j]ust one day in court will determine if there was a violation of confidentiality and privacy breach, violation of right to earn a fair wage, violation of due process (which are civil rights violations) or other allegations mentioned has taken place.” Objections 5. To summarize, Ross’s claims of a violation of confidentiality and privacy breach are state law claims, his violation-of-right-to-earn-a-fair-wage claim is not viable, and his due process claim is foreclosed by the TIA.",
"Accordingly, the Court will overrule this objection, too. Sixth, Ross claims the Magistrate Judge erred in asserting his “complaint fails to demonstrate sufficient facts to satisfy the requirements of 28 U.S.C. 1332 for diversity jurisdiction, as he and [NCDR] are both North Carolina citizens.” According to Ross, “the complaint also points to the allegation of United States mail that was unlawfully opened to get a levy on [him] which was never owed. If it happened on U.S. soil than the courts have jurisdiction in this case. In the report and recommendation, the topic of unauthorized mail that was opened is not found anywhere.” But, “there is no private right of action under criminal statutes pertaining to mail tampering.” Whitney v. U.S.",
"Postal Serv., 101 F.3d 686 (2d Cir. 1996). Even if there were, however, it would not do anything to satisfy the requirement of section 1332 that the parties must be diverse. Therefore, the Court will also overrule this objection. 4 And seventh, Ross maintains “everything that the complaint is clearly focused on should have been mentioned[ ] ” in the Report Objections 7. Because, according to Ross, the Report failed to address all the substantive matters in his complaint, it is inaccurate. The Court has made a de novo review of the entire record in this case and has determined the Magistrate Judge’s Report is both comprehensive and well-reasoned. Ross’s claim to the contrary has no merit. Consequently, the Court will overrule this objection, too.",
"After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Ross’s objections, adopts the Report, and incorporates it herein. Therefore, it is the judgment of this Court Ross’s complaint is DISMISSED WITHOUT PREJUDICE and without issuance and service of process. Therefore, his motion in limine and motion for a preliminary injunction are RENDERED MOOT. IT IS SO ORDERED. Signed this 22nd day of October, 2018, in Columbia, South Carolina. s/ Mary Geiger Lewis MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to the Federal Rules of Appellate Procedure. 5"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/43522612/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments The Amendment filed 03MAR2022 has been entered. No new matter has been entered. Applicant's arguments filed 03MAR2022 have been fully considered but they are not persuasive. The Applicant continues to argue that the invention is not obvious, because the applicant discovered that a linear halbach array defines a substantially uniform magnetic field across the array surface. The Applicant compares various magnet arrays in their drawings and figures, for example, alternating magnets (NS, Fig. 6A #600), superhalbach (SH, Fig. 6A #610), linear halbach (LH, Fig. 6A #620), and hyperhalbach (HH, Fig. 6A #360). See also Fig. 8B and par. [0206]. The Examiner does not have a problem with the results. The issue is that the prior art teaches a linear halbach array (easier to see in BROYER Fig. 3). The only difference between Applicant’s invention and BROYER’s Fig. 3 is the rotation angle, which is also taught in another example (Fig. 5 shows a 90º rotation shown at another angle). Fig. 5 has a 2x4 linear halbach array of 90º rotation and Fig. 3 has a 2x6 linear halbach array of 45º rotation. In fact, BROYER has experimental data only for the embodiment of Fig. 5 (example 2). The uniformity of the magnetic field is a property of the halbach array, which would be inherent in BROYER’s halbach array. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 7-8,10-11,31 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by BROYER (US 7226537) evidenced by Integrated Magnetics “Halbach Arrays”. Regarding claim 7, BROYER teaches a method for the wet separation of magnetic microparticles (title, Figs) comprising: a) providing a container (Fig. 1 #4) comprising a plurality of targets (“biological entities of interest”; C1/L55); b) adding a plurality of magnetically susceptible particles (C1/L9) to the container such that at least some of the targets become linked to the magnetically susceptible particles (C1/L37-41); and c) positioning the container adjacent to a magnetic field of an array surface, the array surface defined by a two-dimensional magnet array having a plurality of magnets arranged adjacent to each other in rows and columns, the plurality of magnets defining an array surface (Figs. 1,5 #6; a 2x4 array in this embodiment); wherein d) respective magnetic fields of magnets of said plurality of magnets in a first row of the array are rotated ninety degrees relative to a preceding magnet to define a first order Halbach array (Fig. 5; C2/L56-58; C8/L21-23), e) proceeding in a column direction of the two-dimensional magnet array, respective magnetic fields of magnets of said plurality of magnets in each of a second and succeeding rows of the array are oriented in the same direction along the array surface relative to respective magnetic fields of magnets of said plurality of magnets in any immediately preceding row (see Fig. 3, which is illustrative of the 2x4 orientation of magnets; C3/L16-31), such that the plurality of magnets apply magnetic fields to the container to separate at least some of the plurality of magnetically linked targets from unlinked targets across the container (C2/L30-34), and, f) the plurality of magnets are arranged (i.e. in a stacked linear halbach array) such that the respective magnetic fields of magnets of said plurality of magnets collectively define a substantially uniform magnetic field across the array surface (which is the result of a linear halbach array evidence by Integrated Magnetics) whereby the plurality of magnets apply the substantially uniform magnetic field to the container to separate consistently at least some of the plurality of magnetically linked targets from unlinked targets at different positions of the first array surface (the result of a linear halbach array evidence by Integrated Magnetics; see “Linear (Planar) Halbach Array” producing a uniform magnetic field). BROYER’s halbach array has the same structure and function. This includes the property of a uniform magnetic field. Since the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (See MPEP 2112.01). Regarding claim 31, BROYER teaches a method for the wet separation of magnetic microparticles (title, Figs) including a method for magnetically separating a plurality of targets from a suspension in a container unit (abstract; “biological entities of interest”; C1/L55; Fig. 1 #4), the method comprises: a) linking the plurality of targets with magnetic particles to provide a plurality of magnetically linked particles in the suspension (C1/L37-41); b) positioning the container unit in proximity to a two-dimensional magnet array (Fig. 1), the two-dimensional magnet array defining an array surface comprising a plurality of magnetic elements arranged to define a plurality of one-dimensional Halbach arrays adjacent to one another that each extend in a first dimension (Figs. 1,5 #6; a 2x4 array in this embodiment, where the halbach array extends in the “X” direction illustrated in Fig. 3), wherein the magnetic elements of each one-dimensional Halbach array are rotated ninety degrees relative to a preceding magnetic element within each one-dimensional Halbach array (Fig. 5; C2/L56-58; C8/L21-23), wherein the magnetic fields defined by the plurality of one-dimensional Halbach arrays are parallel (see Fig. 3, which is illustrative of the 2x4 orientation of magnets; C3/L16-31), and wherein the plurality of magnetic elements are arranged such that the respective magnetic fields of magnets of said plurality of magnetic elements collectively define a substantially uniform magnetic field across the array surface (the result of a linear halbach array evidence by Integrated Magnetics; see “Linear (Planar) Halbach Array” producing a uniform magnetic field); and c) removing a portion of the suspension from the container unit while the container unit is positioned in proximity to the array surface (C7/L57-58). BROYER’s halbach array has the same structure and function. This includes the property of a uniform magnetic field. Since the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (See MPEP 2112.01). Regarding claim 8, BROYER teaches the container comprises providing e.g. a tube (see Fig. 2 #1). Regarding claim 10, BROYER teaches the plurality of magnets comprises supporting the arranged plurality of magnets within a housing (see annotated Fig. 1). Regarding claim 11, BROYER teaches the plurality of magnets comprises arranging a plurality of permanent magnets (Fig. 5; see also C1/L17-19). Annotated Fig. 1
PNG media_image1.png 606 301 media_image1.png Greyscale
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention. Claims 8-9,36 are rejected under 35 U.S.C. 103 as being unpatentable over BROYER (US 7226537) in view of YU (US 5779907). Regarding claims 8-9,36, BROYER does not teach a microplate. However, YU teaches a magnetic microplate separator (title, Figs.). Such known multi-sample microplates (e.g. Fig. 1 disclosing a 96-well plate; C2/L26-27) are standard practice for efficiently providing consistent experimental results of large samples (C1/L25-45). Therefore, at the time the invention was filed, it would have been obvious to one of ordinary skill in the art to modify the method of BROYER to accommodate a multi-well microplate as taught by YU in order to efficiently provide consistent experimental results of large samples. The references are combinable, because they are in the same technological environment of magnetic separations. See MPEP 2141 III (A) and (G). Telephonic Inquiries Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIAM A ROYCE whose telephone number is (571)270-0352. The examiner can normally be reached M-F 8-4:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, VICKIE KIM can be reached on (571)272-0579. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
LIAM A. ROYCE Primary Examiner Art Unit 1777
/Liam Royce/Examiner, Art Unit 1777 | 2022-05-21T20:32:11 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments The Amendment filed 03MAR2022 has been entered. No new matter has been entered. Applicant's arguments filed 03MAR2022 have been fully considered but they are not persuasive. The Applicant continues to argue that the invention is not obvious, because the applicant discovered that a linear halbach array defines a substantially uniform magnetic field across the array surface. The Applicant compares various magnet arrays in their drawings and figures, for example, alternating magnets (NS, Fig. 6A #600), superhalbach (SH, Fig. 6A #610), linear halbach (LH, Fig. 6A #620), and hyperhalbach (HH, Fig.",
"6A #360). See also Fig. 8B and par. [0206]. The Examiner does not have a problem with the results. The issue is that the prior art teaches a linear halbach array (easier to see in BROYER Fig. 3). The only difference between Applicant’s invention and BROYER’s Fig. 3 is the rotation angle, which is also taught in another example (Fig. 5 shows a 90º rotation shown at another angle). Fig. 5 has a 2x4 linear halbach array of 90º rotation and Fig. 3 has a 2x6 linear halbach array of 45º rotation. In fact, BROYER has experimental data only for the embodiment of Fig. 5 (example 2). The uniformity of the magnetic field is a property of the halbach array, which would be inherent in BROYER’s halbach array. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.",
"Claim(s) 7-8,10-11,31 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by BROYER (US 7226537) evidenced by Integrated Magnetics “Halbach Arrays”. Regarding claim 7, BROYER teaches a method for the wet separation of magnetic microparticles (title, Figs) comprising: a) providing a container (Fig. 1 #4) comprising a plurality of targets (“biological entities of interest”; C1/L55); b) adding a plurality of magnetically susceptible particles (C1/L9) to the container such that at least some of the targets become linked to the magnetically susceptible particles (C1/L37-41); and c) positioning the container adjacent to a magnetic field of an array surface, the array surface defined by a two-dimensional magnet array having a plurality of magnets arranged adjacent to each other in rows and columns, the plurality of magnets defining an array surface (Figs. 1,5 #6; a 2x4 array in this embodiment); wherein d) respective magnetic fields of magnets of said plurality of magnets in a first row of the array are rotated ninety degrees relative to a preceding magnet to define a first order Halbach array (Fig. 5; C2/L56-58; C8/L21-23), e) proceeding in a column direction of the two-dimensional magnet array, respective magnetic fields of magnets of said plurality of magnets in each of a second and succeeding rows of the array are oriented in the same direction along the array surface relative to respective magnetic fields of magnets of said plurality of magnets in any immediately preceding row (see Fig. 3, which is illustrative of the 2x4 orientation of magnets; C3/L16-31), such that the plurality of magnets apply magnetic fields to the container to separate at least some of the plurality of magnetically linked targets from unlinked targets across the container (C2/L30-34), and, f) the plurality of magnets are arranged (i.e.",
"in a stacked linear halbach array) such that the respective magnetic fields of magnets of said plurality of magnets collectively define a substantially uniform magnetic field across the array surface (which is the result of a linear halbach array evidence by Integrated Magnetics) whereby the plurality of magnets apply the substantially uniform magnetic field to the container to separate consistently at least some of the plurality of magnetically linked targets from unlinked targets at different positions of the first array surface (the result of a linear halbach array evidence by Integrated Magnetics; see “Linear (Planar) Halbach Array” producing a uniform magnetic field). BROYER’s halbach array has the same structure and function. This includes the property of a uniform magnetic field.",
"Since the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (See MPEP 2112.01). Regarding claim 31, BROYER teaches a method for the wet separation of magnetic microparticles (title, Figs) including a method for magnetically separating a plurality of targets from a suspension in a container unit (abstract; “biological entities of interest”; C1/L55; Fig. 1 #4), the method comprises: a) linking the plurality of targets with magnetic particles to provide a plurality of magnetically linked particles in the suspension (C1/L37-41); b) positioning the container unit in proximity to a two-dimensional magnet array (Fig. 1), the two-dimensional magnet array defining an array surface comprising a plurality of magnetic elements arranged to define a plurality of one-dimensional Halbach arrays adjacent to one another that each extend in a first dimension (Figs.",
"1,5 #6; a 2x4 array in this embodiment, where the halbach array extends in the “X” direction illustrated in Fig. 3), wherein the magnetic elements of each one-dimensional Halbach array are rotated ninety degrees relative to a preceding magnetic element within each one-dimensional Halbach array (Fig. 5; C2/L56-58; C8/L21-23), wherein the magnetic fields defined by the plurality of one-dimensional Halbach arrays are parallel (see Fig. 3, which is illustrative of the 2x4 orientation of magnets; C3/L16-31), and wherein the plurality of magnetic elements are arranged such that the respective magnetic fields of magnets of said plurality of magnetic elements collectively define a substantially uniform magnetic field across the array surface (the result of a linear halbach array evidence by Integrated Magnetics; see “Linear (Planar) Halbach Array” producing a uniform magnetic field); and c) removing a portion of the suspension from the container unit while the container unit is positioned in proximity to the array surface (C7/L57-58).",
"BROYER’s halbach array has the same structure and function. This includes the property of a uniform magnetic field. Since the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (See MPEP 2112.01). Regarding claim 8, BROYER teaches the container comprises providing e.g. a tube (see Fig. 2 #1). Regarding claim 10, BROYER teaches the plurality of magnets comprises supporting the arranged plurality of magnets within a housing (see annotated Fig. 1). Regarding claim 11, BROYER teaches the plurality of magnets comprises arranging a plurality of permanent magnets (Fig.",
"5; see also C1/L17-19). Annotated Fig. 1 PNG media_image1.png 606 301 media_image1.png Greyscale Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.",
"The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C.",
"102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention. Claims 8-9,36 are rejected under 35 U.S.C. 103 as being unpatentable over BROYER (US 7226537) in view of YU (US 5779907). Regarding claims 8-9,36, BROYER does not teach a microplate. However, YU teaches a magnetic microplate separator (title, Figs.). Such known multi-sample microplates (e.g. Fig. 1 disclosing a 96-well plate; C2/L26-27) are standard practice for efficiently providing consistent experimental results of large samples (C1/L25-45). Therefore, at the time the invention was filed, it would have been obvious to one of ordinary skill in the art to modify the method of BROYER to accommodate a multi-well microplate as taught by YU in order to efficiently provide consistent experimental results of large samples. The references are combinable, because they are in the same technological environment of magnetic separations. See MPEP 2141 III (A) and (G).",
"Telephonic Inquiries Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIAM A ROYCE whose telephone number is (571)270-0352.",
"The examiner can normally be reached M-F 8-4:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, VICKIE KIM can be reached on (571)272-0579. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format.",
"For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. LIAM A. ROYCE Primary Examiner Art Unit 1777 /Liam Royce/Examiner, Art Unit 1777"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-05-29.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
No opinion. Order filed. | 10-17-2022 | [
"No opinion. Order filed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8281778/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
401 B.R. 218 (2008) In re Edward Lee HOWLETTE, Debtor. Edward Lee Howlette, Plaintiff v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Defendant. Bankruptcy No. 03-60757-JS. Adversary No. 07-00954-JS. United States Bankruptcy Court, D. Maryland. December 11, 2008. *219 Matthew Scott Johnston, Gordon & Simmons, LLC, Frederick, MD, Ronald M. Levin, Washington, DC, for Plaintiff. Patricia A. Borenstein, Miles & Stockbridge P.C., Baltimore, MD, for Defendant. Mark A. Neal, Asst. U.S. Trustee, Baltimore, MD, for U.S. Trustee.
AMENDED MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR ORDER STAYING FUTURE FILING ABSENT PAYMENT OF FEES AND COSTS JAMES F. SCHNEIDER, Bankruptcy Judge. This matter came before the Court upon the defendant's motion for an order staying future filing absent payment of fees and costs. For the reasons stated, the motion will be denied.
ALLEGATIONS OF PLAINTIFFS 1. The debtor, Edward Howlette (the "debtor" or "Howlette"), is the sole owner of NexGen Solutions, Inc., and NexGen Commerce, Inc. ("the Nexgen Companies"), both of which are in the business of designing software. They were incorporated in Delaware but have principal *220 places of business in Maryland. The Nexgen Companies are not in bankruptcy. 2. Howlette and the Nexgen Companies received financing from Meridian Management Group ("MMG"), a private entity that operates the Maryland Small Business Development Financing Agency ("MSBDFA"). 3. The purpose of the financing was to fund a contract allegedly worth $84 million that the debtor and the Nexgen Companies entered into in October 2000 with the U.S. government to develop software for the United States Small Business Administration ("SBA"). 4. After the 2000 presidential election, a newly-appointed SBA administrator awarded the contract to a different software company, eScout. The instant complaint alleged that eScout improperly influenced the SBA and MMG to rescind its contract with the Nexgen Companies. 5. The debtor engaged the law firm of O'Rourke and Cundra to file bankruptcy on his behalf and to file suit on behalf of himself and the Nexgen Companies against MMG, eScout and several other entities. A fee agreement provided that Howlette would not be liable to the law firm for more than $25,000 in fees for the bankruptcy filing and that the Nexgen Companies would not pay the firm more than $25,000 for the lender liability claims. 6. O'Rourke and Cundra merged into Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. ("Hall Estill"), which assumed the predecessor law firm's contract with Howlette and the Nexgen Companies. 7. In 2004, the Nexgen Companies' corporate counsel provided Hall Estill with two draft complaints. The plaintiffs alleged that Hall Estill performed little or no work on the case until September 2005, when the firm demanded $5,000 to file the complaint. The debtor made the payment under protest. 8. The plaintiffs allege that in October 2005, Hall Estill demanded that the debtor enter into a new retainer agreement to include the firm's representation of the Nexgen Companies, despite the fact that the law firm represented the companies pursuant to the original retainer agreement. 9. The plaintiffs allege that on December 14, 2005, Hall Estill drafted a defective four-page complaint against MMG and others. According to the plaintiffs, the complaint failed to join all of the defendants against which the debtor desired to bring suit. The complaint was not filed. 10. On December 23, 2005, MMG filed suit against the Nexgen Companies in the Circuit Court for Baltimore City. Hall Estill did not file an answer, but instead attempted to have the litigation removed to the bankruptcy court some 16 days after an answer was due. 11. Hall Estill asserted that it filed a 61-page counterclaim and a 71-page opposition to a motion to dismiss the counterclaim. 12. At some point in 2006, the Hall Estill attorney assigned to the case died. The plaintiffs allege that Hall Estill did not inform the debtor of the attorney's death, but merely reassigned the case to a different attorney. 13. Hall Estill billed the debtor and the companies for more than $60,000 in fees for work performed since May 2006, and demanded that the debtor refinance his home as a condition precedent to the firm's continued representation of him and the Nexgen Companies. The debtor refinanced his home and assigned to Hall Estill $50,000 of the equity. 14. In January 2007, Ronald Levin, the debtor's bankruptcy counsel, left Hall Estill *221 and joined Semmes, Bowen and Semmes. However, due to a conflict, the MMG litigation remained with Hall Estill. Mr. Levin continued to serve as the debtor's bankruptcy counsel. 15. In March 2007, the last Hall Estill attorney who was admitted to practice in Maryland left the firm. Several other attorneys who were familiar with the case also left Hall Estill. 16. On March 8, 2007, Hall Estill filed a motion to withdraw from the lenderliability litigation and gave the debtor less than 24 hours' notice of the withdrawal. The plaintiffs alleged that Hall Estill led the debtor to believe that it would obtain new counsel to represent him, but instead only retained new counsel to represent itself in its withdrawal motion. The motion was granted over the debtor's objection, which left the Nexgen Companies without counsel.
PROCEDURAL HISTORY 17. On December 5, 2007, the debtor and the Nexgen Companies filed the instant complaint against Hall Estill in which they asserted claims for breach of contract, unjust enrichment, negligence and legal malpractice. The complaint alleged malpractice in the failure to sue eScout and the State of Maryland, which resulted in the loss of those claims due to limitations. 18. On January 7, 2008, Hall Estill filed a motion to dismiss [P. 6] the instant complaint. 19. A hearing on the motion was held on March 6, 2008, at which time this Court took the matter under advisement. 20. On March 18, 2008, in the bankruptcy case, the debtor filed an application to compromise the controversy with MMG [P. 275]. According to the terms of the proposed settlement, MMG agreed to pay the debtor $90,000, and $90,000 to each of the two Nexgen Companies. 21. On April 7, 2008, Hall Estill filed an objection to the settlement [P. 278]. On April 8, 2008, Industrial Bank, N.A. also filed an objection [P. 279]. 22. This Court scheduled a hearing on the settlement and the objections for May 7, 2008. 23. On April 8, 2008, while Hall Estill's motion to dismiss the complaint was under advisement, the debtor filed a notice of voluntary dismissal [P. 21] of its complaint against Hall Estill. Hall Estill alleges that the debtor moved to dismiss the complaint in order to deprive Hall Estill of standing to object to the settlement.[1] 24. On April 16, 2008, Hall Estill filed the instant motion [P. 22], which seeks an order of court pursuant to Federal Rule of Civil Procedure 41 to provide that if the debtor should reinstate this complaint, he will be required to prepay to the defendant all of the duplicative costs that will have resulted from the complaint's dismissal and reinstatement, totaling some $46,021.23.
CONCLUSIONS OF LAW 1. Federal Rule of Civil Procedure 41, made applicable to the instant bankruptcy proceeding by Federal Bankruptcy Rule 7041,[2] governs this decision. *222 2. The Court agrees with the debtor's assertion that the motion filed by Hall Estill is not ripe and that this Court is without jurisdiction to prospectively impose costs on the debtor, and that the defendant must wait to file such a motion until such time as the plaintiffs reinstate the complaint. 3. The Court reads and interprets the Federal Rules of Civil Procedure according to their plain meaning. Pavelic & LeFlore v. Marvel Entm't Group, 493 U.S. 120, 123, 110 S. Ct. 456, 458, 107 L. Ed. 2d 438 (1989). 4. The plain meaning of the rule is that a dismissal under Federal Rule 41(a)(l)(A)(i) "is self-executing, i.e., it is effective at the moment the notice is filed with the clerk and no judicial approval is required." Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir.1993); see also Comm. Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1078 (9th Cir.1999) ("[I]t is beyond debate that a dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, and the district court lacks jurisdiction to do anything about it").[3] 5. Therefore, pursuant to Federal Rule 41(d), costs cannot be imposed until the filing of a second complaint, if any. See Bran v. Sun Pac. Farming Coop., No. CV F 06-0871-LJO-TAG, 2007 WL 781865 (E.D.Cal. March 13, 2007) ("The `two dismissal' rule adjudication ... is not yet ripe" because a third complaint had not yet been filed.). *223 WHEREFORE, the motion of Hall Estill must be denied. ORDER ACCORDINGLY. NOTES [1] After the hearing on May 7, 2008, Hall Estill withdrew its objection to the settlement. Industrial Bank withdrew its objection only as to the amount of the settlement, but maintained its objection as to the distribution of the settlement proceeds. This Court overruled the objection and approved the settlement by order dated May 15, 2008 [P.291]. [2] Federal Rule 41(a) and (d) provides as follows:
(a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. * * * * * * (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. Fed.R.Civ.P. 41(a) and (d) (2007). [3] The Fifth Circuit explained the consequences of such a dismissal: "Rule 41(a)(1) is the shortest and surest route to abort a complaint when it is applicable. So long as plaintiff has not been served with his adversary's answer or motion for summary judgment he need do no more than file a notice of dismissal with the Clerk. That document itself closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a perfunctory order of the court closing the file. Its alpha and omega was the doing of the plaintiff alone." Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963). | 10-30-2013 | [
"401 B.R. 218 (2008) In re Edward Lee HOWLETTE, Debtor. Edward Lee Howlette, Plaintiff v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Defendant. Bankruptcy No. 03-60757-JS. Adversary No. 07-00954-JS. United States Bankruptcy Court, D. Maryland. December 11, 2008. *219 Matthew Scott Johnston, Gordon & Simmons, LLC, Frederick, MD, Ronald M. Levin, Washington, DC, for Plaintiff. Patricia A. Borenstein, Miles & Stockbridge P.C., Baltimore, MD, for Defendant. Mark A. Neal, Asst. U.S.",
"Trustee, Baltimore, MD, for U.S. Trustee. AMENDED MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR ORDER STAYING FUTURE FILING ABSENT PAYMENT OF FEES AND COSTS JAMES F. SCHNEIDER, Bankruptcy Judge. This matter came before the Court upon the defendant's motion for an order staying future filing absent payment of fees and costs. For the reasons stated, the motion will be denied. ALLEGATIONS OF PLAINTIFFS 1. The debtor, Edward Howlette (the \"debtor\" or \"Howlette\"), is the sole owner of NexGen Solutions, Inc., and NexGen Commerce, Inc. (\"the Nexgen Companies\"), both of which are in the business of designing software. They were incorporated in Delaware but have principal *220 places of business in Maryland. The Nexgen Companies are not in bankruptcy.",
"2. Howlette and the Nexgen Companies received financing from Meridian Management Group (\"MMG\"), a private entity that operates the Maryland Small Business Development Financing Agency (\"MSBDFA\"). 3. The purpose of the financing was to fund a contract allegedly worth $84 million that the debtor and the Nexgen Companies entered into in October 2000 with the U.S. government to develop software for the United States Small Business Administration (\"SBA\"). 4. After the 2000 presidential election, a newly-appointed SBA administrator awarded the contract to a different software company, eScout. The instant complaint alleged that eScout improperly influenced the SBA and MMG to rescind its contract with the Nexgen Companies. 5. The debtor engaged the law firm of O'Rourke and Cundra to file bankruptcy on his behalf and to file suit on behalf of himself and the Nexgen Companies against MMG, eScout and several other entities. A fee agreement provided that Howlette would not be liable to the law firm for more than $25,000 in fees for the bankruptcy filing and that the Nexgen Companies would not pay the firm more than $25,000 for the lender liability claims.",
"6. O'Rourke and Cundra merged into Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. (\"Hall Estill\"), which assumed the predecessor law firm's contract with Howlette and the Nexgen Companies. 7. In 2004, the Nexgen Companies' corporate counsel provided Hall Estill with two draft complaints. The plaintiffs alleged that Hall Estill performed little or no work on the case until September 2005, when the firm demanded $5,000 to file the complaint. The debtor made the payment under protest. 8. The plaintiffs allege that in October 2005, Hall Estill demanded that the debtor enter into a new retainer agreement to include the firm's representation of the Nexgen Companies, despite the fact that the law firm represented the companies pursuant to the original retainer agreement. 9. The plaintiffs allege that on December 14, 2005, Hall Estill drafted a defective four-page complaint against MMG and others.",
"According to the plaintiffs, the complaint failed to join all of the defendants against which the debtor desired to bring suit. The complaint was not filed. 10. On December 23, 2005, MMG filed suit against the Nexgen Companies in the Circuit Court for Baltimore City. Hall Estill did not file an answer, but instead attempted to have the litigation removed to the bankruptcy court some 16 days after an answer was due. 11. Hall Estill asserted that it filed a 61-page counterclaim and a 71-page opposition to a motion to dismiss the counterclaim. 12. At some point in 2006, the Hall Estill attorney assigned to the case died. The plaintiffs allege that Hall Estill did not inform the debtor of the attorney's death, but merely reassigned the case to a different attorney. 13.",
"Hall Estill billed the debtor and the companies for more than $60,000 in fees for work performed since May 2006, and demanded that the debtor refinance his home as a condition precedent to the firm's continued representation of him and the Nexgen Companies. The debtor refinanced his home and assigned to Hall Estill $50,000 of the equity. 14. In January 2007, Ronald Levin, the debtor's bankruptcy counsel, left Hall Estill *221 and joined Semmes, Bowen and Semmes. However, due to a conflict, the MMG litigation remained with Hall Estill.",
"Mr. Levin continued to serve as the debtor's bankruptcy counsel. 15. In March 2007, the last Hall Estill attorney who was admitted to practice in Maryland left the firm. Several other attorneys who were familiar with the case also left Hall Estill. 16. On March 8, 2007, Hall Estill filed a motion to withdraw from the lenderliability litigation and gave the debtor less than 24 hours' notice of the withdrawal. The plaintiffs alleged that Hall Estill led the debtor to believe that it would obtain new counsel to represent him, but instead only retained new counsel to represent itself in its withdrawal motion. The motion was granted over the debtor's objection, which left the Nexgen Companies without counsel. PROCEDURAL HISTORY 17. On December 5, 2007, the debtor and the Nexgen Companies filed the instant complaint against Hall Estill in which they asserted claims for breach of contract, unjust enrichment, negligence and legal malpractice. The complaint alleged malpractice in the failure to sue eScout and the State of Maryland, which resulted in the loss of those claims due to limitations.",
"18. On January 7, 2008, Hall Estill filed a motion to dismiss [P. 6] the instant complaint. 19. A hearing on the motion was held on March 6, 2008, at which time this Court took the matter under advisement. 20. On March 18, 2008, in the bankruptcy case, the debtor filed an application to compromise the controversy with MMG [P. 275]. According to the terms of the proposed settlement, MMG agreed to pay the debtor $90,000, and $90,000 to each of the two Nexgen Companies. 21. On April 7, 2008, Hall Estill filed an objection to the settlement [P. 278]. On April 8, 2008, Industrial Bank, N.A. also filed an objection [P. 279]. 22. This Court scheduled a hearing on the settlement and the objections for May 7, 2008. 23. On April 8, 2008, while Hall Estill's motion to dismiss the complaint was under advisement, the debtor filed a notice of voluntary dismissal [P. 21] of its complaint against Hall Estill. Hall Estill alleges that the debtor moved to dismiss the complaint in order to deprive Hall Estill of standing to object to the settlement.",
"[1] 24. On April 16, 2008, Hall Estill filed the instant motion [P. 22], which seeks an order of court pursuant to Federal Rule of Civil Procedure 41 to provide that if the debtor should reinstate this complaint, he will be required to prepay to the defendant all of the duplicative costs that will have resulted from the complaint's dismissal and reinstatement, totaling some $46,021.23. CONCLUSIONS OF LAW 1. Federal Rule of Civil Procedure 41, made applicable to the instant bankruptcy proceeding by Federal Bankruptcy Rule 7041,[2] governs this decision. *222 2. The Court agrees with the debtor's assertion that the motion filed by Hall Estill is not ripe and that this Court is without jurisdiction to prospectively impose costs on the debtor, and that the defendant must wait to file such a motion until such time as the plaintiffs reinstate the complaint. 3.",
"The Court reads and interprets the Federal Rules of Civil Procedure according to their plain meaning. Pavelic & LeFlore v. Marvel Entm't Group, 493 U.S. 120, 123, 110 S. Ct. 456, 458, 107 L. Ed. 2d 438 (1989). 4. The plain meaning of the rule is that a dismissal under Federal Rule 41(a)(l)(A)(i) \"is self-executing, i.e., it is effective at the moment the notice is filed with the clerk and no judicial approval is required.\" Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir.1993); see also Comm. Space Mgmt.",
"Co. v. Boeing Co., 193 F.3d 1074, 1078 (9th Cir.1999) (\"[I]t is beyond debate that a dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, and the district court lacks jurisdiction to do anything about it\"). [3] 5. Therefore, pursuant to Federal Rule 41(d), costs cannot be imposed until the filing of a second complaint, if any. See Bran v. Sun Pac. Farming Coop., No. CV F 06-0871-LJO-TAG, 2007 WL 781865 (E.D.Cal. March 13, 2007) (\"The `two dismissal' rule adjudication ... is not yet ripe\" because a third complaint had not yet been filed.). *223 WHEREFORE, the motion of Hall Estill must be denied. ORDER ACCORDINGLY. NOTES [1] After the hearing on May 7, 2008, Hall Estill withdrew its objection to the settlement. Industrial Bank withdrew its objection only as to the amount of the settlement, but maintained its objection as to the distribution of the settlement proceeds. This Court overruled the objection and approved the settlement by order dated May 15, 2008 [P.291].",
"[2] Federal Rule 41(a) and (d) provides as follows: (a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice.",
"But if the plaintiff previously dismissed any federal or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. * * * * * * (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. Fed.R.Civ.P.",
"41(a) and (d) (2007). [3] The Fifth Circuit explained the consequences of such a dismissal: \"Rule 41(a)(1) is the shortest and surest route to abort a complaint when it is applicable. So long as plaintiff has not been served with his adversary's answer or motion for summary judgment he need do no more than file a notice of dismissal with the Clerk. That document itself closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a perfunctory order of the court closing the file. Its alpha and omega was the doing of the plaintiff alone.\"",
"Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1904435/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Applicant(s) Response to Official Action 1. The response filed 07/13/2022 has been entered and made off record.
Information Disclosure Statement 2. The information disclosure statement (IDS) submitted on 03/22/2021,07/13/2022 is in accordance with provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Arguments 3. Presented arguments have been fully considered, but are rendered moot in view of the new ground(s) of rejection necessitated by amendment(s) initiated by the applicant(s). Examiner's response to the presented arguments follows below.
Summary of Arguments: Kilroy ‘410 does not disclose or suggest that the hyperdexterous surgical tools 300, for example ‘410 fails to disclose or suggest that the electronic computer system 400 is able to determine an attribute of the surgical tool 300 from images captured by the scope that visualizes the surgical tool 300. Kilroy ‘410 does not disclose or suggest that the surgical tool 300 is controlled by the electronic control system 400 according to the procedural context data, which is based on (at least) the perioperative data received from the surgical tool 300 and the attribute of the surgical tool 300 determined from the images.
Examiners Response: Kilroy 410 discloses that the the hyperdexterous surgical system can include a control system. The hyperdexterous surgical arm can be controlled by an input device. The hyperdexterous surgical tool can be controlled by an input device. The position and orientation of the input device can be tracked. The input device can be wireless or wired. The hyperdexterous surgical system can include one or more input devices (e.g., two, three, four, five, six input devices, etc.)[0040].
Kilroy discloses a surgical tool 300 is controlled by the electronic control system 400 according to the procedural context data, which is based on (at least) the perioperative data received from the surgical tool 300 and the attribute of the surgical tool 300 determined from the images [The camera 304 can be controlled by the control system 400. The camera 304 can be considered a hyperdexterous surgical tool 300 and moved by a hyperdexterous robotic arm 200 |0131].
Claim Rejections - 35 USC § 102 4. The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
5. Claim(s) 1-21 is/are rejected under pre-AIA 35 U.S.C. 102( a2) as being anticipated by Kilroy et al., [US Pub. No.: 2015/0157410 A1]. Re. Claim 1, Kilroy discloses: A computer-implemented method for contextually controlling a surgical device [electronic control system configured to communicate electronically with the one or more robotic surgical tools |Abstract], the method comprising: receiving, by a computer system, perioperative data from the surgical device, the perioperative data associated with a surgical procedure [The information presented by the visualization system may be live data from the cameras, data from pre-operative MRI, CT, ultrasound or other imaging modality, and models of organs and other parts of the human body |0049]; receiving, by the computer system, images from a scope, the images visualizing the surgical device during the surgical procedure [The hyperdexterous surgical system can include a visualization system that aggregates information from one or more sources and provides one or more images to the surgeon |0048]; determining, by the computer system, an attribute of the surgical device from the images [The control system 400 can include a computer 402 |0124]; determining, by the computer system, procedural context data based at least on the perioperative data and the attribute of the surgical device [The control system 400 may determine the direction of the motion relative to the operator's wrist and present the image of the movement in the same direction. For example, in FIG. 42A, the operator 1 moves his left hand along arrow A |0303]; and controlling, by the computer system, the surgical device according to the procedural context data [The control system 400 may categorize the data into various classes such as, but not limited to, real time data (from the cameras 304), model data, pre-op data, stale data (specifically data from camera 304 that was taken prior to the current moment in time).|0335].
Re. Claim 2, Kilroy discloses: wherein the attribute comprises a type, an orientation, a position, a velocity, or an acceleration of the surgical device [the hyperdexterous surgical system can provide visual cues to the surgeon that help the surgeon understand the orientation and position of the hyperdexterous surgical tools relative to the surgeon, allowing the surgeon to understand how the hyperdexterous surgical tools will move when actuated by the surgeon |0030].
Re. Claim 3, Kilroy discloses: wherein controlling the surgical device comprises changing, by the computer system, a state of the surgical device [The hyperdexterous surgical system enables the control of the hyperdexterous surgical tools to be adjusted based upon the preferences of the operator. |0030].
Re. Claim 4, Kilroy discloses: wherein controlling the surgical device comprises changing, by the computer system, a function of an input of the surgical device [The hyperdexterous surgical system enables the information presented to the operator to be adjusted based upon the preferences of the operator.|0030].
Re. Claim 5, Kilroy discloses: wherein controlling the surgical device comprises changing, by the computer system, information displayed by the surgical device [The nature of the hyperdexterous surgical system is illustrated, among other ways, by providing the surgeon with a variety of information (e.g., via displays) that allow the surgeon to readily understand the positioning of the hyperdexterous surgical tools relative to the patient so as to naturally understand how the tools will move when actuated |0105].
Re. Claim 6, Kilroy discloses: comprising providing, by the computer system, a recommendation according to the procedural context data [The control system can send information to the input devices 500, such as instructions to produce tactile feedback for the operator 1. |0254].
Re. Claim 7, Kilroy discloses: determining, by the computer system, whether the recommendation is of a first type or a second type [The system includes a first grasper 312, a second grasper 314, a camera 304, and a stapler 354. The system includes two input devices 500, a first controller 516 and a second controller 518.|0242&0342]; and displaying, by the computer system, the recommendation in a first manner according to whether the recommendation is of the first type or in a second manner according to whether the recommendation is of the second type [The control system of the hyperdexterous surgical system can convert the movement of the input device into movements of the controlled objects dependent on the zoom factor of images displayed on one or more displays.|0042].
Re. Claim 8, This claim is interpreted and rejected for the same reason set forth in claim 1.
Re. Claim 9, This claim is interpreted and rejected for the same reason set forth in claim 2.
Re. Claim 10, This claim is interpreted and rejected for the same reason set forth in claim 3.
Re. Claim 11, This claim is interpreted and rejected for the same reason set forth in claim 4.
Re. Claim 12, This claim is interpreted and rejected for the same reason set forth in claim 5.
Re. Claim 13, This claim is interpreted and rejected for the same reason set forth in claim 6.
Re. Claim 14, This claim is interpreted and rejected for the same reason set forth in claim 7.
Re. Claim 15, This claim is interpreted and rejected for the same reason set forth in claim 8. Re. Claim 16, Kilroy discloses: wherein the attribute comprises a particulate concentration or sizes of particulates of the surgical site [The hyperdexterous surgical system 100 enables the angling (e.g., tilting from horizontal) of the hyperdexterous surgical arm 200 so that it follows the orientation of the patient 2 (e.g., the hyperdexterous surgical arm 200 is mounted to follow the orientation of the patient 2). The support arm 106, the elevator 120, the carriage 130 and the slide (not shown) can facilitate the tilting of the hyperdexterous surgical arm 200. |0148].
Re. Claim 17, This claim is interpreted and rejected for the same reason set forth in claim 10.
Re. Claim 18, This claim is interpreted and rejected for the same reason set forth in claim 11.
Re. Claim 19, This claim is interpreted and rejected for the same reason set forth in claim 12.
Re. Claim 20, This claim is interpreted and rejected for the same reason set forth in claim 13.
Re. Claim 21, This claim is interpreted and rejected for the same reason set forth in claim 7. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOWARD D BROWN JR whose telephone number is (571)272-4371. The examiner can normally be reached Monday - Friday 7:30AM - 5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sathyanarayanan Perungavoor can be reached on 5712727455. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
HOWARD D. BROWN JR Primary Examiner Art Unit 2488
/HOWARD D BROWN JR/Examiner, Art Unit 2488 | 2022-08-02T22:13:09 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Applicant(s) Response to Official Action 1. The response filed 07/13/2022 has been entered and made off record. Information Disclosure Statement 2. The information disclosure statement (IDS) submitted on 03/22/2021,07/13/2022 is in accordance with provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Response to Arguments 3. Presented arguments have been fully considered, but are rendered moot in view of the new ground(s) of rejection necessitated by amendment(s) initiated by the applicant(s). Examiner's response to the presented arguments follows below. Summary of Arguments: Kilroy ‘410 does not disclose or suggest that the hyperdexterous surgical tools 300, for example ‘410 fails to disclose or suggest that the electronic computer system 400 is able to determine an attribute of the surgical tool 300 from images captured by the scope that visualizes the surgical tool 300.",
"Kilroy ‘410 does not disclose or suggest that the surgical tool 300 is controlled by the electronic control system 400 according to the procedural context data, which is based on (at least) the perioperative data received from the surgical tool 300 and the attribute of the surgical tool 300 determined from the images. Examiners Response: Kilroy 410 discloses that the the hyperdexterous surgical system can include a control system. The hyperdexterous surgical arm can be controlled by an input device.",
"The hyperdexterous surgical tool can be controlled by an input device. The position and orientation of the input device can be tracked. The input device can be wireless or wired. The hyperdexterous surgical system can include one or more input devices (e.g., two, three, four, five, six input devices, etc.)[0040]. Kilroy discloses a surgical tool 300 is controlled by the electronic control system 400 according to the procedural context data, which is based on (at least) the perioperative data received from the surgical tool 300 and the attribute of the surgical tool 300 determined from the images [The camera 304 can be controlled by the control system 400. The camera 304 can be considered a hyperdexterous surgical tool 300 and moved by a hyperdexterous robotic arm 200 |0131]. Claim Rejections - 35 USC § 102 4.",
"The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent. 5.",
"Claim(s) 1-21 is/are rejected under pre-AIA 35 U.S.C. 102( a2) as being anticipated by Kilroy et al., [US Pub. No. : 2015/0157410 A1]. Re. Claim 1, Kilroy discloses: A computer-implemented method for contextually controlling a surgical device [electronic control system configured to communicate electronically with the one or more robotic surgical tools |Abstract], the method comprising: receiving, by a computer system, perioperative data from the surgical device, the perioperative data associated with a surgical procedure [The information presented by the visualization system may be live data from the cameras, data from pre-operative MRI, CT, ultrasound or other imaging modality, and models of organs and other parts of the human body |0049]; receiving, by the computer system, images from a scope, the images visualizing the surgical device during the surgical procedure [The hyperdexterous surgical system can include a visualization system that aggregates information from one or more sources and provides one or more images to the surgeon |0048]; determining, by the computer system, an attribute of the surgical device from the images [The control system 400 can include a computer 402 |0124]; determining, by the computer system, procedural context data based at least on the perioperative data and the attribute of the surgical device [The control system 400 may determine the direction of the motion relative to the operator's wrist and present the image of the movement in the same direction. For example, in FIG.",
"42A, the operator 1 moves his left hand along arrow A |0303]; and controlling, by the computer system, the surgical device according to the procedural context data [The control system 400 may categorize the data into various classes such as, but not limited to, real time data (from the cameras 304), model data, pre-op data, stale data (specifically data from camera 304 that was taken prior to the current moment in time).|0335]. Re. Claim 2, Kilroy discloses: wherein the attribute comprises a type, an orientation, a position, a velocity, or an acceleration of the surgical device [the hyperdexterous surgical system can provide visual cues to the surgeon that help the surgeon understand the orientation and position of the hyperdexterous surgical tools relative to the surgeon, allowing the surgeon to understand how the hyperdexterous surgical tools will move when actuated by the surgeon |0030]. Re. Claim 3, Kilroy discloses: wherein controlling the surgical device comprises changing, by the computer system, a state of the surgical device [The hyperdexterous surgical system enables the control of the hyperdexterous surgical tools to be adjusted based upon the preferences of the operator.",
"|0030]. Re. Claim 4, Kilroy discloses: wherein controlling the surgical device comprises changing, by the computer system, a function of an input of the surgical device [The hyperdexterous surgical system enables the information presented to the operator to be adjusted based upon the preferences of the operator.|0030]. Re. Claim 5, Kilroy discloses: wherein controlling the surgical device comprises changing, by the computer system, information displayed by the surgical device [The nature of the hyperdexterous surgical system is illustrated, among other ways, by providing the surgeon with a variety of information (e.g., via displays) that allow the surgeon to readily understand the positioning of the hyperdexterous surgical tools relative to the patient so as to naturally understand how the tools will move when actuated |0105].",
"Re. Claim 6, Kilroy discloses: comprising providing, by the computer system, a recommendation according to the procedural context data [The control system can send information to the input devices 500, such as instructions to produce tactile feedback for the operator 1. |0254]. Re. Claim 7, Kilroy discloses: determining, by the computer system, whether the recommendation is of a first type or a second type [The system includes a first grasper 312, a second grasper 314, a camera 304, and a stapler 354. The system includes two input devices 500, a first controller 516 and a second controller 518.|0242&0342]; and displaying, by the computer system, the recommendation in a first manner according to whether the recommendation is of the first type or in a second manner according to whether the recommendation is of the second type [The control system of the hyperdexterous surgical system can convert the movement of the input device into movements of the controlled objects dependent on the zoom factor of images displayed on one or more displays.|0042]. Re.",
"Claim 8, This claim is interpreted and rejected for the same reason set forth in claim 1. Re. Claim 9, This claim is interpreted and rejected for the same reason set forth in claim 2. Re. Claim 10, This claim is interpreted and rejected for the same reason set forth in claim 3. Re. Claim 11, This claim is interpreted and rejected for the same reason set forth in claim 4. Re. Claim 12, This claim is interpreted and rejected for the same reason set forth in claim 5. Re. Claim 13, This claim is interpreted and rejected for the same reason set forth in claim 6. Re. Claim 14, This claim is interpreted and rejected for the same reason set forth in claim 7. Re.",
"Claim 15, This claim is interpreted and rejected for the same reason set forth in claim 8. Re. Claim 16, Kilroy discloses: wherein the attribute comprises a particulate concentration or sizes of particulates of the surgical site [The hyperdexterous surgical system 100 enables the angling (e.g., tilting from horizontal) of the hyperdexterous surgical arm 200 so that it follows the orientation of the patient 2 (e.g., the hyperdexterous surgical arm 200 is mounted to follow the orientation of the patient 2). The support arm 106, the elevator 120, the carriage 130 and the slide (not shown) can facilitate the tilting of the hyperdexterous surgical arm 200. |0148]. Re. Claim 17, This claim is interpreted and rejected for the same reason set forth in claim 10. Re.",
"Claim 18, This claim is interpreted and rejected for the same reason set forth in claim 11. Re. Claim 19, This claim is interpreted and rejected for the same reason set forth in claim 12. Re. Claim 20, This claim is interpreted and rejected for the same reason set forth in claim 13. Re. Claim 21, This claim is interpreted and rejected for the same reason set forth in claim 7. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOWARD D BROWN JR whose telephone number is (571)272-4371. The examiner can normally be reached Monday - Friday 7:30AM - 5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sathyanarayanan Perungavoor can be reached on 5712727455. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format.",
"For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. HOWARD D. BROWN JR Primary Examiner Art Unit 2488 /HOWARD D BROWN JR/Examiner, Art Unit 2488"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-07.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0432846
Decision Date: 12/10/04 Archive Date: 12/15/04
DOCKET NO. 02-09 538 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from July 1969 to July
1970.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2001 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Denver, Colorado.
The case was previously before the Board in February 2003, at
which time it was remanded to afford the veteran a hearing.
The case was again before the Board in December 2003, at
which time, the claim on appeal was reopened and the case was
again Remanded to afford the veteran a comprehensive medical
examination and to afford due process. The requested
development having been completed, the case is once again
before the Board for appellate consideration of the issue on
appeal.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's claim has been developed.
2. An acquired psychiatric disorder was not demonstrated
during the veteran's service, and a preponderance of the
competent evidence of record is against concluding that such
disorder was caused or aggravated by service.
CONCLUSION OF LAW
An acquired psychiatric disorder was not incurred or
aggravated by active military service, nor may it be presumed
to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1116, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
While the veteran's claim was pending, 38 U.S.C.A. § 5107 was
amended, effective for all pending claims, to eliminate the
requirement that the veteran submit a well-grounded claim in
order to trigger VA's duty to assist. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002) [hereinafter "VCAA"]. The
Board notes that that while this law was enacted during the
pendency of this appeal, it was considered by the RO, as
reflected by correspondence issued in December 2000, on March
1, 2001, March 15, 2001, in July 2002 and in May 2004 as well
as the Statement and Supplemental Statements of the Case .
Thus, there is no prejudice to the veteran in proceeding with
this appeal. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
The VA is obligated to assist a claimant in the development
of his/her claim, unless there is no reasonable possibility
that such assistance will aid in substantiating the claim.
In addition to eliminating the well-groundedness requirement,
the statute also amplified and defined the duty to assist.
Id.
The revised statutory duty to assist requires VA to make all
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant's claim for benefits.
This assistance specifically includes obtaining all relevant
records, private or public, adequately identified by the
claimant with proper authorization for their receipt;
obtaining any relevant evidence in federal custody; and
obtaining a medical examination or opinion where indicated.
Id.
The new statutory duty also requires VA to satisfy several
notice requirements. Specifically, these notification duties
include notifying the claimant if his or her application for
benefits is incomplete, notifying the claimant of what
evidence is necessary to substantiate the claim and
indicating whether the VA will attempt to obtain such
evidence or if the claimant should obtain it, and, finally,
if VA is unable to obtain this evidence, informing the
claimant that the evidence could not be obtained, providing a
brief explanation of the efforts made to obtain the evidence,
and describing further action to be taken with respect to the
claim. See also revised 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a).
In the present case it appears as if the duty to assist has
been satisfied. All treatment records identified by the
veteran have either been obtained by the RO or submitted by
the claimant. Additionally, the appellant has been provided
with recent VA medical examinations and notice of the
requirements necessary to substantiate the claim have been
provided in the Statements of the Case and other development
letters of record. Accordingly, the veteran is not
prejudiced by the Board's adjudication of his claim at this
time. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In
short, the Board concludes that the duty to assist has been
satisfied, as well as the duty to notify the veteran of the
evidence needed to substantiate his claim.
The VCAA notice ordinarily needs to be sent to a claimant
before the initial adjudication of his claim. That is, the
claimant would be provided VCAA notice and an appropriate
amount of time to respond before an initial rating action.
Notices were sent to the veteran prior to the initial rating
on appeal.
Moreover, in this case, the claimant was provided every
opportunity to submit evidence, and to attend a hearing at
the RO before a hearing officer or before a Veterans Law
Judge at the RO or in Washington, D.C. He was provided with
notice of the appropriate law and regulations. He was
provided notice of what evidence he needed to submit, and
notice of what evidence VA would secure on his behalf. He
was given ample time to respond. Furthermore, the
Supplemental Statement of the Case of June 2004, issued after
the multiple VCAA notices in this case, constitutes a
decision that fully considered the VCAA. Additionally, the
Board does a de novo review of the evidence and is not bound
by the RO's prior conclusions in this matter.
Hence, to allow the appeal to continue would not be
prejudicial error to the claimant. Under the facts of this
case, "the record has been fully developed," and "it is
difficult to discern what additional guidance VA could have
provided to the veteran regarding what further evidence he
should submit to substantiate his claim." Conway v.
Principi, No. 03-7072 (Fed. Cir. Jan. 7, 2004); see also
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). Therefore, for these reasons, the Board finds
that the intent and purpose of the VCAA were satisfied by the
notice given to the veteran, and he was not prejudiced by any
defect in the timing of that notice.
Entitlement to service connection for a particular disability
requires evidence of the existence of a current disability
and evidence that the disability resulted from a disease or
injury incurred in or aggravated during service. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d). Alternatively, the nexus between service
and the current disability can be satisfied by medical or lay
evidence of continuity of symptomatology and medical evidence
of a nexus between the present disability and the
symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999);
Savage v. Gober, 10 Vet. App. 488, 495 (1997).
The veteran's service medical records reflect that he was
treated in June 1970 for an inadequate personality in
service. An October 1993 VA examination report, many years
after service, again reflected the absence of a diagnosis of
psychiatric disease. Some time later in December 1996, he
was hospitalized, and, at that time, diagnoses included
probable substance abuse psychosis and borderline personality
traits. Subsequent records from October 2002 reflect
treatment for mental health problems, to include a diagnosis
of recurrent depressive disorder.
The veteran was recently afforded two comprehensive VA mental
disorders examinations, one in May 2004 and another one in
June 2004. The examinations found inadequate symptomatology
to support a diagnosis of post traumatic stress disorder
(PTSD). Diagnoses included cannabis abuse and alcohol abuse,
but, significantly, an acquired psychiatric disorder was not
diagnosed on the first examination. The first examiner
commented that a clear picture regarding anxiety and
depression would not be possible without a significant period
of sobriety. The second examination was, likewise, unable to
support a diagnosis of PTSD and that examiner also commented
that "I do not find any acquired psychiatric disorder."
Both examiners found the veteran provided contradictory
history as well as over reporting and under reporting. He
also recounted situations where his reports were clinically
characterized as vague and lacking in the usual affect
associated in recounting a traumatic event. It bears
additional emphasis that a June 22, 2004 mental health
assessment recorded the veteran's "'depression' is secondary
to his substance abuse."
The veteran asserts that his mental disorders are related to
his military service. The Board notes that the veteran's
opinion as to medical matters, no matter how sincere, is
without probative value because he, as a lay person, is not
competent to establish a medical diagnosis or draw medical
conclusions; such matters require medical expertise. See
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).
Personality disorders are not diseases or injuries within the
meaning of applicable legislation providing veteran's
compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9, 4.127
(2004); Beno v. Principi, 3 Vet. App. 439 (1992). In this
case, the first evidence suggesting the possibility of a
mental disorder, apart from personality disorders, appeared
many years after service, which weighs against the claim.
More significantly, no mental disorder has been associated to
the veteran's military service by any competent authority.
Accordingly, the preponderance of the evidence is against the
claim.
Because the preponderance of the evidence is against the
claim, the benefit of the doubt doctrine is not for
application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v.
Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule
applies only when the positive and negative evidence renders
a decision "too close to call").
ORDER
Entitlement to service connection for an acquired psychiatric
disorder is denied.
____________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2 | 12-10-2004 | [
"Citation Nr: 0432846 Decision Date: 12/10/04 Archive Date: 12/15/04 DOCKET NO. 02-09 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The case was previously before the Board in February 2003, at which time it was remanded to afford the veteran a hearing.",
"The case was again before the Board in December 2003, at which time, the claim on appeal was reopened and the case was again Remanded to afford the veteran a comprehensive medical examination and to afford due process. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. An acquired psychiatric disorder was not demonstrated during the veteran's service, and a preponderance of the competent evidence of record is against concluding that such disorder was caused or aggravated by service.",
"CONCLUSION OF LAW An acquired psychiatric disorder was not incurred or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION While the veteran's claim was pending, 38 U.S.C.A. § 5107 was amended, effective for all pending claims, to eliminate the requirement that the veteran submit a well-grounded claim in order to trigger VA's duty to assist. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) [hereinafter \"VCAA\"]. The Board notes that that while this law was enacted during the pendency of this appeal, it was considered by the RO, as reflected by correspondence issued in December 2000, on March 1, 2001, March 15, 2001, in July 2002 and in May 2004 as well as the Statement and Supplemental Statements of the Case . Thus, there is no prejudice to the veteran in proceeding with this appeal.",
"See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The VA is obligated to assist a claimant in the development of his/her claim, unless there is no reasonable possibility that such assistance will aid in substantiating the claim. In addition to eliminating the well-groundedness requirement, the statute also amplified and defined the duty to assist. Id. The revised statutory duty to assist requires VA to make all reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits. This assistance specifically includes obtaining all relevant records, private or public, adequately identified by the claimant with proper authorization for their receipt; obtaining any relevant evidence in federal custody; and obtaining a medical examination or opinion where indicated. Id. The new statutory duty also requires VA to satisfy several notice requirements. Specifically, these notification duties include notifying the claimant if his or her application for benefits is incomplete, notifying the claimant of what evidence is necessary to substantiate the claim and indicating whether the VA will attempt to obtain such evidence or if the claimant should obtain it, and, finally, if VA is unable to obtain this evidence, informing the claimant that the evidence could not be obtained, providing a brief explanation of the efforts made to obtain the evidence, and describing further action to be taken with respect to the claim.",
"See also revised 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case it appears as if the duty to assist has been satisfied. All treatment records identified by the veteran have either been obtained by the RO or submitted by the claimant. Additionally, the appellant has been provided with recent VA medical examinations and notice of the requirements necessary to substantiate the claim have been provided in the Statements of the Case and other development letters of record. Accordingly, the veteran is not prejudiced by the Board's adjudication of his claim at this time. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In short, the Board concludes that the duty to assist has been satisfied, as well as the duty to notify the veteran of the evidence needed to substantiate his claim.",
"The VCAA notice ordinarily needs to be sent to a claimant before the initial adjudication of his claim. That is, the claimant would be provided VCAA notice and an appropriate amount of time to respond before an initial rating action. Notices were sent to the veteran prior to the initial rating on appeal. Moreover, in this case, the claimant was provided every opportunity to submit evidence, and to attend a hearing at the RO before a hearing officer or before a Veterans Law Judge at the RO or in Washington, D.C. He was provided with notice of the appropriate law and regulations. He was provided notice of what evidence he needed to submit, and notice of what evidence VA would secure on his behalf. He was given ample time to respond. Furthermore, the Supplemental Statement of the Case of June 2004, issued after the multiple VCAA notices in this case, constitutes a decision that fully considered the VCAA. Additionally, the Board does a de novo review of the evidence and is not bound by the RO's prior conclusions in this matter. Hence, to allow the appeal to continue would not be prejudicial error to the claimant. Under the facts of this case, \"the record has been fully developed,\" and \"it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim.\" Conway v. Principi, No.",
"03-7072 (Fed. Cir. Jan. 7, 2004); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Therefore, for these reasons, the Board finds that the intent and purpose of the VCAA were satisfied by the notice given to the veteran, and he was not prejudiced by any defect in the timing of that notice.",
"Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.",
"§ 3.303(d). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). The veteran's service medical records reflect that he was treated in June 1970 for an inadequate personality in service. An October 1993 VA examination report, many years after service, again reflected the absence of a diagnosis of psychiatric disease. Some time later in December 1996, he was hospitalized, and, at that time, diagnoses included probable substance abuse psychosis and borderline personality traits. Subsequent records from October 2002 reflect treatment for mental health problems, to include a diagnosis of recurrent depressive disorder.",
"The veteran was recently afforded two comprehensive VA mental disorders examinations, one in May 2004 and another one in June 2004. The examinations found inadequate symptomatology to support a diagnosis of post traumatic stress disorder (PTSD). Diagnoses included cannabis abuse and alcohol abuse, but, significantly, an acquired psychiatric disorder was not diagnosed on the first examination. The first examiner commented that a clear picture regarding anxiety and depression would not be possible without a significant period of sobriety. The second examination was, likewise, unable to support a diagnosis of PTSD and that examiner also commented that \"I do not find any acquired psychiatric disorder.\" Both examiners found the veteran provided contradictory history as well as over reporting and under reporting. He also recounted situations where his reports were clinically characterized as vague and lacking in the usual affect associated in recounting a traumatic event. It bears additional emphasis that a June 22, 2004 mental health assessment recorded the veteran's \"'depression' is secondary to his substance abuse.\" The veteran asserts that his mental disorders are related to his military service. The Board notes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet.",
"App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Personality disorders are not diseases or injuries within the meaning of applicable legislation providing veteran's compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2004); Beno v. Principi, 3 Vet. App. 439 (1992). In this case, the first evidence suggesting the possibility of a mental disorder, apart from personality disorders, appeared many years after service, which weighs against the claim. More significantly, no mental disorder has been associated to the veteran's military service by any competent authority. Accordingly, the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule applies only when the positive and negative evidence renders a decision \"too close to call\").",
"ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ C. P. RUSSELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the \"Order\" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development.",
"If the Board did this in your case, then a \"Remand\" section follows the \"Order.\" However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the \"Order.\" If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ?",
"File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office.",
"None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims.",
"If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims?",
"Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time.",
"However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on \"clear and unmistakable error\" (CUE).",
"Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office.",
"See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso.",
"You can also choose to be represented by a private attorney or by an \"agent.\" (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court.",
"VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so.",
"Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2"
]
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GEAVES, J. Appellants in their brief have fairly outlined the facts of the case. In- fact there is no contest as to the facts, the case having been submitted upon an agreed statement of facts. We quote a part of their statement thus: “This is an action in partition among the heirs at law of one Thomas Walton, deceased, including his widow, Mary C. Walton, his sons Charles T. and Elihu J. Walton, his daughters, Amanda Eighmy .and Oda M. Eighmy, his granddaughters, Maud Engle and Zella Trillion, and his great grandchildren, Arlyn Kirkpatrick and Helen Kirkpatrick. Both the grandchildren and great grandchildren aforesaid are descendants of one Martha Kirkpatrick, a daughter of said Thomas Walton- “Thomas Walton died intestate in Worth County, Missouri, during the year 1878. His estate was duly probated in the probate court of said county and fully and finally settled. His daughter Martha Kirkpatrick died in the year 1907 and her son, A. V. Kirkpatrick died in the year 1915. The plaintiffs herein, Maude Engle *298and Zella Killion, are daughters of said Martha Kirkpatrick and defendants Arlyn Kirkpatrick and Helen 'Kirkpatrick are children of her son, A. Y. Kirkpatrick, deceased. The plaintiffs Maude Engle and Zella Killion and defendants Amanda Eighmy and Oda M. Eighmy are married women; defendants Helen Kirkpatrick and Arlyn Kirkpatrick are minors of tender years, and defendant Mary C. Walton, widow of Thomas Walton, deceased, is old and infirm and was, in November, 1915, adjudged insane by the county court of Worth County, Missouri, and is now confined to the Insane Asylum at St. Joseph, Missouri. The land affected by this suit is described as Lots Seven and Eight of Block Sixteen in Grant City, Missouri. It was' owned in fee simple by Thomas Walton at the time of his death, at which time its value was less than $1500, when it was occupied by himself and family as a homestead. Under the statute then in force, defendant Mary C. Walton became the owner of a life estate or homestead in said land, with remainder to the children and heirs at law of said Thomas Walton, deceased. “There is no contention in this appeal as to the various interests of the widow and other heirs at ■ law' of said Thomas Walton, deceased, in the property above described or as to the title ■ thereto. The sole question presented to this court is as to the validity of a certain school fund mortgage covering said land executed on the 29th day of December, 1896, to secure the payment of a school-fund bond, executed on that date by Mary C. Walton as principal and J. W. Watson and J. B. Dawson, as sureties, in favor of defendant. Worth County, Missouri, for the benefit of the school fund of said county, said bond being due one year from the date thereof. “The court will understand and it is a conceded fact in this case that the $200 named in said bond was borrowed by Mary C. Walton, the life tenant alone; that at the time she so borrowed it she executed her *299bond therefor, with" J. W. Watson, and J. B. Dawson as sureties thereon; that the owners of the fee in said property, to-wit: the children of said Thomas Walton,' all of whom were then living, never at any time received the said $200 so borrowed by said Mary C. Walton, or any part thereof; that said children never at any time signed or in any way executed the said bond; that they never in any way bound themselves personally for the payment thereof; that so far as the borrowed money itself and the bond executed therefor are concerned the said children of said Thomas Walton, deceased, are in no wise liable in any manner whatsoever. “At the time she, the said Mary C. Walton, borrowed said money, and with said J. W. Watson and J. B. Dawson, as sureties, executed her bond therefor, she, the said Mary C. Walton, together with her children Martha Kirkpatrick, Elihu J. Walton, Charles T. Walton, Amanda Eighmy and Oda M. ‘Eighmy executed their school fund mortgage to Worth County, Missouri, covering the above described lands, to secure said school-bond so executed by Mary C. Walton, J. W. Watson and J. B. Dawson as aforesaid.” The contest is between Worth County and the plaintiffs and the defendants, other than Worth County. A guardian ad litem was appointed for the insane fudow and the minor defendants. The widow, the principal in the school-fund bond, made payments of interest thereon up to and including December 31, 1908. By the agreed facts these payments were made without the knowledge or consent .of the other makers of the deed to trust. It is conceded that one of the sureties on -the bond is worth $25,000 and that the insane widow is insolvent. The present suit was instituted January 29, 1916', and the answer of defendant Worth County sets up the school-fund bond and deed of trust aforesaid, and closes with the following prayer for relief: “Wherefore, this defendant, Worth County, Missouri, prays that a sale of said real estate be made, as in plaintiff’s petition prayed; that out of the pro*300eeeds of such sale said above-mentioned school-fund indebtedness be paid,” and for such other and further relief as shall be meet and just in the' premises. ” An interlocutory judgment in partition was entered, and in such judgment we find (among other things) the following: “Wherefore it is considered, ordered and decreed by the court that said school-fund indebtedness in the" sum’ of $381 is a valid and subsisting lien against the real estate herein described, and against and upon, first, the interest of defendant Mary C. Walton therein, with the residue thereof a valid and subsisting lien upon the interests of plaintiffs and.the other defendants herein according to their respective interests in said property; that said real estate be sold by the sheriff of Worth- County, according to law, to the highest bidder for cash in hand ,• that out of the proceeds of said sale, said school-fund indebtedness to Worth County, Missouri, be first paid as herein found, and after paying all costs and expenses incurred in making said sale, including fee for abstract of title to same, that the remainder of the proceeds arising from such sale be partitioned and divided among .and between the parties, plaintiffs and defendants herein, according to their respective interests as herein set forth, and the said sheriff of Worth County, is hereby further ordered and directed to make said sale at the south front door of the court house in the city of Grant City, Worth County, Missouri, and report said sale to this court, and account for and pay over, according to law and the order of this court, to the parties entitled thereto, all sums of money coming into his hands and in such sale. ” The contention of appellants is that the payment of interest on the school fund bond after its alleged maturity (which was one year from its date) did not keep alive the lien of the deed of trust, and inasmuch as they specially invoked the Statute of Limitations in their pleadings, the decree so far as the parties were *301concerned (excepting the widow) should have been against Worth County. Triai^ °f I. In respondent’s (Worth County’s) brief there is a suggestion that the land is not subject to partition, because of it being the homestead of Mary C. Walton, the widow. Whether there is substance in this contention need not be decided. Worth County is in no position to urge the question here. This, because such was not the theory in the trial below. By answer Worth County joined in the request for the partition and sale, and ashed that her deed of trust be declared a first lien upon the proceeds of sale. The whole proceeding below was not one adverse to the idea of partition. On the contrary, the trial was on the theory that partition was proper, but that it could not be had in hind (owing to the number of interests) and a sale in partition should be ordered. It is trite law that the theory nisi cannot be shifted here upon appeal. mu a ions. II. The issue tried below in this casef was whether or not the lien,of the deed of trust had been lost under our statute which provides that if an action on the note is barred an action on the deed of trust mortgage is likewise barred. [Sec. 1892, R. S. 1909.] The deed of trust in this case was executed after the Act of 1891 (of which Section 1892, supra, was a part); hence the statute applies in this ease, if the facts make it applicable. [Stockton v. Teasdale, 212 Mo. 611.] Nor can there be any question that the payment made upon the bond by Mrs. Mary C. Walton obviated the running of the statute so far as she and her sureties on the bond are concerned. In other words, these payments by her left this bond as between Worth County and the signers of the bond a live instrument at the date of the instant suit. Neither she nor her sureties could successfully invoke the Statute of Limitations as to the obligation created by the bond. [Clinton County to use v. Smith, 238 Mo. 118, and cases cited therein.] *302But the question urged by appellants is that, although it be granted that the payment on the bond by Mrs. Walton left such bond as a live instrument as-against her and her sureties upon the bond, yet as appellants were not obligors on the bond, they are not bound by the payments, and as to them the bond is barred by the Statute of Limitations. They urge that the bond and deed of trust are two separate contracts, and they not being parties to the bond are not bound by the acts of Mrs. Walton in making these payments. This question we take next. Agreement. III. If we grant that the bond and deed of trust are two separate contracts as contended for by appellants, this does not settle the controversy. We must then go to the terms of the deed of trust and see what its obligations are in respect to the bond. This is material and we quote from the deed of trust thus: “Whe ref's, the said Mary C. Walton, on the 29th day of December, A. D. 1896, borrowed from the said county , the sum of--dollars belonging to the Capital School Fund of said county, for which said sum of borrowed money the said Mary C. Walton, as principal, with John W. Watson and J. B. Dawson, as securities, has executed her bond to the said county, bearing date the 29th day of December, A. D. 1896, in which said bond the said principal and securities agree and bind themselves to pay to the said county, for the use and benefit of the principal of the Capital School Fund, on or before the 29th day of December, A. D. 1897, the said sum of borrowed money with interest thereon from the date of said bond until paid, at the rate of eight per cent per annum, said interest to be paid a/nnually, on the ■first day of August of each and every year, until the whole debt shall be paid off and discharged. “Now therefore, if the said principal and securities shall well and, truly pay or cause to be paid, the said sum of money borrowed, and all the interest thereon, according to the tenor and effect of said bond, then this *303deéd shall he void, and it shall be released at the proper cost and expense of the said parties of the first part. But should default be made in the payment of the principal or interest, or any part thereof, at the time when they shall severally become due and payable, according to the tenor and effect of the said bond, the then acting-sheriff of the said county shall have power to and may, without suit on this deed of mortgage, proceed and sell the property herein conveyed and mortgaged, first giving twenty days’ public notice of the time, terms and place of said sale.” We have italicized a clause with reference to interest in the quotation, supra. From this it appears that the parties to the deed of trust contemplated and agreed that interest payments were to be made annually. Not only so, but the deed of trust contemplated partial payment of the principal. The deed .of trust refers specifically to the bond, and thereby incorporates its terms into the deed of trust. The bond contains this recital: “The conditions of this bond are: That, Whereas, the said Mary C. Walton, principal, has this day borrowed from said county the sum of two hundred doL lars, belonging to the Principal Capitol School, which said .sum of money the said principal and securities agree and promise to pay .to said county for the use and benefit of the principal of the Capitol. School Fund, on or before the 29th day of December, A. D. 1897, with interest thereon, from the date hereof until paid, at the rate of eight per cent per annum, said interest to be paid, annually on the 1st day of each and every year, until the whole debt shall be fully paid off and discharged.” From this it.appears that the parties to the bond contemplated that it might run longer than the one year, and by the due reference to the bond in the deed of trust it must be said that the terms of the bond must be read into the deed of trust. So that- in both ways we have this provision in the deed-of trust (1) by reference to the bond, and (2) by special recital in the deed of trust. So that at the very signing of the deed *304of trust the signers thereof contracted and agreed that either the principal or sureties on this bond should have the right to pay interest on the bond annually “on the first day of August of each and every year.” In signing the deed of trust they so understood and agreed and the right thereby became fixed. No subsequent knowledge or consent to payments were required. They had signed the deed of trust with the understanding that such could be done, and the life of the bond thereby protected from the Statute of Limitations. The life of the bond having been extended by these payments (expressly authorized by appellants in their deed of trust) the appellants are not released by the Statute of Limitations as to deeds of trust i. e. by Section 1892, Revised Statutes 1909. These payments made on the bond became the acts of appellants, because they by the deed of trust authorized them. The cases relied upon by appellants are not appropos to this situation. We' may concede that the deed of trust, so far as the property of appellants is concerned, is in the nature of additional security for the debt, but when they agree (as the terms of their obligation show) that the life of the bond may be extended by annual payments of interest, they are in no position to invoke the Statute of Limitations when the county seeks to enforce its lien upon the property of its proceeds, at any time within ten years from the last of such payments. The difference between this case and those relied upon by appellants in their brief, is, that here we have the contract of appellant authorizing the continued life of the bond by payments of interest or partial payments of principal. There was no error in holding that Section 1892, Revised Statutes 1909, did not relieve appellants. DeSt. f°r IY. By the execution of the deed of trust the appellants bound their interests in the land to the payment of this debt upon default of payment by the obligors in the bond. The county can look to the land for the debt. The terms of .the deed of trust so say. Likewise the law so says. *305[McCullum v. Bought on, 132 Mo. 601, et seq.] Finding no error in the record we affirm this judgment. All concur, except Woodson, J., absent. | 09-09-2022 | [
"GEAVES, J. Appellants in their brief have fairly outlined the facts of the case. In- fact there is no contest as to the facts, the case having been submitted upon an agreed statement of facts. We quote a part of their statement thus: “This is an action in partition among the heirs at law of one Thomas Walton, deceased, including his widow, Mary C. Walton, his sons Charles T. and Elihu J. Walton, his daughters, Amanda Eighmy .and Oda M. Eighmy, his granddaughters, Maud Engle and Zella Trillion, and his great grandchildren, Arlyn Kirkpatrick and Helen Kirkpatrick. Both the grandchildren and great grandchildren aforesaid are descendants of one Martha Kirkpatrick, a daughter of said Thomas Walton- “Thomas Walton died intestate in Worth County, Missouri, during the year 1878. His estate was duly probated in the probate court of said county and fully and finally settled. His daughter Martha Kirkpatrick died in the year 1907 and her son, A. V. Kirkpatrick died in the year 1915.",
"The plaintiffs herein, Maude Engle *298and Zella Killion, are daughters of said Martha Kirkpatrick and defendants Arlyn Kirkpatrick and Helen 'Kirkpatrick are children of her son, A. Y. Kirkpatrick, deceased. The plaintiffs Maude Engle and Zella Killion and defendants Amanda Eighmy and Oda M. Eighmy are married women; defendants Helen Kirkpatrick and Arlyn Kirkpatrick are minors of tender years, and defendant Mary C. Walton, widow of Thomas Walton, deceased, is old and infirm and was, in November, 1915, adjudged insane by the county court of Worth County, Missouri, and is now confined to the Insane Asylum at St. Joseph, Missouri. The land affected by this suit is described as Lots Seven and Eight of Block Sixteen in Grant City, Missouri. It was' owned in fee simple by Thomas Walton at the time of his death, at which time its value was less than $1500, when it was occupied by himself and family as a homestead. Under the statute then in force, defendant Mary C. Walton became the owner of a life estate or homestead in said land, with remainder to the children and heirs at law of said Thomas Walton, deceased.",
"“There is no contention in this appeal as to the various interests of the widow and other heirs at ■ law' of said Thomas Walton, deceased, in the property above described or as to the title ■ thereto. The sole question presented to this court is as to the validity of a certain school fund mortgage covering said land executed on the 29th day of December, 1896, to secure the payment of a school-fund bond, executed on that date by Mary C. Walton as principal and J. W. Watson and J. B. Dawson, as sureties, in favor of defendant. Worth County, Missouri, for the benefit of the school fund of said county, said bond being due one year from the date thereof.",
"“The court will understand and it is a conceded fact in this case that the $200 named in said bond was borrowed by Mary C. Walton, the life tenant alone; that at the time she so borrowed it she executed her *299bond therefor, with\" J. W. Watson, and J. B. Dawson as sureties thereon; that the owners of the fee in said property, to-wit: the children of said Thomas Walton,' all of whom were then living, never at any time received the said $200 so borrowed by said Mary C. Walton, or any part thereof; that said children never at any time signed or in any way executed the said bond; that they never in any way bound themselves personally for the payment thereof; that so far as the borrowed money itself and the bond executed therefor are concerned the said children of said Thomas Walton, deceased, are in no wise liable in any manner whatsoever. “At the time she, the said Mary C. Walton, borrowed said money, and with said J. W. Watson and J.",
"B. Dawson, as sureties, executed her bond therefor, she, the said Mary C. Walton, together with her children Martha Kirkpatrick, Elihu J. Walton, Charles T. Walton, Amanda Eighmy and Oda M. ‘Eighmy executed their school fund mortgage to Worth County, Missouri, covering the above described lands, to secure said school-bond so executed by Mary C. Walton, J. W. Watson and J. B. Dawson as aforesaid.” The contest is between Worth County and the plaintiffs and the defendants, other than Worth County. A guardian ad litem was appointed for the insane fudow and the minor defendants.",
"The widow, the principal in the school-fund bond, made payments of interest thereon up to and including December 31, 1908. By the agreed facts these payments were made without the knowledge or consent .of the other makers of the deed to trust. It is conceded that one of the sureties on -the bond is worth $25,000 and that the insane widow is insolvent. The present suit was instituted January 29, 1916', and the answer of defendant Worth County sets up the school-fund bond and deed of trust aforesaid, and closes with the following prayer for relief: “Wherefore, this defendant, Worth County, Missouri, prays that a sale of said real estate be made, as in plaintiff’s petition prayed; that out of the pro*300eeeds of such sale said above-mentioned school-fund indebtedness be paid,” and for such other and further relief as shall be meet and just in the' premises.",
"” An interlocutory judgment in partition was entered, and in such judgment we find (among other things) the following: “Wherefore it is considered, ordered and decreed by the court that said school-fund indebtedness in the\" sum’ of $381 is a valid and subsisting lien against the real estate herein described, and against and upon, first, the interest of defendant Mary C. Walton therein, with the residue thereof a valid and subsisting lien upon the interests of plaintiffs and.the other defendants herein according to their respective interests in said property; that said real estate be sold by the sheriff of Worth- County, according to law, to the highest bidder for cash in hand ,• that out of the proceeds of said sale, said school-fund indebtedness to Worth County, Missouri, be first paid as herein found, and after paying all costs and expenses incurred in making said sale, including fee for abstract of title to same, that the remainder of the proceeds arising from such sale be partitioned and divided among .and between the parties, plaintiffs and defendants herein, according to their respective interests as herein set forth, and the said sheriff of Worth County, is hereby further ordered and directed to make said sale at the south front door of the court house in the city of Grant City, Worth County, Missouri, and report said sale to this court, and account for and pay over, according to law and the order of this court, to the parties entitled thereto, all sums of money coming into his hands and in such sale.",
"” The contention of appellants is that the payment of interest on the school fund bond after its alleged maturity (which was one year from its date) did not keep alive the lien of the deed of trust, and inasmuch as they specially invoked the Statute of Limitations in their pleadings, the decree so far as the parties were *301concerned (excepting the widow) should have been against Worth County. Triai^ °f I. In respondent’s (Worth County’s) brief there is a suggestion that the land is not subject to partition, because of it being the homestead of Mary C. Walton, the widow. Whether there is substance in this contention need not be decided. Worth County is in no position to urge the question here.",
"This, because such was not the theory in the trial below. By answer Worth County joined in the request for the partition and sale, and ashed that her deed of trust be declared a first lien upon the proceeds of sale. The whole proceeding below was not one adverse to the idea of partition. On the contrary, the trial was on the theory that partition was proper, but that it could not be had in hind (owing to the number of interests) and a sale in partition should be ordered. It is trite law that the theory nisi cannot be shifted here upon appeal. mu a ions. II. The issue tried below in this casef was whether or not the lien,of the deed of trust had been lost under our statute which provides that if an action on the note is barred an action on the deed of trust mortgage is likewise barred.",
"[Sec. 1892, R. S. 1909.] The deed of trust in this case was executed after the Act of 1891 (of which Section 1892, supra, was a part); hence the statute applies in this ease, if the facts make it applicable. [Stockton v. Teasdale, 212 Mo. 611.] Nor can there be any question that the payment made upon the bond by Mrs. Mary C. Walton obviated the running of the statute so far as she and her sureties on the bond are concerned. In other words, these payments by her left this bond as between Worth County and the signers of the bond a live instrument at the date of the instant suit. Neither she nor her sureties could successfully invoke the Statute of Limitations as to the obligation created by the bond. [Clinton County to use v. Smith, 238 Mo. 118, and cases cited therein.]",
"*302But the question urged by appellants is that, although it be granted that the payment on the bond by Mrs. Walton left such bond as a live instrument as-against her and her sureties upon the bond, yet as appellants were not obligors on the bond, they are not bound by the payments, and as to them the bond is barred by the Statute of Limitations. They urge that the bond and deed of trust are two separate contracts, and they not being parties to the bond are not bound by the acts of Mrs. Walton in making these payments. This question we take next. Agreement. III. If we grant that the bond and deed of trust are two separate contracts as contended for by appellants, this does not settle the controversy. We must then go to the terms of the deed of trust and see what its obligations are in respect to the bond. This is material and we quote from the deed of trust thus: “Whe ref's, the said Mary C. Walton, on the 29th day of December, A. D. 1896, borrowed from the said county , the sum of--dollars belonging to the Capital School Fund of said county, for which said sum of borrowed money the said Mary C. Walton, as principal, with John W. Watson and J.",
"B. Dawson, as securities, has executed her bond to the said county, bearing date the 29th day of December, A. D. 1896, in which said bond the said principal and securities agree and bind themselves to pay to the said county, for the use and benefit of the principal of the Capital School Fund, on or before the 29th day of December, A. D. 1897, the said sum of borrowed money with interest thereon from the date of said bond until paid, at the rate of eight per cent per annum, said interest to be paid a/nnually, on the ■first day of August of each and every year, until the whole debt shall be paid off and discharged. “Now therefore, if the said principal and securities shall well and, truly pay or cause to be paid, the said sum of money borrowed, and all the interest thereon, according to the tenor and effect of said bond, then this *303deéd shall he void, and it shall be released at the proper cost and expense of the said parties of the first part.",
"But should default be made in the payment of the principal or interest, or any part thereof, at the time when they shall severally become due and payable, according to the tenor and effect of the said bond, the then acting-sheriff of the said county shall have power to and may, without suit on this deed of mortgage, proceed and sell the property herein conveyed and mortgaged, first giving twenty days’ public notice of the time, terms and place of said sale.” We have italicized a clause with reference to interest in the quotation, supra. From this it appears that the parties to the deed of trust contemplated and agreed that interest payments were to be made annually. Not only so, but the deed of trust contemplated partial payment of the principal. The deed .of trust refers specifically to the bond, and thereby incorporates its terms into the deed of trust. The bond contains this recital: “The conditions of this bond are: That, Whereas, the said Mary C. Walton, principal, has this day borrowed from said county the sum of two hundred doL lars, belonging to the Principal Capitol School, which said .sum of money the said principal and securities agree and promise to pay .to said county for the use and benefit of the principal of the Capitol.",
"School Fund, on or before the 29th day of December, A. D. 1897, with interest thereon, from the date hereof until paid, at the rate of eight per cent per annum, said interest to be paid, annually on the 1st day of each and every year, until the whole debt shall be fully paid off and discharged.” From this it.appears that the parties to the bond contemplated that it might run longer than the one year, and by the due reference to the bond in the deed of trust it must be said that the terms of the bond must be read into the deed of trust.",
"So that- in both ways we have this provision in the deed-of trust (1) by reference to the bond, and (2) by special recital in the deed of trust. So that at the very signing of the deed *304of trust the signers thereof contracted and agreed that either the principal or sureties on this bond should have the right to pay interest on the bond annually “on the first day of August of each and every year.” In signing the deed of trust they so understood and agreed and the right thereby became fixed. No subsequent knowledge or consent to payments were required. They had signed the deed of trust with the understanding that such could be done, and the life of the bond thereby protected from the Statute of Limitations. The life of the bond having been extended by these payments (expressly authorized by appellants in their deed of trust) the appellants are not released by the Statute of Limitations as to deeds of trust i. e. by Section 1892, Revised Statutes 1909. These payments made on the bond became the acts of appellants, because they by the deed of trust authorized them.",
"The cases relied upon by appellants are not appropos to this situation. We' may concede that the deed of trust, so far as the property of appellants is concerned, is in the nature of additional security for the debt, but when they agree (as the terms of their obligation show) that the life of the bond may be extended by annual payments of interest, they are in no position to invoke the Statute of Limitations when the county seeks to enforce its lien upon the property of its proceeds, at any time within ten years from the last of such payments. The difference between this case and those relied upon by appellants in their brief, is, that here we have the contract of appellant authorizing the continued life of the bond by payments of interest or partial payments of principal. There was no error in holding that Section 1892, Revised Statutes 1909, did not relieve appellants. DeSt.",
"f°r IY. By the execution of the deed of trust the appellants bound their interests in the land to the payment of this debt upon default of payment by the obligors in the bond. The county can look to the land for the debt. The terms of .the deed of trust so say. Likewise the law so says. *305[McCullum v. Bought on, 132 Mo. 601, et seq.]",
"Finding no error in the record we affirm this judgment. All concur, except Woodson, J., absent."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8020035/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION This action is in response to the amendment filed November 19, 2021. The specification and claims 1-4 have been amended and claims 6-9 have been added. Claims 1-9 remain pending.
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement The information disclosure statement (IDS) submitted on November 19, 2021 has been considered by the examiner.
Drawings The replacement drawings were received on November 19, 2021. These drawings are acceptable.
Specification The disclosure is objected to because of the following informalities: In each of paragraphs [0014]-[0016] it is believed that the description of plural “interior walls 98” should refer to a singular interior wall since Figs. 1 and 2 appear to show the interior cavity 96 of the housing 30 surrounded by a single cylindrical wall 98, rather than a plurality of walls. Appropriate correction is required. Claim Objections Claims 1, 3, 6 and 7 are objected to because of the following informalities: In line 5 of each of claims 1 and 6 “interior walls” should be changed to --an interior wall--, and in line 3 of each of claims 3 and 7, “walls” should be changed to --wall-- for the reasons given in the objection to the specification above. Appropriate correction is required.
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: 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.
Claims 1-5 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In the last three lines of claim 1, the limitation “the poly lock and brake segments are configured to receive an expanding load or a compressing load” is vague and does not particularly point out that a torsional load applied to the unlock shaft 84 causes a load acting to compress the brake segments 88 to engage the gear shaft 26, and a torsional load applied to the gear shaft 26 causes a load acting to expand the brake segments toward engagement with the interior wall 98 of the housing 30 as described in paragraphs [0015]-[0016] of the specification. Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 6,715,562 B1 (Chen). Regarding claim 1, Chen discloses a backdrive braking element for preventing backdrive of a shaft (the shaft of the driving device 4 connected to driving disk 41), the backdrive braking element comprising: a poly-lobed locking mechanism (1) including an unlock shaft (41) couplable to the shaft, wherein the poly-lobed locking mechanism is contained in a housing (2) having an interior cavity (22) surrounded by an interior wall, wherein the unlock shaft has a polygon shaped inside profile (41a) and is coupled to a poly lock drive and brake assembly (11, 12) and wherein the poly lock drive and brake assembly includes a plurality of poly lock drive and brake segments (11d) and is contained within the interior cavity of the housing, and wherein the poly lock and brake segments are configured to receive an expanding load which presses the segments ring 12 as described in column 3, lines 5-16. It is noted that the alternative recitation “configured to receive an expanding load or a compressing load” is interpreted as requiring only one of an expanding load or a compressing load. Regarding claim 5, the poly lock drive and brake assembly is formed of two or more segments (three columns 11d are shown) or lobes.
Allowable Subject Matter Claims 6-9 are allowed. Claims 2-4 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments Applicant's arguments filed November 19, 2021 with respect to amended claim 1 have been fully considered but they are not persuasive. In response to applicant's arguments on pages 7-8 of the response that the Chen reference fails to show certain features of applicant’s invention, it is noted that the features upon which applicant relies (“an inside profile of the brake segment…exerts inward, compressing pressure on the first end profile of the input gear shaft”; “(w)hen an external backdrive force is exerted on the device, the two or more brake segments exert outward pressure on the inside profile of the unlock shaft”, and “(i)f the expansion load is greater than the compressing load, the poly lock and brake segments inhibit the In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2021/0262532 A1 discloses a reverse input cutoff clutch having engaging elements 5 which can be compressed into engagement with a shaft 3 and expanded into engagement with a surface 10.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RICHARD M. LORENCE whose telephone number is 571-272-7094. The examiner can normally be reached Tuesday-Thursday from 11:00 AM-7:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Richard W. Ridley can be reached on 571-272-6917. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RICHARD M LORENCE/Primary Examiner, Art Unit 3656 | 2022-02-17T10:27:58 | [
"DETAILED ACTION This action is in response to the amendment filed November 19, 2021. The specification and claims 1-4 have been amended and claims 6-9 have been added. Claims 1-9 remain pending. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Information Disclosure Statement The information disclosure statement (IDS) submitted on November 19, 2021 has been considered by the examiner. Drawings The replacement drawings were received on November 19, 2021. These drawings are acceptable. Specification The disclosure is objected to because of the following informalities: In each of paragraphs [0014]-[0016] it is believed that the description of plural “interior walls 98” should refer to a singular interior wall since Figs. 1 and 2 appear to show the interior cavity 96 of the housing 30 surrounded by a single cylindrical wall 98, rather than a plurality of walls.",
"Appropriate correction is required. Claim Objections Claims 1, 3, 6 and 7 are objected to because of the following informalities: In line 5 of each of claims 1 and 6 “interior walls” should be changed to --an interior wall--, and in line 3 of each of claims 3 and 7, “walls” should be changed to --wall-- for the reasons given in the objection to the specification above. Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C.",
"112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: 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. Claims 1-5 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In the last three lines of claim 1, the limitation “the poly lock and brake segments are configured to receive an expanding load or a compressing load” is vague and does not particularly point out that a torsional load applied to the unlock shaft 84 causes a load acting to compress the brake segments 88 to engage the gear shaft 26, and a torsional load applied to the gear shaft 26 causes a load acting to expand the brake segments toward engagement with the interior wall 98 of the housing 30 as described in paragraphs [0015]-[0016] of the specification.",
"Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claims 1 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 6,715,562 B1 (Chen). Regarding claim 1, Chen discloses a backdrive braking element for preventing backdrive of a shaft (the shaft of the driving device 4 connected to driving disk 41), the backdrive braking element comprising: a poly-lobed locking mechanism (1) including an unlock shaft (41) couplable to the shaft, wherein the poly-lobed locking mechanism is contained in a housing (2) having an interior cavity (22) surrounded by an interior wall, wherein the unlock shaft has a polygon shaped inside profile (41a) and is coupled to a poly lock drive and brake assembly (11, 12) and wherein the poly lock drive and brake assembly includes a plurality of poly lock drive and brake segments (11d) and is contained within the interior cavity of the housing, and wherein the poly lock and brake segments are configured to receive an expanding load which presses the segments ring 12 as described in column 3, lines 5-16.",
"It is noted that the alternative recitation “configured to receive an expanding load or a compressing load” is interpreted as requiring only one of an expanding load or a compressing load. Regarding claim 5, the poly lock drive and brake assembly is formed of two or more segments (three columns 11d are shown) or lobes. Allowable Subject Matter Claims 6-9 are allowed. Claims 2-4 would be allowable if rewritten to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Response to Arguments Applicant's arguments filed November 19, 2021 with respect to amended claim 1 have been fully considered but they are not persuasive. In response to applicant's arguments on pages 7-8 of the response that the Chen reference fails to show certain features of applicant’s invention, it is noted that the features upon which applicant relies (“an inside profile of the brake segment…exerts inward, compressing pressure on the first end profile of the input gear shaft”; “(w)hen an external backdrive force is exerted on the device, the two or more brake segments exert outward pressure on the inside profile of the unlock shaft”, and “(i)f the expansion load is greater than the compressing load, the poly lock and brake segments inhibit the In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2021/0262532 A1 discloses a reverse input cutoff clutch having engaging elements 5 which can be compressed into engagement with a shaft 3 and expanded into engagement with a surface 10. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).",
"A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RICHARD M. LORENCE whose telephone number is 571-272-7094. The examiner can normally be reached Tuesday-Thursday from 11:00 AM-7:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Richard W. Ridley can be reached on 571-272-6917. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.",
"/RICHARD M LORENCE/Primary Examiner, Art Unit 3656"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-02-20.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
887 F.2d 265 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Carl L. RYAN, Plaintiff-Appellant,v.CHRYSLER CORPORATION; United Plant Guard Workers ofAmerica, Local 114, jointly and severallyDefendants-Appellees. No. 88-2284. United States Court of Appeals, Sixth Circuit. Oct. 16, 1989.
Before KEITH, MILBURN and ALAN E. NORRIS, Circuit Judges.
ORDER
1 This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof,
2 It is ORDERED that the judgment of the district court be, and it hereby is, affirmed upon the opinion of the district court. | 08-23-2011 | [
"887 F.2d 265 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Carl L. RYAN, Plaintiff-Appellant,v.CHRYSLER CORPORATION; United Plant Guard Workers ofAmerica, Local 114, jointly and severallyDefendants-Appellees. No. 88-2284. United States Court of Appeals, Sixth Circuit. Oct. 16, 1989. Before KEITH, MILBURN and ALAN E. NORRIS, Circuit Judges. ORDER 1 This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof, 2 It is ORDERED that the judgment of the district court be, and it hereby is, affirmed upon the opinion of the district court."
]
| https://www.courtlistener.com/api/rest/v3/opinions/530516/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Filed 6/4/14 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2014 ND 111
Nichole L. Francis, Petitioner
v.
Leon Francis, Respondent and Appellant
No. 20130317
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice.
Nichole L. Francis, petitioner; no appearance.
Leon Francis, self-represented, 717 7th Avenue North, Fargo, ND 58102, respondent and appellant.
Francis v. Francis
No. 20130317
Crothers, Justice.
[¶1] Leon Francis appeals from a domestic violence protection order prohibiting contact with his wife, Nichole L. Francis, granting Nichole Francis temporary custody of their minor children and restricting him to supervised visitation with their children. Leon Francis argues that the district court violated his due process rights by refusing to continue the hearing, erred in allowing a nonlawyer domestic violence advocate to essentially act like a lawyer in court proceedings, failed to make findings of fact supporting its order, erred in excluding evidence he presented and erred in requiring supervised visitation with his children. We reverse and remand.
I
[¶2] Nichole Francis obtained a temporary domestic violence protection order on July 29, 2013 after an incident on July 26, 2013. A domestic violence protection order hearing was scheduled for August 8, 2013, but was continued to August 15, 2013 at the request of the domestic violence advocate appearing with Nichole Francis. The district court admitted into evidence Nichole Francis’s affidavit in support of her petition, photographs of her alleged injuries from the incident, and testimony from Nichole Francis and Leon Francis given during the hearing. Nichole Francis’s testimony was presented to the court through direct and redirect questioning from the domestic violence advocate.
[¶3] The district court determined a sufficient showing of actual or imminent domestic violence was made under section 14-07.1-02(4), N.D.C.C. The district court issued a domestic violence protection order on August 15, 2013, granted Nichole Francis custody of their minor children and outlined supervised visitation terms for Leon Francis. Leon Francis appealed.
II
[¶4] “A trial court has great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not
be set aside on appeal.” Selzler v. Selzler , 2001 ND 138, ¶ 10, 631 N.W.2d 564. “A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.” Peters-
Riemers v. Riemers , 2001 ND 62, ¶ 7, 624 N.W.2d 83.
“Although the trial court has broad discretion over the presentation of evidence and the conduct of trial, it must exercise this discretion in a manner that best comports with substantial justice. Moreover, we do not construe rules of court to produce absurd or ludicrous results, but we construe them, like statutes, in a practical manner.”
Selzler , at ¶ 10 (internal citations omitted).
III
[¶5] Leon Francis argues the district court abused its discretion in allowing Glen Hase, an advocate with the Rape and Abuse Crisis Center, to excessively participate in the hearing on Nichole Francis’s petition for a domestic violence protection order. Leon Francis alleges the district court erred in giving Hase the same deference as an attorney, specifically taking issue with her preparation of legal documents, conducting direct and redirect examination of Nichole Francis during a hearing, and introducing evidence and asserting objections during the hearing.
[¶6] Section 27-11-01, N.D.C.C., states that “[e]xcept as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which the person is not a party concerned . . . .” The North Dakota Supreme Court Administrative Rules allow limited participation of domestic violence advocates in domestic violence proceedings:
“In all proceedings pursuant to Chapter 14-07.1, N.D.C.C., a Certified Domestic Violence Advocate may:
(a) assist the petitioner in completing printed forms for proceedings pursuant to Chapter 14-07.1, N.D.C.C.;
(b) sit with the petitioner during court proceedings; and
(c) at the judge’s discretion, make written or oral statements to the court.”
N.D. Sup. Ct. Admin. R. 34, § 5. Additionally, “[w]hen providing services pursuant to Section 5, a Certified Domestic Violence Advocate is not engaged in the unauthorized practice of law.” N.D. Sup. Ct. Admin. R. 34, § 7.
[¶7] During the two domestic violence protection order hearings, Hase requested a continuance after speaking with Nichole Francis and Leon Francis, aided in the completion of a request for continuance form, asserted to the court on behalf of Nichole Francis that Nichole Francis did not agree to a second continuation, conducted direct and redirect examination of Nichole Francis and introduced photographic evidence of Nichole Francis’s alleged injuries. The district court essentially treated Hase as Nichole Francis’s attorney, actively permitting her participation in developing the record and examining Nichole Francis.
[¶8] Hase’s participation exceeded that permitted by this Court’s administrative rules. N.D. Sup. Ct. Admin. R. 34, § 5. Hase complied with the rules in completing forms, sitting with Nichole Francis during court and making statements at the district court’s request. Hase exceeded the scope of the rules by objecting on behalf of Nichole Francis (“Your Honor, this matter was continued per the Respondent’s request on August 8. We’re ready to go forward today and do not agree to a continuance, or would not like a continuance at this time.”). Hase also exceeded the scope of the rule by conducting Nichole Francis’s direct and redirect examination.
[¶9] Section 27-11-01, N.D.C.C., is clear that a person may not act as an attorney in an action in which the person is not a party, except when otherwise provided. The rules provide for the limited participation of domestic violence advocates, N.D. Sup. Ct. Admin. R. 34, § 5, and the exception should be read narrowly to avoid the unauthorized practice of law. The administrative rules do not allow the district court to permit a domestic violence advocate to represent a party by objecting on their behalf, introducing evidence or examining witnesses. Id. The district court abused its discretion by failing to properly apply Rule 34, section 5, N.D. Sup. Ct. Admin. R.
[¶10] Having determined the district court abused its discretion, we must determine an appropriate remedy. Leon Francis cited to no authority for resolution of this question, and Nichole Francis did not file a brief on appeal. We therefore are left in the uncomfortable position of drafting a remedy without assistance from the adversarial process.
[¶11] Although the district court has broad discretion over the conduct of a hearing, “when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.” Gullickson v. Kline , 2004 ND 76, ¶ 16, 678 N.W.2d 138 (reversing a district court order when the overall tenor and tone of the hearing denied a party the opportunity to present evidence and challenge allegations, resulting in a denial of due process). Here, the district court’s failure to correctly apply Rule 34, section 5, N.D. Sup. Ct. Admin. R., resulted in a denial of justice by allowing the domestic violence advocate to participate in the hearing like an attorney. We reverse and remand for a new hearing on Nichole Francis’s petition for protective relief.
[¶12] Because of our disposition, it is unnecessary to address Leon Francis’s remaining issues.
IV
[¶13] The district court abused its discretion by allowing a domestic violence advocate to participate in the proceedings beyond that permitted in Rule 34, section 5, N.D. Sup. Ct. Admin. R., thereby denying Leon Francis his right to a fair hearing. We reverse and remand.
[¶14] Daniel J. Crothers
Dale V. Sandstrom
Carol Ronning Kapsner
Harlan Patrick Weir, S.J.
Gerald W. VandeWalle, C.J.
[¶15] The Honorable Harlan Patrick Weir, S.J., sitting in place of McEvers, J., disqualified.
Sandstrom, Justice, concurring.
[¶16] I agree the domestic violence advocate in this case exceeded the participation allowed by this Court’s administrative rules. I write separately to note that the advocate’s participation went far beyond the intended scope of N.D. Sup. Ct. Admin. R. 34; that there was serious misconduct of the advocate beyond the unauthorized practice of law; and that there are permissible methods for judicial officers to seek the truth in hearings such as this when neither party is represented by counsel.
[¶17] When Rule 34 was originally proposed, there was significant opposition to the rule because of concerns that domestic violence advocates would be engaging in the unauthorized practice of law. In response to these concerns, Bonnie Palacek, the executive director of the North Dakota Council on Abused Women’s Services, wrote to the Supreme Court, stating:
Since 1979, domestic violence advocates have been providing three services to victims which relate to the Protection Order process:
1) We have been assisting them in filling out petitions for the Orders by explaining what a petition is, how it moves through the court system, and what the various items mean;
2) We have been sitting with victims in courtrooms, sometimes at the front of the room at the counsel table;
3) We have been responding to requests for information from the judge.
. . . .
We are asking an affirmation of what we have been doing since 1979. We are not asking an extension of that role.
[¶18] To the extent there may be any ambiguity, testimony addressing the proposed administrative rule demonstrates that the role of domestic violence advocates in this process was to be a limited one. Administrative Rule 34 was not intended to allow domestic violence advocates to speak on behalf of victims, introduce evidence, or examine witnesses. In this case, the advocate prepared legal documents, conducted direct and redirect examination of Nichole Francis during a hearing, introduced evidence, and asserted objections. The advocate’s actions went far beyond the scope of the rule.
[¶19] In addition, there was serious misconduct on the part of the advocate beyond merely impermissible participation in the proceedings. The advocate at the second court date misled the court by telling the judge it was the respondent who had requested the continuance at the first time set for the hearing. The record reflects it was the advocate who sought the continuance at the first hearing time, and the judge never asked the respondent whether he had any objection to the continuance. At the outset of the second hearing time, the respondent advised the court he had secured legal representation—giving the name of the firm—but needed time for the lawyer to be present. Were it not for the advocate’s misrepresentation to the court, it is likely a continuance would have been granted in the interest of justice at the second scheduled time for the hearing.
[¶20] Finally, I would suggest, as the United States Supreme Court suggested in Turner v Rogers , 131 S. Ct. 2507 (2011), there are better ways to secure justice through neutral engagement by the judge or referee. Neutral engagement—where the judge explains, inquires, and clarifies—may provide the “additional or substitute procedural safeguards” that comply with the Due Process Clause. Id. at 2518. See also Richard Zorza, Turner v. Rogers: Improving Due Process for the Self-Represented , National Center for State Courts, Future Trends in State Courts 2012, available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/accessfair/id/239; Judge Gary Clingman, The Self Represented Litigant in Your Court—A Quandary , National Judicial College News (Jan. 13, 2014), http://www.judges.org/news/news011314.html. The process employed in this case, one-sided advocacy and use of a detached-judicial model, appears to result, in the words of the United States Supreme Court, in “an asymmetry of representation that would ‘alter significantly the nature of the proceeding’” that “could make the proceedings less fair overall.” See Turner , at 2519. Simply stated, provided the respondent is given “adequate notice of the importance of [issues], fair opportunity to present, and to dispute, relevant information, and court findings,” the judicial officer can explain the law, make inquiry, and clarify in a neutral manner in order to do justice within the framework of the law. See id. at 2520.
[¶21] Dale V. Sandstrom | 06-04-2014 | [
"Filed 6/4/14 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2014 ND 111 Nichole L. Francis, Petitioner v. Leon Francis, Respondent and Appellant No. 20130317 Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge. REVERSED AND REMANDED. Opinion of the Court by Crothers, Justice. Nichole L. Francis, petitioner; no appearance. Leon Francis, self-represented, 717 7th Avenue North, Fargo, ND 58102, respondent and appellant. Francis v. Francis No. 20130317 Crothers, Justice.",
"[¶1] Leon Francis appeals from a domestic violence protection order prohibiting contact with his wife, Nichole L. Francis, granting Nichole Francis temporary custody of their minor children and restricting him to supervised visitation with their children. Leon Francis argues that the district court violated his due process rights by refusing to continue the hearing, erred in allowing a nonlawyer domestic violence advocate to essentially act like a lawyer in court proceedings, failed to make findings of fact supporting its order, erred in excluding evidence he presented and erred in requiring supervised visitation with his children. We reverse and remand. I [¶2] Nichole Francis obtained a temporary domestic violence protection order on July 29, 2013 after an incident on July 26, 2013. A domestic violence protection order hearing was scheduled for August 8, 2013, but was continued to August 15, 2013 at the request of the domestic violence advocate appearing with Nichole Francis. The district court admitted into evidence Nichole Francis’s affidavit in support of her petition, photographs of her alleged injuries from the incident, and testimony from Nichole Francis and Leon Francis given during the hearing.",
"Nichole Francis’s testimony was presented to the court through direct and redirect questioning from the domestic violence advocate. [¶3] The district court determined a sufficient showing of actual or imminent domestic violence was made under section 14-07.1-02(4), N.D.C.C. The district court issued a domestic violence protection order on August 15, 2013, granted Nichole Francis custody of their minor children and outlined supervised visitation terms for Leon Francis. Leon Francis appealed. II [¶4] “A trial court has great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not be set aside on appeal.” Selzler v. Selzler , 2001 ND 138, ¶ 10, 631 N.W.2d 564. “A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.” Peters- Riemers v. Riemers , 2001 ND 62, ¶ 7, 624 N.W.2d 83.",
"“Although the trial court has broad discretion over the presentation of evidence and the conduct of trial, it must exercise this discretion in a manner that best comports with substantial justice. Moreover, we do not construe rules of court to produce absurd or ludicrous results, but we construe them, like statutes, in a practical manner.” Selzler , at ¶ 10 (internal citations omitted). III [¶5] Leon Francis argues the district court abused its discretion in allowing Glen Hase, an advocate with the Rape and Abuse Crisis Center, to excessively participate in the hearing on Nichole Francis’s petition for a domestic violence protection order. Leon Francis alleges the district court erred in giving Hase the same deference as an attorney, specifically taking issue with her preparation of legal documents, conducting direct and redirect examination of Nichole Francis during a hearing, and introducing evidence and asserting objections during the hearing. [¶6] Section 27-11-01, N.D.C.C., states that “[e]xcept as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which the person is not a party concerned . . .",
".” The North Dakota Supreme Court Administrative Rules allow limited participation of domestic violence advocates in domestic violence proceedings: “In all proceedings pursuant to Chapter 14-07.1, N.D.C.C., a Certified Domestic Violence Advocate may: (a) assist the petitioner in completing printed forms for proceedings pursuant to Chapter 14-07.1, N.D.C.C. ; (b) sit with the petitioner during court proceedings; and (c) at the judge’s discretion, make written or oral statements to the court.” N.D. Sup. Ct. Admin. R. 34, § 5. Additionally, “[w]hen providing services pursuant to Section 5, a Certified Domestic Violence Advocate is not engaged in the unauthorized practice of law.” N.D. Sup.",
"Ct. Admin. R. 34, § 7. [¶7] During the two domestic violence protection order hearings, Hase requested a continuance after speaking with Nichole Francis and Leon Francis, aided in the completion of a request for continuance form, asserted to the court on behalf of Nichole Francis that Nichole Francis did not agree to a second continuation, conducted direct and redirect examination of Nichole Francis and introduced photographic evidence of Nichole Francis’s alleged injuries. The district court essentially treated Hase as Nichole Francis’s attorney, actively permitting her participation in developing the record and examining Nichole Francis. [¶8] Hase’s participation exceeded that permitted by this Court’s administrative rules. N.D. Sup.",
"Ct. Admin. R. 34, § 5. Hase complied with the rules in completing forms, sitting with Nichole Francis during court and making statements at the district court’s request. Hase exceeded the scope of the rules by objecting on behalf of Nichole Francis (“Your Honor, this matter was continued per the Respondent’s request on August 8. We’re ready to go forward today and do not agree to a continuance, or would not like a continuance at this time.”). Hase also exceeded the scope of the rule by conducting Nichole Francis’s direct and redirect examination. [¶9] Section 27-11-01, N.D.C.C., is clear that a person may not act as an attorney in an action in which the person is not a party, except when otherwise provided. The rules provide for the limited participation of domestic violence advocates, N.D. Sup. Ct. Admin.",
"R. 34, § 5, and the exception should be read narrowly to avoid the unauthorized practice of law. The administrative rules do not allow the district court to permit a domestic violence advocate to represent a party by objecting on their behalf, introducing evidence or examining witnesses. Id. The district court abused its discretion by failing to properly apply Rule 34, section 5, N.D. Sup. Ct. Admin. R. [¶10] Having determined the district court abused its discretion, we must determine an appropriate remedy. Leon Francis cited to no authority for resolution of this question, and Nichole Francis did not file a brief on appeal. We therefore are left in the uncomfortable position of drafting a remedy without assistance from the adversarial process. [¶11] Although the district court has broad discretion over the conduct of a hearing, “when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.” Gullickson v. Kline , 2004 ND 76, ¶ 16, 678 N.W.2d 138 (reversing a district court order when the overall tenor and tone of the hearing denied a party the opportunity to present evidence and challenge allegations, resulting in a denial of due process).",
"Here, the district court’s failure to correctly apply Rule 34, section 5, N.D. Sup. Ct. Admin. R., resulted in a denial of justice by allowing the domestic violence advocate to participate in the hearing like an attorney. We reverse and remand for a new hearing on Nichole Francis’s petition for protective relief. [¶12] Because of our disposition, it is unnecessary to address Leon Francis’s remaining issues. IV [¶13] The district court abused its discretion by allowing a domestic violence advocate to participate in the proceedings beyond that permitted in Rule 34, section 5, N.D. Sup. Ct. Admin. R., thereby denying Leon Francis his right to a fair hearing. We reverse and remand. [¶14] Daniel J. Crothers Dale V. Sandstrom Carol Ronning Kapsner Harlan Patrick Weir, S.J.",
"Gerald W. VandeWalle, C.J. [¶15] The Honorable Harlan Patrick Weir, S.J., sitting in place of McEvers, J., disqualified. Sandstrom, Justice, concurring. [¶16] I agree the domestic violence advocate in this case exceeded the participation allowed by this Court’s administrative rules. I write separately to note that the advocate’s participation went far beyond the intended scope of N.D. Sup. Ct. Admin. R. 34; that there was serious misconduct of the advocate beyond the unauthorized practice of law; and that there are permissible methods for judicial officers to seek the truth in hearings such as this when neither party is represented by counsel. [¶17] When Rule 34 was originally proposed, there was significant opposition to the rule because of concerns that domestic violence advocates would be engaging in the unauthorized practice of law. In response to these concerns, Bonnie Palacek, the executive director of the North Dakota Council on Abused Women’s Services, wrote to the Supreme Court, stating: Since 1979, domestic violence advocates have been providing three services to victims which relate to the Protection Order process: 1) We have been assisting them in filling out petitions for the Orders by explaining what a petition is, how it moves through the court system, and what the various items mean; 2) We have been sitting with victims in courtrooms, sometimes at the front of the room at the counsel table; 3) We have been responding to requests for information from the judge.",
". . . . We are asking an affirmation of what we have been doing since 1979. We are not asking an extension of that role. [¶18] To the extent there may be any ambiguity, testimony addressing the proposed administrative rule demonstrates that the role of domestic violence advocates in this process was to be a limited one. Administrative Rule 34 was not intended to allow domestic violence advocates to speak on behalf of victims, introduce evidence, or examine witnesses. In this case, the advocate prepared legal documents, conducted direct and redirect examination of Nichole Francis during a hearing, introduced evidence, and asserted objections. The advocate’s actions went far beyond the scope of the rule.",
"[¶19] In addition, there was serious misconduct on the part of the advocate beyond merely impermissible participation in the proceedings. The advocate at the second court date misled the court by telling the judge it was the respondent who had requested the continuance at the first time set for the hearing. The record reflects it was the advocate who sought the continuance at the first hearing time, and the judge never asked the respondent whether he had any objection to the continuance. At the outset of the second hearing time, the respondent advised the court he had secured legal representation—giving the name of the firm—but needed time for the lawyer to be present.",
"Were it not for the advocate’s misrepresentation to the court, it is likely a continuance would have been granted in the interest of justice at the second scheduled time for the hearing. [¶20] Finally, I would suggest, as the United States Supreme Court suggested in Turner v Rogers , 131 S. Ct. 2507 (2011), there are better ways to secure justice through neutral engagement by the judge or referee. Neutral engagement—where the judge explains, inquires, and clarifies—may provide the “additional or substitute procedural safeguards” that comply with the Due Process Clause. Id. at 2518. See also Richard Zorza, Turner v. Rogers: Improving Due Process for the Self-Represented , National Center for State Courts, Future Trends in State Courts 2012, available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/accessfair/id/239; Judge Gary Clingman, The Self Represented Litigant in Your Court—A Quandary , National Judicial College News (Jan. 13, 2014), http://www.judges.org/news/news011314.html. The process employed in this case, one-sided advocacy and use of a detached-judicial model, appears to result, in the words of the United States Supreme Court, in “an asymmetry of representation that would ‘alter significantly the nature of the proceeding’” that “could make the proceedings less fair overall.” See Turner , at 2519.",
"Simply stated, provided the respondent is given “adequate notice of the importance of [issues], fair opportunity to present, and to dispute, relevant information, and court findings,” the judicial officer can explain the law, make inquiry, and clarify in a neutral manner in order to do justice within the framework of the law. See id. at 2520. [¶21] Dale V. Sandstrom"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2677122/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
@ @ @ @ e e @ Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 1of8
ORIGINAL
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.
File No.: 2008-0017/E
Surrogate Nora S. Anderson
rk County Surrogate’s | NeW GELLANEOUS DEPT. =:
FEB 0 6 2018 . FILED FF
Cletk_—_——— L
Dalia Genger, Trustee of the Orly Genger 1993 Trust,
Petitioner
-against-
Orly Genger, et al.,
Respondents.
NOTICE OF MOTION TO DISMISS PETITION PLEASE TAKE NOTICE, that upon the Affirmation of Michael Paul Bowen, dated February 5, and all exhibits attached thereto, the accompanying Memorandum of Law, and all prior pleadings and proceedings heretofore had herein, petitioner Orly Genger will move this Roun 509 jolvoa. Court, at 31 Chambers Street, New York, New York 10007, on February 27, 2018, or as soon thereafter as counsel can be heard, for an Order pursuant to SCPA Section 102 and CPLR Sections 321 1(a)(4), (5), (7) and (8) dismissing Dalia Genger’s Petition. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering
affidavits shall be served at least seven days before the return date of this motion. @ e e e 6 e e Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 2 of 8
Dated: New York, New York February 5, 2018
KASOWITZ BENSON TORRES LLP
Michael Paul Bowen Andrew R. Kurland
1633 Broadway
New York, New York 10019 (212) 506-1700
Attorneys for Petitioner
To:
Judith Bachman, Esq.
254 S. Main Street
Suite 306
New City, NY 10956
Counsel to Petitioner Dalia Genger e ® e ® @ @ e Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 3 of 8
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.
File No.: — 2008-0017/E
Surrogate Nora S. Anderson
Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner, -against- Orly Genger, et al.,
Respondents.
AFFIRMATION OF SERVICE
I am an attorney admitted to practice before the Courts of the State of New York. On February 5, 2018, on behalf of petitioner Orly Genger, I caused to be served by email and FedEx overnight delivery a true and correct copy of Respondent Orly Genger’s Notice of Motion to Dismiss the 2016 Petition of Dalia Genger, along with the Memorandum of Law dated February 5, 2018 and the Affirmation of Michael Paul Bowen, dated February 5, 2018, with exhibits, on counsel for Petitioner Dalia Genger at the following address:
Judith Bachman, Esq.
254 S. Main Street
Suite 306 New City, NY 10956
Dated: New York, New York February 5, 2018 Ne 0
Andrew R. Kurland e 6 6 @ e e Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Pag@rbrOfsBa-onasev-crecwn
800.222.0510 www.asiegal.com
Index No. OOQI7/E Year 20 08
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.
Dalia Genger, Trustee of the Orly Genger 1993 Trust,
Petitioner, -against-
Orly Genger, et al., Respondents.
NOTICE OF MOTION TO DISMISS, AFFIRMATION OF MICHAEL P. BOWEN AND EXHIBITS, AFFIRMATION OF SERVICE
KASOWITZ BENSON TORRES LLP Attorney(s) for
Respondent — Office Address & Tel. No.:
1633 BROADWAY NEW YORK, NY 10019 212-506-1700
Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims for personal injury or wrongful death, the matter was not CT violation of 22 NYCRR. 1200.41-a.
Date? oasepepesgescsssevsessosngeees Signature
February 5, 201T8™ _—— Print Signer’s Name Michael P. Bowen Service of a copy of the within is hereby admitted. Dated: Atiorney(s) for Petitioner
PLEASE TAKE NOTICE g J that the within is a (certified) true copy of a 3 NoTIcEOF entered in the office of the clerk of the within-named Court on 20 : ENTRY ° that an Order of which the within is a true copy will be presented for settlement to the
Notice or Hon. , one of the judges of the within-named Court, SETTLEMENT at on 20 , at M. Dated: KASOWITZ BENSON TORRES LLP Attorney(s) for Office Address & Tel. No.: To: 1633 BROADWAY Attorney(s) for NEW YORK, NY 10019
212-506-1700 Case 1:19-cv-09365-AKH Document 1-10- Filed 10/09/19 Page 5 of 8
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.
File No.: — 2008-0017/E
Surrogate Nora S. Anderson
Dalia Genger, Trustee of the Orly Genger 1993 Trust, Wan York County Surmogate’s Cour MISCELLANEOUS DEPT. Petitioner FEB 0 § 2018 -against- FILED Clerk
Orly Genger, et al.,
Respondents.
NOTICE OF MOTION TO DISMISS PETITION
PLEASE TAKE NOTICE, that upon the Affirmation of Michael Paul Bowen, dated February 5, and all exhibits attached thereto, the accompanying Memorandum of Law, and all prior pleadings and proceedings heretofore had herein, petitioner Orly Genger will move this Court, at 31 Chambers Street, New York, New York 10007, Room 509, on February 27, 2018 at 10:00 a.m., or as soon thereafter as counsel can be heard, for an Order pursuant to SCPA Section 102 and CPLR Sections 3211(a)(4), (5), (7) and (8) dismissing Dalia Genger’s Petition.
PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering
affidavits shall be served at least seven days before the return date of this motion. Case 1:19-cv-09365-AKH
Dated: New York, New York February 5, 2018
To:
Judith Bachman, Esq.
254 8. Main Street
Suite 306
New City, NY 10956
Counsel to Petitioner Dalia Genger
Document 1-10 Filed 10/09/19 Page 6 of 8
KASOW£TZ BENSON TORRES LLP
By:
chael Paul Bowen drew R. Kurland 1633 Broadway
New York, New York 10019 (212) 506-1700
Attorneys for Petitioner Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 7 of 8
ALLSTATE LEGAL® 07181-BF * 07182-BL © 07183-GY © 07184-WH
800.222.0510 www.astegal.com ~
Index No. OO17/E Year 20 08
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.
Dalia Genger, Trustee of the Orly Genger 1993 Trust,
Petitioner, -against-
Orly Genger, et al., Respondents.
NOTICE OF MOTION TO DISMISS PETITION
KASOWITZ BENSON TORRES LLP Attorney(s) for
Respondent Office Address & Tel. No.: 1633 BROADWAY NEW YORK, NY 10019 212-506-1700
Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims for personal injury or wrongful death, the matter was not obtained, in violation of 22 NYCRR. 1200.41-a.
Dated...... Febriiaiy'S720TS" SIgmature oo. eseeseeseeseeecesessescesenesssssecnesassnsaeseessesseanenesqasteetsesseesueeseenessaseassarsueenneanessy Print Signer’s Name.........: “ented M ichael P. Bowen Ns aceacsacsensesscaeuseessasaceatenseeseeeeaseeeseeeees Service of a copy of the within is hereby admitted. Dated: Aittorney(s) for _ Petitioner PLEASE TAKE NOTICE g [ | that the within is a (certified) true copy of a 8 NOTICEOF entered in the office of the clerk of the within-named Court on 20 3 ENTRY 3 ° [| that an Order of which the within is a true copy will be presented for settlement to the notice or Hon. , one of the judges of the within-named Court, SETTLEMENT at on 20 , at M. Dated:
KASOWITZ BENSON TORRES LLP Attorney(s) for
Office Address & Tel. No.: To:
1633 BROADWAY Attorney(s) for NEW YORK, NY 10019 212-506-1700 e ® @ @ @ e @ Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 8 of 8
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.
File No.: — 2008-0017/E
Surrogate Nora S. Anderson
Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner, -against- Orly Genger, et al.,
Respondents.
AFFIRMATION OF SERVICE
I am an attorney admitted to practice before the Courts of the State of New York. On February 5, 2018, on behalf of petitioner Orly Genger, I caused to be served by email and FedEx overnight delivery a true and correct copy of Respondent Orly Genger’s Notice of Motion to Dismiss the 2016 Petition of Dalia Genger, along with the Memorandum of Law dated February 5, 2018 and the Affirmation of Michael Paul Bowen, dated February 5, 2018, with exhibits, on counsel for Petitioner Dalia Genger at the following address:
Judith Bachman, Esq.
254 S. Main Street
Suite 306 New City, NY 10956
Dated: New York, New York February 5, 2018 Ne eh
Andrew R. Kurland | 2019-10-09 | [
"@ @ @ @ e e @ Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 1of8 ORIGINAL SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust. File No. : 2008-0017/E Surrogate Nora S. Anderson rk County Surrogate’s | NeW GELLANEOUS DEPT. =: FEB 0 6 2018 . FILED FF Cletk_—_——— L Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner -against- Orly Genger, et al., Respondents. NOTICE OF MOTION TO DISMISS PETITION PLEASE TAKE NOTICE, that upon the Affirmation of Michael Paul Bowen, dated February 5, and all exhibits attached thereto, the accompanying Memorandum of Law, and all prior pleadings and proceedings heretofore had herein, petitioner Orly Genger will move this Roun 509 jolvoa. Court, at 31 Chambers Street, New York, New York 10007, on February 27, 2018, or as soon thereafter as counsel can be heard, for an Order pursuant to SCPA Section 102 and CPLR Sections 321 1(a)(4), (5), (7) and (8) dismissing Dalia Genger’s Petition.",
"PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering affidavits shall be served at least seven days before the return date of this motion. @ e e e 6 e e Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 2 of 8 Dated: New York, New York February 5, 2018 KASOWITZ BENSON TORRES LLP Michael Paul Bowen Andrew R. Kurland 1633 Broadway New York, New York 10019 (212) 506-1700 Attorneys for Petitioner To: Judith Bachman, Esq. 254 S. Main Street Suite 306 New City, NY 10956 Counsel to Petitioner Dalia Genger e ® e ® @ @ e Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 3 of 8 SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.",
"File No. : — 2008-0017/E Surrogate Nora S. Anderson Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner, -against- Orly Genger, et al., Respondents. AFFIRMATION OF SERVICE I am an attorney admitted to practice before the Courts of the State of New York. On February 5, 2018, on behalf of petitioner Orly Genger, I caused to be served by email and FedEx overnight delivery a true and correct copy of Respondent Orly Genger’s Notice of Motion to Dismiss the 2016 Petition of Dalia Genger, along with the Memorandum of Law dated February 5, 2018 and the Affirmation of Michael Paul Bowen, dated February 5, 2018, with exhibits, on counsel for Petitioner Dalia Genger at the following address: Judith Bachman, Esq. 254 S. Main Street Suite 306 New City, NY 10956 Dated: New York, New York February 5, 2018 Ne 0 Andrew R. Kurland e 6 6 @ e e Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Pag@rbrOfsBa-onasev-crecwn 800.222.0510 www.asiegal.com Index No.",
"OOQI7/E Year 20 08 SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust. Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner, -against- Orly Genger, et al., Respondents. NOTICE OF MOTION TO DISMISS, AFFIRMATION OF MICHAEL P. BOWEN AND EXHIBITS, AFFIRMATION OF SERVICE KASOWITZ BENSON TORRES LLP Attorney(s) for Respondent — Office Address & Tel.",
"No. : 1633 BROADWAY NEW YORK, NY 10019 212-506-1700 Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims for personal injury or wrongful death, the matter was not CT violation of 22 NYCRR. 1200.41-a. Date?",
"oasepepesgescsssevsessosngeees Signature February 5, 201T8™ _—— Print Signer’s Name Michael P. Bowen Service of a copy of the within is hereby admitted. Dated: Atiorney(s) for Petitioner PLEASE TAKE NOTICE g J that the within is a (certified) true copy of a 3 NoTIcEOF entered in the office of the clerk of the within-named Court on 20 : ENTRY ° that an Order of which the within is a true copy will be presented for settlement to the Notice or Hon. , one of the judges of the within-named Court, SETTLEMENT at on 20 , at M. Dated: KASOWITZ BENSON TORRES LLP Attorney(s) for Office Address & Tel. No. : To: 1633 BROADWAY Attorney(s) for NEW YORK, NY 10019 212-506-1700 Case 1:19-cv-09365-AKH Document 1-10- Filed 10/09/19 Page 5 of 8 SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.",
"File No. : — 2008-0017/E Surrogate Nora S. Anderson Dalia Genger, Trustee of the Orly Genger 1993 Trust, Wan York County Surmogate’s Cour MISCELLANEOUS DEPT. Petitioner FEB 0 § 2018 -against- FILED Clerk Orly Genger, et al., Respondents. NOTICE OF MOTION TO DISMISS PETITION PLEASE TAKE NOTICE, that upon the Affirmation of Michael Paul Bowen, dated February 5, and all exhibits attached thereto, the accompanying Memorandum of Law, and all prior pleadings and proceedings heretofore had herein, petitioner Orly Genger will move this Court, at 31 Chambers Street, New York, New York 10007, Room 509, on February 27, 2018 at 10:00 a.m., or as soon thereafter as counsel can be heard, for an Order pursuant to SCPA Section 102 and CPLR Sections 3211(a)(4), (5), (7) and (8) dismissing Dalia Genger’s Petition.",
"PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering affidavits shall be served at least seven days before the return date of this motion. Case 1:19-cv-09365-AKH Dated: New York, New York February 5, 2018 To: Judith Bachman, Esq. 254 8. Main Street Suite 306 New City, NY 10956 Counsel to Petitioner Dalia Genger Document 1-10 Filed 10/09/19 Page 6 of 8 KASOW£TZ BENSON TORRES LLP By: chael Paul Bowen drew R. Kurland 1633 Broadway New York, New York 10019 (212) 506-1700 Attorneys for Petitioner Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 7 of 8 ALLSTATE LEGAL® 07181-BF * 07182-BL © 07183-GY © 07184-WH 800.222.0510 www.astegal.com ~ Index No.",
"OO17/E Year 20 08 SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust. Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner, -against- Orly Genger, et al., Respondents. NOTICE OF MOTION TO DISMISS PETITION KASOWITZ BENSON TORRES LLP Attorney(s) for Respondent Office Address & Tel. No. : 1633 BROADWAY NEW YORK, NY 10019 212-506-1700 Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims for personal injury or wrongful death, the matter was not obtained, in violation of 22 NYCRR. 1200.41-a.",
"Dated...... Febriiaiy'S720TS\" SIgmature oo. eseeseeseeseeecesessescesenesssssecnesassnsaeseessesseanenesqasteetsesseesueeseenessaseassarsueenneanessy Print Signer’s Name.........: “ented M ichael P. Bowen Ns aceacsacsensesscaeuseessasaceatenseeseeeeaseeeseeeees Service of a copy of the within is hereby admitted. Dated: Aittorney(s) for _ Petitioner PLEASE TAKE NOTICE g [ | that the within is a (certified) true copy of a 8 NOTICEOF entered in the office of the clerk of the within-named Court on 20 3 ENTRY 3 ° [| that an Order of which the within is a true copy will be presented for settlement to the notice or Hon. , one of the judges of the within-named Court, SETTLEMENT at on 20 , at M. Dated: KASOWITZ BENSON TORRES LLP Attorney(s) for Office Address & Tel. No. : To: 1633 BROADWAY Attorney(s) for NEW YORK, NY 10019 212-506-1700 e ® @ @ @ e @ Case 1:19-cv-09365-AKH Document 1-10 Filed 10/09/19 Page 8 of 8 SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Petition of Dalia Genger, as Trustee of the Orly Genger 1993 Trust, Created by Trust Agreement Dated December 13, 1993 between ARIE GENGER, as Grantor, and LAWRENCE M. SMALL and SASH A. SPENCER, as Trustees, to Turnover Property to the Orly Genger 1993 Trust.",
"File No. : — 2008-0017/E Surrogate Nora S. Anderson Dalia Genger, Trustee of the Orly Genger 1993 Trust, Petitioner, -against- Orly Genger, et al., Respondents. AFFIRMATION OF SERVICE I am an attorney admitted to practice before the Courts of the State of New York. On February 5, 2018, on behalf of petitioner Orly Genger, I caused to be served by email and FedEx overnight delivery a true and correct copy of Respondent Orly Genger’s Notice of Motion to Dismiss the 2016 Petition of Dalia Genger, along with the Memorandum of Law dated February 5, 2018 and the Affirmation of Michael Paul Bowen, dated February 5, 2018, with exhibits, on counsel for Petitioner Dalia Genger at the following address: Judith Bachman, Esq.",
"254 S. Main Street Suite 306 New City, NY 10956 Dated: New York, New York February 5, 2018 Ne eh Andrew R. Kurland"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/110280700/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinion by Kincheloe, J. Following the authorities cited in Abstract 15400 the court dismissed the protests. | 09-09-2022 | [
"Opinion by Kincheloe, J. Following the authorities cited in Abstract 15400 the court dismissed the protests."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8092321/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0410096
Decision Date: 04/19/04 Archive Date: 04/29/04
DOCKET NO. 03-08 369 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West
Virginia
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
compensation benefits in the amount of $5,026.00, to include
whether the debt was properly created.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty from February 1966 to February
1969, from November 1990 to July 1991, and from February 1992 to
July 1992.
This matter comes before the Board of Veterans' Appeals (Board) on
appeal from a December 2002 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West Virginia,
Committee on Waivers and Compromises (Committee). The Committee
denied a waiver of recovery of an overpayment of compensation
benefits in the aggregate amount of $5,026.00.
FINDINGS OF FACT
1. From August 1999 to December 2001, the veteran was paid extra
compensation by reason of having a dependent child who was over 18
years of age and in school; simultaneously, the child received
Chapter 35 educational assistance; such concurrent payment of
these VA benefits is not permitted; the veteran has been charged
with a compensation overpayment debt of $5,026.00, due to the
concurrent payments.
2. The veteran was neither aware of nor caused the erroneous
compensation payments; the erroneous payments were due solely to
VA error.
CONCLUSION OF LAW
The overpayment of compensation benefits in the amount of
$5,026.00 was the result of an erroneous award based solely on VA
administrative error; such overpayment was not properly created,
and the related debt assessed against the veteran is not valid.
38 U.S.C.A. § 5112 (West 2002); 38 C.F.R. § 3.500 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
All information necessary to decide this case is already on file,
and there is compliance with the notice and duty to assist
provisions of the law. See 38 U.S.C.A. §§ 5103, 5103A; see also
Barger v. Principi, 16 Vet. App. 132 (2002).
The overpayment in this case arose when the veteran was
erroneously paid extra compensation benefits, during the period
from August 1999 to December 2001, for a dependent child who was
over 18 years of age and in school. At the same time, this child
was receiving Chapter 35 educational assistance. See 38 U.S.C.A.
§§ 101(4), 1115. VA regulations prohibit payment of extra
compensation for a dependent child based on school attendance,
concurrently with the child receiving Chapter 35 educational
assistance. See 38 C.F.R. §§ 3.667 (f)(1), 3.707, 21.3023.
Further, an election of Chapter 35 educational assistance is a bar
to subsequent compensation on account of the child's school
attendance. Id. Therefore, the veteran was not properly entitled
to receive the additional compensation based on his child's school
attendance for the same period of time that the child was
receiving Chapter 35 educational assistance.
The veteran contends that he should not have to repay the debt at
issue because he and his son were honest in dealing with VA. He
asserts that VA was aware his son was receiving Chapter 35
education benefits, yet VA continued to pay the veteran at a
compensation rate that included his son. In essence, the debt
resulted from administrative error on the part of VA. He further
contends that he does not understand how VA works, and he relies
on VA to make the correct adjustments. He feels that it was VA's
responsibility to remove his son from his compensation at the same
time Chapter 35 benefits were granted.
If a debt were solely the result of VA administrative error, the
effective date of the reduction of benefits would be the date of
the last payment based on this error; consequently, there would be
no overpayment charged to the veteran for the portion of the
overpayment attributable to administrative error or error in
judgment. See 38 U.S.C.A. § 5112(b)(10); 38 C.F.R. § 3.500(b).
As a result, there would no valid debt. Although not addressed by
the RO, the issue of the validity of the debt is implicit in the
issue of waiver. See Schaper v. Derwinski, 1 Vet. App. 430
(1991).
The overpayment in this case was apparently based on the failure
of the education Regional Processing Center (RPC), located
elsewhere, to notify the RO of the award of Chapter 35 benefits to
the veteran's dependent son. It must be emphasized that the RO's
actual knowledge of the concurrent receipt of Chapter 35 benefits
is irrelevant to a decision of administrative error; the RO is
considered to be in constructive possession of documents within VA
possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In
other words, the RO is presumed to have been notified of the
election of Chapter 35 benefits as of the date notice was received
at the education RPC.
Whether VA's action in erroneously paying duplicate benefits is
sole administrative error depends upon whether the payee knew, or
should have known, that the payments were erroneous. Where an
erroneous award is based on an act of commission or omission by a
payee, or with the payee's knowledge, the effective date of the
discontinuance of the erroneous payment is the date the award
became erroneous, but not earlier than the date entitlement
ceased. See 38 U.S.C.A. § 5112(b)(9); 38 C.F.R. § 3.500(b); see
also Jordan v. Brown, 10 Vet. App. 171, 174 (1997). Thus, if the
veteran was aware of, or caused, the erroneous payment, the
retroactive reduction in his compensation benefits would be
correct, and the overpayment valid.
The basic facts are not in dispute, and may be briefly summarized.
In June 1999, effective from October 1998, the veteran was awarded
a total compensation rating based on individual unemployablity due
to post-traumatic stress disorder (and the RO apparently found the
total rating to be permanent in nature) and entitlement to basic
eligibility to Dependents' Educational Assistance. A July 1999 RO
letter informing him of this award also informed him that he was
being paid additional compensation benefits for his dependent
child. By letter of July 1999, the veteran was informed that the
RO had received an Application for Survivors' and Dependents'
Education Assistance, and he was advised to immediately notify the
RO of the beginning date as to when the veteran's child (son)
starts receiving his benefit, to avoid an overpayment in benefits.
Accompanying the RO's letter was an application for a Request for
Approval of School Attendance for continuation of extra
compensation benefits for the veteran to complete, which he did in
July 1999. The completed the form shows his son had completed
high school in June 1999 and was starting college in August 1999.
A VA Chapter 35 information reply form from the RO is of record,
dated in August 1999, verifying the veteran's son's eligibility
for Chapter 35 education benefits. A handwritten notation on the
information sheet notes that the information was e-mailed to the
education RPC, in Buffalo, New York, on August 6, 1999. It should
be noted that, during this time, the veteran's address was in
Morgantown, West Virginia, and the son's in Keyser, West Virginia.
By RO letter of August 1999, the veteran was informed that his
disability compensation award had been amended to include
additional benefits for his son, and that payments for his son
would continue until January 1, 2002, based on school attendance.
In May 2000, the veteran remarried and, in August 2000, he was
informed that his disability compensation had been amended to
include additional benefits for his wife. In December 2000, he
was informed his disability compensation had again been amended to
include a stepson. The above-mentioned correspondence was mailed
to the veteran's his new address in Berkeley Springs, West
Virginia. Meanwhile, the veteran continued to receive additional
compensation benefits based on his son's school attendance, who
was residing in Keyser, West Virginia.
Dated June 12, 2001, is a VA Report of Contact reflecting a
telephone conversation the veteran had with RO personnel during
which it was noted the veteran had recently spoken with his son,
who indicated he would probably graduate in approximately August
2001. Also, the report notes that the son is currently in receipt
of Chapter 35 benefits; adjustment needed.
By RO letter, dated in December 2001, the veteran was informed
that information received indicated an adjustment in the amount he
was receiving from VA may be necessary. This proposed adjustment
was based on information from the Buffalo education RPC that his
son was awarded Dependents' Education Assistance, Chapter 35,
effective June 7, 2001. To avoid duplication of payment, the son
would be removed from the veteran's award as of that date. A VA
Report of Contact, dated December 10, 2001, relates that the
veteran informed RO personnel his son has not received any Chapter
35 benefits, and to please review the file. In late December
2001, pursuant to the RO's late November 2001 request, the veteran
submitted a Certification of School Attendance noting his son had
graduated high school and then started college.
By RO letter in April 2002, the veteran was advised his
compensation benefits had been adjusted, effective from June 7,
2001, because of his son's receipt of Chapter 35 benefits. Also,
the letter noted that it was proposed to adjust his award
retroactive to August 31, 1999, because information recently
received indicated the son actually began receiving those benefits
on August 31, 1999. In an August 2002 letter, the RO informed the
veteran that the proposed adjustment had been completed. These
combined actions created the overpayment at issue.
The veteran contends he was unaware that he was receiving excess
benefits. He maintains he informed the RO of his son's school
attendance. The June 2001 VA Report of Contact, following a
telephone conversation between the veteran and RO personnel, notes
that his son was receiving Chapter 35 benefits. All this took
place long before he was informed in December 2001 that his
compensation award would be adjusted because of concurrent receipt
of extra compensation for his son while in school and his son's
receipt of Chapter 35 benefits. He says that he provided all
requested information to VA, and assumed that VA correctly
processed his awards.
The dependent son's education file is not of record. However, the
education RPC informed the RO in December 2001 that the son was
receiving Chapter 35 benefits, and subsequently advised the RO
that the date of receipt of those benefits was August 1999. The
son's address has consistently been listed as different from that
of the veteran, in fact, they each have been living in different
cities. The notification the son specifically received pertaining
to Chapter 35 benefits is not of record. However, the award
letters generally accompanying this notification do not explicitly
identify the effect of the receipt of Chapter 35 benefits on the
veteran's compensation, and it cannot be assumed otherwise in this
case.
In the meantime, the veteran continued to receive additional
compensation benefits based on his son's school attendance. No
notification letters he may have received during this period, if
any, are of record. However, in late November 2001, he was
requested to verify his son's continued school attendance; the
completed certification was received a few weeks later.
Thereafter, the RO took action to retroactively reduce the
veteran's compensation, which resulted in the overpayment at
issue.
For whatever reason, it is not clear why the veteran's
compensation award was audited in August 2002, and found he had
been underpaid during the period at issue. The "underpayment"
resulted in him being sent a VA check in August 2002 in the amount
of $5,406.00. He promptly and personally returned the amount of
this check to RO personnel on August 23, 2002, without being
requested to do so. The VA Report of Contact recording this
transaction also notes that the true amount of his alleged
overpayment was under review.
The veteran contends that he relied upon VA to correctly adjust
his payments. In essence, he believes that any alleged
overpayment was the result of administrative error.
As indicated above, for the erroneous payments to have been sole
administrative error, the veteran (or other payee) cannot have
caused or been aware of the erroneous payments. The information
provided by the veteran and his son was accurate; therefore, the
erroneous award was not caused by either of the payees.
The evidence is less clear as to whether the veteran knew that the
payments were erroneous. In this regard, when advised of basic
eligibility for Dependents' Educational Assistance, a pamphlet is
generally enclosed explaining this benefit. Among other things,
the pamphlet notes that a child eligible for compensation based on
school attendance must elect which benefit to receive, and that an
election of educational assistance is a bar to further payment of
compensation after 18 years of age. Whether the veteran received
this pamphlet is not clear. However, it is clear that the RO
received an application for such benefits from the veteran's son
in July 1999. Although the son's education file is not of record,
it is consistently noted in various correspondence in the
veteran's record that the son lived at a different address than
the veteran. Although the veteran was notified that his
compensation included extra benefits for his son, the file does
not contain any record that he was notified that his benefits were
being reduced because of his son's election of Chapter 35
benefits. In the absence of any such notification, it cannot be
assumed that the veteran had actual knowledge of the erroneous
payments. Some support for his lack of knowledge may be found in
the veteran's prompt response with the verification of his son's
school attendance. Also weighing in the veteran's favor is his
prompt return of an erroneous $5,406.00 VA check he had been sent.
It must also be determined whether, regardless of actual
knowledge, the veteran or his son should have known that the
payments were erroneous. To this end, the Board must determine
whether the veteran received adequate notification that his
additional compensation for a child in school, and the child's
receipt of Chapter 35 educational assistance, were mutually
exclusive benefits, and that his benefits had not been correctly
adjusted.
The two benefits in this case (compensation to the veteran for a
dependent child [son] in school, and Chapter 35 benefits to the
child [son]) are both predicated on the same status, namely, a
child of the veteran, over the age of 18, and attending school.
However, the compensation is awarded to the veteran, while the
Chapter 35 benefits are awarded to the child. Due to the
potential for misunderstanding in these circumstances, the fact
that they are mutually exclusive benefits is one that should be
emphasized, to both the veteran and the child.
While the Chapter 35 application form notes that the election of
benefits is an important matter, the application form,
instructions, and pamphlet all fail to adequately clarify the
benefit that must be given up to obtain the educational
assistance. Specifically, these documents refer to payment of
compensation. However, the child, who directly receives the
Chapter 35 benefits, and signs the election, does not separately
receive compensation. An additional amount is included in the
veteran's compensation for his qualifying dependent child. On the
other hand, the veteran's compensation awards of record did not
contain any notification to him of the fact that both benefits
cannot be concurrently received.
The veteran also states that he did not understand the
compensation and relied upon VA to provide the correct amount.
The many amendments to his compensation for various reasons,
including, aside from his son, the addition of his wife and
stepchild, as well as cost of living adjustments, often for
reasons not clearly identified, support this assertion. Indeed,
the combination of his having provided all the required
information to VA, the ambiguous nature of the notification of the
effect of Chapter 35 benefits on his compensation, and the absence
of any specific notification that he was continuing to receive
benefits for his son after Chapter 35 benefits commenced, would
lead a reasonable person to assume that, since both programs were
administered by VA, the correct adjustments had been made.
In sum, under these circumstances, the Board finds that actual
knowledge that the veteran was receiving an erroneous amount of
compensation has not been established; and that the notification
to both him and his son was deficient, in that neither was
adequately informed that the veteran's additional compensation for
a child attending school and the child's receipt of Chapter 35
benefits were mutually exclusive benefits. Finally, even if the
veteran had known that his benefits should have been adjusted to
reflect his son's election of Chapter 35 benefits, the record does
not contain evidence the veteran was adequately notified, nor was
the information he received, clearly show that his benefits had
not been adjusted.
In view of all of these factors, the Board finds that the assessed
debt for the period of August 31, 1999, to December 1, 2001, in
the alleged amount of $5,026.00, was due to sole VA administrative
error. Therefore, the effective date of the reduction of
compensation benefits based on the concurrent receipt of Chapter
35 benefits is the date of the last payment made in the erroneous
amount. 38 U.S.C.A. §5112(b)(10); 38 C.F.R. § 3.500(b).
Accordingly, any compensation overpayment debt created between
August 31, 1999, and December 1, 2001, due to concurrent payment
of compensation and Chapter 35 education benefits, in the alleged
amount of $5,026.00, is not valid and is not owed by the veteran.
Therefore, there is no overpayment, and the appeal is allowed.
ORDER
An assessed compensation overpayment debt of $5,026.00 was not
properly created, and the veteran does not owe this assessed debt.
The appeal is granted.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or
Board) is the final decision for all issues addressed in the
"Order" section of the decision. The Board may also choose to
remand an issue or issues to the local VA office for additional
development. If the Board did this in your case, then a "Remand"
section follows the "Order." However, you cannot appeal an issue
remanded to the local VA office because a remand is not a final
decision. The advice below on how to appeal a claim applies only
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not
need to do anything. We will return your file to your local VA
office to implement the BVA's decision. However, if you are not
satisfied with the Board's decision on any or all of the issues
allowed, denied, or dismissed, you have the following options,
which are listed in no particular order of importance:
* Appeal to the United States Court of Appeals for Veterans Claims
(Court)
* File with the Board a motion for reconsideration of this
decision
* File with the Board a motion to vacate this decision
* File with the Board a motion for revision of this decision based
on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to
also:
* Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a
motion to vacate, or a motion for revision based on clear and
unmistakable error with the Board, or a claim to reopen at the
local VA office. None of these things is mutually exclusive - you
can do all five things at the same time if you wish. However, if
you file a Notice of Appeal with the Court and a motion with the
Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the
Court before you file a motion with the BVA, the BVA will not be
able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120
days from the date this decision was mailed to you (as shown on
the first page of this decision) to file a Notice of Appeal with
the United States Court of Appeals for Veterans Claims. If you
also want to file a motion for reconsideration or a motion to
vacate, you will still have time to appeal to the Court. As long
as you file your motion(s) with the Board within 120 days of the
date this decision was mailed to you, you will then have another
120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.
You should know that even if you have a representative, as
discussed below, it is your responsibility to make sure that your
appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans
Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure
for filing a Notice of Appeal, the filing fee (or a motion to
waive the filing fee if payment would cause financial hardship),
and other matters covered by the Court's rules directly from the
Court. You can also get this information from the Court's web site
on the Internet at www.vetapp.uscourts.gov, and you can download
forms directly from that website. The Court's facsimile number is
(202) 501-5848.
To ensure full protection of your right of appeal to the Court,
you must file your Notice of Appeal with the Court, not with the
Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion
asking the BVA to reconsider any part of this decision by writing
a letter to the BVA stating why you believe that the BVA committed
an obvious error of fact or law in this decision, or stating that
new and material military service records have been discovered
that apply to your appeal. If the BVA has decided more than one
issue, be sure to tell us which issue(s) you want reconsidered.
Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA FORM
JUN 2003 (RS)
4597
Page 1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the
BVA to vacate any part of this decision by writing a letter to the
BVA stating why you believe you were denied due process of law
during your appeal. For example, you were denied your right to
representation through action or inaction by VA personnel, you
were not provided a Statement of the Case or Supplemental
Statement of the Case, or you did not get a personal hearing that
you requested. You can also file a motion to vacate any part of
this decision on the basis that the Board allowed benefits based
on false or fraudulent evidence. Send this motion to the address
above for the Director, Management and Administration, at the
Board. Remember, the Board places no time limit on filing a
motion to vacate, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis
of clear and unmistakable error? You can file a motion asking that
the Board revise this decision if you believe that the decision is
based on "clear and unmistakable error" (CUE). Send this motion
to the address above for the Director, Management and
Administration, at the Board. You should be careful when preparing
such a motion because it must meet specific requirements, and the
Board will not review a final decision on this basis more than
once. You should carefully review the Board's Rules of Practice on
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on
filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to
reopen your claim by simply sending them a statement indicating
that you want to reopen your claim. However, to be successful in
reopening your claim, you must submit new and material evidence to
that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always
represent yourself in any claim before VA, including the BVA, but
you can also appoint someone to represent you. An accredited
representative of a recognized service organization may represent
you free of charge. VA approves these organizations to help
veterans, service members, and dependents prepare their claims and
present them to VA. An accredited representative works for the
service organization and knows how to prepare and present claims.
You can find a listing of these organizations on the Internet at:
www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is
not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than
before VA, then you can get information on how to do so by writing
directly to the Court. Upon request, the Court will provide you
with a state-by-state listing of persons admitted to practice
before the Court who have indicated their availability to
represent appellants. This information is also provided on the
Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for
a claim involving a home or small business VA loan under Chapter
37 of title 38, United States Code, attorneys or agents cannot
charge you a fee or accept payment for services they provide
before the date BVA makes a final decision on your appeal. If you
hire an attorney or accredited agent within 1 year of a final BVA
decision, then the attorney or agent is allowed to charge you a
fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the
Court. VA cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or
agent may charge you a reasonable fee for services involving a VA
home loan or small business loan. For more information, read
section 5904, title 38, United States Code.
In all cases, a copy of any fee agreement between you and an
attorney or accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion
asking the Board to do so. Send such a motion to the address above
for the Office of the Senior Deputy Vice Chairman at the Board.
VA FORM
JUN 2003 (RS)
4597
Page 2 | 04-19-2004 | [
"Citation Nr: 0410096 Decision Date: 04/19/04 Archive Date: 04/29/04 DOCKET NO. 03-08 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to waiver of recovery of an overpayment of compensation benefits in the amount of $5,026.00, to include whether the debt was properly created. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1969, from November 1990 to July 1991, and from February 1992 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, Committee on Waivers and Compromises (Committee). The Committee denied a waiver of recovery of an overpayment of compensation benefits in the aggregate amount of $5,026.00. FINDINGS OF FACT 1. From August 1999 to December 2001, the veteran was paid extra compensation by reason of having a dependent child who was over 18 years of age and in school; simultaneously, the child received Chapter 35 educational assistance; such concurrent payment of these VA benefits is not permitted; the veteran has been charged with a compensation overpayment debt of $5,026.00, due to the concurrent payments.",
"2. The veteran was neither aware of nor caused the erroneous compensation payments; the erroneous payments were due solely to VA error. CONCLUSION OF LAW The overpayment of compensation benefits in the amount of $5,026.00 was the result of an erroneous award based solely on VA administrative error; such overpayment was not properly created, and the related debt assessed against the veteran is not valid. 38 U.S.C.A. § 5112 (West 2002); 38 C.F.R.",
"§ 3.500 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION All information necessary to decide this case is already on file, and there is compliance with the notice and duty to assist provisions of the law. See 38 U.S.C.A. §§ 5103, 5103A; see also Barger v. Principi, 16 Vet. App. 132 (2002). The overpayment in this case arose when the veteran was erroneously paid extra compensation benefits, during the period from August 1999 to December 2001, for a dependent child who was over 18 years of age and in school. At the same time, this child was receiving Chapter 35 educational assistance. See 38 U.S.C.A.",
"§§ 101(4), 1115. VA regulations prohibit payment of extra compensation for a dependent child based on school attendance, concurrently with the child receiving Chapter 35 educational assistance. See 38 C.F.R. §§ 3.667 (f)(1), 3.707, 21.3023. Further, an election of Chapter 35 educational assistance is a bar to subsequent compensation on account of the child's school attendance. Id. Therefore, the veteran was not properly entitled to receive the additional compensation based on his child's school attendance for the same period of time that the child was receiving Chapter 35 educational assistance. The veteran contends that he should not have to repay the debt at issue because he and his son were honest in dealing with VA. He asserts that VA was aware his son was receiving Chapter 35 education benefits, yet VA continued to pay the veteran at a compensation rate that included his son. In essence, the debt resulted from administrative error on the part of VA. He further contends that he does not understand how VA works, and he relies on VA to make the correct adjustments.",
"He feels that it was VA's responsibility to remove his son from his compensation at the same time Chapter 35 benefits were granted. If a debt were solely the result of VA administrative error, the effective date of the reduction of benefits would be the date of the last payment based on this error; consequently, there would be no overpayment charged to the veteran for the portion of the overpayment attributable to administrative error or error in judgment. See 38 U.S.C.A. § 5112(b)(10); 38 C.F.R.",
"§ 3.500(b). As a result, there would no valid debt. Although not addressed by the RO, the issue of the validity of the debt is implicit in the issue of waiver. See Schaper v. Derwinski, 1 Vet. App. 430 (1991). The overpayment in this case was apparently based on the failure of the education Regional Processing Center (RPC), located elsewhere, to notify the RO of the award of Chapter 35 benefits to the veteran's dependent son. It must be emphasized that the RO's actual knowledge of the concurrent receipt of Chapter 35 benefits is irrelevant to a decision of administrative error; the RO is considered to be in constructive possession of documents within VA possession. See Bell v. Derwinski, 2 Vet.",
"App. 611 (1992). In other words, the RO is presumed to have been notified of the election of Chapter 35 benefits as of the date notice was received at the education RPC. Whether VA's action in erroneously paying duplicate benefits is sole administrative error depends upon whether the payee knew, or should have known, that the payments were erroneous. Where an erroneous award is based on an act of commission or omission by a payee, or with the payee's knowledge, the effective date of the discontinuance of the erroneous payment is the date the award became erroneous, but not earlier than the date entitlement ceased.",
"See 38 U.S.C.A. § 5112(b)(9); 38 C.F.R. § 3.500(b); see also Jordan v. Brown, 10 Vet. App. 171, 174 (1997). Thus, if the veteran was aware of, or caused, the erroneous payment, the retroactive reduction in his compensation benefits would be correct, and the overpayment valid. The basic facts are not in dispute, and may be briefly summarized. In June 1999, effective from October 1998, the veteran was awarded a total compensation rating based on individual unemployablity due to post-traumatic stress disorder (and the RO apparently found the total rating to be permanent in nature) and entitlement to basic eligibility to Dependents' Educational Assistance.",
"A July 1999 RO letter informing him of this award also informed him that he was being paid additional compensation benefits for his dependent child. By letter of July 1999, the veteran was informed that the RO had received an Application for Survivors' and Dependents' Education Assistance, and he was advised to immediately notify the RO of the beginning date as to when the veteran's child (son) starts receiving his benefit, to avoid an overpayment in benefits. Accompanying the RO's letter was an application for a Request for Approval of School Attendance for continuation of extra compensation benefits for the veteran to complete, which he did in July 1999. The completed the form shows his son had completed high school in June 1999 and was starting college in August 1999. A VA Chapter 35 information reply form from the RO is of record, dated in August 1999, verifying the veteran's son's eligibility for Chapter 35 education benefits.",
"A handwritten notation on the information sheet notes that the information was e-mailed to the education RPC, in Buffalo, New York, on August 6, 1999. It should be noted that, during this time, the veteran's address was in Morgantown, West Virginia, and the son's in Keyser, West Virginia. By RO letter of August 1999, the veteran was informed that his disability compensation award had been amended to include additional benefits for his son, and that payments for his son would continue until January 1, 2002, based on school attendance.",
"In May 2000, the veteran remarried and, in August 2000, he was informed that his disability compensation had been amended to include additional benefits for his wife. In December 2000, he was informed his disability compensation had again been amended to include a stepson. The above-mentioned correspondence was mailed to the veteran's his new address in Berkeley Springs, West Virginia. Meanwhile, the veteran continued to receive additional compensation benefits based on his son's school attendance, who was residing in Keyser, West Virginia. Dated June 12, 2001, is a VA Report of Contact reflecting a telephone conversation the veteran had with RO personnel during which it was noted the veteran had recently spoken with his son, who indicated he would probably graduate in approximately August 2001. Also, the report notes that the son is currently in receipt of Chapter 35 benefits; adjustment needed.",
"By RO letter, dated in December 2001, the veteran was informed that information received indicated an adjustment in the amount he was receiving from VA may be necessary. This proposed adjustment was based on information from the Buffalo education RPC that his son was awarded Dependents' Education Assistance, Chapter 35, effective June 7, 2001. To avoid duplication of payment, the son would be removed from the veteran's award as of that date. A VA Report of Contact, dated December 10, 2001, relates that the veteran informed RO personnel his son has not received any Chapter 35 benefits, and to please review the file. In late December 2001, pursuant to the RO's late November 2001 request, the veteran submitted a Certification of School Attendance noting his son had graduated high school and then started college. By RO letter in April 2002, the veteran was advised his compensation benefits had been adjusted, effective from June 7, 2001, because of his son's receipt of Chapter 35 benefits. Also, the letter noted that it was proposed to adjust his award retroactive to August 31, 1999, because information recently received indicated the son actually began receiving those benefits on August 31, 1999.",
"In an August 2002 letter, the RO informed the veteran that the proposed adjustment had been completed. These combined actions created the overpayment at issue. The veteran contends he was unaware that he was receiving excess benefits. He maintains he informed the RO of his son's school attendance. The June 2001 VA Report of Contact, following a telephone conversation between the veteran and RO personnel, notes that his son was receiving Chapter 35 benefits. All this took place long before he was informed in December 2001 that his compensation award would be adjusted because of concurrent receipt of extra compensation for his son while in school and his son's receipt of Chapter 35 benefits. He says that he provided all requested information to VA, and assumed that VA correctly processed his awards. The dependent son's education file is not of record.",
"However, the education RPC informed the RO in December 2001 that the son was receiving Chapter 35 benefits, and subsequently advised the RO that the date of receipt of those benefits was August 1999. The son's address has consistently been listed as different from that of the veteran, in fact, they each have been living in different cities. The notification the son specifically received pertaining to Chapter 35 benefits is not of record. However, the award letters generally accompanying this notification do not explicitly identify the effect of the receipt of Chapter 35 benefits on the veteran's compensation, and it cannot be assumed otherwise in this case. In the meantime, the veteran continued to receive additional compensation benefits based on his son's school attendance.",
"No notification letters he may have received during this period, if any, are of record. However, in late November 2001, he was requested to verify his son's continued school attendance; the completed certification was received a few weeks later. Thereafter, the RO took action to retroactively reduce the veteran's compensation, which resulted in the overpayment at issue. For whatever reason, it is not clear why the veteran's compensation award was audited in August 2002, and found he had been underpaid during the period at issue. The \"underpayment\" resulted in him being sent a VA check in August 2002 in the amount of $5,406.00. He promptly and personally returned the amount of this check to RO personnel on August 23, 2002, without being requested to do so. The VA Report of Contact recording this transaction also notes that the true amount of his alleged overpayment was under review.",
"The veteran contends that he relied upon VA to correctly adjust his payments. In essence, he believes that any alleged overpayment was the result of administrative error. As indicated above, for the erroneous payments to have been sole administrative error, the veteran (or other payee) cannot have caused or been aware of the erroneous payments. The information provided by the veteran and his son was accurate; therefore, the erroneous award was not caused by either of the payees. The evidence is less clear as to whether the veteran knew that the payments were erroneous.",
"In this regard, when advised of basic eligibility for Dependents' Educational Assistance, a pamphlet is generally enclosed explaining this benefit. Among other things, the pamphlet notes that a child eligible for compensation based on school attendance must elect which benefit to receive, and that an election of educational assistance is a bar to further payment of compensation after 18 years of age. Whether the veteran received this pamphlet is not clear. However, it is clear that the RO received an application for such benefits from the veteran's son in July 1999. Although the son's education file is not of record, it is consistently noted in various correspondence in the veteran's record that the son lived at a different address than the veteran. Although the veteran was notified that his compensation included extra benefits for his son, the file does not contain any record that he was notified that his benefits were being reduced because of his son's election of Chapter 35 benefits. In the absence of any such notification, it cannot be assumed that the veteran had actual knowledge of the erroneous payments.",
"Some support for his lack of knowledge may be found in the veteran's prompt response with the verification of his son's school attendance. Also weighing in the veteran's favor is his prompt return of an erroneous $5,406.00 VA check he had been sent. It must also be determined whether, regardless of actual knowledge, the veteran or his son should have known that the payments were erroneous. To this end, the Board must determine whether the veteran received adequate notification that his additional compensation for a child in school, and the child's receipt of Chapter 35 educational assistance, were mutually exclusive benefits, and that his benefits had not been correctly adjusted. The two benefits in this case (compensation to the veteran for a dependent child [son] in school, and Chapter 35 benefits to the child [son]) are both predicated on the same status, namely, a child of the veteran, over the age of 18, and attending school. However, the compensation is awarded to the veteran, while the Chapter 35 benefits are awarded to the child. Due to the potential for misunderstanding in these circumstances, the fact that they are mutually exclusive benefits is one that should be emphasized, to both the veteran and the child.",
"While the Chapter 35 application form notes that the election of benefits is an important matter, the application form, instructions, and pamphlet all fail to adequately clarify the benefit that must be given up to obtain the educational assistance. Specifically, these documents refer to payment of compensation. However, the child, who directly receives the Chapter 35 benefits, and signs the election, does not separately receive compensation. An additional amount is included in the veteran's compensation for his qualifying dependent child. On the other hand, the veteran's compensation awards of record did not contain any notification to him of the fact that both benefits cannot be concurrently received.",
"The veteran also states that he did not understand the compensation and relied upon VA to provide the correct amount. The many amendments to his compensation for various reasons, including, aside from his son, the addition of his wife and stepchild, as well as cost of living adjustments, often for reasons not clearly identified, support this assertion. Indeed, the combination of his having provided all the required information to VA, the ambiguous nature of the notification of the effect of Chapter 35 benefits on his compensation, and the absence of any specific notification that he was continuing to receive benefits for his son after Chapter 35 benefits commenced, would lead a reasonable person to assume that, since both programs were administered by VA, the correct adjustments had been made. In sum, under these circumstances, the Board finds that actual knowledge that the veteran was receiving an erroneous amount of compensation has not been established; and that the notification to both him and his son was deficient, in that neither was adequately informed that the veteran's additional compensation for a child attending school and the child's receipt of Chapter 35 benefits were mutually exclusive benefits.",
"Finally, even if the veteran had known that his benefits should have been adjusted to reflect his son's election of Chapter 35 benefits, the record does not contain evidence the veteran was adequately notified, nor was the information he received, clearly show that his benefits had not been adjusted. In view of all of these factors, the Board finds that the assessed debt for the period of August 31, 1999, to December 1, 2001, in the alleged amount of $5,026.00, was due to sole VA administrative error. Therefore, the effective date of the reduction of compensation benefits based on the concurrent receipt of Chapter 35 benefits is the date of the last payment made in the erroneous amount. 38 U.S.C.A. §5112(b)(10); 38 C.F.R.",
"§ 3.500(b). Accordingly, any compensation overpayment debt created between August 31, 1999, and December 1, 2001, due to concurrent payment of compensation and Chapter 35 education benefits, in the alleged amount of $5,026.00, is not valid and is not owed by the veteran. Therefore, there is no overpayment, and the appeal is allowed. ORDER An assessed compensation overpayment debt of $5,026.00 was not properly created, and the veteran does not owe this assessed debt. The appeal is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the \"Order\" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a \"Remand\" section follows the \"Order.\"",
"However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the \"Order.\" If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error.",
"Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims.",
"If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court.",
"You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal.",
"If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate?",
"You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on \"clear and unmistakable error\" (CUE).",
"Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim?",
"You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims.",
"You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an \"agent.\" (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal.",
"If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board.",
"VA FORM JUN 2003 (RS) 4597 Page 2"
]
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Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee.
The application has been amended as follows: Claim 14, line 1, change “A computer program product having a computer program which is directly” to –A non-transitory computer program product having a computer program which is directly--.
Allowable Subject Matter Claims 1, 3-7, 10-15, 18, 19 and 21 are allowed. The following is an examiner’s statement of reasons for allowance: The prior art does not disclose or suggest the claimed " normalized MR relaxation parameter satisfies the following equation: PNG media_image1.png 59 180 media_image1.png Greyscale where nR2* is the normalized MR relaxation parameter, TE1 is the first echo time, TE2 is the 15second echo time, k1 is a normalization factor for determining the first reference signal from the first MR signal, k2 is the normalization factor for determining the second reference signal from the second MR signal, and R2* is an image sequence dependent MR relaxation parameter which depends on the first echo time TE1, the second echo time The prior art does not disclose or suggest the claimed " normalized image sequence dependent MR relaxation parameter satisfies the following equation: PNG media_image2.png 43 146 media_image2.png Greyscale where nR2* is the normalized image sequence dependent MR relaxation parameter, TE1 is the 5first echo time, TE2 is the second echo time, k1 is a normalization factor for determining the first reference signal from the first MR signal, k2 is the normalization factor for determining the second reference signal from the second MR signal, and R2* is the image sequence dependent MR relaxation parameter which depends on the first echo time TE1, the second echo time TE2, the first MR signal, and the second MR signal." in combination with the remaining claim elements as set forth in claims 15, 18, 19 and 21. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to GREGORY H CURRAN whose telephone number is (571)270-7505. The examiner can normally be reached on Monday-Friday, 8am-5pm, EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Walter Lindsay can be reached on (571) 272-1674. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/GREGORY H CURRAN/Primary Examiner, Art Unit 2852 | 2021-07-11T14:43:04 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The application has been amended as follows: Claim 14, line 1, change “A computer program product having a computer program which is directly” to –A non-transitory computer program product having a computer program which is directly--. Allowable Subject Matter Claims 1, 3-7, 10-15, 18, 19 and 21 are allowed. The following is an examiner’s statement of reasons for allowance: The prior art does not disclose or suggest the claimed \" normalized MR relaxation parameter satisfies the following equation: PNG media_image1.png 59 180 media_image1.png Greyscale where nR2* is the normalized MR relaxation parameter, TE1 is the first echo time, TE2 is the 15second echo time, k1 is a normalization factor for determining the first reference signal from the first MR signal, k2 is the normalization factor for determining the second reference signal from the second MR signal, and R2* is an image sequence dependent MR relaxation parameter which depends on the first echo time TE1, the second echo time The prior art does not disclose or suggest the claimed \" normalized image sequence dependent MR relaxation parameter satisfies the following equation: PNG media_image2.png 43 146 media_image2.png Greyscale where nR2* is the normalized image sequence dependent MR relaxation parameter, TE1 is the 5first echo time, TE2 is the second echo time, k1 is a normalization factor for determining the first reference signal from the first MR signal, k2 is the normalization factor for determining the second reference signal from the second MR signal, and R2* is the image sequence dependent MR relaxation parameter which depends on the first echo time TE1, the second echo time TE2, the first MR signal, and the second MR signal.\"",
"in combination with the remaining claim elements as set forth in claims 15, 18, 19 and 21. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to GREGORY H CURRAN whose telephone number is (571)270-7505. The examiner can normally be reached on Monday-Friday, 8am-5pm, EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Walter Lindsay can be reached on (571) 272-1674. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /GREGORY H CURRAN/Primary Examiner, Art Unit 2852"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-07-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1754911
Decision Date: 11/30/17 Archive Date: 12/07/17
DOCKET NO. 13-34 026A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation.
2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Robin E. Hood, Esquire
WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
B. Lewis, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from May 1968 to May 1971. The character of the Veteran's discharge was honorable. He passed away in May 2012, and the appellant seeks benefits as his surviving spouse.
This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant filed a Notice of Disagreement (NOD) in August 2013 and a Statement of the Case (SOC) was issued in December 2013. The appellant filed a Substantive Appeal via VA Form 9 in December 2013. Thus, the appellant perfected a timely appeal of the issues.
In a July 2015 decision, the Board remanded the appeal for further development, specifically to afford the appellant a video conference hearing before the Board.
In February 2017, the appellant testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file.
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file.
FINDINGS OF FACT
1. The Veteran died in May 2012; his death certificate lists the immediate cause of death as astrocytoma.
2. At the time of his death, service connection was in effect for post-traumatic stress disorder, diabetes mellitus, type 2, sexual dysfunction associated with diabetes mellitus, and a scar on the left palm.
3. The record evidence is at least in relative equipoise as to whether a decubitus ulcer (bedsore), brought on by the Veteran's service-connected diabetes mellitus, contributed substantially or materially to his death.
4. The grant of entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC under the provisions of 38 U.S.C. §§ 1310, renders moot the Appellant's claim for entitlement to DIC benefits under the provisions of 38 U.S.C. §§ 1151.
5. There is no longer a question or controversy regarding the benefit sought as to entitlement to DIC under the provisions of 38 U.S.C.A. § 1151.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in the Appellant's favor, the criteria for the establishment of entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC, have been met. 38 U.S.C. §§ 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.312 (2017).
2. There is no longer an issue of fact or law before the Board pertaining to the issue of entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151. 38 U.S.C. §§ 511(a), 1151, 7104(a), 7105(d)(5) (West 2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service Connection for the Cause of the Veteran's Death
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017).
To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c).
In the case at hand, at the time of his death, the Veteran was service connected for post-traumatic stress disorder, diabetes mellitus, type 2, sexual dysfunction associated with diabetes mellitus, and a scar on the left palm. The Veteran died on May [REDACTED], 2012. His death certificate lists the immediate cause of death as astrocytoma.
After resolving any benefit of the doubt in favor of the Appellant, the Board finds that the evidence of record is at least in relative equipoise with respect to the question of whether the Veteran's service-connected diabetes mellitus caused or contributed to his death. Accordingly, and as will be discussed below, service connection is warranted for the cause of the Veteran's death.
The record evidence shows that the Veteran was admitted to the Boston VA Medical Center in October 2011 with a diagnosis of a right temporal brain tumor. The Veteran underwent a resection on October 3, 2011. A February 2012 oncology note disclosed that the surgical report of the Boston VAMC indicated that the Veteran's tumor was not resectable due to its hypervascularity and that there was evidence of residual tumor on an MRI in November 2011. This information was relayed to the Veteran, who had been under the impression that the October 2011 surgery had gotten the entire tumor. A new plan was formulated to determine the nature of the right temporal mass and the possibility of a repeat resection. The Veteran underwent a repeat resection at VAMC Tampa on February 14, 2012, and was discharged on February 16, 2012. See Treatment Note, VAMC Tampa, page 655.
Treatment notes indicate that the Veteran recovered well from surgery, was started on medication which he was tolerating fairly well, and planned to returned to his home in Maine. Id. at 657. The Veteran returned to the Tampa VAMC on March 14, 2012. A March 2012 treatment note listed the Veteran's primary diagnosis as infection status post craniotomy and notes diabetes as part of his contributory history. Id. at 551. An April 2012 treatment note indicates that the Veteran had a MRSA infection that was cultured from the craniotomy incision on the right side of his head on March 19, 2012. A separate April 2012 treatment note revealed that the Veteran had noncurable cancer that would recur despite treatment. He was noted as being six weeks status post his second resection that was complicated by a wound infection, a CSF leak, C-Difficile Colitis, and a stage IV sacral decubitus. The condition required a shunt; however the Veteran was not a candidate at the time secondary to his wounds. It was noted that it would be at least four more weeks until the Veteran would be able to be considered for a shunt. See April 25, 2012 Tampa VAMC Treatment Note, pages 68-69.
In order to treat the decubitus, the Veteran would have required a colostomy and would require a gastrostomy feeding tube, given his poor nutritional status. However, the note indicated that the Veteran might not survive such treatments and that they might hasten his death. Without treatment, it was noted that the Veteran would ultimately succumb to these problems. The note concluded by indicating that the doctors could make the Veteran comfortable and try to make arrangements to have him transported back to his home in Maine. Id.
The Appellant testified before the Board in February 2017. She indicated that her husband had been diagnosed with brain cancer in August 2011, and that the Veteran's oncologist had told them that the Veteran had approximately a year and a half to live. See February 2017 Hearing Transcript. The Appellant testified that the Veteran went to VAMC Tampa because he was weak from radiation and had been instructed to receive fluids. Prior to this hospitalization, the Appellant stated that the Veteran's blood sugar levels had been under control, but that they spiked while he was in the hospital. She testified that the Veteran was in the hospital for seven weeks, and that he was only moved out of the bed once during that time period. The Appellant reported that the hospital staff turned the Veteran every once in a while, and that towards the end of his stay there that he was finally given a bed that rotated. She indicated that she told the VAMC staff that her husband was going to get bedsores if they did not do something. She reported that they administered cream to the Veteran but that he never got out of bed and the bedsore kept getting worse until he had a large hole. The Appellant submitted a photo of the Veteran's ulcer which is of record. Id.
The Appellant further stated that a Dr. Atkins in Maine told her that the Veteran's bedsore would kill him before the brain cancer. The Veteran did not have the bedsore when he went into the hospital. Further, the Appellant indicated that she was unaware that her husband had a MRSA infection until after he had been discharged from the hospital and arrived in Maine. The Board notes that the Appellant and her family members discharged the Veteran against medical advice for the purposes of transporting him back to Maine. Id.
The Appellant submitted an independent medical opinion from Dr. H.M., a board certified internal medicine physician. Dr. H.M. noted that the Veteran suffered from a malignant brain tumor, specifically Glioblastoma Multiforme and that he entered VAMC Tampa with diabetes mellitus. He further noted that the Veteran developed severe decubitus ulcers while a patient at VAMC Tampa. The doctor opined that based on previously diagnosed diabetes mellitus, it was far more likely than not that the Veteran's decubitus ulcer formed and progressed rapidly as a result of the same. Furthermore, based on a thorough review of the Veteran's medical records, combined with a validated correlation between Diabetes Mellitus and decubitus ulcers, it was his medical opinion that it was far more likely than not that the massive decubitus ulcer which progressed rapidly as a result of his diabetes, along with the diabetes condition itself, were the causes of his death rather than his glioblastoma multiforme.
See Independent Medical Review of Dr. H.M.
The Board finds that the opinion authored by Dr. H.M. is highly probative in that it was authored by a medical professional who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the claims file and contains a rationale that explains the basis of this opinion with reference to pertinent medical findings.
The Board notes that there has been no contrary opinion offered by a physician as to the connection between the Veteran's diabetes mellitus, his bedsore, and his death. The Board finds that the opinion of Dr. H.M., the testimony of the Appellant, and the relevant treatment notes from the Tampa VAMC all support the contention that the decubitus ulcer the Veteran incurred was caused by his service-connected diabetes. In turn, the Board further finds that the decubitus ulcer contributed substantially or materially to the Veteran's death, or at the very least, it combined with his existing brain tumor to cause death and aided or lent assistance to the production of death.
In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for the cause of the Veteran's death, for purposes of receiving DIC, have been met. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017).
II. DIC Benefits under 38 U.S.C.A. § 1151
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a). All questions in a matter which under 38 U.S.C.A. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulations. 38 U.S.C.A. § 7104(a).
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7015(d)(5).
The Appellant has also submitted a claim based on 38 U.S.C. § 1151 as an alternative theory of entitlement to DIC for the cause of the Veteran's death. However, in light of the grant of service connection for the cause of the Veteran's death to include for purposes of receiving DIC under 38 U.S.C.A. § 1310, the Board finds on these facts that the Appellant's appeal under 38 U.S.C. § 1151 has been rendered moot. As a result, there remains no case or controversy to resolve, and the appeal concerning entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is dismissed. 38 U.S.C.A. § 7105(d)(5).
ORDER
Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation, is granted.
The appeal concerning the issue of entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C. § 1151 is dismissed.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 11-30-2017 | [
"Citation Nr: 1754911 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-34 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Robin E. Hood, Esquire WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1968 to May 1971.",
"The character of the Veteran's discharge was honorable. He passed away in May 2012, and the appellant seeks benefits as his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant filed a Notice of Disagreement (NOD) in August 2013 and a Statement of the Case (SOC) was issued in December 2013. The appellant filed a Substantive Appeal via VA Form 9 in December 2013. Thus, the appellant perfected a timely appeal of the issues.",
"In a July 2015 decision, the Board remanded the appeal for further development, specifically to afford the appellant a video conference hearing before the Board. In February 2017, the appellant testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT 1. The Veteran died in May 2012; his death certificate lists the immediate cause of death as astrocytoma. 2. At the time of his death, service connection was in effect for post-traumatic stress disorder, diabetes mellitus, type 2, sexual dysfunction associated with diabetes mellitus, and a scar on the left palm. 3.",
"The record evidence is at least in relative equipoise as to whether a decubitus ulcer (bedsore), brought on by the Veteran's service-connected diabetes mellitus, contributed substantially or materially to his death. 4. The grant of entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC under the provisions of 38 U.S.C. §§ 1310, renders moot the Appellant's claim for entitlement to DIC benefits under the provisions of 38 U.S.C. §§ 1151. 5. There is no longer a question or controversy regarding the benefit sought as to entitlement to DIC under the provisions of 38 U.S.C.A.",
"§ 1151. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Appellant's favor, the criteria for the establishment of entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC, have been met. 38 U.S.C. §§ 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.312 (2017). 2. There is no longer an issue of fact or law before the Board pertaining to the issue of entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151. 38 U.S.C. §§ 511(a), 1151, 7104(a), 7105(d)(5) (West 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I.",
"Service Connection for the Cause of the Veteran's Death Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A.",
"§ 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). In the case at hand, at the time of his death, the Veteran was service connected for post-traumatic stress disorder, diabetes mellitus, type 2, sexual dysfunction associated with diabetes mellitus, and a scar on the left palm. The Veteran died on May [REDACTED], 2012. His death certificate lists the immediate cause of death as astrocytoma. After resolving any benefit of the doubt in favor of the Appellant, the Board finds that the evidence of record is at least in relative equipoise with respect to the question of whether the Veteran's service-connected diabetes mellitus caused or contributed to his death. Accordingly, and as will be discussed below, service connection is warranted for the cause of the Veteran's death.",
"The record evidence shows that the Veteran was admitted to the Boston VA Medical Center in October 2011 with a diagnosis of a right temporal brain tumor. The Veteran underwent a resection on October 3, 2011. A February 2012 oncology note disclosed that the surgical report of the Boston VAMC indicated that the Veteran's tumor was not resectable due to its hypervascularity and that there was evidence of residual tumor on an MRI in November 2011. This information was relayed to the Veteran, who had been under the impression that the October 2011 surgery had gotten the entire tumor. A new plan was formulated to determine the nature of the right temporal mass and the possibility of a repeat resection. The Veteran underwent a repeat resection at VAMC Tampa on February 14, 2012, and was discharged on February 16, 2012. See Treatment Note, VAMC Tampa, page 655.",
"Treatment notes indicate that the Veteran recovered well from surgery, was started on medication which he was tolerating fairly well, and planned to returned to his home in Maine. Id. at 657. The Veteran returned to the Tampa VAMC on March 14, 2012. A March 2012 treatment note listed the Veteran's primary diagnosis as infection status post craniotomy and notes diabetes as part of his contributory history. Id. at 551. An April 2012 treatment note indicates that the Veteran had a MRSA infection that was cultured from the craniotomy incision on the right side of his head on March 19, 2012. A separate April 2012 treatment note revealed that the Veteran had noncurable cancer that would recur despite treatment.",
"He was noted as being six weeks status post his second resection that was complicated by a wound infection, a CSF leak, C-Difficile Colitis, and a stage IV sacral decubitus. The condition required a shunt; however the Veteran was not a candidate at the time secondary to his wounds. It was noted that it would be at least four more weeks until the Veteran would be able to be considered for a shunt. See April 25, 2012 Tampa VAMC Treatment Note, pages 68-69. In order to treat the decubitus, the Veteran would have required a colostomy and would require a gastrostomy feeding tube, given his poor nutritional status.",
"However, the note indicated that the Veteran might not survive such treatments and that they might hasten his death. Without treatment, it was noted that the Veteran would ultimately succumb to these problems. The note concluded by indicating that the doctors could make the Veteran comfortable and try to make arrangements to have him transported back to his home in Maine. Id. The Appellant testified before the Board in February 2017. She indicated that her husband had been diagnosed with brain cancer in August 2011, and that the Veteran's oncologist had told them that the Veteran had approximately a year and a half to live. See February 2017 Hearing Transcript. The Appellant testified that the Veteran went to VAMC Tampa because he was weak from radiation and had been instructed to receive fluids.",
"Prior to this hospitalization, the Appellant stated that the Veteran's blood sugar levels had been under control, but that they spiked while he was in the hospital. She testified that the Veteran was in the hospital for seven weeks, and that he was only moved out of the bed once during that time period. The Appellant reported that the hospital staff turned the Veteran every once in a while, and that towards the end of his stay there that he was finally given a bed that rotated. She indicated that she told the VAMC staff that her husband was going to get bedsores if they did not do something. She reported that they administered cream to the Veteran but that he never got out of bed and the bedsore kept getting worse until he had a large hole. The Appellant submitted a photo of the Veteran's ulcer which is of record. Id. The Appellant further stated that a Dr. Atkins in Maine told her that the Veteran's bedsore would kill him before the brain cancer.",
"The Veteran did not have the bedsore when he went into the hospital. Further, the Appellant indicated that she was unaware that her husband had a MRSA infection until after he had been discharged from the hospital and arrived in Maine. The Board notes that the Appellant and her family members discharged the Veteran against medical advice for the purposes of transporting him back to Maine. Id. The Appellant submitted an independent medical opinion from Dr. H.M., a board certified internal medicine physician. Dr. H.M. noted that the Veteran suffered from a malignant brain tumor, specifically Glioblastoma Multiforme and that he entered VAMC Tampa with diabetes mellitus. He further noted that the Veteran developed severe decubitus ulcers while a patient at VAMC Tampa. The doctor opined that based on previously diagnosed diabetes mellitus, it was far more likely than not that the Veteran's decubitus ulcer formed and progressed rapidly as a result of the same.",
"Furthermore, based on a thorough review of the Veteran's medical records, combined with a validated correlation between Diabetes Mellitus and decubitus ulcers, it was his medical opinion that it was far more likely than not that the massive decubitus ulcer which progressed rapidly as a result of his diabetes, along with the diabetes condition itself, were the causes of his death rather than his glioblastoma multiforme. See Independent Medical Review of Dr. H.M. The Board finds that the opinion authored by Dr. H.M. is highly probative in that it was authored by a medical professional who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet.",
"App. 563 (2007). It is based on review of the claims file and contains a rationale that explains the basis of this opinion with reference to pertinent medical findings. The Board notes that there has been no contrary opinion offered by a physician as to the connection between the Veteran's diabetes mellitus, his bedsore, and his death. The Board finds that the opinion of Dr. H.M., the testimony of the Appellant, and the relevant treatment notes from the Tampa VAMC all support the contention that the decubitus ulcer the Veteran incurred was caused by his service-connected diabetes. In turn, the Board further finds that the decubitus ulcer contributed substantially or materially to the Veteran's death, or at the very least, it combined with his existing brain tumor to cause death and aided or lent assistance to the production of death.",
"In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for the cause of the Veteran's death, for purposes of receiving DIC, have been met. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017). II. DIC Benefits under 38 U.S.C.A. § 1151 The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A.",
"§ 511(a). All questions in a matter which under 38 U.S.C.A. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulations. 38 U.S.C.A. § 7104(a). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7015(d)(5). The Appellant has also submitted a claim based on 38 U.S.C. § 1151 as an alternative theory of entitlement to DIC for the cause of the Veteran's death. However, in light of the grant of service connection for the cause of the Veteran's death to include for purposes of receiving DIC under 38 U.S.C.A. § 1310, the Board finds on these facts that the Appellant's appeal under 38 U.S.C.",
"§ 1151 has been rendered moot. As a result, there remains no case or controversy to resolve, and the appeal concerning entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is dismissed. 38 U.S.C.A. § 7105(d)(5). ORDER Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation, is granted. The appeal concerning the issue of entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.",
"§ 1151 is dismissed. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam.
From the affidavits which have been read, it appears that the bond was usurious; but the court are not to judge of the credibility of witnesses. As. there is color, at least, for the allegation of usury, the proper course is to award a feigned issue to try the fact. ' (Barnes, 52, 277. Cowp. 727. 1 Bos. & Pull. 270.) Let a feigned issue be awarded.(a)
(a) 3 Johns. Rep. 139, 142, 250. See Kelly on Usury, ed. 1835, p. 82; Ord'on Usury, ed. 1809, p. 95. | 01-09-2022 | [
"Per Curiam. From the affidavits which have been read, it appears that the bond was usurious; but the court are not to judge of the credibility of witnesses. As. there is color, at least, for the allegation of usury, the proper course is to award a feigned issue to try the fact. ' (Barnes, 52, 277. Cowp. 727. 1 Bos. & Pull. 270.) Let a feigned issue be awarded. (a) (a) 3 Johns. Rep. 139, 142, 250.",
"See Kelly on Usury, ed. 1835, p. 82; Ord'on Usury, ed. 1809, p. 95."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5474851/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.54
SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLAN RESTRICTED STOCK UNIT AWARD AGREEMENT THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”) dated as of December 18, 2017 by and between Sphere 3D Corp., a corporation incorporated under the laws of the Province of Ontario (the “Corporation”), and [NAME] (the “Grantee”) evidences the award (the “Award”) granted by the Corporation to the Grantee as to the number of the Corporation’s stock units (“Stock Units”) first set forth below.
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Number of Stock Units: 1 [NUMBER] Award Date: December 18, 2017 Vesting Commencement Date: December 18, 2017 Vesting1 Subject to Section 6 below, the Stock Units subject to the Award will vest in six (6) equal installments, with the first installment vesting six (6) months after the Vesting Commencement Date and an additional installment vesting at the end of each six-month period thereafter:
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The Award is granted under the Sphere 3D Corp. 2015 Performance Incentive Plan (including the Canadian Residents Addendum thereto, if applicable), as amended from time to time (the “Plan”), and subject to the Terms and Conditions of Restricted Stock Units (the “Terms”) attached to this Agreement (incorporated herein by this reference) and to the Plan. The Award has been granted to the Grantee in addition to, and not in lieu of, any other form of compensation otherwise payable or to be paid to the Grantee. Capitalized terms are defined in the Plan if not defined herein. The parties agree to the terms of the Award set forth herein. The Grantee acknowledges receipt of a copy of the Terms, the Plan and the Prospectus for the Plan. As used herein, the term “stock unit” means a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding Common Share of the Corporation (subject to adjustment as provided in Section 7.1 of the Plan) solely for purposes of the Plan and this Agreement. The Stock Units shall be used solely as a device for the determination of the payment to eventually be made to the Grantee if such Stock Units vest pursuant to the terms hereof. The Stock Units shall not be treated as property or as a trust fund of any kind. “GRANTEE”
_____________________________________ Signature
Print Name
SPHERE 3D CORP. a corporation incorporated under the laws of the Province of Ontario By:__________________________________ Print Name: Title:
Subject to adjustment under Section 7.1 of the Plan.
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SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLAN TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS 1.Vesting. Subject to Section 6 below, the Award shall vest and become nonforfeitable as set forth on the cover page of this Agreement. 2. Continuance of Employment/Service. The vesting schedule requires continued employment or service through each applicable vesting date as a condition to the vesting of the applicable installment of the Award and the rights and benefits under this Agreement. Employment or service for only a portion of the vesting period, even if a substantial portion, will not entitle the Grantee to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a termination of employment or services as provided in Section 6 below or under the Plan. Nothing contained in this Agreement or the Plan constitutes an employment or service commitment by the Corporation, affects the Grantee’s status as an employee at will who is subject to termination without cause, confers upon the Grantee any right to remain employed by or in service to the Corporation or any Subsidiary, interferes in any way with the right of the Corporation or any Subsidiary at any time to terminate such employment or services, or affects the right of the Corporation or any Subsidiary to increase or decrease the Grantee’s other compensation or benefits. Nothing in this Agreement, however, is intended to adversely affect any independent contractual right of the Grantee without his or her consent thereto. 3. No Dividend and Voting Rights. The Grantee shall have no rights as a shareholder of the Corporation, no dividend rights and no voting rights, with respect to the Stock Units and any Common Shares underlying or issuable in respect of such Stock Units until such Common Shares are actually issued to and held of record by the Grantee. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date of issuance of such shares. 4. Restrictions on Transfer. Except as provided in Section 5.7 of the Plan, neither the Award, nor any interest therein or amount or shares payable in respect thereof may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. The transfer restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, or (b) transfers by will or the laws of descent and distribution. 5. Timing and Manner of Payment of Stock Units. Each Stock Unit that becomes vested pursuant to the terms hereof (the date of such vesting, the “Vesting Date” of such Stock Unit) will be paid on or as soon as practicable after the Vesting Date (and in all events within two and one-half months following the Vesting Date). In payment of the Stock Units, the Corporation shall deliver to the Grantee a number of Common Shares (either by delivering one or more certificates for such shares or by entering such shares in book entry form, as determined by the Corporation in its discretion, and such shares to be issued from treasury if and to the extent required by the Canadian Residents Addendum to the Plan) equal to the number of Stock Units subject to this Award that vest on the applicable Vesting Date, unless such Stock Units terminate prior to the given Vesting Date pursuant to Section 6. The Corporation’s obligation to deliver Common Shares or otherwise make payment with respect to vested Stock Units is subject to the condition precedent that the Grantee or other person entitled under the Plan to receive any shares with respect to the vested Stock Units deliver to the Corporation any representations or other documents or assurances required pursuant to Section 8.1 of the Plan. The Grantee shall have no further rights with respect to any Stock Units that are paid or that terminate pursuant to Section 6.
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6. Effect of Termination of Employment or Service; Change in Control Event. (a) General. Except as provided in Section 6(b) below, the Grantee’s Stock Units shall terminate to the extent such units have not become vested prior to the Grantee’s Termination Date (as defined below). If any unvested Stock Units are terminated hereunder, such Stock Units shall automatically terminate and be cancelled as of the Termination Date without payment of any consideration by the Corporation and without any other action by the Grantee, or the Grantee’s beneficiary or personal representative, as the case may be. For these purposes, “Termination Date” means the Grantee’s last day of actual and active employment or service with the Corporation or any of its Subsidiaries. For greater certainty, no period of notice of termination, if any, or payment in lieu of notice that is given or ought to have been given pursuant to the Grantee’s applicable employment agreement, contract for service or at law that follows or is in respect of a period after the last date of actual and active employment will be considered as extending Grantee’s period of employment or services for purposes of determining the Grantee’s entitlement under the Award. (b) Acceleration Upon Certain Events. (1) Notwithstanding Section 6(a), if either (i) a Change in Control Event occurs and the Grantee’s employment or service with the Corporation or one of its Subsidiaries continues through the date of the Change in Control Event or (ii) prior to a Change in Control Event, the Grantee’s employment or service with the Corporation or one of its Subsidiaries terminates due to (x) the Grantee’s Disability or death, (y) a termination by the Corporation or such Subsidiary without Cause or (z) a termination by the Grantee for Good Reason, the Stock Units, to the extent then outstanding and unvested, shall vest in full upon the date of the Change in Control Event or the Grantee’s Termination Date, as applicable. (2) Notwithstanding any other provision herein or in the Plan, as a condition precedent to any acceleration of vesting pursuant to Section 6(b)(1), the Grantee shall provide the Corporation with a valid, executed general release agreement in the form attached to any employment, severance, retention or similar agreement the Grantee may have with the Corporation or any of its Subsidiaries in effect on the Award Date (or, if there is no such agreement or no such form of release attached thereto, in a form acceptable to the Corporation), and such release shall have not been revoked pursuant to any revocation rights afforded by applicable law. The Corporation shall provide the final form of release agreement to the Grantee not later than seven (7) days following the date of the event that triggers such accelerated vesting of the Stock Units, and the Grantee shall be required to execute and return such release to the Corporation within twenty-one (21) days (or forty-five (45) days if such longer period of time is required to make the release maximally enforceable under applicable law) after the Corporation provides the form of release to the Grantee. If the period for the Grantee to provide such release spans two calendar years, then the payment of the Stock Units as provided in Section 5 shall in all events be made in the second of such two years. (c) Defined Terms. For purposes of this Agreement, the terms Cause, Good Reason, Disability and Change in Control Event have the meanings given to such terms on Exhibit A hereto. 7. Adjustments Upon Specified Events. Upon the occurrence of certain events relating to the Corporation’s stock contemplated by Section 7.1 of the Plan (including, without limitation, an extraordinary cash dividend on such stock), the Administrator shall make adjustments in accordance with such section in the number of Stock Units then outstanding and the number and kind of securities that may be issued in respect of the Award.
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8. Tax Withholding. The Corporation shall reasonably determine the amount of any federal, state, local or other income, employment, or other taxes which the Corporation or any of its Subsidiaries may reasonably be obligated to withhold with respect to the grant, vesting or other event with respect to the Stock Units. If such withholding event occurs in connection with the distribution of Common Shares in respect of the Stock Units and subject to compliance with all applicable laws, the Grantee hereby agrees that the appropriate number of whole shares, valued at their then fair market value (with the “fair market value” of such shares determined in accordance with the applicable provisions of the Plan), to satisfy any withholding obligations of the Corporation or its Subsidiaries with respect to such distribution at the minimum applicable withholding rates (such number of shares, the “Minimum Withholding Shares”) shall automatically be sold by or on behalf of the Grantee on the open market and the proceeds of such sale shall be promptly remitted to the Corporation to satisfy such tax withholding obligations. In the event the Grantee has (prior to the applicable Vesting Date) entered into an irrevocable arrangement (on terms reasonably acceptable to the Corporation) with a third-party broker to use the proceeds of a sale of Common Shares on the market to provide for tax withholding in connection with any payment of the Stock Units and has provided the terms of such arrangement to the Corporation (a “Broker Arrangement”), the Grantee and the Corporation agree that, at the time of such payment of the Stock Units, the Corporation will deliver to the Grantee’s designated broker a number of whole Common Shares equal to the Minimum Withholding Shares. If there is no such Broker Arrangement in place on the applicable Vesting Date, such sale of the Minimum Withholding Shares shall be conducted through a broker designated by the Corporation. The Grantee shall execute such documents as may reasonably be requested by the Corporation or the broker, as applicable, in order to implement such transactions and shall otherwise comply with the administrative rules and procedures established by the Corporation with respect to such transactions. If, however, any withholding event occurs with respect to the Stock Units other than in connection with the distribution of shares of Common Stock in respect of the Stock Units, or if the Corporation’s withholding obligations cannot be satisfied by such market sale or such withholding and reacquisition of shares as described above because such a sale, withholding or reacquisition, as the case may be, would cause the Corporation to violate applicable law, the Corporation shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from other compensation payable to the Grantee the amount of any such withholding obligations. 9. Limitation on Benefits; Section 280G. Notwithstanding any other provision herein or in the Plan, the benefits under this Award are subject to the provisions of Exhibit B hereto. 10. Notices. Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal office to the attention of the Secretary, and to the Grantee at the Grantee’s last address reflected on the Corporation’s records, or at such other address as either party may hereafter designate in writing to the other. Any such notice shall be given only when received, but if the Grantee is no longer an employee of or in service to the Corporation, shall be deemed to have been duly given by the Corporation when enclosed in a properly sealed envelope addressed as aforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained by the United States Government. 11. Plan. The Award and all rights of the Grantee under this Agreement are subject to the terms and conditions of the provisions of the Plan (including, for greater certainty and to the extent applicable, the Canadian Residents Addendum to the Plan), incorporated herein by this reference. In the event of any conflict between the provisions of the Plan and this Option Agreement, the provisions of the Plan shall control. The Grantee agrees to be bound by the terms of the Plan and this Agreement. The Grantee acknowledges having read and understanding the Plan, the Prospectus for the Plan, and this Agreement. Unless otherwise expressly provided in other sections of this Agreement, provisions of the Plan that confer discretionary authority on the Board or the Administrator do not (and shall not be deemed to) create any rights in the Grantee unless such rights are expressly set forth herein or are otherwise in the sole discretion of the Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof.
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12. Entire Agreement; Amendment. This Agreement and the Plan together constitute the entire agreement and supersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this Agreement may be amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may, however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Grantee hereunder, but no such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof. Notwithstanding the foregoing, the Corporation may, without the consent of the Grantee, amend the tax-withholding procedures set forth in Section 8 above to provide that the Corporation’s tax withholding obligations in connection with a distribution of Common Shares in respect of the Stock Units shall be satisfied by the Corporation reducing the number of Common Shares subject to such distribution by the number of the Minimum Withholding Shares (as opposed to a market sale of such shares); provided, however, that if the Corporation adopts such an amendment of the procedures set forth in Section 8, such procedures shall not be further amended within the one-year period thereafter. 13. Limitation on Grantee’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Corporation as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The Grantee shall have only the rights of a general unsecured creditor of the Corporation with respect to amounts credited and benefits payable, if any, with respect to the Stock Units, and rights no greater than the right to receive the Common Shares as a general unsecured creditor with respect to Stock Units, as and when payable hereunder. 14. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 15. Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof. 16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of law principles thereunder. 17. Construction. It is intended that the terms of the Award will not result in the imposition of any tax liability pursuant to Section 409A of the Code. The Award is intended as a “short-term deferral” under Section 409A of the Code, and this Agreement shall be construed and interpreted consistent with that intent. 18. Language. The parties hereto have agreed that this Agreement and the Plan be drafted in English. Les parties aux présentes ont convenu que le présent document et les règles du régime soient rédigés en anglais. 19. No Advice Regarding Grant. The Grantee is hereby advised to consult with his or her own tax, legal and/or investment advisors with respect to any advice the Grantee may determine is needed or appropriate with respect to the Stock Units (including, without limitation, to determine the foreign, state, local, estate and/or gift tax consequences with respect to the Award). Neither the Corporation nor any of its officers, directors, affiliates or advisors makes any representation (except for the terms and conditions expressly set forth in this Award Agreement) or recommendation with respect to the Award. Except for the withholding rights set forth in Section 8 above, the Grantee is solely responsible for any and all tax and other liability that may arise with respect to the Award or any sale of shares issued or delivered with respect to the Award. 20. Insider Trading Rules. The Grantee hereby acknowledges being subject to all applicable laws, rules and regulations, as well as Corporation policies, regarding insider trading.
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EXHIBIT A DEFINED TERMS For purposes of this Agreement, the following definitions shall apply: • “Cause” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean: (a) acts or omissions constituting reckless or willful misconduct on the Grantee’s part with respect to the Grantee’s obligations or otherwise relating to the business of the Corporation or any of its Subsidiaries that causes material harm to the Corporation or such Subsidiary or to the reputation of the Corporation or such Subsidiary; (b) the Grantee’s material breach of any agreement between the Grantee and the Corporation or one of its Subsidiaries, which breach the Grantee fails to cure within thirty (30) days after receiving written notice from the Board that specifies the specific conduct giving rise to the alleged breach; (c) the Grantee’s conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, or any felony or crime of moral turpitude; or (d) the Grantee’s willful neglect of duties as reasonably determined by the Board, which the Grantee fails to cure within thirty (30) days after receiving written notice from the Board that specifies the specific duties that the Grantee has failed to perform.
• “Good Reason” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean the occurrence (without the Grantee’s consent) of any one or more of the following conditions: (a) a reduction in the Grantee’s rate of base salary or the Grantee’s target annual bonus opportunity by more than ten percent (10%) from the level in effect on the Award Date; (b) a material reduction in the Grantee’s authorities, duties or responsibilities from the level in effect on the Award Date; (c) a change in the geographic location of the Grantee’s principal office with the Corporation (or any subsidiary or affiliate thereof or successor thereto) by more than fifty (50) miles from the location as of the Award Date; or (d) any action or inaction by the Corporation (or any subsidiary or affiliate thereof or successor thereto) that constitutes a material breach of the provisions of any written agreement between the Grantee and the Corporation or one of its Subsidiaries; provided, however, that any such condition or conditions, as applicable, shall not constitute Good Reason unless (x) the Grantee provides written notice to the Corporation of the condition claimed to constitute Good Reason within thirty (30) days of the initial existence of such condition(s), (y) the Corporation fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof, and (z) the Grantee’s employment with the Corporation terminates within ninety (90) days following the initial existence of the condition claimed to constitute Good Reason.
• “Disability” has the meaning given to such term (or a similar term) in any employment agreement between the Grantee and the Corporation or any of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean the Grantee (as determined solely by the Administrator on the basis of such medical evidence as the Administrator deems warranted under the circumstances) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.
• “Change in Control Event” means any of the following:
(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (1) the then-outstanding common shares of the Corporation (the “Outstanding Company Common Shares”) or (2) the combined voting
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power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this clause (i), any acquisition by any entity pursuant to a transaction that complies with all of clauses (ii)(1), (2) and (3) below shall not constitute a Change in Control Event; (ii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Corporation or any of its Subsidiaries, a sale or other disposition of assets of the Corporation that account for more than fifty percent (50%) of the Corporation’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Corporation’s financial statements, or the acquisition of assets or stock of another entity by the Corporation or any of its Subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Shares and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or assets of the Corporation that account for more than fifty percent (50%) of the Corporation’s revenue for the immediately preceding four (4) fiscal quarters as reflected in the Corporation’s financial statements, either directly or through one or more subsidiaries (a “Parent”)) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Shares and the Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or a Parent or any employee benefit plan (or related trust) of the Corporation or such entity resulting from such Business Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively, the then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%) existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of the entity resulting from such Business Combination or a Parent were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or
(iii) Approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation other than in the context of a transaction that does not constitute a Change in Control Event under clause (ii) above.
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EXHIBIT B SECTION 280G 1. Limitation on Benefits. Notwithstanding anything contained in this Agreement or the Plan to the contrary, to the extent that the payments and benefits provided under the Award and benefits provided to, or for the benefit of, the Grantee under any other Corporation plan or agreement (such payments or benefits are collectively referred to as the “Benefits”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Benefits shall be reduced (but not below zero) if and to the extent that a reduction in the Benefits would result in the Grantee retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Grantee received all of the Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless the Grantee shall have given prior written notice specifying a different order to the Corporation to effectuate the Limited Benefit Amount, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Corporation shall reduce or eliminate the Benefits by first reducing or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as hereinafter defined). Any notice given by the Grantee pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Grantee’s rights and entitlements to any benefits or compensation.. 2. Determination. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount shall be made by the Corporation’s independent public accountants or another certified public accounting firm or executive compensation consulting firm of national reputation designated by the Corporation (the “Firm”) at the Corporation’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation to the Corporation and the Grantee within ten (10) business days of the date of termination of the Grantee’s employment, if applicable, or such other time as reasonably requested by the Corporation or the Grantee (provided the Grantee reasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Firm determines that no Excise Tax is payable by the Grantee with respect to any Benefits, it shall furnish the Grantee with an opinion reasonably acceptable to the Grantee that no Excise Tax will be imposed with respect to any such Benefits. Unless the Grantee provides written notice to the Corporation within ten (10) business days of the delivery of the Determination to the Grantee that he disputes such Determination, the Determination shall be binding, final and conclusive upon the Corporation and the Grantee.
7 | [
"Exhibit 10.54 SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLAN RESTRICTED STOCK UNIT AWARD AGREEMENT THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”) dated as of December 18, 2017 by and between Sphere 3D Corp., a corporation incorporated under the laws of the Province of Ontario (the “Corporation”), and [NAME] (the “Grantee”) evidences the award (the “Award”) granted by the Corporation to the Grantee as to the number of the Corporation’s stock units (“Stock Units”) first set forth below. -------------------------------------------------------------------------------- Number of Stock Units: 1 [NUMBER] Award Date: December 18, 2017 Vesting Commencement Date: December 18, 2017 Vesting1 Subject to Section 6 below, the Stock Units subject to the Award will vest in six (6) equal installments, with the first installment vesting six (6) months after the Vesting Commencement Date and an additional installment vesting at the end of each six-month period thereafter: -------------------------------------------------------------------------------- The Award is granted under the Sphere 3D Corp. 2015 Performance Incentive Plan (including the Canadian Residents Addendum thereto, if applicable), as amended from time to time (the “Plan”), and subject to the Terms and Conditions of Restricted Stock Units (the “Terms”) attached to this Agreement (incorporated herein by this reference) and to the Plan. The Award has been granted to the Grantee in addition to, and not in lieu of, any other form of compensation otherwise payable or to be paid to the Grantee.",
"Capitalized terms are defined in the Plan if not defined herein. The parties agree to the terms of the Award set forth herein. The Grantee acknowledges receipt of a copy of the Terms, the Plan and the Prospectus for the Plan. As used herein, the term “stock unit” means a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding Common Share of the Corporation (subject to adjustment as provided in Section 7.1 of the Plan) solely for purposes of the Plan and this Agreement. The Stock Units shall be used solely as a device for the determination of the payment to eventually be made to the Grantee if such Stock Units vest pursuant to the terms hereof. The Stock Units shall not be treated as property or as a trust fund of any kind. “GRANTEE” _____________________________________ Signature Print Name SPHERE 3D CORP. a corporation incorporated under the laws of the Province of Ontario By:__________________________________ Print Name: Title: Subject to adjustment under Section 7.1 of the Plan. -------------------------------------------------------------------------------- SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLAN TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS 1.Vesting. Subject to Section 6 below, the Award shall vest and become nonforfeitable as set forth on the cover page of this Agreement.",
"2. Continuance of Employment/Service. The vesting schedule requires continued employment or service through each applicable vesting date as a condition to the vesting of the applicable installment of the Award and the rights and benefits under this Agreement. Employment or service for only a portion of the vesting period, even if a substantial portion, will not entitle the Grantee to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a termination of employment or services as provided in Section 6 below or under the Plan. Nothing contained in this Agreement or the Plan constitutes an employment or service commitment by the Corporation, affects the Grantee’s status as an employee at will who is subject to termination without cause, confers upon the Grantee any right to remain employed by or in service to the Corporation or any Subsidiary, interferes in any way with the right of the Corporation or any Subsidiary at any time to terminate such employment or services, or affects the right of the Corporation or any Subsidiary to increase or decrease the Grantee’s other compensation or benefits.",
"Nothing in this Agreement, however, is intended to adversely affect any independent contractual right of the Grantee without his or her consent thereto. 3. No Dividend and Voting Rights. The Grantee shall have no rights as a shareholder of the Corporation, no dividend rights and no voting rights, with respect to the Stock Units and any Common Shares underlying or issuable in respect of such Stock Units until such Common Shares are actually issued to and held of record by the Grantee. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date of issuance of such shares. 4. Restrictions on Transfer. Except as provided in Section 5.7 of the Plan, neither the Award, nor any interest therein or amount or shares payable in respect thereof may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. The transfer restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, or (b) transfers by will or the laws of descent and distribution.",
"5. Timing and Manner of Payment of Stock Units. Each Stock Unit that becomes vested pursuant to the terms hereof (the date of such vesting, the “Vesting Date” of such Stock Unit) will be paid on or as soon as practicable after the Vesting Date (and in all events within two and one-half months following the Vesting Date). In payment of the Stock Units, the Corporation shall deliver to the Grantee a number of Common Shares (either by delivering one or more certificates for such shares or by entering such shares in book entry form, as determined by the Corporation in its discretion, and such shares to be issued from treasury if and to the extent required by the Canadian Residents Addendum to the Plan) equal to the number of Stock Units subject to this Award that vest on the applicable Vesting Date, unless such Stock Units terminate prior to the given Vesting Date pursuant to Section 6.",
"The Corporation’s obligation to deliver Common Shares or otherwise make payment with respect to vested Stock Units is subject to the condition precedent that the Grantee or other person entitled under the Plan to receive any shares with respect to the vested Stock Units deliver to the Corporation any representations or other documents or assurances required pursuant to Section 8.1 of the Plan. The Grantee shall have no further rights with respect to any Stock Units that are paid or that terminate pursuant to Section 6. 1 -------------------------------------------------------------------------------- 6. Effect of Termination of Employment or Service; Change in Control Event. (a) General. Except as provided in Section 6(b) below, the Grantee’s Stock Units shall terminate to the extent such units have not become vested prior to the Grantee’s Termination Date (as defined below).",
"If any unvested Stock Units are terminated hereunder, such Stock Units shall automatically terminate and be cancelled as of the Termination Date without payment of any consideration by the Corporation and without any other action by the Grantee, or the Grantee’s beneficiary or personal representative, as the case may be. For these purposes, “Termination Date” means the Grantee’s last day of actual and active employment or service with the Corporation or any of its Subsidiaries. For greater certainty, no period of notice of termination, if any, or payment in lieu of notice that is given or ought to have been given pursuant to the Grantee’s applicable employment agreement, contract for service or at law that follows or is in respect of a period after the last date of actual and active employment will be considered as extending Grantee’s period of employment or services for purposes of determining the Grantee’s entitlement under the Award.",
"(b) Acceleration Upon Certain Events. (1) Notwithstanding Section 6(a), if either (i) a Change in Control Event occurs and the Grantee’s employment or service with the Corporation or one of its Subsidiaries continues through the date of the Change in Control Event or (ii) prior to a Change in Control Event, the Grantee’s employment or service with the Corporation or one of its Subsidiaries terminates due to (x) the Grantee’s Disability or death, (y) a termination by the Corporation or such Subsidiary without Cause or (z) a termination by the Grantee for Good Reason, the Stock Units, to the extent then outstanding and unvested, shall vest in full upon the date of the Change in Control Event or the Grantee’s Termination Date, as applicable. (2) Notwithstanding any other provision herein or in the Plan, as a condition precedent to any acceleration of vesting pursuant to Section 6(b)(1), the Grantee shall provide the Corporation with a valid, executed general release agreement in the form attached to any employment, severance, retention or similar agreement the Grantee may have with the Corporation or any of its Subsidiaries in effect on the Award Date (or, if there is no such agreement or no such form of release attached thereto, in a form acceptable to the Corporation), and such release shall have not been revoked pursuant to any revocation rights afforded by applicable law. The Corporation shall provide the final form of release agreement to the Grantee not later than seven (7) days following the date of the event that triggers such accelerated vesting of the Stock Units, and the Grantee shall be required to execute and return such release to the Corporation within twenty-one (21) days (or forty-five (45) days if such longer period of time is required to make the release maximally enforceable under applicable law) after the Corporation provides the form of release to the Grantee.",
"If the period for the Grantee to provide such release spans two calendar years, then the payment of the Stock Units as provided in Section 5 shall in all events be made in the second of such two years. (c) Defined Terms. For purposes of this Agreement, the terms Cause, Good Reason, Disability and Change in Control Event have the meanings given to such terms on Exhibit A hereto.",
"7. Adjustments Upon Specified Events. Upon the occurrence of certain events relating to the Corporation’s stock contemplated by Section 7.1 of the Plan (including, without limitation, an extraordinary cash dividend on such stock), the Administrator shall make adjustments in accordance with such section in the number of Stock Units then outstanding and the number and kind of securities that may be issued in respect of the Award. 2 -------------------------------------------------------------------------------- 8. Tax Withholding. The Corporation shall reasonably determine the amount of any federal, state, local or other income, employment, or other taxes which the Corporation or any of its Subsidiaries may reasonably be obligated to withhold with respect to the grant, vesting or other event with respect to the Stock Units. If such withholding event occurs in connection with the distribution of Common Shares in respect of the Stock Units and subject to compliance with all applicable laws, the Grantee hereby agrees that the appropriate number of whole shares, valued at their then fair market value (with the “fair market value” of such shares determined in accordance with the applicable provisions of the Plan), to satisfy any withholding obligations of the Corporation or its Subsidiaries with respect to such distribution at the minimum applicable withholding rates (such number of shares, the “Minimum Withholding Shares”) shall automatically be sold by or on behalf of the Grantee on the open market and the proceeds of such sale shall be promptly remitted to the Corporation to satisfy such tax withholding obligations.",
"In the event the Grantee has (prior to the applicable Vesting Date) entered into an irrevocable arrangement (on terms reasonably acceptable to the Corporation) with a third-party broker to use the proceeds of a sale of Common Shares on the market to provide for tax withholding in connection with any payment of the Stock Units and has provided the terms of such arrangement to the Corporation (a “Broker Arrangement”), the Grantee and the Corporation agree that, at the time of such payment of the Stock Units, the Corporation will deliver to the Grantee’s designated broker a number of whole Common Shares equal to the Minimum Withholding Shares. If there is no such Broker Arrangement in place on the applicable Vesting Date, such sale of the Minimum Withholding Shares shall be conducted through a broker designated by the Corporation. The Grantee shall execute such documents as may reasonably be requested by the Corporation or the broker, as applicable, in order to implement such transactions and shall otherwise comply with the administrative rules and procedures established by the Corporation with respect to such transactions.",
"If, however, any withholding event occurs with respect to the Stock Units other than in connection with the distribution of shares of Common Stock in respect of the Stock Units, or if the Corporation’s withholding obligations cannot be satisfied by such market sale or such withholding and reacquisition of shares as described above because such a sale, withholding or reacquisition, as the case may be, would cause the Corporation to violate applicable law, the Corporation shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from other compensation payable to the Grantee the amount of any such withholding obligations. 9. Limitation on Benefits; Section 280G. Notwithstanding any other provision herein or in the Plan, the benefits under this Award are subject to the provisions of Exhibit B hereto.",
"10. Notices. Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal office to the attention of the Secretary, and to the Grantee at the Grantee’s last address reflected on the Corporation’s records, or at such other address as either party may hereafter designate in writing to the other. Any such notice shall be given only when received, but if the Grantee is no longer an employee of or in service to the Corporation, shall be deemed to have been duly given by the Corporation when enclosed in a properly sealed envelope addressed as aforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained by the United States Government.",
"11. Plan. The Award and all rights of the Grantee under this Agreement are subject to the terms and conditions of the provisions of the Plan (including, for greater certainty and to the extent applicable, the Canadian Residents Addendum to the Plan), incorporated herein by this reference. In the event of any conflict between the provisions of the Plan and this Option Agreement, the provisions of the Plan shall control. The Grantee agrees to be bound by the terms of the Plan and this Agreement. The Grantee acknowledges having read and understanding the Plan, the Prospectus for the Plan, and this Agreement. Unless otherwise expressly provided in other sections of this Agreement, provisions of the Plan that confer discretionary authority on the Board or the Administrator do not (and shall not be deemed to) create any rights in the Grantee unless such rights are expressly set forth herein or are otherwise in the sole discretion of the Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof.",
"3 -------------------------------------------------------------------------------- 12. Entire Agreement; Amendment. This Agreement and the Plan together constitute the entire agreement and supersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this Agreement may be amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may, however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Grantee hereunder, but no such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof. Notwithstanding the foregoing, the Corporation may, without the consent of the Grantee, amend the tax-withholding procedures set forth in Section 8 above to provide that the Corporation’s tax withholding obligations in connection with a distribution of Common Shares in respect of the Stock Units shall be satisfied by the Corporation reducing the number of Common Shares subject to such distribution by the number of the Minimum Withholding Shares (as opposed to a market sale of such shares); provided, however, that if the Corporation adopts such an amendment of the procedures set forth in Section 8, such procedures shall not be further amended within the one-year period thereafter. 13.",
"Limitation on Grantee’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Corporation as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The Grantee shall have only the rights of a general unsecured creditor of the Corporation with respect to amounts credited and benefits payable, if any, with respect to the Stock Units, and rights no greater than the right to receive the Common Shares as a general unsecured creditor with respect to Stock Units, as and when payable hereunder. 14. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.",
"15. Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof. 16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of law principles thereunder. 17. Construction. It is intended that the terms of the Award will not result in the imposition of any tax liability pursuant to Section 409A of the Code.",
"The Award is intended as a “short-term deferral” under Section 409A of the Code, and this Agreement shall be construed and interpreted consistent with that intent. 18. Language. The parties hereto have agreed that this Agreement and the Plan be drafted in English. Les parties aux présentes ont convenu que le présent document et les règles du régime soient rédigés en anglais. 19. No Advice Regarding Grant. The Grantee is hereby advised to consult with his or her own tax, legal and/or investment advisors with respect to any advice the Grantee may determine is needed or appropriate with respect to the Stock Units (including, without limitation, to determine the foreign, state, local, estate and/or gift tax consequences with respect to the Award). Neither the Corporation nor any of its officers, directors, affiliates or advisors makes any representation (except for the terms and conditions expressly set forth in this Award Agreement) or recommendation with respect to the Award.",
"Except for the withholding rights set forth in Section 8 above, the Grantee is solely responsible for any and all tax and other liability that may arise with respect to the Award or any sale of shares issued or delivered with respect to the Award. 20. Insider Trading Rules. The Grantee hereby acknowledges being subject to all applicable laws, rules and regulations, as well as Corporation policies, regarding insider trading. 4 -------------------------------------------------------------------------------- EXHIBIT A DEFINED TERMS For purposes of this Agreement, the following definitions shall apply: • “Cause” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean: (a) acts or omissions constituting reckless or willful misconduct on the Grantee’s part with respect to the Grantee’s obligations or otherwise relating to the business of the Corporation or any of its Subsidiaries that causes material harm to the Corporation or such Subsidiary or to the reputation of the Corporation or such Subsidiary; (b) the Grantee’s material breach of any agreement between the Grantee and the Corporation or one of its Subsidiaries, which breach the Grantee fails to cure within thirty (30) days after receiving written notice from the Board that specifies the specific conduct giving rise to the alleged breach; (c) the Grantee’s conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, or any felony or crime of moral turpitude; or (d) the Grantee’s willful neglect of duties as reasonably determined by the Board, which the Grantee fails to cure within thirty (30) days after receiving written notice from the Board that specifies the specific duties that the Grantee has failed to perform.",
"• “Good Reason” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean the occurrence (without the Grantee’s consent) of any one or more of the following conditions: (a) a reduction in the Grantee’s rate of base salary or the Grantee’s target annual bonus opportunity by more than ten percent (10%) from the level in effect on the Award Date; (b) a material reduction in the Grantee’s authorities, duties or responsibilities from the level in effect on the Award Date; (c) a change in the geographic location of the Grantee’s principal office with the Corporation (or any subsidiary or affiliate thereof or successor thereto) by more than fifty (50) miles from the location as of the Award Date; or (d) any action or inaction by the Corporation (or any subsidiary or affiliate thereof or successor thereto) that constitutes a material breach of the provisions of any written agreement between the Grantee and the Corporation or one of its Subsidiaries; provided, however, that any such condition or conditions, as applicable, shall not constitute Good Reason unless (x) the Grantee provides written notice to the Corporation of the condition claimed to constitute Good Reason within thirty (30) days of the initial existence of such condition(s), (y) the Corporation fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof, and (z) the Grantee’s employment with the Corporation terminates within ninety (90) days following the initial existence of the condition claimed to constitute Good Reason.",
"• “Disability” has the meaning given to such term (or a similar term) in any employment agreement between the Grantee and the Corporation or any of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean the Grantee (as determined solely by the Administrator on the basis of such medical evidence as the Administrator deems warranted under the circumstances) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.",
"• “Change in Control Event” means any of the following: (i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (1) the then-outstanding common shares of the Corporation (the “Outstanding Company Common Shares”) or (2) the combined voting 5 -------------------------------------------------------------------------------- power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this clause (i), any acquisition by any entity pursuant to a transaction that complies with all of clauses (ii)(1), (2) and (3) below shall not constitute a Change in Control Event; (ii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Corporation or any of its Subsidiaries, a sale or other disposition of assets of the Corporation that account for more than fifty percent (50%) of the Corporation’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Corporation’s financial statements, or the acquisition of assets or stock of another entity by the Corporation or any of its Subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Shares and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, owns the Corporation or assets of the Corporation that account for more than fifty percent (50%) of the Corporation’s revenue for the immediately preceding four (4) fiscal quarters as reflected in the Corporation’s financial statements, either directly or through one or more subsidiaries (a “Parent”)) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Shares and the Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or a Parent or any employee benefit plan (or related trust) of the Corporation or such entity resulting from such Business Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively, the then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%) existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of the entity resulting from such Business Combination or a Parent were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (iii) Approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation other than in the context of a transaction that does not constitute a Change in Control Event under clause (ii) above.",
"6 -------------------------------------------------------------------------------- EXHIBIT B SECTION 280G 1. Limitation on Benefits. Notwithstanding anything contained in this Agreement or the Plan to the contrary, to the extent that the payments and benefits provided under the Award and benefits provided to, or for the benefit of, the Grantee under any other Corporation plan or agreement (such payments or benefits are collectively referred to as the “Benefits”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Benefits shall be reduced (but not below zero) if and to the extent that a reduction in the Benefits would result in the Grantee retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Grantee received all of the Benefits (such reduced amount is referred to hereinafter as the “Limited Benefit Amount”). Unless the Grantee shall have given prior written notice specifying a different order to the Corporation to effectuate the Limited Benefit Amount, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Corporation shall reduce or eliminate the Benefits by first reducing or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as hereinafter defined).",
"Any notice given by the Grantee pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Grantee’s rights and entitlements to any benefits or compensation.. 2. Determination. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the amount of such Limited Benefit Amount shall be made by the Corporation’s independent public accountants or another certified public accounting firm or executive compensation consulting firm of national reputation designated by the Corporation (the “Firm”) at the Corporation’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation to the Corporation and the Grantee within ten (10) business days of the date of termination of the Grantee’s employment, if applicable, or such other time as reasonably requested by the Corporation or the Grantee (provided the Grantee reasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Firm determines that no Excise Tax is payable by the Grantee with respect to any Benefits, it shall furnish the Grantee with an opinion reasonably acceptable to the Grantee that no Excise Tax will be imposed with respect to any such Benefits.",
"Unless the Grantee provides written notice to the Corporation within ten (10) business days of the delivery of the Determination to the Grantee that he disputes such Determination, the Determination shall be binding, final and conclusive upon the Corporation and the Grantee. 7"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 4 TO MASTER REPURCHASE AGREEMENT
AND
AMENDMENT NO. 7 TO PRICING SIDE LETTER
Amendment No. 4 to Master Repurchase Agreement (the “Repurchase Agreement Amendment”) and Amendment No. 7 to Pricing Side Letter (the “Pricing Letter Amendment”, and together with the Repurchase Agreement Amendment, this “Amendment”), dated as of January 9, 2014, among CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the “Buyer”), EXCEL MORTGAGE SERVICING, INC. (the “Seller”), INTEGRATED REAL ESTATE SERVICE CORP. and IMPAC MORTGAGE HOLDINGS, INC. (the “Guarantors”).
RECITALS
The Buyer, the Seller and the Guarantors are parties to that certain (a) Master Repurchase Agreement, dated as of September 21, 2012 (as amended by Amendment No. 1, dated as of February 21, 2013, Amendment No. 2, dated as of May 2, 2013 and Amendment No. 3, dated as of September 18, 2013, the “Existing Master Repurchase Agreement”; as further amended by this Amendment, the “Master Repurchase Agreement”) and (b) Pricing Side Letter, dated as of September 21, 2012 (as amended by Amendment No. 1, dated as of November 19, 2012, Amendment No. 2, dated as of February 21, 2013, Amendment No. 3, dated as of May 2, 2013, Amendment No. 4, dated as of June 7, 2013, Amendment No. 5, dated as of September 17, 2013 and Amendment No. 6, dated as of September 18, 2013, the “Existing Pricing Side Letter”; as further amended by this Amendment, the “Pricing Side Letter”). The Existing Repurchase Agreement and Existing Pricing Side Letter shall be known herein as the “Existing Agreements”. The Guarantors are parties to that certain Guaranty, dated as of September 21, 2012 (the “Guaranty”), as the same may be further amended from time to time. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Agreements.
The Buyer, the Seller and the Guarantors have agreed, subject to the terms and conditions of this Amendment, that the Existing Agreements be amended to reflect certain agreed upon revisions to the terms of the Existing Agreements. As a condition precedent to amending the Existing Agreements, the Buyer has required the Guarantors to ratify and affirm the Guaranty on the date hereof.
Accordingly, the Buyer, the Seller and the Guarantors hereby agree, in consideration of the mutual promises and mutual obligations set forth herein, that the Existing Agreements are hereby amended as follows:
SECTION 1. Definitions. Section 2 of the Existing Master Repurchase Agreement is hereby amended by:
1.1 adding the following definition in its proper alphabetical order:
“Manufactured Home Loan” means a Conforming Mortgage Loan, FHA Loan or VA Loan secured by a manufactured home (as defined by the United States Department of Housing and Urban Development) provided that (a) such manufactured home is attached to a permanent foundation and is no longer transportable and (b) such Conforming Mortgage Loan,
--------------------------------------------------------------------------------
FHA Loan or VA Loan is eligible for securitization by an Agency pursuant to the terms of the applicable Agency guide.
1.2 deleting the definition of “Mortgage Loan” in its entirety and replacing it with the following:
“Mortgage Loan” means any first lien closed Conforming Mortgage Loan, Conforming High LTV Loan, Jumbo Mortgage Loan, FHA Loan, USDA Loan, VA Loan, FHA 203(k) Loan or Manufactured Home Loan which is a fixed or floating-rate, one-to-four-family residential mortgage or home equity loan evidenced by a promissory note and secured by a first lien mortgage, which satisfies the requirements set forth in the Underwriting Guidelines and Section 13.b hereof; provided, however, that, except with respect to Conforming High LTV Loans and as expressly approved in writing by Buyer, Mortgage Loans shall not include any “high-LTV” loans (i.e., a mortgage loan having a loan-to-value ratio in excess of (a) with respect to FHA Loans or VA Loans, 97% (other than VA High LTV Loans), (b) with respect to Conforming Mortgage Loans (other than Conforming High LTV Loans), up to but not including 105% (provided that Conforming Mortgage Loans, other than Conforming High LTV Loans, with an LTV of 80% or higher must be covered by primary mortgage insurance) or (c) such lower percentage set forth in the Underwriting Guidelines) or any High Cost Mortgage Loans and; provided, further, that the related Purchase Date is no more than thirty (30) days (or if the applicable Purchased Mortgage Loan was subject to a transaction under the Repledge Repurchase Documents then ninety (90) days) following the origination date.
SECTION 2. Schedule 1. Schedule 1 of the Existing Master Repurchase Agreement is hereby amended by adding the following subsection at the end thereof:
(eee) Qualified Mortgage. Notwithstanding anything to the contrary set forth in this Agreement, on and after January 10, 2014 (or such later date as set forth in the relevant regulations), (i) prior to the origination of each Mortgage Loan, the originator made a reasonable and good faith determination that the Mortgagor had a reasonable ability to repay the loan according to its terms, in accordance with, at a minimum, the eight underwriting factors set forth in 12 CFR 1026.43(c) and (ii) each Mortgage Loan is a “Qualified Mortgage” as defined in 12 CFR 1026.43(e).
SECTION 3. Definitions. Section 1 of the Existing Pricing Side Letter is hereby amended by:
3.1 deleting subsection (viii) of the definition of “Asset Value” and replacing it with the following:
(viii) when the Purchase Price for such Purchased Mortgage Loan is added to other Combined Purchased Mortgage Loans, the aggregate Purchase Price of all Combined Purchased Mortgage Loans of any type of Mortgage Loan set forth below exceeds the applicable percentage listed opposite such type of Mortgage Loan as set forth below:
2
--------------------------------------------------------------------------------
Type of Mortgage Loan
Percentage of the Maximum Combined Aggregate Purchase Price (unless otherwise noted)
Conforming Mortgage Loans
100%
FHA Loans and VA Loans
100%
Jumbo Mortgage Loans
100%
FHA 203(k) Loans
10%
Aged Loans
10%
Wet-Ink Mortgage Loans
30%
Manufactured Home Loans
5%
Conforming High LTV Loans (Conforming Tier 1 High LTV Loans, Conforming Tier 2 High LTV Loans and Conforming Tier 3 High LTV Loans, combined)
25%
USDA Loans
5%
Conforming Tier 2 High LTV Loans
2.5%
Conforming Tier 3 High LTV Loans
2.5%
VA High LTV Loans
2.5%
3.2 deleting subsection (a) of the definition of “Purchase Price Percentage” and replacing it with the following:
“Purchase Price Percentage” means, (a) the applicable percentage listed opposite the type of Mortgage Loan as set forth below:
Type of Mortgage Loan
Percentage for Mortgage Loans other than Aged Loans
Percentage for Aged Loans (reductions calculated based upon original Purchase Price Percentage)
Conforming Mortgage Loan (other than Conforming High LTV Loans)
95%
reduced by an additional 5%
FHA Loan and VA Loan
95%
reduced by an additional 5%
3
--------------------------------------------------------------------------------
USDA Loan
95%
reduced by an additional 5%
FHA 203(k) Loans
95%
reduced by an additional 5%
Jumbo Mortgage Loans
95%
reduced by an additional 5%
Wet-Ink Mortgage Loans
Percentage based on type of Mortgage Loan
n/a
Manufactured Home Loans
95%
reduced by an additional 5%
Conforming High LTV Loans
95%
reduced by an additional 5%
VA High LTV Loans
95%
reduced by an additional 5%
3.3 deleting the definitions of “Maximum Aggregate Purchase Price” and “Pricing Rate” in their entirety and replacing them with the following:
“Maximum Aggregate Purchase Price” means ONE HUNDRED AND TWENTY-FIVE MILLION DOLLARS ($125,000,000).
“Pricing Rate” means (a) CSCOF plus the applicable percentage listed opposite the type of Mortgage Loan as set forth below:
Type of Mortgage Loan
Percentage for Mortgage Loans other than Wet- Ink Mortgage Loans or Aged Loans
Percentage for Wet-Ink Mortgage Loans(increases calculated based upon original Pricing Rate)
Percentage for Aged Loans (increases calculated based upon original Pricing Rate)
Conforming Mortgage Loan (other than Conforming High LTV Loans)
3.00%
increased by an additional 0.25%
increased by an additional 0.25%
FHA Loan and VA Loan
3.00%
increased by an additional 0.25%
increased by an additional 0.25%
USDA Loan
3.00%
increased by an additional 0.25%
increased by an additional 0.25%
4
--------------------------------------------------------------------------------
FHA 203(k) Loans
3.00%
increased by an additional 0.25%
increased by an additional 0.25%
Jumbo Mortgage Loans
3.00%
increased by an additional 0.25%
increased by an additional 0.25%
Manufactured Home Loans
3.00%
increased by an additional 0.25%
increased by an additional 0.25%
Conforming High LTV Loans
3.25%
increased by an additional 0.25%
increased by an additional 0.25%
VA High LTV Loans
3.25%
increased by an additional 0.25%
increased by an additional 0.25%
(b) the rate determined in the sole discretion of Buyer with respect to Transactions the subject of which are Exception Mortgage Loans and any other Transactions so identified by the Buyer in agreeing to enter into a Transaction with respect to such Exception Mortgage Loan.
The Pricing Rate shall change in accordance with CSCOF, as provided in Section 5(a). Where a Purchased Mortgage Loan may qualify for two or more Pricing Rates hereunder, unless otherwise expressly agreed to by the Buyer in writing, such Purchased Mortgage Loan shall be assigned the higher Pricing Rate, as applicable.
SECTION 4. Conditions Precedent. Section 2 of this Amendment shall become effective as of January 10, 2014 and the remainder of this Amendment shall become effective as of the date hereof, subject to the satisfaction of the following conditions precedent:
4.1 Delivered Documents. On the date hereof, the Buyer shall have received the following documents, each of which shall be satisfactory to the Buyer in form and substance:
(a) this Amendment, executed and delivered by the Guarantors, the Buyer and the Seller; and
(b) such other documents as the Buyer or counsel to the Buyer may reasonably request.
SECTION 5. Representations and Warranties. The Seller hereby represents and warrants to the Buyer that it is in compliance with all the terms and provisions set forth in the Master Repurchase Agreement on its part to be observed or performed, and that no Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 13 of the Master Repurchase Agreement.
SECTION 6. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Agreements shall continue to be, and shall remain, in full force and effect in accordance with its terms and the execution of this Amendment.
5
--------------------------------------------------------------------------------
SECTION 7. Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
SECTION 8. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
SECTION 10. Reaffirmation of Guaranty. The Guarantors hereby ratify and affirm all of the terms, covenants, conditions and obligations of the Guaranty and acknowledge and agree that the term “Obligations” as used in the Guaranty shall apply to all of the Obligations of Seller to Buyer under the Master Repurchase Agreement and Pricing Side Letter, as amended hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
6
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, as Buyer
By:
/s/ Adam Loskove
Name: Adam Loskove
Title: Vice President
EXCEL MORTGAGE SERVICING, INC., as Seller
By:
/s/ Todd R. Taylor
Name: Todd R. Taylo
Title: EVP / CFO
IMPAC MORTGAGE HOLDINGS, INC., as a Guarantor
By:
/s/ Todd R. Taylor
Name: Todd R. Taylo
Title: EVP / CFO
INTEGRATED REAL ESTATE SERVICE CORP., as a Guarantor
By:
/s/ William S. Ashmore
Name: William S. Ashmore
Title: President
Signature Page to Amendment No. 4 to Master Repurchase Agreement and Amendment No. 7 to Pricing Side Letter
-------------------------------------------------------------------------------- | [
"Exhibit 10.2 EXECUTION VERSION AMENDMENT NO. 4 TO MASTER REPURCHASE AGREEMENT AND AMENDMENT NO. 7 TO PRICING SIDE LETTER Amendment No. 4 to Master Repurchase Agreement (the “Repurchase Agreement Amendment”) and Amendment No. 7 to Pricing Side Letter (the “Pricing Letter Amendment”, and together with the Repurchase Agreement Amendment, this “Amendment”), dated as of January 9, 2014, among CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the “Buyer”), EXCEL MORTGAGE SERVICING, INC. (the “Seller”), INTEGRATED REAL ESTATE SERVICE CORP. and IMPAC MORTGAGE HOLDINGS, INC. (the “Guarantors”). RECITALS The Buyer, the Seller and the Guarantors are parties to that certain (a) Master Repurchase Agreement, dated as of September 21, 2012 (as amended by Amendment No. 1, dated as of February 21, 2013, Amendment No. 2, dated as of May 2, 2013 and Amendment No. 3, dated as of September 18, 2013, the “Existing Master Repurchase Agreement”; as further amended by this Amendment, the “Master Repurchase Agreement”) and (b) Pricing Side Letter, dated as of September 21, 2012 (as amended by Amendment No. 1, dated as of November 19, 2012, Amendment No. 2, dated as of February 21, 2013, Amendment No.",
"3, dated as of May 2, 2013, Amendment No. 4, dated as of June 7, 2013, Amendment No. 5, dated as of September 17, 2013 and Amendment No. 6, dated as of September 18, 2013, the “Existing Pricing Side Letter”; as further amended by this Amendment, the “Pricing Side Letter”). The Existing Repurchase Agreement and Existing Pricing Side Letter shall be known herein as the “Existing Agreements”. The Guarantors are parties to that certain Guaranty, dated as of September 21, 2012 (the “Guaranty”), as the same may be further amended from time to time. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Agreements. The Buyer, the Seller and the Guarantors have agreed, subject to the terms and conditions of this Amendment, that the Existing Agreements be amended to reflect certain agreed upon revisions to the terms of the Existing Agreements.",
"As a condition precedent to amending the Existing Agreements, the Buyer has required the Guarantors to ratify and affirm the Guaranty on the date hereof. Accordingly, the Buyer, the Seller and the Guarantors hereby agree, in consideration of the mutual promises and mutual obligations set forth herein, that the Existing Agreements are hereby amended as follows: SECTION 1. Definitions. Section 2 of the Existing Master Repurchase Agreement is hereby amended by: 1.1 adding the following definition in its proper alphabetical order: “Manufactured Home Loan” means a Conforming Mortgage Loan, FHA Loan or VA Loan secured by a manufactured home (as defined by the United States Department of Housing and Urban Development) provided that (a) such manufactured home is attached to a permanent foundation and is no longer transportable and (b) such Conforming Mortgage Loan, -------------------------------------------------------------------------------- FHA Loan or VA Loan is eligible for securitization by an Agency pursuant to the terms of the applicable Agency guide. 1.2 deleting the definition of “Mortgage Loan” in its entirety and replacing it with the following: “Mortgage Loan” means any first lien closed Conforming Mortgage Loan, Conforming High LTV Loan, Jumbo Mortgage Loan, FHA Loan, USDA Loan, VA Loan, FHA 203(k) Loan or Manufactured Home Loan which is a fixed or floating-rate, one-to-four-family residential mortgage or home equity loan evidenced by a promissory note and secured by a first lien mortgage, which satisfies the requirements set forth in the Underwriting Guidelines and Section 13.b hereof; provided, however, that, except with respect to Conforming High LTV Loans and as expressly approved in writing by Buyer, Mortgage Loans shall not include any “high-LTV” loans (i.e., a mortgage loan having a loan-to-value ratio in excess of (a) with respect to FHA Loans or VA Loans, 97% (other than VA High LTV Loans), (b) with respect to Conforming Mortgage Loans (other than Conforming High LTV Loans), up to but not including 105% (provided that Conforming Mortgage Loans, other than Conforming High LTV Loans, with an LTV of 80% or higher must be covered by primary mortgage insurance) or (c) such lower percentage set forth in the Underwriting Guidelines) or any High Cost Mortgage Loans and; provided, further, that the related Purchase Date is no more than thirty (30) days (or if the applicable Purchased Mortgage Loan was subject to a transaction under the Repledge Repurchase Documents then ninety (90) days) following the origination date.",
"SECTION 2. Schedule 1. Schedule 1 of the Existing Master Repurchase Agreement is hereby amended by adding the following subsection at the end thereof: (eee) Qualified Mortgage. Notwithstanding anything to the contrary set forth in this Agreement, on and after January 10, 2014 (or such later date as set forth in the relevant regulations), (i) prior to the origination of each Mortgage Loan, the originator made a reasonable and good faith determination that the Mortgagor had a reasonable ability to repay the loan according to its terms, in accordance with, at a minimum, the eight underwriting factors set forth in 12 CFR 1026.43(c) and (ii) each Mortgage Loan is a “Qualified Mortgage” as defined in 12 CFR 1026.43(e). SECTION 3. Definitions.",
"Section 1 of the Existing Pricing Side Letter is hereby amended by: 3.1 deleting subsection (viii) of the definition of “Asset Value” and replacing it with the following: (viii) when the Purchase Price for such Purchased Mortgage Loan is added to other Combined Purchased Mortgage Loans, the aggregate Purchase Price of all Combined Purchased Mortgage Loans of any type of Mortgage Loan set forth below exceeds the applicable percentage listed opposite such type of Mortgage Loan as set forth below: 2 -------------------------------------------------------------------------------- Type of Mortgage Loan Percentage of the Maximum Combined Aggregate Purchase Price (unless otherwise noted) Conforming Mortgage Loans 100% FHA Loans and VA Loans 100% Jumbo Mortgage Loans 100% FHA 203(k) Loans 10% Aged Loans 10% Wet-Ink Mortgage Loans 30% Manufactured Home Loans 5% Conforming High LTV Loans (Conforming Tier 1 High LTV Loans, Conforming Tier 2 High LTV Loans and Conforming Tier 3 High LTV Loans, combined) 25% USDA Loans 5% Conforming Tier 2 High LTV Loans 2.5% Conforming Tier 3 High LTV Loans 2.5% VA High LTV Loans 2.5% 3.2 deleting subsection (a) of the definition of “Purchase Price Percentage” and replacing it with the following: “Purchase Price Percentage” means, (a) the applicable percentage listed opposite the type of Mortgage Loan as set forth below: Type of Mortgage Loan Percentage for Mortgage Loans other than Aged Loans Percentage for Aged Loans (reductions calculated based upon original Purchase Price Percentage) Conforming Mortgage Loan (other than Conforming High LTV Loans) 95% reduced by an additional 5% FHA Loan and VA Loan 95% reduced by an additional 5% 3 -------------------------------------------------------------------------------- USDA Loan 95% reduced by an additional 5% FHA 203(k) Loans 95% reduced by an additional 5% Jumbo Mortgage Loans 95% reduced by an additional 5% Wet-Ink Mortgage Loans Percentage based on type of Mortgage Loan n/a Manufactured Home Loans 95% reduced by an additional 5% Conforming High LTV Loans 95% reduced by an additional 5% VA High LTV Loans 95% reduced by an additional 5% 3.3 deleting the definitions of “Maximum Aggregate Purchase Price” and “Pricing Rate” in their entirety and replacing them with the following: “Maximum Aggregate Purchase Price” means ONE HUNDRED AND TWENTY-FIVE MILLION DOLLARS ($125,000,000).",
"“Pricing Rate” means (a) CSCOF plus the applicable percentage listed opposite the type of Mortgage Loan as set forth below: Type of Mortgage Loan Percentage for Mortgage Loans other than Wet- Ink Mortgage Loans or Aged Loans Percentage for Wet-Ink Mortgage Loans(increases calculated based upon original Pricing Rate) Percentage for Aged Loans (increases calculated based upon original Pricing Rate) Conforming Mortgage Loan (other than Conforming High LTV Loans) 3.00% increased by an additional 0.25% increased by an additional 0.25% FHA Loan and VA Loan 3.00% increased by an additional 0.25% increased by an additional 0.25% USDA Loan 3.00% increased by an additional 0.25% increased by an additional 0.25% 4 -------------------------------------------------------------------------------- FHA 203(k) Loans 3.00% increased by an additional 0.25% increased by an additional 0.25% Jumbo Mortgage Loans 3.00% increased by an additional 0.25% increased by an additional 0.25% Manufactured Home Loans 3.00% increased by an additional 0.25% increased by an additional 0.25% Conforming High LTV Loans 3.25% increased by an additional 0.25% increased by an additional 0.25% VA High LTV Loans 3.25% increased by an additional 0.25% increased by an additional 0.25% (b) the rate determined in the sole discretion of Buyer with respect to Transactions the subject of which are Exception Mortgage Loans and any other Transactions so identified by the Buyer in agreeing to enter into a Transaction with respect to such Exception Mortgage Loan. The Pricing Rate shall change in accordance with CSCOF, as provided in Section 5(a).",
"Where a Purchased Mortgage Loan may qualify for two or more Pricing Rates hereunder, unless otherwise expressly agreed to by the Buyer in writing, such Purchased Mortgage Loan shall be assigned the higher Pricing Rate, as applicable. SECTION 4. Conditions Precedent. Section 2 of this Amendment shall become effective as of January 10, 2014 and the remainder of this Amendment shall become effective as of the date hereof, subject to the satisfaction of the following conditions precedent: 4.1 Delivered Documents. On the date hereof, the Buyer shall have received the following documents, each of which shall be satisfactory to the Buyer in form and substance: (a) this Amendment, executed and delivered by the Guarantors, the Buyer and the Seller; and (b) such other documents as the Buyer or counsel to the Buyer may reasonably request. SECTION 5. Representations and Warranties. The Seller hereby represents and warrants to the Buyer that it is in compliance with all the terms and provisions set forth in the Master Repurchase Agreement on its part to be observed or performed, and that no Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 13 of the Master Repurchase Agreement.",
"SECTION 6. Limited Effect. Except as expressly amended and modified by this Amendment, the Existing Agreements shall continue to be, and shall remain, in full force and effect in accordance with its terms and the execution of this Amendment. 5 -------------------------------------------------------------------------------- SECTION 7. Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. SECTION 8. Counterparts. This Amendment may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. SECTION 9. GOVERNING LAW.",
"THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF. SECTION 10. Reaffirmation of Guaranty. The Guarantors hereby ratify and affirm all of the terms, covenants, conditions and obligations of the Guaranty and acknowledge and agree that the term “Obligations” as used in the Guaranty shall apply to all of the Obligations of Seller to Buyer under the Master Repurchase Agreement and Pricing Side Letter, as amended hereby. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 6 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written. CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, as Buyer By: /s/ Adam Loskove Name: Adam Loskove Title: Vice President EXCEL MORTGAGE SERVICING, INC., as Seller By: /s/ Todd R. Taylor Name: Todd R. Taylo Title: EVP / CFO IMPAC MORTGAGE HOLDINGS, INC., as a Guarantor By: /s/ Todd R. Taylor Name: Todd R. Taylo Title: EVP / CFO INTEGRATED REAL ESTATE SERVICE CORP., as a Guarantor By: /s/ William S. Ashmore Name: William S. Ashmore Title: President Signature Page to Amendment No.",
"4 to Master Repurchase Agreement and Amendment No. 7 to Pricing Side Letter --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Citation Nr: 0514957
Decision Date: 06/02/05 Archive Date: 06/15/05
DOCKET NO. 99-21 221 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to a compensable rating for a bilateral
hearing loss disability.
2. Entitlement to service connection for a degenerative
joint disease of the cervical spine, claimed as secondary to
a service-connected left shoulder disability.
3. Entitlement to service connection for a degenerative
joint disease of the thoracic spine, claimed as secondary to
a service-connected left shoulder disability.
4. Entitlement to service connection for tinnitus.
5. Entitlement to service connection for superior thoracic
levoscoliosis.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Counsel
INTRODUCTION
The veteran served on active duty from August 1961 to August
1963 and from March 1967 to January 1976.
One of the matters the Board must address is which issue or
issues are properly before it at this time. Under
38 U.S.C.A. § 7105(a), an appeal to the Board must be
initiated by a notice of disagreement and completed by a
substantive appeal after a statement of the case (SOC) is
furnished to the veteran. In essence, the following sequence
is required: There must be a decision by the RO, the veteran
must express timely disagreement with the decision, VA must
respond by explaining the basis for the decision to the
veteran, and finally the veteran, after receiving adequate
notice of the basis of the decision, must complete the
process by stating his argument in a timely-filed substantive
appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203
(2004).
This appeal arises before the Board of Veterans' Appeals
(Board) from a March 2003 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama, that denied a claim for a compensable rating for
bilateral hearing loss and claims for service connection for
degenerative joint disease of the cervical spine as secondary
to the left shoulder disability; for degenerative joint
disease of the thoracic spine with osteophytes as secondary
to the left shoulder disability; for tinnitus; and for
superior thoracic levoscoliosis. In April 2004, a Decision
Review Officer (DRO) at the RO also denied the last five
claims.
In December 2003, the veteran testified at a hearing before
the Board that was held at the RO. He submitted additional
evidence, for which he waived initial consideration by the
RO. Since then, the veteran has relocated to Texas, and he
has designated a new representative, the Texas Veterans
Commission.
The Board has considered whether it now has proper
jurisdiction over the five issues listed in the above
caption. These issues were the subject of a March 2003 RO
rating decision. The veteran filed a notice of disagreement
with that rating decision in May 2003; in July 2003, he
elected de novo review of the case by a DRO of the RO. The
DRO issued a decision in April 2004, along with a statement
of the case (SOC). The Board notes that the veteran also
filed a substantive appeal regarding these issues in March
2004, which predates the issuance of the SOC. Ordinarily,
the substantive appeal must follow the issuance of an SOC.
38 C.F.R. §§ 20.200, 20.302 (2004). However, in this case,
the veteran expressed his desire to continue his appeal of
the RO's decisions on these issues at his December 2003
hearing before the Board, which was transcribed and
officially made a part of the record in September 2004, which
postdates the April 2004 SOC. The Board accepted testimony
as to these issues at the December 2003 hearing, and the
Board finds that it has jurisdiction to review these claims
at this time. The veteran is not prejudiced by this
decision.
The claim for a compensable rating for bilateral hearing loss
disability and the claims for service connection for
degenerative joint disease of the thoracic spine and for
superior thoracic levoscoliosis are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
The Board also notes that the veteran has a separate claim
for an increased rating for a left shoulder disability
(status post shell fragment wound of the non-dominant left
shoulder (now rated 20 percent disabling), which is the
subject of a separate decision by a panel of Veterans Law
Judges of the Board (as the veteran has had two hearings
before two judges regarding his issue). See 38 C.F.R. § 19.3
(2004). The present decision only relates to the five issues
listed in the caption above.
FINDINGS OF FACT
1. All of the requisite notices and assistance owed to the
veteran have been substantially provided, and all of the
evidence necessary for an equitable disposition of the claims
for service connection for degenerative joint disease of the
cervical spine and for bilateral tinnitus has been obtained.
2. The veteran's current degenerative joint disease of the
cervical spine was first manifested many years after service,
and it has not been related to service or to any incident
therein (including any neck pain during service) or to any
service-connected disability (including a left shoulder
disability).
3. The veteran's current tinnitus is was first manifested
after noise exposure during active service and is related to
such in-service exposure.
CONCLUSIONS OF LAW
1. Degenerative joint disease of the cervical spine was not
incurred in or aggravated by service, to include by a
service-connected disability. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2004).
2. Tinnitus was incurred in service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual background
The veteran served on active duty in the U.S. Army from
August 1961 to August 1963 and from March 1967 to January
1976. The veteran's service medical records are in the
claims folder, as are various medical records from soon after
separation from service in 1976.
In November 1968, the veteran was hit in the left shoulder by
hostile mortar fire that produced a fragment wound. He
underwent debridement and irrigation of the wound.
Associated records indicated that there was no artery or
nerve involvement.
In September 1970, the veteran complained of arthritic-type
pain and symptoms suggestive of hypothyroidism and a hiatal
hernia. An X-ray report noted his complaints of a pulling
and a popping sensation in the neck posteriorly; however, the
actual X-ray of the cervical and thoracic spine consisted of
normal findings.
In January 1974, the veteran complained of an aching back and
headache; the back pain had been common ever since a prior
wound. There was a finding of spasm of the left trapezius
muscle.
On an October 1974 annual Army physical examination, he was
noted as having a scar over the left scapula that at times
caused mild discomfort and tightness in the muscle underlying
the scar.
In January 1975, he reported sharp back pain after moving
furniture. Physical examination revealed much spasm of the
lumbar muscles.
On a September 1975 Army examination report, the veteran
noted that his combat wound to the back gave him continual
discomfort when he was up, mild pain when he was tired, and
occasional severe pain after lifting. Sometimes the pain
extended from the neck to the lower back. He also indicated
that he did not hear as well as he used to, especially high-
pitched stereo. The examiner noted the left shoulder injury
and secondary back pain. On the accompanying medical history
report, he reported recurrent back pain, but he denied
arthritis or a painful or trick shoulder.
On VA examination in April 1976, it was noted that there had
been no nerve, artery, or bone damage as a result of the
shrapnel wound. The veteran was not aware if he had any
retained metallic fragment in the area at that time, but he
did report pulling and tightening in the scar site; he
described having to manipulate the area frequently in order
to prevent a felling of tightening in the scar area. He also
reported multiple spasm with heavy lifting, as well as an
intermittent burning sensation. The pertinent diagnosis was
a shrapnel wound of the left suprascapular area that was
intermittently symptomatic.
In a May 1976 rating decision, the RO awarded service
connection for a scar from a shell fragment wound to the left
shoulder. The RO also awarded service connection for hearing
loss (also rated 0 percent).
The veteran reported on VA audio examination in March 1995
that he had been exposed to loud artillery noise for most of
his military career. He described the onset of tinnitus as
having been in the early 1960s, after the firing of loud guns
while in the artillery unit. Pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
15
25
LEFT
10
15
20
20
45
The average was 18 on the right and 25 on the left. Speech
recognition ability was 96 percent bilaterally.
A private family practitioner, "T.R.F.", M.D., wrote in
September 1998 that the veteran's left shoulder shell
fragment wound involved the suprascapular and left shoulder
girdle muscles and nerves, causing transient paralysis of the
left upper extremity. There was residual pain from the
scarring of the aforementioned muscles with permanent
disability.
On VA muscles examination in October 1998, the veteran
reported taking medication daily for pain relief. He denied
limitation of activity due to fatigue or inability to move
the joint through its range. This did not interfere with his
daily activities. Examination showed an irregular scar from
an entrance wound that was 4 by 1.5 centimeters on the left
shoulder, entering the infraspinatus muscle. He did not have
loss of muscle function. The muscle group could move through
normal range of motion, including independently through such
motion. The muscle group was not limited by pain. Such
motion was not accomplished only with assistance. The muscle
group moved the joint well. Muscle contraction was felt.
The diagnosis was a shrapnel wound of the left shoulder with
no residual loss of motion. There was pain, but no loss of
function.
On consultation in December 1998 by a private doctor,
"P.A.M.", M.D., it was indicated that X-rays of the left
shoulder were normal except for a small metallic foreign body
in the proximal arm. There was a well-healed scar on the
posterior aspect of the scapula that measured about two
centimeters in length. There was some tenderness on the
medial parascapular musculature. The veteran had full range
of motion in the shoulder with some difficulty with full
abduction. He was neurovascularly intact in both upper
extremities. X-rays also showed some degenerative changes in
the lower cervical spine. The impression noted a history of
a shrapnel wound. The doctor felt that the shoulder pain was
coming from some parascapular muscle strain which could be
related to the original injury, as well as some from some
tendonitis and bursitis in his shoulder. His numbness and
tingling could be related to some peripheral extremity
compression or it could be more centrally with disc disease.
A CT scan was recommended to look for disc pathology.
A doctor with an Internet medical expert consulting service,
"J.D.", M.D., wrote in a January 1999 e-mail to the veteran
that a CT scan would show small metal fragments very well,
but that an MRI was probably more sensitive and would show
microscopic metal fragments.
An employer and supervisor wrote in June and July 1999 that
he had observed the veteran avoiding heavy lifting or
exertion of his back to prevent back strain, which sometimes
caused him to lose one or two days of work. On some
occasions, he exerted his shoulder anyway and missed work.
He had even lost some work time while helping office movers
lift lighter items, which caused fatigue and back strain.
The veteran had also reported having back, shoulder, and left
arm pain after deskwork producing fatigue. He would take
frequent breaks at work and he tried to relieve the pain by
stretching and pulling his neck, back, and left arm. His
pain affected his ability to travel and rendered him less
valuable to the company.
The veteran's spouse wrote in July 1999 that the veteran had
pain and fatigue, which caused him to avoid certain lifting
and to use his right hand more than his left; he also did not
stand straight because his left shoulder was higher than his
right.
In July 1999, the veteran was seen by a private doctor,
"E.R.B.", M.D., Ph.D., specializing in physical medicine
and rehabilitation and electrodiagnostic medicine, for
progressively increasing left shoulder pain, with a burning
quality over the shoulder blade, an aching quality in the
left shoulder, and associated numbness over the fourth and
fifth digits of the left hand. Examination of the neck
showed 55 degrees of flexion, 50 degrees of extension, 35
degrees of side bending, and 55 degrees of bilateral
rotation. Spurling's maneuver was negative bilaterally. He
had full range of motion of the upper extremities. He had a
four-centimeter scar over the left scapula just inferior to
the scapular spine. No scapular winging was felt. There was
minimal tenderness to palpation. Paresthesias were not
reproduced by palpation of the axilla. Neurologically, he
had full power in both upper extremities without evidence of
intrinsic or thenar wasting; sensory system was intact, and
deep tendon reflexes were symmetrical. Nerve conduction
studies and EMG testing of the left arm revealed no evidence
of radiculopathy, plexopathy, or peripheral nerve injury. He
did have left carpal tunnel syndrome, but Dr. B. did not
relate this to the left shoulder injury. The impressions
included shrapnel wound to the left shoulder with probable
adhesions and scapular weakness. An August 1999 follow-up
evaluation showed essentially normal range of motion of the
left shoulder. In August 1999, Dr. B. wrote that physical
examination showed an entry wound that was well healed over
the left scapula just inferior to the scapular spine. X-ray
reports showed a metallic fragment in the upper left arm.
Due to these wounds, the veteran had continued to have
crepitus over the scapula with movement of the arm; he also
had restricted range of motion of the left shoulder.
The veteran testified before the RO in December 1999 that he
had daily left shoulder pain, especially in certain
positions; he described numbness also. He reported
stretching to alleviate the pain.
On VA joints examination in January 2000, the veteran
reported pain, weakness, stiffness, heat, instability, giving
away, locking, fatigability, and lack of endurance; he denied
swelling and redness. He used pain medication on a daily
basis now. He reported periods of flare-up that was
precipitated with lifting in certain directions, resulting in
an additional 10 percent impairment. He sometimes slept in a
sling. He was a computer engineer, and he stated that his
shoulder interfered with his job. He was right-handed. On
physical examination, motion would stop when pain began.
There was no objective evidence of painful motion, edema,
effusion, instability, weakness, tenderness, redness, heat,
or abnormal movement; however, there was guarding of
movement. Range of motion, in degrees, was as follows:
Left Right
Forward flexion 164 176
Abduction 162 178
External rotation 78 88
Internal rotation 76 87
There was a 1.5 by 4 centimeter irregular scar of the left
posterior shoulder over the supraspinatus muscle. The
diagnosis was shrapnel wound of the left shoulder with
resultant degenerative joint disease and loss of function due
to pain.
On private May 2001 follow-up evaluation, Dr. B. found
negative impingement sign in the left shoulder. There was no
pain on resisted testing of the supraspinatus. He had 130
degrees of shoulder flexion, 130 degrees of abduction, and
full internal and external rotation. There was minimal
tenderness to palpation over the posterior shoulder. The
veteran was taking Ultram for pain. The impression was
history of shrapnel wound to the left shoulder.
On VA muscles examination in January 2002, the veteran
reported flare-ups when moving in certain directions, with 15
percent additional impairment. He described present symptoms
of muscle pain, with activity limited by fatigue and
inability to move the joint through some of its range of
motion. The examiner noted that this appeared to be minor,
especially based on the range of motion reported by the
veteran.
On physical examination, there was an entrance wound, but no
exit wound, in the left posterior shoulder. The scar was 1
by 4 centimeters in the left posterior scapula region,
without tissue loss. The supraspinatus, infraspinatus, and
teres minor muscle groups were penetrated. There were no
adhesions, although tendon damage was described as "done."
There was no bone, joint, or nerve damage or muscle
herniation. Muscle strength was good. The muscle moved the
joint through normal range of motion. Range of motion, in
degrees, was as follows:
Left Right Normal
Forward flexion 164 177 180
Abduction 161 176 180
External rotation 88 89 90
Internal rotation 88 88 90
Muscle contraction was felt. The muscle group did not need
assistance to move the joint; it could do so independently.
Joint function was affected very little, as shown on range of
motion testing. The diagnosis was shrapnel wound of the left
posterior shoulder with minimal residual damage.
January 2002 VA X-rays showed degenerative joint disease of
the thoracic and cervical spine with osteophytes and
narrowing of the joint space.
In July 2002, the veteran requested separate service
connection for degenerative joint disease of the cervical,
for degenerative joint disease of the thoracic spine, and for
superior thoracic levoscoliosis. He also sought an increased
rating for service-connected bilateral hearing loss (then
rated 0 percent).
VA outpatient medical records from 2002 and 2003 reflect
ongoing complaints of left shoulder pain. In October 2002,
he underwent an MRI of his left shoulder, but the report did
not appear in the VA medical center's computer as of November
2002. In December 2002, a new MRI was ordered because no
report had been obtainable from the prior MRI.
On VA joints examination in January 2003, the examiner noted
that the veteran had suffered a superficial fragment wound
from a mortar or grenade explosion during service; the
fragment had entered his back, inferior to the left scapular
spine, and had traversed along the scapula and then into the
area of the triceps muscle of the left arm. The veteran also
reported some neck pain, which he attributed to the left
shoulder disability, as well as some left-hand numbness when
he would lie on his left shoulder while sleeping. On
physical examination, the left scapula was slightly elevated.
There was a scar in the posterior scapula at the site of the
entrance of the fragment, just inferior to the left scapular
spine. There were no other palpable or visual abnormalities.
The veteran could abduct his left shoulder actively about 90
degrees and passively to 145 degrees. Otherwise, he had
normal range of motion in the shoulder. He had normal
strength in the biceps and a slight decrease in strength in
the triceps. Examination of the cervical and thoracic spine
was negative. He had normal cervical spine range of motion.
He had no significant deformities. X-rays confirmed
degenerative joint disease of the thoracic and cervical
spine; however, the left shoulder X-rays were normal.
The diagnosis was superficial fragment wounds of the left
posterior scapula, transversing to the left triceps muscle,
with minimal muscle injury to the inferior scapular and the
triceps muscles; there was no other significant residual.
The examiner concluded that the veteran's cervical spine
complaints had no relationship to his superficial shell
fragment wounds.
January 2003 VA X-ray reports showed degenerative joint
disease of the thoracic spine with osteophytes and narrowing
of intervertebral spaces; they also showed mild degenerative
joint disease of the lower cervical spine with osteophytes.
The veteran's mother wrote in January 2003 that he had
weakened muscles in his left shoulder because of the wartime
injury; he needed to draw his shoulder up to his chin and to
bring his elbow near his body in order to function, resulting
in a gradual rise in his left shoulder over the years.
On VA audio examination in February 2003, the veteran
reported constant tinnitus that was quite bothersome all the
time. Noise exposure included in-service exposure to field
artillery. He denied post-service noise exposure, as his
work was primarily at a desk with very little occupational
noise exposure. He denied any recreational noise exposure
other than shooting pistols from time to time, but with ear
protection. He stated that the tinnitus had been constant
since service in 1976.
An April 2003 X-ray of the left humerus showed a metallic
foreign body within the soft tissue of the left upper arm
that was about 11 by 8 millimeters in size. There was no
evidence of fracture, periosteal thickening, or
intramedullary calcification.
An April 2003 X-ray of the left shoulder showed sclerotic
changes within the glenoid and decreased distance between the
superior aspect of the humeral head and acromion. The
findings suggested degenerative changes involving the rotator
cuff. The metallic foreign body was again noted.
An April 2003 X-ray of the thoracolumbar spine showed no
evidence for significant degree of scoliosis. However, there
were degenerative changes resulting in marginal osteophyte
formation at the level of the thoracic and lumbar vertebrae,
as well as decreased disc space between L4 and L5. The
impression was moderately advanced hypertrophic degenerative
changes involving the thoracic and lumbar spines, disc space
narrowing at L4 and L5, but no evidence of significant degree
of scoliosis of the thoracolumbar spine. An addendum noted
slight upper thoracic spine levoscoliosis; the apex at T3/T4
measured about five degrees.
On a follow-up evaluation in May 2003, a private doctor (Dr.
B.) clarified that earlier statements regarding negative
findings for impingement sign of the rotator cuff were as
expected for the veteran's wound. Dr. B. also clarified the
trajectory of the wound and noted that the veteran was taking
non-steroidals and aspirin for pain. On examination, the
range of motion of the left shoulder was unchanged. He had
approximately 130 degrees of shoulder flexion and 130 degrees
of abduction, with full internal and external rotation.
There was very minimal tenderness over the scapular region.
A June 2003 VA CT scan of the upper extremity showed a one-
centimeter metallic fragment within the posterior musculature
of the proximal left arm. There was a small cystic lesion
within the posterior glenoid with distortion of the contour,
possibly representing fracture. There also was irregularity
of the anterior portion of the humeral head just medial to
the biceps groove, as possibly representing fracture. No
soft tissue abnormalities or other fractures were seen.
Findings suggested a reverse Hill-Sach's deformity likely
from prior posterior subluxation or dislocation.
On a September 2003 MRI of the left shoulder, considerable
artifact over the humerus in the region of the neck and
extending caudally (presumably due to foreign bodies)
precluded an accurate assessment; this difficulty suggested
abscess or excessive scarring. There was no evidence of
rotator cuff tear, but there was some evidence of bursitis.
Osteoarthritic changes of the acromioclavicular joint could
be associated with impingement syndrome. There also were
degenerative changes of the glenulohumeral joint with cystic
change in the glenoid.
A private doctor, "E.H.S.", M.D., wrote in December 2003
that he had reviewed the veteran's service medical records,
various photographs, and other diagnostic test reports. He
stated that the veteran has a large piece of retained
shrapnel (measuring more than one centimeter in its largest
dimension) in his left upper arm. The doctor concluded that
the fragment had reached its current location via a ragged
wound tract or trajectory. The involved wound areas included
at least the skin of his posterior shoulder, the
infraspinatus muscle, the teres minor muscle, and the triceps
muscle, as well as the investing fascia of those muscles.
The doctor pointed out that recent CT and MRI films confirmed
the large residual metal shard and suggested several other
minute fragments along the projected wound tract. There also
would be fibrous scar tissue extending through these muscles
and their fascia. The doctor noted the veteran's history of
weakness and loss of power in the left upper extremity, with
a lowered threshold of fatigue and pain involving the left
shoulder girdle. The veteran also had a history of a degree
of impairment of incoordination and/or uncertainty of
movement in the left upper extremity. The private doctor
criticized the bases, descriptions, and findings of the
January 2003 VA examination. The private doctor finally
opined that the veteran had at least moderately severe muscle
disability of his left upper extremity, with some evidence to
support a diagnosis of severe muscle disability.
The veteran testified before the Board in December 2003 that
his left shoulder disability was severe in degree. He
described the nature of his shrapnel fragment injury, and he
indicated that it had resulted in his left shoulder rising
because some muscles had taken over for the function of
destabilized shoulder muscles. He denied problems with grip,
but he referred to trouble lifting in certain directions,
abducting, and pulling the left shoulder in. He also
described a locking sensation in his left shoulder. The
problems did not occur on an everyday basis; rather, they had
to do with some kind of trip and fall. He believed that
major problems occurred four to five times per year, with
varying degrees of severity. On one occasion, the pain had
"laid [him] up" for almost a month. Less severe episodes
occurred 25 to 30 times per year. He also described neck
pain and popping. He believed that the neck problem was a
separate manifestation of the left shoulder wound. He also
said that he had problems in the thoracic spine area, with
popping and stiffness that necessitated bending and pulling.
He thought that certain diagnostic procedures (including an
MRI and a VA CT scan) had not been incorporated into the
record. He also disagreed with the characterization of his
left shoulder wound as a superficial injury, as well as with
the description of his original wound in service.
Additionally, he reported that he had obtained an MRI that
showed a more severe injury to his left shoulder than had
been apparent in an earlier MRI. He also contended that he
had scoliosis in his back that was of late-onset type and due
to trauma. He also disagreed whether certain X-rays had been
conducted. With regard to his hearing, he indicated that he
wore hearing aids and had ringing in his ears; he stated that
his hearing had worsened since the last examination.
At the December 2003 Board hearing, the veteran submitted
evidence, including battle histories, test reports, and Dr.
S.'s December 2003 opinion. In correspondence submitted the
same month, the veteran also criticized the findings on the
June 2003 VA CT scan. He contended that the CT scan report
was inaccurate and denied having had anterior or posterior
shoulder joint dislocation.
II. Analysis
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2004). Service connection may be rebuttably presumed for
certain chronic diseases, including arthritis, which are
manifest to a compensable degree within the year after active
service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2004). Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2004).
Tinnitus
With regard to tinnitus, the evidence shows that the veteran
suffered hearing loss in service, for which he is service-
connected. He has testified and written frequently that he
was exposed to artillery fire during his active service,
especially during his combat service. His only post-service
noise exposure appears to involve occasional pistol shooting,
but with ear protection. Under these circumstances, the
Board cannot reasonably dissociate the veteran's complaints
of tinnitus from his already service-connected hearing loss
disability. The available evidence shows hearing loss in
service, noise exposure in service, and little to no noise
exposure after service. Affording the veteran the benefit of
the doubt in these circumstances, the Board concludes that
tinnitus was incurred in the veteran's active service. See
38 U.S.C.A. § 5107(b) (West 2002).
Degenerative Joint Disease of the Cervical Spine
With regard to degenerative joint disease of the cervical
spine, the veteran contends that he suffers from neck pain as
a result of the left shoulder injury that he sustained in
service.
In addition to direct service connection, as discussed in
general above, secondary service connection may be granted
for a disability which is proximately due to or the result of
an already established service-connected disability. 38
C.F.R. § 3.310 (2004). See Harder v. Brown, 5 Vet. App. 183,
187-89 (1993). Secondary service connection may also be
granted for the additional increment of disability (i.e.,
aggravation) of a non-service-connected condition that is
proximately due to or the result of an established service-
connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995)
(en banc).
There are complaints of posterior neck pain in service.
However, an X-ray taken at the time of those complaints (in
1970) revealed entirely normal findings for the cervical
spine. In September 1975, just prior to his separation, the
veteran continued to report pain extending from his neck to
his lower back. The Board must find that the service medical
records, as a whole, provide negative evidence against the
claim.
Many years after service, the veteran began to complain of
neck pain. The United States Court of Appeals for the
Federal Circuit has determined that such a lapse of time is a
factor for consideration in deciding a service connection
claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir.
2000). Further, there is no competent medical evidence to
relate the post-service neck pain to the in-service
complaints or to the service-connected left shoulder
disability. Specifically, in 1998, a private doctor (Dr.
Maddox) found X-ray evidence of some degenerative changes in
the cervical spine. However, he only attributed shoulder
pain to the original, in-service injury. Also, in 1999, a
private doctor (Dr. B.), who is a specialist in physical
medicine and rehabilitation and in electrodiagnostic
medicine, conducted extensive studies of the veteran's left
shoulder problems (as well as hand numbness). However, there
is no mention of any related cervical spine problems. There
is no other competent medical evidence of a nexus (either on
an etiological basis or a basis of aggravation) between the
in-service neck complaints or the left shoulder disability
and the current degenerative joint disease of the cervical
spine. As a whole, the Board must find that the post-service
medical evidence also provides negative evidence against this
claim.
Also of significance is the VA's January 2003 VA examination.
Although X-rays from that examination confirmed the presence
of degenerative joint disease of the cervical spine, the
examiner reviewed the entire medical history and concluded
that the veteran's cervical spine complaints had no
relationship to the shell fragment wound of the left
shoulder. This examination is the most conclusive, thorough,
and probative evidence on the specific claim, and provides
more negative evidence against.
When taken together with the other evidence (no in-service
degenerative joint disease of the cervical spine, no in-
service injury directly to the cervical spine, no post-
service medical attribution of the cervical spine to the left
shoulder injury despite numerous thorough medical
examinations), the 2003 VA examination establishes that the
veteran's current cervical spine condition was not incurred
in service and is not related in any way to the left shoulder
injury from service.
The veteran has, in part, argued that evidentiary provisions
relating to combat veterans should govern his claims for
service connection. See 38 U.S.C.A. § 1154(b) (West 2002).
That provision, 38 U.S.C.A. § 1154(b), allows a factual basis
upon which a determination can be made that a particular
disease or injury was incurred or aggravated in service.
However, that provision does not serve as a basis for an
etiological link between an injury in service and a current
disability. See Libertine v. Brown, 9 Vet. App. 521, 524
(1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995).
Although 38 U.S.C.A. § 1154(b) does not automatically
establish service connection for a particular disability of a
combat veteran, it aids the combat veteran by relaxing the
adjudicative evidentiary requirements for determining what
happened in service. See Libertine, 9 Vet. App. at 508; see
also Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996)
(noting that 38 U.S.C.A. § 1154(b) "does not create a
statutory presumption that a combat veteran's alleged disease
or injury is service-connected," but that it "considerably
lightens[s] the burden of a veteran who seeks benefits for an
allegedly service-connected disease or injury and who alleges
that the disease or injury was incurred in, or aggravated by,
combat service"). Therefore, just because the veteran had
combat service and because his arguments center on the
residuals of a shrapnel fragment wound incurred in combat,
his claims cannot be automatically granted. Rather, his
claims still require evidence of an etiological nexus, or
link, between the combat injury and the claimed current
conditions.
As discussed above, that nexus evidence is lacking here.
Indeed, the only medical professional that addressed the
issue of nexus found no such nexus, providing evidence
against this claim.
The Board notes the veteran's passion and dedication to this
particular issue. However, the veteran does not personally
possess the competence to render a medical opinion as to the
etiology of his current cervical spine degenerative joint
disease. See Bostain v. West, 11 Vet. App. 124, 127 (1998),
citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See
also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge"). Simply stated, the veteran
does not have the medical expertise to provide a medical
opinion that would associate his current neck disability to
either an injury during military service that occurred many
years ago or to associate a current neck disability to a
service connected condition.
In sum, the weight of the credible evidence demonstrates that
the veteran's current degenerative joint disease of the
cervical spine was first manifested many years after service
and is not related to his active service or any incident
therein. As the preponderance of the evidence is against the
claim for service connection for degenerative joint disease
of the cervical spine, the "benefit of the doubt" rule is
not for application, and the claim must be denied. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Veterans Claims Assistance Act of 2000
The Board has also considered the effect of recent
legislation and developments involving VA's duty to notify
and assist claimants. On November 9, 2000, the Veterans
Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§
5103 & 5107 (West 2002), (the "VCAA") was signed into law.
This enhanced the notification and assistance duties of the
VA towards claimants.
Recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
the United States Court of Appeals for Veterans Claims
(Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) (2004) apply to cases pending before VA on
November 9, 2000, even if the initial agency of original
jurisdiction decision was issued before that date; and (2)
that a claimant must be given notice in accordance with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) before an
initial unfavorable AOJ decision is issued. Section 3(a) of
the VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R.
§ 3.159(b)(1) require that, upon receipt of a complete or
substantially complete application, the VA must notify the
claimant and any representative of any information and any
medical or lay evidence not previously provided to the VA
that is necessary to substantiate the claim; this notice
requires the VA to indicate which portion of that information
and evidence is to be provided by the claimant and which
portion the VA will attempt to obtain on the claimant's
behalf.
In Pelegrini, the Court appears to have held, in part, that a
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant 's
possession that pertains to the claim, or something to the
effect that the claimant should "give us everything you've
got pertaining to your claim(s)." The Court stated that
this new "fourth element" of the notice requirement comes
from the language of 38 C.F.R. § 3.159(b)(1).
In this case, the initial unfavorable decision regarding
these two claims was made in March 2003, that is, after the
date of the VCAA's enactment on November 9, 2000. However,
even under Pelegrini, the notices regarding these two claims
informed the veteran of the bases for the decision, what
types of evidence would be needed, and how the evidence would
be secured. The Board also concludes that any defect that
may exist with regard to the timing of the VCAA notice to the
veteran are harmless because of the extensive, thorough, and
informative notices provided to him throughout the
adjudication of the claims. See Mayfield v. Nicholson, No.
02-1077 (Fed. Cir. April 14, 2005).
The VA's thorough notices of all matters required by the VCAA
and its regulatory progeny throughout this adjudication have
cured any defects involving notice of the provisions of the
VCAA or the timing of such notice. The RO sent the veteran
correspondence in December 2002, April 2003, May 2003, and
June 2003; and a statement of the case in April 2004. The VA
has also sent additional correspondence at various times
throughout this adjudication, including requests for evidence
of medical treatment and lay statements or other evidence
corroborating alleged stressors. These documents discussed
the evidence considered and the pertinent laws and
regulations, including provisions of the VCAA and the reasons
for the RO's decision. There can be no harm to the veteran,
as the VA has made all efforts to notify and to assist the
veteran with regard to the evidence obtained, the evidence
needed, the responsibilities of the parties in obtaining the
evidence, and the more general notice of the need for any
evidence in the veteran's possession. Thus, the VA has
satisfied its "duty to notify" the veteran.
Through discussions in correspondence, the rating decision,
the hearing, and the statement of the case, the VA has
informed the veteran of the evidence necessary to
substantiate his claims for service connection for
degenerative joint disease of the cervical spine and for
bilateral tinnitus. He has been informed of his and the VA's
respective responsibilities for providing evidence.
Pertinent identified medical records have been obtained.
Based on the veteran's testimony, it does not appear that
there is any additional, relevant medical treatment evidence
that should be obtained with regard to these claims. The
notice and duty to assist provisions of the law are
satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.
The VA also has a duty to assist a claimant in obtaining
evidence necessary to substantiate the claims. The RO
satisfied its duty to assist the veteran by obtaining his
service and all pertinent medical records in support of the
claims. The Board concludes, therefore, that a decision on
the merits at this time does not violate the VCAA or
prejudice the veteran. See Bernard v. Brown, 4 Vet. App. 384
(1993).
The Board also notes that the VCAA is not applicable in all
cases. The Court has concluded that the VCAA is not
applicable where an appellant was fully notified and aware of
the type of evidence required to substantiate his claims and
that no additional assistance would aid in further developing
his claims. Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001). When there is extensive factual development in a
case, and there is no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, the VCAA does not require further assistance. Wensch
v. Principi, 15 Vet App 362 (2001); Dela Cruz; see also 38
U.S.C.A. § 5103A(a)(2) (Secretary not required to provide
assistance if no reasonable possibility exists that
assistance would aid in substantiating claim).
In closing, the Board finds that the VA has satisfied all
provisions of the VCAA and its implementing regulations with
regard to the duties to notify claimants of all requirements
and to assist claimants in the development of their claims.
ORDER
Service connection for degenerative joint disease of the
cervical spine is denied.
Service connection for tinnitus is granted.
REMAND
In the judgment of the Board, additional development is
needed with regard to the claims for a compensable rating for
bilateral hearing loss disability, for service connection for
degenerative joint disease of the thoracic spine, and for
service connection for superior thoracic levoscoliosis.
The veteran stated at his December 2003 hearing before the
Board that his hearing had worsened since his last
examination in February 2003. Accordingly, a new VA
examination is warranted.
With regard to the claim for service connection for
degenerative joint disease of the thoracic spine, the Board
points out that the veteran complained of back pain during
service. At that time, he related the back pain
chronologically to his in-service shoulder wound. Unlike the
claim for service connection for degenerative joint disease
of the cervical spine, which was discussed in the decision
portion above and which was the subject of a VA examination,
there is no similar medical evidence that specifically
addresses the veteran's thoracic spine claim. Therefore, on
remand, the RO should schedule the veteran for the conduct of
an examination to assess the current nature and etiology of
degenerative joint disease of the thoracic spine. The
examiner must discuss whether there is any relationship
between the veteran's in-service complaints of back pain to
the current thoracic spine condition, as well as any
relationship between the service-connected left shoulder
disability and any current thoracic spine condition. The
examiner must discuss not only whether the service-connected
left shoulder disability is causing any current thoracic
spine condition, but also whether the service-connected left
shoulder disability is aggravating any current thoracic spine
condition.
With regard to the claim for service connection for superior
thoracic levoscoliosis, a VA examination is needed to
determine the precise nature and etiology of that condition.
In this regard, it is important for the veteran to understand
that congenital or developmental defects are not disabilities
for VA compensation purposes and may not be service
connected. 38 C.F.R. § 3.303(c) (2004). However, service
connection may be granted for congenital or hereditary
diseases, if initially manifested in or aggravated by
service. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90
(July 18, 1990).
On remand, the VA should schedule the veteran for an
examination to determine if the veteran's superior thoracic
levoscoliosis is a congenital defect or a congenital disease
that was initially manifested in service or aggravated by
service. The examination should discuss what effect, if any,
the veteran's service-connected left shoulder disability has
had on the diagnosed superior thoracic levoscoliosis. The
examiner must discuss not only whether the service-connected
left shoulder disability is causing any current superior
thoracic levoscoliosis, but also whether the service-
connected left shoulder disability is aggravating any current
superior thoracic levoscoliosis.
Accordingly, the case is REMANDED to the RO, via the AMC, for
the following:
1. The RO should request that the
veteran identify any VA and non-VA
medical records relating to his service-
connected hearing loss that are not yet
a part of the claims folder or to a
thoracic spine condition (including
degenerative joint disease of the
thoracic spine and superior thoracic
levoscoliosis). The RO should then seek
to obtain all such identified, relevant
records.
2. The RO should schedule the veteran
for an examination to assess the current
severity of his service-connected
bilateral hearing loss. The claims
folder must be provided to the examiner.
The examiner must address all relevant
aspects of the veteran's bilateral
hearing loss. See 38 C.F.R. § 4.85
(2004).
3. The RO should also schedule the
veteran for an examination to assess the
current nature, etiology, and severity
of any current degenerative joint
disease of the thoracic spine and of any
current superior thoracic levoscoliosis.
The claims folder must be provided to
the examiner. The examiner should
discuss whether any diagnosed superior
thoracic levoscoliosis is a congenital
defect or disease and what effect, if
any, his service-connected left shoulder
disability has had on the levoscoliosis.
The examiner is asked to discuss not
only whether the service-connected left
shoulder disability is causing any
current superior thoracic levoscoliosis
and/or a thoracic spine condition, but
also whether the service-connected left
shoulder disability is aggravating any
current superior thoracic levoscoliosis
and/or thoracic spine condition.
4. Thereafter, the RO should
readjudicate the veteran's claims for an
increased rating for bilateral hearing
loss and for service connection for
degenerative joint disease of the
thoracic spine and for superior thoracic
levoscoliosis. If the RO's decision
regarding any of these claims remains
adverse to the veteran, the RO should
provide the veteran and his
representative with a supplemental
statement of the case and the
appropriate opportunity for a response
thereto. The case should thereafter be
returned to the Board for review.
The veteran has the right to submit additional evidence and
argument on the matters the Board is remanding.
Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims
must be treated expeditiously. Claims that are remanded by
the Board or the Court for additional development or other
appropriate action must be handled expeditiously. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§
5109B, 7112).
______________________________________________
JOHN J. CROWLEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 06-02-2005 | [
"Citation Nr: 0514957 Decision Date: 06/02/05 Archive Date: 06/15/05 DOCKET NO. 99-21 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable rating for a bilateral hearing loss disability. 2. Entitlement to service connection for a degenerative joint disease of the cervical spine, claimed as secondary to a service-connected left shoulder disability.",
"3. Entitlement to service connection for a degenerative joint disease of the thoracic spine, claimed as secondary to a service-connected left shoulder disability. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for superior thoracic levoscoliosis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from August 1961 to August 1963 and from March 1967 to January 1976. One of the matters the Board must address is which issue or issues are properly before it at this time.",
"Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal.",
"See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (2004). This appeal arises before the Board of Veterans' Appeals (Board) from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied a claim for a compensable rating for bilateral hearing loss and claims for service connection for degenerative joint disease of the cervical spine as secondary to the left shoulder disability; for degenerative joint disease of the thoracic spine with osteophytes as secondary to the left shoulder disability; for tinnitus; and for superior thoracic levoscoliosis. In April 2004, a Decision Review Officer (DRO) at the RO also denied the last five claims. In December 2003, the veteran testified at a hearing before the Board that was held at the RO.",
"He submitted additional evidence, for which he waived initial consideration by the RO. Since then, the veteran has relocated to Texas, and he has designated a new representative, the Texas Veterans Commission. The Board has considered whether it now has proper jurisdiction over the five issues listed in the above caption. These issues were the subject of a March 2003 RO rating decision. The veteran filed a notice of disagreement with that rating decision in May 2003; in July 2003, he elected de novo review of the case by a DRO of the RO.",
"The DRO issued a decision in April 2004, along with a statement of the case (SOC). The Board notes that the veteran also filed a substantive appeal regarding these issues in March 2004, which predates the issuance of the SOC. Ordinarily, the substantive appeal must follow the issuance of an SOC. 38 C.F.R. §§ 20.200, 20.302 (2004). However, in this case, the veteran expressed his desire to continue his appeal of the RO's decisions on these issues at his December 2003 hearing before the Board, which was transcribed and officially made a part of the record in September 2004, which postdates the April 2004 SOC. The Board accepted testimony as to these issues at the December 2003 hearing, and the Board finds that it has jurisdiction to review these claims at this time.",
"The veteran is not prejudiced by this decision. The claim for a compensable rating for bilateral hearing loss disability and the claims for service connection for degenerative joint disease of the thoracic spine and for superior thoracic levoscoliosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board also notes that the veteran has a separate claim for an increased rating for a left shoulder disability (status post shell fragment wound of the non-dominant left shoulder (now rated 20 percent disabling), which is the subject of a separate decision by a panel of Veterans Law Judges of the Board (as the veteran has had two hearings before two judges regarding his issue).",
"See 38 C.F.R. § 19.3 (2004). The present decision only relates to the five issues listed in the caption above. FINDINGS OF FACT 1. All of the requisite notices and assistance owed to the veteran have been substantially provided, and all of the evidence necessary for an equitable disposition of the claims for service connection for degenerative joint disease of the cervical spine and for bilateral tinnitus has been obtained. 2. The veteran's current degenerative joint disease of the cervical spine was first manifested many years after service, and it has not been related to service or to any incident therein (including any neck pain during service) or to any service-connected disability (including a left shoulder disability). 3. The veteran's current tinnitus is was first manifested after noise exposure during active service and is related to such in-service exposure. CONCLUSIONS OF LAW 1. Degenerative joint disease of the cervical spine was not incurred in or aggravated by service, to include by a service-connected disability.",
"38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2004). 2. Tinnitus was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The veteran served on active duty in the U.S. Army from August 1961 to August 1963 and from March 1967 to January 1976. The veteran's service medical records are in the claims folder, as are various medical records from soon after separation from service in 1976. In November 1968, the veteran was hit in the left shoulder by hostile mortar fire that produced a fragment wound.",
"He underwent debridement and irrigation of the wound. Associated records indicated that there was no artery or nerve involvement. In September 1970, the veteran complained of arthritic-type pain and symptoms suggestive of hypothyroidism and a hiatal hernia. An X-ray report noted his complaints of a pulling and a popping sensation in the neck posteriorly; however, the actual X-ray of the cervical and thoracic spine consisted of normal findings. In January 1974, the veteran complained of an aching back and headache; the back pain had been common ever since a prior wound. There was a finding of spasm of the left trapezius muscle. On an October 1974 annual Army physical examination, he was noted as having a scar over the left scapula that at times caused mild discomfort and tightness in the muscle underlying the scar. In January 1975, he reported sharp back pain after moving furniture. Physical examination revealed much spasm of the lumbar muscles.",
"On a September 1975 Army examination report, the veteran noted that his combat wound to the back gave him continual discomfort when he was up, mild pain when he was tired, and occasional severe pain after lifting. Sometimes the pain extended from the neck to the lower back. He also indicated that he did not hear as well as he used to, especially high- pitched stereo. The examiner noted the left shoulder injury and secondary back pain. On the accompanying medical history report, he reported recurrent back pain, but he denied arthritis or a painful or trick shoulder. On VA examination in April 1976, it was noted that there had been no nerve, artery, or bone damage as a result of the shrapnel wound.",
"The veteran was not aware if he had any retained metallic fragment in the area at that time, but he did report pulling and tightening in the scar site; he described having to manipulate the area frequently in order to prevent a felling of tightening in the scar area. He also reported multiple spasm with heavy lifting, as well as an intermittent burning sensation. The pertinent diagnosis was a shrapnel wound of the left suprascapular area that was intermittently symptomatic. In a May 1976 rating decision, the RO awarded service connection for a scar from a shell fragment wound to the left shoulder. The RO also awarded service connection for hearing loss (also rated 0 percent). The veteran reported on VA audio examination in March 1995 that he had been exposed to loud artillery noise for most of his military career.",
"He described the onset of tinnitus as having been in the early 1960s, after the firing of loud guns while in the artillery unit. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 25 LEFT 10 15 20 20 45 The average was 18 on the right and 25 on the left. Speech recognition ability was 96 percent bilaterally. A private family practitioner, \"T.R.F. \", M.D., wrote in September 1998 that the veteran's left shoulder shell fragment wound involved the suprascapular and left shoulder girdle muscles and nerves, causing transient paralysis of the left upper extremity. There was residual pain from the scarring of the aforementioned muscles with permanent disability. On VA muscles examination in October 1998, the veteran reported taking medication daily for pain relief. He denied limitation of activity due to fatigue or inability to move the joint through its range.",
"This did not interfere with his daily activities. Examination showed an irregular scar from an entrance wound that was 4 by 1.5 centimeters on the left shoulder, entering the infraspinatus muscle. He did not have loss of muscle function. The muscle group could move through normal range of motion, including independently through such motion. The muscle group was not limited by pain. Such motion was not accomplished only with assistance. The muscle group moved the joint well. Muscle contraction was felt.",
"The diagnosis was a shrapnel wound of the left shoulder with no residual loss of motion. There was pain, but no loss of function. On consultation in December 1998 by a private doctor, \"P.A.M.\", M.D., it was indicated that X-rays of the left shoulder were normal except for a small metallic foreign body in the proximal arm. There was a well-healed scar on the posterior aspect of the scapula that measured about two centimeters in length. There was some tenderness on the medial parascapular musculature. The veteran had full range of motion in the shoulder with some difficulty with full abduction. He was neurovascularly intact in both upper extremities. X-rays also showed some degenerative changes in the lower cervical spine. The impression noted a history of a shrapnel wound.",
"The doctor felt that the shoulder pain was coming from some parascapular muscle strain which could be related to the original injury, as well as some from some tendonitis and bursitis in his shoulder. His numbness and tingling could be related to some peripheral extremity compression or it could be more centrally with disc disease. A CT scan was recommended to look for disc pathology. A doctor with an Internet medical expert consulting service, \"J.D. \", M.D., wrote in a January 1999 e-mail to the veteran that a CT scan would show small metal fragments very well, but that an MRI was probably more sensitive and would show microscopic metal fragments.",
"An employer and supervisor wrote in June and July 1999 that he had observed the veteran avoiding heavy lifting or exertion of his back to prevent back strain, which sometimes caused him to lose one or two days of work. On some occasions, he exerted his shoulder anyway and missed work. He had even lost some work time while helping office movers lift lighter items, which caused fatigue and back strain. The veteran had also reported having back, shoulder, and left arm pain after deskwork producing fatigue. He would take frequent breaks at work and he tried to relieve the pain by stretching and pulling his neck, back, and left arm. His pain affected his ability to travel and rendered him less valuable to the company. The veteran's spouse wrote in July 1999 that the veteran had pain and fatigue, which caused him to avoid certain lifting and to use his right hand more than his left; he also did not stand straight because his left shoulder was higher than his right. In July 1999, the veteran was seen by a private doctor, \"E.R.B.",
"\", M.D., Ph.D., specializing in physical medicine and rehabilitation and electrodiagnostic medicine, for progressively increasing left shoulder pain, with a burning quality over the shoulder blade, an aching quality in the left shoulder, and associated numbness over the fourth and fifth digits of the left hand. Examination of the neck showed 55 degrees of flexion, 50 degrees of extension, 35 degrees of side bending, and 55 degrees of bilateral rotation. Spurling's maneuver was negative bilaterally. He had full range of motion of the upper extremities. He had a four-centimeter scar over the left scapula just inferior to the scapular spine.",
"No scapular winging was felt. There was minimal tenderness to palpation. Paresthesias were not reproduced by palpation of the axilla. Neurologically, he had full power in both upper extremities without evidence of intrinsic or thenar wasting; sensory system was intact, and deep tendon reflexes were symmetrical. Nerve conduction studies and EMG testing of the left arm revealed no evidence of radiculopathy, plexopathy, or peripheral nerve injury. He did have left carpal tunnel syndrome, but Dr. B. did not relate this to the left shoulder injury. The impressions included shrapnel wound to the left shoulder with probable adhesions and scapular weakness. An August 1999 follow-up evaluation showed essentially normal range of motion of the left shoulder. In August 1999, Dr. B. wrote that physical examination showed an entry wound that was well healed over the left scapula just inferior to the scapular spine.",
"X-ray reports showed a metallic fragment in the upper left arm. Due to these wounds, the veteran had continued to have crepitus over the scapula with movement of the arm; he also had restricted range of motion of the left shoulder. The veteran testified before the RO in December 1999 that he had daily left shoulder pain, especially in certain positions; he described numbness also. He reported stretching to alleviate the pain. On VA joints examination in January 2000, the veteran reported pain, weakness, stiffness, heat, instability, giving away, locking, fatigability, and lack of endurance; he denied swelling and redness. He used pain medication on a daily basis now. He reported periods of flare-up that was precipitated with lifting in certain directions, resulting in an additional 10 percent impairment.",
"He sometimes slept in a sling. He was a computer engineer, and he stated that his shoulder interfered with his job. He was right-handed. On physical examination, motion would stop when pain began. There was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal movement; however, there was guarding of movement. Range of motion, in degrees, was as follows: Left Right Forward flexion 164 176 Abduction 162 178 External rotation 78 88 Internal rotation 76 87 There was a 1.5 by 4 centimeter irregular scar of the left posterior shoulder over the supraspinatus muscle. The diagnosis was shrapnel wound of the left shoulder with resultant degenerative joint disease and loss of function due to pain. On private May 2001 follow-up evaluation, Dr. B. found negative impingement sign in the left shoulder. There was no pain on resisted testing of the supraspinatus. He had 130 degrees of shoulder flexion, 130 degrees of abduction, and full internal and external rotation. There was minimal tenderness to palpation over the posterior shoulder. The veteran was taking Ultram for pain.",
"The impression was history of shrapnel wound to the left shoulder. On VA muscles examination in January 2002, the veteran reported flare-ups when moving in certain directions, with 15 percent additional impairment. He described present symptoms of muscle pain, with activity limited by fatigue and inability to move the joint through some of its range of motion. The examiner noted that this appeared to be minor, especially based on the range of motion reported by the veteran. On physical examination, there was an entrance wound, but no exit wound, in the left posterior shoulder. The scar was 1 by 4 centimeters in the left posterior scapula region, without tissue loss. The supraspinatus, infraspinatus, and teres minor muscle groups were penetrated.",
"There were no adhesions, although tendon damage was described as \"done.\" There was no bone, joint, or nerve damage or muscle herniation. Muscle strength was good. The muscle moved the joint through normal range of motion. Range of motion, in degrees, was as follows: Left Right Normal Forward flexion 164 177 180 Abduction 161 176 180 External rotation 88 89 90 Internal rotation 88 88 90 Muscle contraction was felt. The muscle group did not need assistance to move the joint; it could do so independently. Joint function was affected very little, as shown on range of motion testing.",
"The diagnosis was shrapnel wound of the left posterior shoulder with minimal residual damage. January 2002 VA X-rays showed degenerative joint disease of the thoracic and cervical spine with osteophytes and narrowing of the joint space. In July 2002, the veteran requested separate service connection for degenerative joint disease of the cervical, for degenerative joint disease of the thoracic spine, and for superior thoracic levoscoliosis. He also sought an increased rating for service-connected bilateral hearing loss (then rated 0 percent). VA outpatient medical records from 2002 and 2003 reflect ongoing complaints of left shoulder pain.",
"In October 2002, he underwent an MRI of his left shoulder, but the report did not appear in the VA medical center's computer as of November 2002. In December 2002, a new MRI was ordered because no report had been obtainable from the prior MRI. On VA joints examination in January 2003, the examiner noted that the veteran had suffered a superficial fragment wound from a mortar or grenade explosion during service; the fragment had entered his back, inferior to the left scapular spine, and had traversed along the scapula and then into the area of the triceps muscle of the left arm. The veteran also reported some neck pain, which he attributed to the left shoulder disability, as well as some left-hand numbness when he would lie on his left shoulder while sleeping. On physical examination, the left scapula was slightly elevated. There was a scar in the posterior scapula at the site of the entrance of the fragment, just inferior to the left scapular spine. There were no other palpable or visual abnormalities.",
"The veteran could abduct his left shoulder actively about 90 degrees and passively to 145 degrees. Otherwise, he had normal range of motion in the shoulder. He had normal strength in the biceps and a slight decrease in strength in the triceps. Examination of the cervical and thoracic spine was negative. He had normal cervical spine range of motion. He had no significant deformities. X-rays confirmed degenerative joint disease of the thoracic and cervical spine; however, the left shoulder X-rays were normal. The diagnosis was superficial fragment wounds of the left posterior scapula, transversing to the left triceps muscle, with minimal muscle injury to the inferior scapular and the triceps muscles; there was no other significant residual. The examiner concluded that the veteran's cervical spine complaints had no relationship to his superficial shell fragment wounds.",
"January 2003 VA X-ray reports showed degenerative joint disease of the thoracic spine with osteophytes and narrowing of intervertebral spaces; they also showed mild degenerative joint disease of the lower cervical spine with osteophytes. The veteran's mother wrote in January 2003 that he had weakened muscles in his left shoulder because of the wartime injury; he needed to draw his shoulder up to his chin and to bring his elbow near his body in order to function, resulting in a gradual rise in his left shoulder over the years. On VA audio examination in February 2003, the veteran reported constant tinnitus that was quite bothersome all the time. Noise exposure included in-service exposure to field artillery. He denied post-service noise exposure, as his work was primarily at a desk with very little occupational noise exposure.",
"He denied any recreational noise exposure other than shooting pistols from time to time, but with ear protection. He stated that the tinnitus had been constant since service in 1976. An April 2003 X-ray of the left humerus showed a metallic foreign body within the soft tissue of the left upper arm that was about 11 by 8 millimeters in size. There was no evidence of fracture, periosteal thickening, or intramedullary calcification. An April 2003 X-ray of the left shoulder showed sclerotic changes within the glenoid and decreased distance between the superior aspect of the humeral head and acromion. The findings suggested degenerative changes involving the rotator cuff.",
"The metallic foreign body was again noted. An April 2003 X-ray of the thoracolumbar spine showed no evidence for significant degree of scoliosis. However, there were degenerative changes resulting in marginal osteophyte formation at the level of the thoracic and lumbar vertebrae, as well as decreased disc space between L4 and L5. The impression was moderately advanced hypertrophic degenerative changes involving the thoracic and lumbar spines, disc space narrowing at L4 and L5, but no evidence of significant degree of scoliosis of the thoracolumbar spine. An addendum noted slight upper thoracic spine levoscoliosis; the apex at T3/T4 measured about five degrees. On a follow-up evaluation in May 2003, a private doctor (Dr.",
"B.) clarified that earlier statements regarding negative findings for impingement sign of the rotator cuff were as expected for the veteran's wound. Dr. B. also clarified the trajectory of the wound and noted that the veteran was taking non-steroidals and aspirin for pain. On examination, the range of motion of the left shoulder was unchanged. He had approximately 130 degrees of shoulder flexion and 130 degrees of abduction, with full internal and external rotation.",
"There was very minimal tenderness over the scapular region. A June 2003 VA CT scan of the upper extremity showed a one- centimeter metallic fragment within the posterior musculature of the proximal left arm. There was a small cystic lesion within the posterior glenoid with distortion of the contour, possibly representing fracture. There also was irregularity of the anterior portion of the humeral head just medial to the biceps groove, as possibly representing fracture. No soft tissue abnormalities or other fractures were seen. Findings suggested a reverse Hill-Sach's deformity likely from prior posterior subluxation or dislocation. On a September 2003 MRI of the left shoulder, considerable artifact over the humerus in the region of the neck and extending caudally (presumably due to foreign bodies) precluded an accurate assessment; this difficulty suggested abscess or excessive scarring.",
"There was no evidence of rotator cuff tear, but there was some evidence of bursitis. Osteoarthritic changes of the acromioclavicular joint could be associated with impingement syndrome. There also were degenerative changes of the glenulohumeral joint with cystic change in the glenoid. A private doctor, \"E.H.S. \", M.D., wrote in December 2003 that he had reviewed the veteran's service medical records, various photographs, and other diagnostic test reports. He stated that the veteran has a large piece of retained shrapnel (measuring more than one centimeter in its largest dimension) in his left upper arm. The doctor concluded that the fragment had reached its current location via a ragged wound tract or trajectory.",
"The involved wound areas included at least the skin of his posterior shoulder, the infraspinatus muscle, the teres minor muscle, and the triceps muscle, as well as the investing fascia of those muscles. The doctor pointed out that recent CT and MRI films confirmed the large residual metal shard and suggested several other minute fragments along the projected wound tract. There also would be fibrous scar tissue extending through these muscles and their fascia. The doctor noted the veteran's history of weakness and loss of power in the left upper extremity, with a lowered threshold of fatigue and pain involving the left shoulder girdle.",
"The veteran also had a history of a degree of impairment of incoordination and/or uncertainty of movement in the left upper extremity. The private doctor criticized the bases, descriptions, and findings of the January 2003 VA examination. The private doctor finally opined that the veteran had at least moderately severe muscle disability of his left upper extremity, with some evidence to support a diagnosis of severe muscle disability. The veteran testified before the Board in December 2003 that his left shoulder disability was severe in degree.",
"He described the nature of his shrapnel fragment injury, and he indicated that it had resulted in his left shoulder rising because some muscles had taken over for the function of destabilized shoulder muscles. He denied problems with grip, but he referred to trouble lifting in certain directions, abducting, and pulling the left shoulder in. He also described a locking sensation in his left shoulder. The problems did not occur on an everyday basis; rather, they had to do with some kind of trip and fall. He believed that major problems occurred four to five times per year, with varying degrees of severity. On one occasion, the pain had \"laid [him] up\" for almost a month. Less severe episodes occurred 25 to 30 times per year. He also described neck pain and popping. He believed that the neck problem was a separate manifestation of the left shoulder wound. He also said that he had problems in the thoracic spine area, with popping and stiffness that necessitated bending and pulling. He thought that certain diagnostic procedures (including an MRI and a VA CT scan) had not been incorporated into the record. He also disagreed with the characterization of his left shoulder wound as a superficial injury, as well as with the description of his original wound in service. Additionally, he reported that he had obtained an MRI that showed a more severe injury to his left shoulder than had been apparent in an earlier MRI.",
"He also contended that he had scoliosis in his back that was of late-onset type and due to trauma. He also disagreed whether certain X-rays had been conducted. With regard to his hearing, he indicated that he wore hearing aids and had ringing in his ears; he stated that his hearing had worsened since the last examination. At the December 2003 Board hearing, the veteran submitted evidence, including battle histories, test reports, and Dr. S.'s December 2003 opinion. In correspondence submitted the same month, the veteran also criticized the findings on the June 2003 VA CT scan. He contended that the CT scan report was inaccurate and denied having had anterior or posterior shoulder joint dislocation. II. Analysis Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.",
"38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004). Service connection may be rebuttably presumed for certain chronic diseases, including arthritis, which are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004). Tinnitus With regard to tinnitus, the evidence shows that the veteran suffered hearing loss in service, for which he is service- connected. He has testified and written frequently that he was exposed to artillery fire during his active service, especially during his combat service.",
"His only post-service noise exposure appears to involve occasional pistol shooting, but with ear protection. Under these circumstances, the Board cannot reasonably dissociate the veteran's complaints of tinnitus from his already service-connected hearing loss disability. The available evidence shows hearing loss in service, noise exposure in service, and little to no noise exposure after service. Affording the veteran the benefit of the doubt in these circumstances, the Board concludes that tinnitus was incurred in the veteran's active service. See 38 U.S.C.A. § 5107(b) (West 2002). Degenerative Joint Disease of the Cervical Spine With regard to degenerative joint disease of the cervical spine, the veteran contends that he suffers from neck pain as a result of the left shoulder injury that he sustained in service. In addition to direct service connection, as discussed in general above, secondary service connection may be granted for a disability which is proximately due to or the result of an already established service-connected disability. 38 C.F.R.",
"§ 3.310 (2004). See Harder v. Brown, 5 Vet. App. 183, 187-89 (1993). Secondary service connection may also be granted for the additional increment of disability (i.e., aggravation) of a non-service-connected condition that is proximately due to or the result of an established service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There are complaints of posterior neck pain in service. However, an X-ray taken at the time of those complaints (in 1970) revealed entirely normal findings for the cervical spine. In September 1975, just prior to his separation, the veteran continued to report pain extending from his neck to his lower back. The Board must find that the service medical records, as a whole, provide negative evidence against the claim. Many years after service, the veteran began to complain of neck pain. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim.",
"Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Further, there is no competent medical evidence to relate the post-service neck pain to the in-service complaints or to the service-connected left shoulder disability. Specifically, in 1998, a private doctor (Dr. Maddox) found X-ray evidence of some degenerative changes in the cervical spine. However, he only attributed shoulder pain to the original, in-service injury. Also, in 1999, a private doctor (Dr.",
"B. ), who is a specialist in physical medicine and rehabilitation and in electrodiagnostic medicine, conducted extensive studies of the veteran's left shoulder problems (as well as hand numbness). However, there is no mention of any related cervical spine problems. There is no other competent medical evidence of a nexus (either on an etiological basis or a basis of aggravation) between the in-service neck complaints or the left shoulder disability and the current degenerative joint disease of the cervical spine. As a whole, the Board must find that the post-service medical evidence also provides negative evidence against this claim. Also of significance is the VA's January 2003 VA examination. Although X-rays from that examination confirmed the presence of degenerative joint disease of the cervical spine, the examiner reviewed the entire medical history and concluded that the veteran's cervical spine complaints had no relationship to the shell fragment wound of the left shoulder.",
"This examination is the most conclusive, thorough, and probative evidence on the specific claim, and provides more negative evidence against. When taken together with the other evidence (no in-service degenerative joint disease of the cervical spine, no in- service injury directly to the cervical spine, no post- service medical attribution of the cervical spine to the left shoulder injury despite numerous thorough medical examinations), the 2003 VA examination establishes that the veteran's current cervical spine condition was not incurred in service and is not related in any way to the left shoulder injury from service. The veteran has, in part, argued that evidentiary provisions relating to combat veterans should govern his claims for service connection. See 38 U.S.C.A. § 1154(b) (West 2002). That provision, 38 U.S.C.A. § 1154(b), allows a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service. However, that provision does not serve as a basis for an etiological link between an injury in service and a current disability.",
"See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Although 38 U.S.C.A. § 1154(b) does not automatically establish service connection for a particular disability of a combat veteran, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Libertine, 9 Vet. App. at 508; see also Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (noting that 38 U.S.C.A. § 1154(b) \"does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected,\" but that it \"considerably lightens[s] the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service\"). Therefore, just because the veteran had combat service and because his arguments center on the residuals of a shrapnel fragment wound incurred in combat, his claims cannot be automatically granted.",
"Rather, his claims still require evidence of an etiological nexus, or link, between the combat injury and the claimed current conditions. As discussed above, that nexus evidence is lacking here. Indeed, the only medical professional that addressed the issue of nexus found no such nexus, providing evidence against this claim. The Board notes the veteran's passion and dedication to this particular issue. However, the veteran does not personally possess the competence to render a medical opinion as to the etiology of his current cervical spine degenerative joint disease. See Bostain v. West, 11 Vet.",
"App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (\"a layperson is generally not capable of opining on matters requiring medical knowledge\"). Simply stated, the veteran does not have the medical expertise to provide a medical opinion that would associate his current neck disability to either an injury during military service that occurred many years ago or to associate a current neck disability to a service connected condition. In sum, the weight of the credible evidence demonstrates that the veteran's current degenerative joint disease of the cervical spine was first manifested many years after service and is not related to his active service or any incident therein.",
"As the preponderance of the evidence is against the claim for service connection for degenerative joint disease of the cervical spine, the \"benefit of the doubt\" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 The Board has also considered the effect of recent legislation and developments involving VA's duty to notify and assist claimants. On November 9, 2000, the Veterans Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§ 5103 & 5107 (West 2002), (the \"VCAA\") was signed into law. This enhanced the notification and assistance duties of the VA towards claimants. Recently, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) (2004) apply to cases pending before VA on November 9, 2000, even if the initial agency of original jurisdiction decision was issued before that date; and (2) that a claimant must be given notice in accordance with 38 U.S.C.A.",
"§ 5103(a) and 38 C.F.R. § 3.159(b)(1) before an initial unfavorable AOJ decision is issued. Section 3(a) of the VCAA (also 38 U.S.C.A. § 5103(a)) and 38 C.F.R. § 3.159(b)(1) require that, upon receipt of a complete or substantially complete application, the VA must notify the claimant and any representative of any information and any medical or lay evidence not previously provided to the VA that is necessary to substantiate the claim; this notice requires the VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion the VA will attempt to obtain on the claimant's behalf. In Pelegrini, the Court appears to have held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant 's possession that pertains to the claim, or something to the effect that the claimant should \"give us everything you've got pertaining to your claim(s).\" The Court stated that this new \"fourth element\" of the notice requirement comes from the language of 38 C.F.R.",
"§ 3.159(b)(1). In this case, the initial unfavorable decision regarding these two claims was made in March 2003, that is, after the date of the VCAA's enactment on November 9, 2000. However, even under Pelegrini, the notices regarding these two claims informed the veteran of the bases for the decision, what types of evidence would be needed, and how the evidence would be secured. The Board also concludes that any defect that may exist with regard to the timing of the VCAA notice to the veteran are harmless because of the extensive, thorough, and informative notices provided to him throughout the adjudication of the claims. See Mayfield v. Nicholson, No.",
"02-1077 (Fed. Cir. April 14, 2005). The VA's thorough notices of all matters required by the VCAA and its regulatory progeny throughout this adjudication have cured any defects involving notice of the provisions of the VCAA or the timing of such notice. The RO sent the veteran correspondence in December 2002, April 2003, May 2003, and June 2003; and a statement of the case in April 2004. The VA has also sent additional correspondence at various times throughout this adjudication, including requests for evidence of medical treatment and lay statements or other evidence corroborating alleged stressors. These documents discussed the evidence considered and the pertinent laws and regulations, including provisions of the VCAA and the reasons for the RO's decision. There can be no harm to the veteran, as the VA has made all efforts to notify and to assist the veteran with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the more general notice of the need for any evidence in the veteran's possession.",
"Thus, the VA has satisfied its \"duty to notify\" the veteran. Through discussions in correspondence, the rating decision, the hearing, and the statement of the case, the VA has informed the veteran of the evidence necessary to substantiate his claims for service connection for degenerative joint disease of the cervical spine and for bilateral tinnitus. He has been informed of his and the VA's respective responsibilities for providing evidence.",
"Pertinent identified medical records have been obtained. Based on the veteran's testimony, it does not appear that there is any additional, relevant medical treatment evidence that should be obtained with regard to these claims. The notice and duty to assist provisions of the law are satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate the claims. The RO satisfied its duty to assist the veteran by obtaining his service and all pertinent medical records in support of the claims. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA or prejudice the veteran. See Bernard v. Brown, 4 Vet.",
"App. 384 (1993). The Board also notes that the VCAA is not applicable in all cases. The Court has concluded that the VCAA is not applicable where an appellant was fully notified and aware of the type of evidence required to substantiate his claims and that no additional assistance would aid in further developing his claims. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). When there is extensive factual development in a case, and there is no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the VCAA does not require further assistance.",
"Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance if no reasonable possibility exists that assistance would aid in substantiating claim). In closing, the Board finds that the VA has satisfied all provisions of the VCAA and its implementing regulations with regard to the duties to notify claimants of all requirements and to assist claimants in the development of their claims. ORDER Service connection for degenerative joint disease of the cervical spine is denied. Service connection for tinnitus is granted. REMAND In the judgment of the Board, additional development is needed with regard to the claims for a compensable rating for bilateral hearing loss disability, for service connection for degenerative joint disease of the thoracic spine, and for service connection for superior thoracic levoscoliosis. The veteran stated at his December 2003 hearing before the Board that his hearing had worsened since his last examination in February 2003. Accordingly, a new VA examination is warranted.",
"With regard to the claim for service connection for degenerative joint disease of the thoracic spine, the Board points out that the veteran complained of back pain during service. At that time, he related the back pain chronologically to his in-service shoulder wound. Unlike the claim for service connection for degenerative joint disease of the cervical spine, which was discussed in the decision portion above and which was the subject of a VA examination, there is no similar medical evidence that specifically addresses the veteran's thoracic spine claim. Therefore, on remand, the RO should schedule the veteran for the conduct of an examination to assess the current nature and etiology of degenerative joint disease of the thoracic spine. The examiner must discuss whether there is any relationship between the veteran's in-service complaints of back pain to the current thoracic spine condition, as well as any relationship between the service-connected left shoulder disability and any current thoracic spine condition.",
"The examiner must discuss not only whether the service-connected left shoulder disability is causing any current thoracic spine condition, but also whether the service-connected left shoulder disability is aggravating any current thoracic spine condition. With regard to the claim for service connection for superior thoracic levoscoliosis, a VA examination is needed to determine the precise nature and etiology of that condition. In this regard, it is important for the veteran to understand that congenital or developmental defects are not disabilities for VA compensation purposes and may not be service connected. 38 C.F.R. § 3.303(c) (2004). However, service connection may be granted for congenital or hereditary diseases, if initially manifested in or aggravated by service. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). On remand, the VA should schedule the veteran for an examination to determine if the veteran's superior thoracic levoscoliosis is a congenital defect or a congenital disease that was initially manifested in service or aggravated by service. The examination should discuss what effect, if any, the veteran's service-connected left shoulder disability has had on the diagnosed superior thoracic levoscoliosis. The examiner must discuss not only whether the service-connected left shoulder disability is causing any current superior thoracic levoscoliosis, but also whether the service- connected left shoulder disability is aggravating any current superior thoracic levoscoliosis. Accordingly, the case is REMANDED to the RO, via the AMC, for the following: 1.",
"The RO should request that the veteran identify any VA and non-VA medical records relating to his service- connected hearing loss that are not yet a part of the claims folder or to a thoracic spine condition (including degenerative joint disease of the thoracic spine and superior thoracic levoscoliosis). The RO should then seek to obtain all such identified, relevant records. 2. The RO should schedule the veteran for an examination to assess the current severity of his service-connected bilateral hearing loss. The claims folder must be provided to the examiner. The examiner must address all relevant aspects of the veteran's bilateral hearing loss. See 38 C.F.R. § 4.85 (2004).",
"3. The RO should also schedule the veteran for an examination to assess the current nature, etiology, and severity of any current degenerative joint disease of the thoracic spine and of any current superior thoracic levoscoliosis. The claims folder must be provided to the examiner. The examiner should discuss whether any diagnosed superior thoracic levoscoliosis is a congenital defect or disease and what effect, if any, his service-connected left shoulder disability has had on the levoscoliosis. The examiner is asked to discuss not only whether the service-connected left shoulder disability is causing any current superior thoracic levoscoliosis and/or a thoracic spine condition, but also whether the service-connected left shoulder disability is aggravating any current superior thoracic levoscoliosis and/or thoracic spine condition. 4.",
"Thereafter, the RO should readjudicate the veteran's claims for an increased rating for bilateral hearing loss and for service connection for degenerative joint disease of the thoracic spine and for superior thoracic levoscoliosis. If the RO's decision regarding any of these claims remains adverse to the veteran, the RO should provide the veteran and his representative with a supplemental statement of the case and the appropriate opportunity for a response thereto. The case should thereafter be returned to the Board for review. The veteran has the right to submit additional evidence and argument on the matters the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).",
"These claims must be treated expeditiously. Claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled expeditiously. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ JOHN J. CROWLEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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EXAMINER’S AMENDMENT and REASONS FOR ALLOWANCE Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/4/21 has been entered. An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Haiyan Liu on 8/6/21. The application has been amended as follows: Please cancel claims 10-13, 15 and 19-20.
The following is an examiner’s statement of reasons for allowance: Applicants’ amendments and arguments dated 1/4/21 are persuasive to overcome the rejections as set forth in the previous office action. Instant claim 1 requires a cyclic peptide as claimed where a specific . Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RONALD T NIEBAUER whose telephone number is (571)270-3059. The examiner can normally be reached on M - F 6:30 - 2:30 EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry Riggs can be reached on 571-270-3062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished
RONALD T. NIEBAUER Primary Examiner Art Unit 1658
/RONALD T NIEBAUER/Examiner, Art Unit 1658 | 2021-08-13T15:02:52 | [
"EXAMINER’S AMENDMENT and REASONS FOR ALLOWANCE Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/4/21 has been entered. An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312.",
"To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Haiyan Liu on 8/6/21. The application has been amended as follows: Please cancel claims 10-13, 15 and 19-20. The following is an examiner’s statement of reasons for allowance: Applicants’ amendments and arguments dated 1/4/21 are persuasive to overcome the rejections as set forth in the previous office action. Instant claim 1 requires a cyclic peptide as claimed where a specific . Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RONALD T NIEBAUER whose telephone number is (571)270-3059. The examiner can normally be reached on M - F 6:30 - 2:30 EST.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry Riggs can be reached on 571-270-3062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished RONALD T. NIEBAUER Primary Examiner Art Unit 1658 /RONALD T NIEBAUER/Examiner, Art Unit 1658"
]
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Citation Nr: 0921574
Decision Date: 06/09/09 Archive Date: 06/16/09
DOCKET NO. 06-38 862 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for the cause of the
Veteran's death, to include as secondary to herbicide
exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Wishard, Associate Counsel
INTRODUCTION
The Veteran had active service from December 1948 to
September 1952, and from April 1956 to August 1972. He died
on April [redacted], 2006. The appellant is his widow.
This matter comes before the Board of Veterans' Appeals
(Board) from a September 2006 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Wichita, Kansas.
FINDINGS OF FACT
1. The Veteran did not serve in the Republic of Vietnam.
2. The Veteran died on April [redacted], 2006; the death certificate
lists the cause of death as lung cancer with distant
metastasis.
3. At the time of the Veteran's death, service connection
had not been established for any disability, and no claim for
entitlement to service connection was pending.
4. Lung cancer with distant metastasis is not shown by
competent medical evidence to be linked to service; and is
not shown to have been caused or aggravated by the Veteran's
exposure to Agent Orange, or any other herbicide.
CONCLUSION OF LAW
The criteria for service connection for the cause of the
Veteran's death have not been met. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1131, 1310 (West 2002 & Supp 2008);
38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
VCAA notice should be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004); see also Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).
In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman held that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) Veteran status; (2)
existence of a disability; (3) a connection between the
Veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for service connection, therefore,
VA is required to review the information and the evidence
presented with the claim and to provide the claimant with
notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court
expanded the VCAA notice requirements for a Dependency and
Indemnity Compensation (DIC) claim. In Hupp, the Court held
that, when adjudicating a claim for DIC, VA must perform a
different analysis depending upon whether a Veteran was
service-connected for a disability during his or her
lifetime. The Court concluded that, in general, section
5103(a) notice for a DIC case must include: (1) a statement
of the conditions, if any, for which a Veteran was service-
connected at the time of his or her death; (2) an explanation
of the evidence and information required to substantiate a
DIC claim based on a previously service-connected condition;
and (3) an explanation of the evidence and information
required to substantiate a DIC claim based on a condition not
yet service-connected. In addition, the Court found that the
content of the section 5103(a) notice letter will depend upon
the information provided in the claimant's application.
In VA correspondence to the appellant in June 2006, VA
informed the appellant of what evidence was required to
substantiate her claim, and of her and VA's respective duties
for obtaining evidence. The correspondence to the appellant
was deficient in that it did not include the criteria for
assignment of an effective date, in the event of award of the
benefit sought, as required by the Court in Dingess/Hartman.
This was provided in VA correspondence to the appellant in
November 2006. Moreover, neither the June 2006 nor the
November 2006 VA correspondence informed the appellant of the
conditions for which, if any, the Veteran was service-
connected at the time of his death or an explanation of the
evidence and information required to substantiate a DIC claim
based on a condition not yet service-connected, as required
by the Court in Hupp. There is no evidence of record that
the Veteran was service-connected for any disability at the
time of his death, nor that he had a claim for service
connection pending at the time of his death.
The November 2006 Statement of the Case (SOC) provided the
appellant with the criteria for entitlement to service
connection and the criteria for a cause of death
determination. A reasonable person could be expected to
understand from the VA correspondence and SOC what was needed
to substantiate a claim. Based on the above, the Board finds
that the VCAA notice deficiency was not prejudicial to the
appellant. See Shinseki v. Sanders/Simmons, No. 07-1209
(U.S. Sup. Ct. April 21, 2009); 556 U.S. ____ (2009);
Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d
Cir. 1974) ("[N]o error can be predicated on insufficiency
of notice since its purpose had been served."). In order
for the court to be persuaded that no prejudice resulted from
a notice error, "the record must demonstrate that, despite
the error, the adjudication was nevertheless essentially
fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).
Regarding the timing of the notice, the Court has held that
compliance with 38 U.S.C.A. § 5103 requires that the VCAA
notice be accomplished prior to an initial unfavorable agency
of original jurisdiction determination. See Pelegrini,
supra. Because VCAA notice in this case was not completed
prior to the initial AOJ adjudication denying the claim, the
timing of the notice does not comply with the express
requirements of the law as found by the Court in Pelegrini.
Here, the Board finds that any defect with respect to the
timing of the VCAA notice was harmless error. Although the
criteria for assignment of an effective date and disability
rating was provided to the appellant after the initial
adjudication, the appellant was provided with 60 days to
submit additional information. The appellant has been
provided with every opportunity to submit evidence and
argument in support of her claim, and to respond to VA
notices.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board
finds the VCAA notice requirements have been met in this
case.
Duty to assist
With regard to the duty to assist, the claims file contains
the Veteran's death certificate, service treatment records
(STRs), and post service private treatment records.
Additionally, the claims file contains the appellant's
statements in support of her claim. The Board has carefully
reviewed such statements and concludes that she has not
identified further evidence not already of record.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the appellant in developing the facts
pertinent to her claim. Essentially, all available evidence
that could substantiate the claim has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Legal criteria
Cause of Death
The death of a Veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. See 38 U.S.C.A. § 1310; 38
C.F.R. § 3.312(a). For a service-connected disability to be
considered the primary cause of death, it must singly, or
with some other condition, be the immediate or underlying
cause, or be etiologically related thereto. 38 C.F.R. §
3.312(b). In determining whether a service-connected
disability contributed to death, it must be shown that it
contributed substantially or materially, that it combined to
cause death, or that it aided or lent assistance to the
production of death. 38 C.F.R. § 3.312(c)(1).
Service-connected diseases or injuries involving active
processes affecting vital organs should receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, from the viewpoint of whether there
were resulting debilitating effects and general impairment of
health to an extent that would render the person materially
less capable of resisting the effects of other disease or
injury primarily causing death. Where the service-connected
condition affects vital organs as distinguished from muscular
or skeletal functions and is evaluated as 100 percent
disabling, debilitation may be assumed. 38 C.F.R. §
3.312(c)(3).
Medical evidence is required to establish a causal connection
between service or a disability of service origin and the
Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499,
502 (1993).
Service connection- in general
Service connection may be granted for a disability resulting
from disease or injury incurred or aggravated during active
military service. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303. Service connection may also be granted
for any injury or disease diagnosed after service, when all
of the evidence, including that pertinent to service,
establishes that the disease was incurred in service. See 38
C.F.R. § 3.303(d). Generally, service connection requires
(1) medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. See Caluza
v. Brown, 7 Vet. App. 498 (1995), Pond v. West, 12 Vet. App.
341 (1999).
In addition, certain chronic diseases, including malignant
tumors, may be presumptively service connected if they become
manifest to a degree of 10 percent or more within one year of
leaving qualifying military service. 38 C.F.R. §§
3.307(a)(3); 3.309(a) (2008).
Presumptive service connection- herbicide exposure
VA regulations provide that certain diseases associated with
exposure to herbicide agents may be presumed to have been
incurred in service even if there is no evidence of the
disease in service, provided the requirements of 38 C.F.R. §
3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2008). A Veteran
who, during active service, served in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on
May 7, 1975, shall be presumed to have been exposed during
such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 C.F.R. §
3.307(a). The last date on which such a Veteran shall be
presumed to have been exposed to an herbicide agent shall be
the last date on which he or she served in the Republic of
Vietnam during the period beginning on January 9, 1962 and
ending on May 7, 1975. The term "herbicide agent" means a
chemical in an herbicide, including Agent Orange, used in
support of the United States and allied military operations
in the Republic of Vietnam during the Vietnam era.
If a Veteran was exposed to an herbicide agent during active
service, the following diseases shall be service-connected if
the requirements of 38 C.F.R. § 3.307(a)(6) are met, even
though there is no record of such disease during service,
provided further that the rebuttable presumption provisions
of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or
other acneform disease consistent with chloracne; Type 2
diabetes (also known as Type II diabetes mellitus or adult-
onset diabetes); Hodgkin's disease; chronic lymphocytic
leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and
subacute peripheral neuropathy; porphyria cutanea tarda;
respiratory cancers (cancer of the lung, bronchus, larynx or
trachea); and soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38
C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy shall have become manifest
to a degree of 10 percent or more within a year after the
last date on which the Veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R.
§ 3.307(a)(6)(ii).
Where the evidence does not warrant presumptive service
connection, the United States Court of Appeals for the
Federal Circuit has determined that an appellant is not
precluded from establishing service connection with proof of
direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir.
1994).
Analysis
The Board has reviewed all of the evidence in the claims
file. Although the Board has an obligation to provide
reasons and bases supporting this decision, there is no need
to discuss, in detail, the extensive evidence of record.
Indeed, the Federal Circuit has held that the Board must
review the entire record, but does not have to discuss each
piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000). Therefore, the Board will summarize the
relevant evidence where appropriate, and the Board's analysis
below will focus specifically on what the evidence shows, or
fails to show, as to the claim.
The appellant is claiming entitlement to service connection
for the cause of the Veteran's death. The appellant contends
that the Veteran's April 2006 death from lung cancer with
distant metastasis was related to Agent Orange exposure while
the Veteran was in Thailand. The Veteran had confirmed
service in Thailand from September 1967 to August 1968.
There is no evidence of record, nor does the appellant
contend, that the Veteran served in the Republic of Vietnam.
Moreover, the appellant does not contend, and the record does
not establish, that the Veteran was exposed to Agent Orange
due to its actual use in any other location. In this regard,
the Board finds that further development pursuant to M21-1
MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph
10(n) would serve no useful purpose. Soyini v. Derwinski, 1
Vet. App. 540 (1991). As such, the presumption of in-service
exposure to herbicides is inapplicable. Therefore,
presumptive service connection for the Veteran's lung cancer
is not warranted. 38 C.F.R. §§ 3.307, 3.309.
In the absence of a presumption of service connection, as
noted in Combee, direct service connection may still be
established with proof of direct causation. In this regard,
the Veteran must provide evidence of a current disability, an
in-service injury or disease, and a nexus between the current
disability and the in-service injury or disease. In this
case, VA medical records indicate that the Veteran was
diagnosed with non-small cell carcinoma of the right upper
lobe of the lung in July 2003. A CT scan performed one day
earlier in July 2003 revealed evidence of metastatic disease
in both posterior parietal occipital regions of the brain.
Based on this, the Board finds that current disability has
been clinically demonstrated, and thus the first element of
service connection has been met.
The second criterion for service connection is medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease.
In this case, the Veteran's DD Form 214 reflects that the
Veteran' s military occupational specifically (MOS) was a
fire protection supervisor. It further reflects that he
served in Indochina, but not in Vietnam or Korea. The
appellant contends that the Veteran was exposed to Agent
Orange while working on the flight line in Thailand and
washing down aircraft that had sprayed Agent Orange in
Vietnam and Thailand. (See notice of disagreement dated in
October 2005 and VA Form 9 dated in December 2006). There is
no competent evidence of record which supports the
appellant's contention of exposure to Agent Orange in this
regard. The evidence of record includes a VA request to the
National Personnel Records Center (NPRC) requesting
verification of any exposure to herbicides. The NPRC
response, dated in September 2006, reflects there are no
records that the Veteran was exposed to herbicides.
Additionally, the Veteran's service medical records are
negative for any complaints of, or treatment for cancer. The
Veteran's December 1948 report of medical examination for
enlistment reflects no significant abnormalities of the
Veteran's lungs or neurologic system. The Veteran's
September 1952 report of medical examination for separation
purposes reflects normal lungs and chest, to include negative
x-ray results, and normal neurologic results, upon clinical
evaluation. Reports of medical examination dated in April
1956, February 1958, August 1958, May 1967, October 1968, and
July 1970 also reflect normal lungs and chest, including
negative x-ray results, and normal neurologic results upon
clinical evaluation. In addition, the Veteran's October 1971
report of medical examination for separation purposes also
indicates normal lungs and chest, to include negative x-ray
results, and normal neurologic findings upon clinical
evaluation. Based on the foregoing, the second requirement
for service connection has not been met.
In addition, the Board finds that the third criterion for
service connection has not been met. The third criterion for
service connection is medical evidence of a nexus between the
current disability and in-service disease or injury. As
there is no in-service disease or injury, there cannot be any
nexus; nevertheless, the Board will discuss this criterion.
The evidence of record reflects that the Veteran was first
diagnosed with cancer in July 2003. The death certificate
lists the approximate interval from onset to death as greater
than one year, but is not more specific. Further, it was
noted as medical history in July 2003 that the Veteran had
been free of pulmonary symptoms until approximately two
months earlier when he began developing a progressive and
insistent cough. The Veteran separated from service in 1972,
more than 30 years prior to his diagnosis of cancer. The
Board notes that evidence of a prolonged period without
medical complaint, and the amount of time that elapsed since
military service, can be considered as evidence against the
claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000.)
Moreover, there is no competent clinical evidence of record
relating the Veteran's cancer to his military service. The
only evidence supporting such a claim is the appellant's own
contentions. While the appellant may sincerely believe that
the Veteran's cancer was related to his active service, she
has not been show to possess the requisite training or
credentials needed to render a competent opinion as to
medical diagnosis or causation. Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992).
There is no competent evidence of record finding that the
Veteran's cancer, and subsequent death, is causally related
to his service and, thus, the third requirement of service
connection is unmet.
In conclusion, the competent evidence does not attribute the
cause of the Veteran's death to service, to include as due to
exposure to herbicides. As noted above, a grant of
presumptive service connection due to herbicide exposure is
precluded in this case.
For the above noted reasons, the appellant's claim of
entitlement to service connection for the cause of the
Veteran's death must be denied. As the preponderance of the
evidence is against the claim, the benefit of the doubt rule
is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Entitlement to service connection for the cause of the
Veteran's death, to include as secondary to herbicide
exposure, denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 06-09-2009 | [
"Citation Nr: 0921574 Decision Date: 06/09/09 Archive Date: 06/16/09 DOCKET NO. 06-38 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active service from December 1948 to September 1952, and from April 1956 to August 1972.",
"He died on April [redacted], 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam. 2. The Veteran died on April [redacted], 2006; the death certificate lists the cause of death as lung cancer with distant metastasis.",
"3. At the time of the Veteran's death, service connection had not been established for any disability, and no claim for entitlement to service connection was pending. 4. Lung cancer with distant metastasis is not shown by competent medical evidence to be linked to service; and is not shown to have been caused or aggravated by the Veteran's exposure to Agent Orange, or any other herbicide. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310 (West 2002 & Supp 2008); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A.",
"§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.",
"VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a \"service connection\" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.",
"Upon receipt of an application for service connection, therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court expanded the VCAA notice requirements for a Dependency and Indemnity Compensation (DIC) claim. In Hupp, the Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a Veteran was service-connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service- connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.",
"In addition, the Court found that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In VA correspondence to the appellant in June 2006, VA informed the appellant of what evidence was required to substantiate her claim, and of her and VA's respective duties for obtaining evidence. The correspondence to the appellant was deficient in that it did not include the criteria for assignment of an effective date, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. This was provided in VA correspondence to the appellant in November 2006. Moreover, neither the June 2006 nor the November 2006 VA correspondence informed the appellant of the conditions for which, if any, the Veteran was service- connected at the time of his death or an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected, as required by the Court in Hupp. There is no evidence of record that the Veteran was service-connected for any disability at the time of his death, nor that he had a claim for service connection pending at the time of his death.",
"The November 2006 Statement of the Case (SOC) provided the appellant with the criteria for entitlement to service connection and the criteria for a cause of death determination. A reasonable person could be expected to understand from the VA correspondence and SOC what was needed to substantiate a claim. Based on the above, the Board finds that the VCAA notice deficiency was not prejudicial to the appellant. See Shinseki v. Sanders/Simmons, No. 07-1209 (U.S. Sup. Ct. April 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d Cir. 1974) (\"[N]o error can be predicated on insufficiency of notice since its purpose had been served.\"). In order for the court to be persuaded that no prejudice resulted from a notice error, \"the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair.\"",
"Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Regarding the timing of the notice, the Court has held that compliance with 38 U.S.C.A. § 5103 requires that the VCAA notice be accomplished prior to an initial unfavorable agency of original jurisdiction determination. See Pelegrini, supra. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the criteria for assignment of an effective date and disability rating was provided to the appellant after the initial adjudication, the appellant was provided with 60 days to submit additional information.",
"The appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case.",
"Duty to assist With regard to the duty to assist, the claims file contains the Veteran's death certificate, service treatment records (STRs), and post service private treatment records. Additionally, the claims file contains the appellant's statements in support of her claim. The Board has carefully reviewed such statements and concludes that she has not identified further evidence not already of record. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.",
"Legal criteria Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R.",
"§ 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993).",
"Service connection- in general Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.",
"See Caluza v. Brown, 7 Vet. App. 498 (1995), Pond v. West, 12 Vet. App. 341 (1999). In addition, certain chronic diseases, including malignant tumors, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2008). Presumptive service connection- herbicide exposure VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2008). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.",
"38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term \"herbicide agent\" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R.",
"§ 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R.",
"§ 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii).",
"Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Analysis The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).",
"Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The appellant is claiming entitlement to service connection for the cause of the Veteran's death. The appellant contends that the Veteran's April 2006 death from lung cancer with distant metastasis was related to Agent Orange exposure while the Veteran was in Thailand. The Veteran had confirmed service in Thailand from September 1967 to August 1968. There is no evidence of record, nor does the appellant contend, that the Veteran served in the Republic of Vietnam. Moreover, the appellant does not contend, and the record does not establish, that the Veteran was exposed to Agent Orange due to its actual use in any other location. In this regard, the Board finds that further development pursuant to M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(n) would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App.",
"540 (1991). As such, the presumption of in-service exposure to herbicides is inapplicable. Therefore, presumptive service connection for the Veteran's lung cancer is not warranted. 38 C.F.R. §§ 3.307, 3.309. In the absence of a presumption of service connection, as noted in Combee, direct service connection may still be established with proof of direct causation. In this regard, the Veteran must provide evidence of a current disability, an in-service injury or disease, and a nexus between the current disability and the in-service injury or disease.",
"In this case, VA medical records indicate that the Veteran was diagnosed with non-small cell carcinoma of the right upper lobe of the lung in July 2003. A CT scan performed one day earlier in July 2003 revealed evidence of metastatic disease in both posterior parietal occipital regions of the brain. Based on this, the Board finds that current disability has been clinically demonstrated, and thus the first element of service connection has been met. The second criterion for service connection is medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease. In this case, the Veteran's DD Form 214 reflects that the Veteran' s military occupational specifically (MOS) was a fire protection supervisor. It further reflects that he served in Indochina, but not in Vietnam or Korea. The appellant contends that the Veteran was exposed to Agent Orange while working on the flight line in Thailand and washing down aircraft that had sprayed Agent Orange in Vietnam and Thailand. (See notice of disagreement dated in October 2005 and VA Form 9 dated in December 2006).",
"There is no competent evidence of record which supports the appellant's contention of exposure to Agent Orange in this regard. The evidence of record includes a VA request to the National Personnel Records Center (NPRC) requesting verification of any exposure to herbicides. The NPRC response, dated in September 2006, reflects there are no records that the Veteran was exposed to herbicides. Additionally, the Veteran's service medical records are negative for any complaints of, or treatment for cancer. The Veteran's December 1948 report of medical examination for enlistment reflects no significant abnormalities of the Veteran's lungs or neurologic system. The Veteran's September 1952 report of medical examination for separation purposes reflects normal lungs and chest, to include negative x-ray results, and normal neurologic results, upon clinical evaluation.",
"Reports of medical examination dated in April 1956, February 1958, August 1958, May 1967, October 1968, and July 1970 also reflect normal lungs and chest, including negative x-ray results, and normal neurologic results upon clinical evaluation. In addition, the Veteran's October 1971 report of medical examination for separation purposes also indicates normal lungs and chest, to include negative x-ray results, and normal neurologic findings upon clinical evaluation. Based on the foregoing, the second requirement for service connection has not been met. In addition, the Board finds that the third criterion for service connection has not been met. The third criterion for service connection is medical evidence of a nexus between the current disability and in-service disease or injury. As there is no in-service disease or injury, there cannot be any nexus; nevertheless, the Board will discuss this criterion. The evidence of record reflects that the Veteran was first diagnosed with cancer in July 2003. The death certificate lists the approximate interval from onset to death as greater than one year, but is not more specific.",
"Further, it was noted as medical history in July 2003 that the Veteran had been free of pulmonary symptoms until approximately two months earlier when he began developing a progressive and insistent cough. The Veteran separated from service in 1972, more than 30 years prior to his diagnosis of cancer. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.",
"Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000.) Moreover, there is no competent clinical evidence of record relating the Veteran's cancer to his military service. The only evidence supporting such a claim is the appellant's own contentions. While the appellant may sincerely believe that the Veteran's cancer was related to his active service, she has not been show to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no competent evidence of record finding that the Veteran's cancer, and subsequent death, is causally related to his service and, thus, the third requirement of service connection is unmet.",
"In conclusion, the competent evidence does not attribute the cause of the Veteran's death to service, to include as due to exposure to herbicides. As noted above, a grant of presumptive service connection due to herbicide exposure is precluded in this case. For the above noted reasons, the appellant's claim of entitlement to service connection for the cause of the Veteran's death must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death, to include as secondary to herbicide exposure, denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Title: Robert Smith to Thomas Jefferson, 15 July 1809 From: Smith, Robert To: Jefferson, Thomas
My dear Sir, Washington July 15. 1809. Your very friendly letter of the 10h I have had the pleasure to receive. And most sincerely do I thank you for this additional instance of your goodness and for the interest you so kindly take in whatever concerns me personally. I am happy in learning that your rural occupations afford you so much gratification. After having so usefully devoted to your Country so many years, you are enjoying, in my estimation, the highest degree of happiness, to which a rational man ought to aspire,—living amidst your family, for a few real friends, for the muses and for the comforts of retirement. ‘Deus vobis hæc otia fecit.’ Accept, I entreat you, the best wishes of your sincere friend. R Smith PS. Mr Smiths letter, as intended, was not enclosed in yours of the 10h July | 07-15-1809 | [
"Title: Robert Smith to Thomas Jefferson, 15 July 1809 From: Smith, Robert To: Jefferson, Thomas My dear Sir, Washington July 15. 1809. Your very friendly letter of the 10h I have had the pleasure to receive. And most sincerely do I thank you for this additional instance of your goodness and for the interest you so kindly take in whatever concerns me personally. I am happy in learning that your rural occupations afford you so much gratification. After having so usefully devoted to your Country so many years, you are enjoying, in my estimation, the highest degree of happiness, to which a rational man ought to aspire,—living amidst your family, for a few real friends, for the muses and for the comforts of retirement. ‘Deus vobis hæc otia fecit.’ Accept, I entreat you, the best wishes of your sincere friend. R Smith PS. Mr Smiths letter, as intended, was not enclosed in yours of the 10h July"
]
| https://founders.archives.gov/API/docdata/Jefferson/03-01-02-0283 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
946 F. Supp. 1141 (1996) Thomas DOWNEY, Plaintiff, v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 1262, United Food and Commercial Workers Union, Vitale Enterprises, Inc. Foodtown Supermarkets, Kenneth Heller, John McElroy, and Luis Cordero. Civil Action No. 96-874 (AJL). United States District Court, D. New Jersey. October 2, 1996. *1142 *1143 *1144 Diane C. Nardone, Elise Rossbach, Jemas, Nardone & Burnside, Newark, NJ, for Plaintiff. Carmine R. Alampi, Anthony X. Arturi, Jr., Smith, Don, Alampi, D'Argenio & Arturi, Englewood Cliffs, NJ, for Vitale Enterprises, Inc., Kenneth Heller, and John McElroy. Bernard N. Katz, David A. Gaudioso, Meranze and Katz, Camden, NJ, for United Food and Commercial Workers Union Local 1262, AFL-CIO. Luis Cordero, Belleville, NJ, Pro Se.
OPINION LECHNER, District Judge. This is a wrongful termination action brought by plaintiff Thomas Downey III ("Downey") against defendants United Food and Commercial Workers Union Local 1262 ("Local 1262"), the United Food and Commercial Worker's Union ("UFCW"), Vitale Enterprises, Inc. Foodtown Supermarkets, ("Vitale"), Kenneth Heller ("Heller"), John McElroy ("McElroy") and Luis Cordero ("Cordero") (collectively, the "Defendants"). Jurisdiction over the first count of the complaint is alleged pursuant to 29 U.S.C. § 185. Downey alleges supplemental jurisdiction over the remaining counts. On 5 March 1996, Downey filed a seven count amended complaint (the "Complaint"). Downey alleges claims of breach of the collective bargaining agreement, wrongful termination, breach of the duty of fair representation, unlawful discrimination pursuant to N.J.S.A. § 10:5-1 et seq., false arrest, false imprisonment, defamation and intentional interference with employment. Downey seeks compensatory and punitive damages, attorney's fees, costs of suit and other such equitable relief as deemed proper. On 29 August 1996, the Defendants submitted two separate motions, pursuant to Rule 12N, Appendix N ("Rule 12N") of the General Rules for the District of New Jersey. Defendants Vitale, Heller and McElroy (the "Vitale Defendants") submitted a combined Motion for Summary Judgment Dismissing Plaintiff's Claims Against Them and For Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure ("Rule 11") (the "Vitale Motion for Summary Judgment" and the "Vitale Motion for Sanctions"). Defendant Local 1262 submitted a Motion to Dismiss Amended Complaint and For Summary Judgment (the "Local 1262 Motion for Summary Judgment").[1] *1145 For the reasons stated below, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted. The Vitale Motion for Sanctions is denied. The remaining state law claims of Downey against the Defendants are dismissed without prejudice.
Facts
A. The Parties
Downey is a citizen of the State of New Jersey residing in Hudson County. In April 1993, Vitale hired Downey as a part-time bookkeeper for its Foodtown Supermarket in Kearny, New Jersey (the "Kearny Foodtown"). Complaint, ¶ 11. Downey became a full-time employee in November 1994 and remained a full-time employee until he was terminated on or about 26 May 1995.[2] Complaint, ¶ 11-12. When hired, Downey became a member with the UFCW and Local 1262. Complaint, ¶ 13. Downey remained in good standing with UFCW and Local 1262 at all times relevant to the Complaint. Complaint, ¶ 1. UFCW and Local 1262 are unincorporated labor associations organized to represent the interests of their members and to negotiate collective bargaining agreements. Complaint, ¶ 2. Local 1262 maintains an office at 1389 Broad Street in Clifton, New Jersey. The UFCW maintains an office at 1775 K Street, N.W., Washington, D.C. Complaint, ¶ 2. Vitale is a corporation organized and existing under the laws of the State of New Jersey. Complaint, ¶ 3. Vitale owns the Kearny Foodtown at which Downey was employed. Complaint, ¶ 3. Vitale maintains an office at 9 Bi-Plaza, Old Tappan, New Jersey. Complaint, ¶ 3. Heller is an individual who resides in Old Tappan, New Jersey. Heller was employed by Vitale as Director of Loss Prevention. Complaint, ¶ 4. Downey alleges at all times relevant to this action, Heller was working with the knowledge and consent of Vitale. Complaint, ¶ 4. Downey alleges Heller has recently been reassigned to the position of assistant store manager. Deposition of Richard Plishka ("Plishka Dep.Tr."), dated 30 July 1996, attached to Nardone Cert. as Exhibit 3; attached to Arturi Reply Cert. as Exhibit U, 7:15-23. McElroy is an individual who resides in Kearny, New Jersey. Complaint, ¶ 5. McElroy was employed in the capacity of a security officer by Vitale. Complaint, ¶ 5. Downey alleges that at all times relevant to this action, McElroy was acting on behalf of and with the consent of Vitale. Complaint, ¶ 5. Cordero is an individual who resides in Belleville, New Jersey. Complaint, ¶ 6. Cordero was employed as a cashier at the Kearny Foodtown. Complaint, ¶ 6. The employment of Cordero at Kearny Foodtown commenced in the Fall of 1994 and terminated on or about 24 May 1996. Complaint, ¶ 6.
B. Discovery and Investigation of the Fraudulent Credit Card Charges
In early 1995, Vitale became aware that fraudulent credit card charges ("Fraudulent Credit Card Charges") were being processed *1146 at the Kearny Foodtown. Transcript of Proceedings, Hudson County Grand Jury Indictment No. 64-01-96, New Jersey v. Thomas Downey and Luis Cordero ("Grand Jury Tr."), dated 14 December 1996, attached to Gaudioso Cert. as Exhibit C, 3:9 to 4:13. The matter was investigated by Heller, Director of Loss Prevention at Vitale. Grand Jury Tr. 3:12-15. Heller discovered the Fraudulent Credit Card Charges were not processed in the usual manner by swiping the purchaser's card through the machine. Grand Jury Tr. 3:17-24. Instead, the transactions were manually punched into the machine by a cashier. Grand Jury Tr. 3:17-24. The cashier number on the Fraudulent Credit Card Charges was that of Cordero. Grand Jury Tr. 4:16-18. On or about 31 May 1995, Heller interviewed Cordero at the Kearny Foodtown about the Fraudulent Credit Card Charges. 8 August 1996 Deposition of Kenneth Heller ("Heller Dep.Tr."), attached to Arturi Reply Cert. as Exhibit W, 140:13-14; Deposition of Luis Cordero ("Cordero Dep.Tr."), dated 25 July 1996, attached to Nardone Cert. at Exhibit 4; attached to Arturi Cert. as Exhibit V, 44:5-18. Heller questioned Cordero for approximately one hour. Cordero Dep.Tr. 50:15-17. Cordero admitted to fraudulently processing the credit card transactions and taking the corresponding amount of cash from the register till. Cordero Dep.Tr. 21:17 to 35:25. Cordero testified that, during the interview, Heller threatened him both physically and emotionally. Cordero Dep.Tr. 53:13-18. Cordero contends Heller threatened to arrest him and threatened to call his parents to inform them Cordero was a homosexual and a thief. Cordero Dep.Tr. 53:13-18. Cordero testified Heller used derogatory language when he referred to Downey and Cordero as homosexuals. Cordero Dep.Tr. 57:11 to 59:11. Cordero contends Heller promised he would not press charges or call his parents if Cordero promised to cooperate. Cordero Dep.Tr. 53:20 to 54:54:1. Cordero testified Heller said he wanted a statement from Cordero so that the owner of the Kearny Foodtown could fire Downey. Cordero Dep. Tr. 83:15 to 83:21. Heller denies threatening Cordero during his interview and denies promising Cordero that Foodtown would not press charges if Cordero implicated Downey. Heller Dep.Tr. 265:11-12. Cordero wrote a two page statement on 2 June 1995 apologizing for his actions and implicating Downey in the Fraudulent Credit Card Charges.[3] Cordero Dep.Tr. 44:22 to 46:25; Handwritten Confession of Luis Cordero ("Cordero Confession"), dated 2 June 1995, attached to Arturi Cert. as Exhibit M.
C. Downey's Discharge and Arrest
On or about 2 June 1995, Heller, accompanied by McElroy, interviewed Downey about the Fraudulent Credit Card Charges at the Kearny Foodtown. Opposition Brief at 6; Vitale Moving Brief at 6. Downey testified Heller and McElroy sat on either side of him at a table, blocking his egress from the room. Deposition of Thomas Downey ("Downey Dep.Tr."), dated 16 July 1996, attached to Nardone Cert. as Exhibit 5; attached to Arturi Reply Cert. as Exhibit T, 50:3 to 51:12. Downey testified he requested several times the opportunity to leave but his requests were ignored by Heller and McElroy. Downey Dep.Tr. 58:1 to 59:9. Downey testified Heller verbally threatened him with jail time. Downey Dep.Tr. 59:10-12. Downey indicated he was afraid Heller or McElroy would become physical with him because of incidents he had witnessed previously between *1147 Heller or McElroy and other people. Downey Dep.Tr. 59:10-25. Following the interview, Heller and McElroy escorted Downey from the store. Opposition Brief at 7. Later in the day on 2 June 1995, Heller went to the Kearny Police Department and reported a theft from Kearny Foodtown in the amount of $3,049.81. Heller implicated Downey and Cordero in the theft. Investigation Report by Kearny Police, dated 2 June 1995, attached to Nardone Cert. as Exhibit 6. Detective Michael Cinardo ("Cinardo") met with Cordero at the Kearny Police Department on 3 June 1995. 3 June 1995 Police Report, attached to Nardone Cert. as Exhibit 6. Cordero contends Heller was also at the Kearny Police Department and spoke with Cordero prior to his meeting with Cinardo. Cordero Dep.Tr. 48:11 to 49:5. Cordero testified Heller told him to "answer [the questions] the way that I'm supposed to answer [the questions]." Cordero Dep.Tr. 48:11 to 49:5. Heller allegedly indicated to Cordero that no charges would be pressed against Cordero and that he would not go to jail. Cordero Dep.Tr. 48:11 to 49:5. Thereafter, Cordero provided a statement to Cinardo implicating Downey in the Fraudulent Credit Card Charges. 3 June 1995 Police Report. Downey contends Heller falsely represented to Cinardo that Downey had worked on all occasions when the Fraudulent Credit Card Charges occurred. Cinardo Police Report Notes, attached to Nardone Cert. as Exhibit 9.[4] Downey contends Cinardo testified Heller referred to Downey and Cordero as "lovers" and "queers." Opposition Brief at 9.[5] On 7 June 1995, Downey voluntarily appeared at the Kearny Police Department and was charged with forgery and theft by deception. 7 June 1995 Arrest Report, attached to Nardone Cert. as Exhibit 10. On 10 June 1995, Heller interviewed another Kearny Foodtown cashier, Joy SanFilippo ("SanFilippo")[6], regarding a Fraudulent Credit Card Charge that was processed on 12 May 1995.[7] Opposition Brief at 10. Downey contends Heller extracted a statement from SanFilippo that implicated Downey in that incident. Opposition Brief at 9. During her interview with Heller, SanFilippo indicated Downey was the bookkeeper on duty when Cordero used the cashier number of SanFilippo to manually enter a credit card charge of $312.14. Opposition Brief at 9-10. At a later date, SanFilippo reviewed the appropriate time records and realized she was mistaken and Downey was not the bookkeeper on duty. Opposition Brief at 10. SanFilippo testified she believed her statements to be true at the time she made them on 10 June 1995. Opposition Brief at 10-11.[8] On 21 June 1995, Heller provided the Kearny Police Department with additional information regarding Fraudulent Credit Card Charges on 5 May 1995 and 12 May 1995. 23 June 1995 Police Report, attached to Nardone Cert. as Exhibit 16. Detective Vincent Thomas ("Thomas") informed Heller that not enough evidence existed to charge Cordero in those incidents. Nardone Cert. at Exhibit 16. Heller then signed a complaint against Cordero for the original incident. Nardone Cert. at Exhibit 16. Ramon de la Cruz, the Hudson County prosecutor who handled the criminal action against Downey and Cordero, testified Heller objected to the disposition of the case through administrative remand and Heller wanted the case to go to the Grand Jury. 25 July 1995 Deposition of Ramon de la Cruz ("Cruz Dep.Tr."), *1148 attached to Nardone Cert. as Exhibit 19, 37:12 to 38:16. On 14 December 1995, Heller testified before the Grand Jury about the incidents surrounding the Fraudulent Credit Card Charges. Grand Jury Tr. 3:7 to 8:5. Downey alleges Heller perjured himself when he testified that a manager number was required to override the manual entry of a credit card. Opposition Brief at 13. The procedure of using a manager number to override a manual entry of a credit card was instituted three days after the last Fraudulent Credit Card Charge was made. 15 May 1995 Vitale Memorandum, attached to Nardone Cert. as Exhibit 21.
D. The Filing of the Downey Grievance
On 7 June 1995, Downey met with Peter Smith ("Smith"), the business representative for Local 1262, to prepare a grievance report (the "Grievance Report"). 7 June 1995 Local 1262 Grievance Report, attached to Nardone Cert. as Exhibit 22. The Grievance Report was filed with Joseph Emerson, store manager at Kearny Foodtown. 28 March 1996 Affidavit of Peter M. Smith ("Smith Aff."), attached to Gaudioso Cert. as Exhibit B; attached to Nardone Cert. as Exhibit 23, ¶ 5.[9] On 29 June 1995, Smith met with George DuBose ("DuBose"), a Assistant Field Director of Local 1262, Richard Plishka, Director of Human Resources at Vitale and Heller (the "29 June Meeting"). Smith Aff., ¶ 8. Although Downey was invited to the 29 June Meeting, he did not attend. Smith Aff., ¶¶ 7-8. At the 29 June Meeting, Heller and Plishka showed Smith and DuBose the documentation which traced the Fraudulent Credit Card Charges back to Cordero. Smith Aff., ¶ 9. Heller and Plishka told Smith and DuBose that Downey, as a bookkeeper, had to have knowledge of fraud, otherwise he was not properly following company procedures on balancing out the credit card vouchers at the registers. Smith Aff., ¶ 9. Smith and DuBose also received a copy of the Cordero statement implicating Downey, which was taken by the Kearny Police. Smith Aff., ¶ 9. On 6 July 1995, Smith and DuBose again met with Plishka and Heller. Smith Aff., ¶ 13. Downey was also present. Smith Aff., ¶ 13. Plishka told Smith and DuBose that there had been 14 Fraudulent Credit Card Charges and Downey and Cordero were working on each of the days they occurred. Smith Aff., ¶ 13. The Vitale representatives did not have any documentation at the meeting to demonstrate Downey was personally involved, but indicated they would provide it. Smith Aff., ¶ 13. Another meeting was held on 14 July 1995. Smith Aff., ¶ 16. Downey was invited but did not attend. Smith Aff., ¶ 16. Plishka and Heller could not provide documentation implicating Downey because, pursuant to company policy, the sheets recording the reconciliation of each register close out were destroyed the following day. Smith Aff., ¶ 16. Smith met with Martin Vitale ("Martin Vitale"), the President and Chief Executive Officer of Vitale, on 17 July 1996. Smith Aff., ¶ 17. Smith told Martin Vitale that it could not be established Downey participated in the Fraudulent Credit Card Charges. Smith Aff., ¶ 17. At best, Vitale would only be able to prove Downey violated company accounting procedures by not informing the company of the volume of credit card transactions. Smith Aff., ¶ 17. Smith told Martin Vitale the violation of company accounting procedures did not warrant termination of employment under the "proper cause" provisions of the collective bargaining agreement (the "Vitale CBA"). Smith Aff., ¶ 17. Smith negotiated a settlement with Vitale whereby Downey received two-thirds of his back pay and reinstatement to his position at the Hoboken Foodtown (the "Settlement Agreement"). Smith Aff., ¶ 17. Downey did not receive full back pay because Vitale believed the failure of Downey to follow the company accounting procedures warranted some discipline.[10] Smith Aff., ¶ 17. *1149 Prior to the end of the meeting, Martin Vitale was reminded that a Foodtown in Union City had been closed. Smith Aff., ¶ 17. In accordance with the Vitale CBA, Downey, as the least senior full-time employee, had the option of accepting a lay-off or being reduced to part-time status. Smith Aff., ¶ 17. The Settlement Agreement, therefore, had Downey reporting to the Hoboken Foodtown as a part-time employee.[11] Smith Aff., ¶ 18. At the conclusion of the meeting, Smith called Downey and informed him of the Settlement Agreement. Smith Aff., ¶ 18. Smith and Downey arranged to meet on 21 July 1995 (the "21 July Meeting") at the office of Local 1262 so that Downey could sign the grievance release (the "Grievance Release"). Smith Aff., ¶ 18. Downey was placed on the work schedule at the Hoboken Foodtown. Smith Aff., ¶ 18; Vitale Work Schedule, attached to Arturi Reply Cert. as Exhibit AA. On the day of the 21 July Meeting, Downey informed Smith he could not attend. Smith Aff., ¶ 19. Downey indicated his attorney wanted Vitale to drop the criminal charges against him prior to his signing the grievance.[12] Smith Aff., ¶ 19. Downey was removed from the work schedule at Hoboken Foodtown pending a determination of when Downey could sign the Grievance Release. Smith Aff., ¶ 19-20. Another meeting was scheduled between Smith and Downey for 26 July 1995 (the "26 July Meeting"). Smith Aff., ¶ 21. On the day of the 26 July Meeting, Downey informed Smith he would not attend any meeting unless accompanied by his attorney, who was on vacation until 1 August 1995. Smith Aff., ¶ 21. Smith told Downey that, as far as Smith was concerned, the grievance had been satisfactorily resolved because he had been placed back to work. Smith Aff., ¶ 21. Downey never indicated, prior to 26 July 1995, that he objected to the Settlement Agreement. Smith Aff., ¶ 21. Smith told Downey he needed an answer as to whether he was going to sign the Grievance Release. Downey indicated he would contact Smith with his decision later that day, but he never did. Smith Aff., ¶ 21.[13] On 27 July 1995, Louis Marcucci ("Marcucci"), Field Director for Local 1262, sent a letter to Downey. 27 July 1995 Letter of Louis Marcucci (the "27 July Letter"), attached to Nardone Cert. as Exhibit 25; attached to Arturi Cert. as Exhibit I; attached to Gaudioso Cert. as Exhibit E. The 27 July Letter stated, in relevant part, This is to advise you that we have received a settlement offer from your Employer concerning the grievance of your discharge. It is the practice of UFCW Local 1262 to communicate such an offer to the affected grievant in person. . . . . . We are anxious to meet and discuss with you the company's proposed settlement in order to get your position before UFCW Local 1262 decides how it will proceed. Unless you notify us by August 2, 1995 that you will be meeting with us, we will decide on whether to accept or reject the settlement proposal without having your position on the matter. 27 July Letter. By a letter, dated 2 August 1995 (the "2 August Reply Letter"), addressed to Smith and DuBose, Downey, through his attorney, rejected the Settlement Agreement. 2 August *1150 1995 Reply Letter, attached to Nardone Cert. as Exhibit 26; attached to Arturi Cert. as Exhibit J; attached to Gaudioso Cert. as Exhibit F. The 2 August Reply Letter stated, in relevant part, I have been retained to represent Thomas Downey in connection with all civil matters relating to Mr. Downey's employment and wrongful discharge from Foodtown Supermarkets. From this date forward, any and all communications with my client must be made through me. . . . . . My investigation into the injustices Foodtown inflicted on my client establishes that nothing short of unconditional restatement, all back pay, plus compensatory damages is acceptable. . . . . . If you intend to make any effort to protect Mr. Downey's rights in accordance with the union agreement, contact me and I will be happy to assist. If you cannot assure me of your intent to help Mr. Downey within the next ten (10) business days, I will take whatever action is necessary to protect his rights for him. 2 August Reply Letter. On 7 August 1995, Howard Simonoff ("Simonoff"), attorney for Local 1262, called the attorney for Downey to discuss the Settlement Agreement. 7 August 1996 Certification of Elise P. Rossbach ("Rossbach Cert."), ¶ 11. Simonoff told the attorney for Downey that Downey was not entitled to a full-time position at Hoboken Foodtown because of the closing of the Foodtown in Union City. Rossbach Cert., ¶ 11. Downey's attorney requested Simonoff produce proof that Downey was the least senior employee justifying the reduction to part-time status. Rossbach Cert., ¶ 12. On or about 14 August 1995, Simonoff called the attorney for Downey and provided the names of several people who had been laid off or reduced to part-time employment. Rossbach Cert., ¶ 13. Simonoff did not produce any information to confirm if Downey was least senior to warrant the reduction in status. Rossbach Cert., ¶ 13. By letter, dated 22 August 1995, Simonoff informed Downey that he would be deemed to have abandoned his job unless he reported to work on 28 August 1995. Rossbach Cert., ¶ 14; 22 August Letter of Howard Simonoff ("22 August Simonoff Letter"), attached to Nardone Cert. as Exhibit 27; attached to Arturi Cert. as Exhibit Q. On 24 August 1995, the attorney for Downey sent a letter to Simonoff advising Simonoff that Downey would not report to a part-time position. Rossbach Cert., ¶ 15; 24 August 1995 Letter of Elise Rossbach ("24 August Rossbach Letter"), attached to Nardone Cert. as Exhibit 28; attached to Arturi Cert. as Exhibit R. The 24 August Letter also demanded Local 1262 refer the matter to arbitration. 24 August Rossbach Letter. By letter, dated the same day, Simonoff indicated: UFCW Local 1262 sees no reason to go to arbitration for an employee who can have his job back plus $2,000 and who is refusing to return to that job. 24 August 1995 Letter of Howard Simonoff ("24 August Simonoff Letter"), attached to Nardone Cert. as Exhibit 29. Downey did not appeal the disposition of the grievance. There are twelve Fraudulent Credit Card Charges at issue in this action. Opposition Brief at 18. Downey contends the evidence demonstrates he was either not working or working in a different department on six of the twelve days when the Fraudulent Credit Card Charges occurred. Opposition Brief at 18; Thomas Downey Time Sheets, attached to Nardone Cert. as Exhibit 31. Although other bookkeepers had cashed out Cordero on days he made the Fraudulent Credit Card Charges, none of the other bookkeepers were questioned by Vitale. Opposition Brief at 19. Downey alleges no other bookkeepers had been reprimanded for failing to follow company accounting procedure in monitoring credit card transactions. Downey also contends there is no evidence, other than the statement made by Cordero, to implicate Downey in the Fraudulent Credit Card Charges. Downey finally contends Vitale and Local 1262 failed to conduct an adequate investigation into the Fraudulent Credit Card Charges in May 1995. Had Local 1262 and Vitale conducted an adequate investigation, *1151 Downey contends they would have questioned the indictment of Downey, discovered Downey was not derelict in his duties as bookkeeper and determined that he should not have been reduced to part-time status. Opposition Brief at 19-20.[14]
Discussion
A. Standard of Review for Summary Judgment Motions
To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The present task is to determine whether genuine issues of material fact exist and whether the Defendants are entitled to judgment as a matter of law. A district court may not resolve factual disputes in a motion for summary judgment. Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d 915, 926-27 (3d Cir. 1995) ("at the summary judgment stage, `the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986)); Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir.1992) ("threshold inquiry is whether there are `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party'") (citations omitted). In considering a motion for summary judgment, all evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 130-31 (3d Cir.1996); General Ceramics Inc. v. Firemen's Fund Ins. Cos., 66 F.3d 647, 651 (3d Cir.1995); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 & n. 2 (3d Cir.1983) the court must resolve "all inferences, doubts and issues of credibility ... against the moving party", cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). When the resolution of issues depends wholly upon the interpretation of specific statutory language and the applicable law, summary judgment is appropriate. See DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 724 (3d Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 306, 133 L. Ed. 2d 210 (1995); see also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) ("summary judgment is proper where the facts are undisputed"), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985). Estate of Reddert v. United States, 925 F. Supp. 261, 265 (D.N.J.1996). In addition, when the nonmoving party bears the burden of proof at trial, the moving party is entitled to summary judgment by showing "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Once the movant demonstrates an essential element of the nonmovant's case is lacking, the nonmovant must come forward with sufficient evidence to demonstrate there is a factual controversy as to that element. Anderson, 477 U.S. at 247, 106 S. Ct. at 2509-10; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.1995); Witco Corp. v. Beekhuis, 38 F.3d 682, 686. "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S. Ct. at 2512; Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355 (nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts"); accord Siegel, 54 F.3d at 1130-31; Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726 F. Supp. 525, 534 (D.N.J.1989), aff'd without Op'n, 899 F.2d 1218 (3d Cir.1990). If the nonmovant fails to make a sufficient showing regarding an essential element of its case upon which it will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial and summary judgment must be granted. Celotex, 477 U.S. at 321, 106 S. Ct. at 2551-52; Siegel, 54 F.3d at *1152 1130-31; see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993) ("[s]ummary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant"). The dispute between the parties in the present case rests upon the threshold determination of whether Downey states a viable cause of action under Federal Labor Law. Viewed in a light most favorable to Downey, the evidence presented does not raise a genuine issue of material fact as to whether Downey failed to exhaust his intra-union remedies or whether his failure to do so is excused on the grounds of futility.[15] The resolution of this threshold issue depends wholly upon the interpretation of contractual language and the applicable law. Consideration for the motions for summary judgment is therefore proper. Because Downey did not exhaust his intra-union remedies, summary judgment on the causes of action arising under 29 U.S.C. § 185 is granted in favor of the Defendants.[16] The remaining state law claims are dismissed without prejudice for lack of subject matter jurisdiction.
B. Requirements for Relief Under the Labor Management Relations Act
The instant case may be classified as a hybrid suit arising under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. A hybrid suit is defined by the Supreme Court as the concurrent causes of action brought by an employee against a union and an employer. DelCostello v. Int'l Bhd of Teamsters, 462 U.S. 151, 164-65, 103 S. Ct. 2281, 2290-91, 76 L. Ed. 2d 476 (1983). A suit against an employer arises under the LMRA as an alleged breach of the CBA. A cause of action against a union is implied under the LMRA as a breach of the duty of fair representation. Id., at 164, 103 S. Ct. at 2290-91. A hybrid suit against an employer and union must be brought within the six month statute of limitations, pursuant to § 10(b) of the LMRA, 29 U.S.C. § 160(b). DelCostello, 462 U.S. at 155, 103 S. Ct. at 2285-86; Whittle, 56 F.3d at 489. In order to bring a viable hybrid suit, an employee is also required to exhaust any grievance or arbitration remedy provided in the collective bargaining agreement. DelCostello, 462 U.S. at 163, 103 S. Ct. at 2289-90; Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 616, 13 L. Ed. 2d 580 (1965); Whittle v. Local 641, Int'l Bhd of Teamsters, 56 F.3d 487, 490 (3d Cir.1995). The Vitale Defendants and Local 1262 argue Downey failed to bring his suit within the statute of limitations and did not exhaust his internal remedies. Accordingly, the Vitale Defendants and Local 1262 urge judgment as a matter of law.
1. Statute of Limitations
In order to determine whether Downey filed a timely lawsuit, it must first be determined when the statute of limitations began to run. The Supreme Court has instituted a case-by-case factual standard in determining when the statute of limitations for a hybrid suit begins to accrue. Clayton v. Int'l Union, United Auto., Aerospace, and Agric. Implement Workers of Am., 451 U.S. *1153 679, 689-93, 101 S. Ct. 2088, 2095-98, 68 L. Ed. 2d 538 (1981); Scott v. Local 863, Int'l Bhd of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., 725 F.2d 226, 228 (3d Cir.1984). The Third Circuit has held that the limitations period begins to run when plaintiff knows, or reasonably should have known, of the acts constituting the union's wrongdoing. Miklavic v. USAir, Inc., 21 F.3d 551, 556 (3d Cir.1994); Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir. 1990) (quoting Hersh v. Allen Products Co. Inc., 789 F.2d 230, 232 (3d Cir.1986)). Arriaga-Zayas v. Int'l Ladies' Garment Workers' Union, 835 F.2d 11, 13 (1st Cir.1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2016, 100 L. Ed. 2d 604 (1988); Scott, 725 F.2d 226, 229 (3d Cir.1984). The Vitale Defendants and Local 1262 argue Downey's suit was instituted beyond the six month statute of limitations. The Vitale Defendants and Local 1262 claim Downey knew, or should have known, about the alleged wrongdoing of Local 1262 on or before 2 August 1995. The Vitale Defendants and Local 1262 set forth several facts to support this contention. Smith informed Downey of the Settlement Agreement on 21 July 1995. Several meetings were scheduled between Downey and Smith at which Downey was supposed to sign the Grievance Release. In accordance with the Settlement Agreement, Downey had been placed on the Hoboken Foodtown work schedule on or about 21 July 1995. The 27 July Letter, sent by Marcucci, requested a response from Downey by 2 August 1995 concerning the Settlement Agreement. On 2 August 1995, Downey rejected the Settlement Agreement. The Vitale Defendants and Local 1262 contend Downey should have been aware of the alleged wrongdoing of Local 1262, triggering the statute of limitations on or before 2 August 1995. The Vitale Defendants and Local 1262 claim, therefore, that 2 August 1995 is the latest accrual date for the statute of limitations and Downey's Complaint, filed 16 February 1996, was out of time. While the 2 August Reply Letter from Downey did reject the Settlement Agreement, it is not clear it marked an accrual date triggering the running of the limitations period. The 27 July Letter indicated Local 1262 wanted a response from Downey by 2 August 1995 in order to decide how it would proceed. This language suggests that if Downey was not satisfied, Local 1262 may have continued to adjust the grievance. Downey's Counsel requested Local 1262 to communicate their intent to continue to help Downey within ten business days of 2 August 1995. Phone calls between counsel for Local 1262 and counsel for Downey present questions of fact regarding whether the matter had been resolved or whether Local 1262 was still acting on behalf of Downey. Taking the facts most favorable to Downey, the earliest date the action could have accrued would be ten business days from 2 August 1995 16 August 1995. The latest date the action could have accrued would be 24 August 1995, when Downey received a letter from Simonoff, who indicated Local 1262 refused to request arbitration. In either scenario, the filing of the Complaint on 16 February 1996 was timely. Summary judgment on the basis of the statute of limitations is denied.
2. Failure to Exhaust
Under Federal labor law, an aggrieved employee must exhaust the procedures for grievance and arbitration under the CBA before commencing an action in Federal court. "An employee seeking a remedy for an alleged breach of the collective-bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act...." Clayton, 451 U.S. 679, 681, 101 S. Ct. 2088, 2091 (1981); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S. Ct. 1048, 1055-56, 47 L. Ed. 2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 913-14, 17 L. Ed. 2d 842 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S. Ct. 614, 616-17, 13 L. Ed. 2d 580 (1965) (unless an employee attempted to utilize the contractual procedures for settling his dispute with his employer, his independent *1154 suit against the employer would be dismissed; Wheeler v. Graco Trucking Corp., 985 F.2d 108, 112 (3d Cir.1993); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1537 (3d Cir.1992). If a provision in the CBA permits the reactivation of a grievance after an appeal, an employer or union should be permitted to rely on that provision and defend the § 301 suit on the ground that the employee failed to exhaust internal union procedures. Clayton, 451 U.S. at 692 & n. 20, 101 S. Ct. at 2097 & n. 20. The policy behind the requirement is protection of the integrity of the collective bargaining process and the facilitation of private, rather than judicial, resolution of disputes arising from the CBA. Clayton, 451 U.S. at 687, 101 S. Ct. at 2094 (citing Hines, 424 U.S. at 567, 570-571, 96 S. Ct. at 1057-58, 1059-60). See also United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 63, 101 S. Ct. 1559, 1564, 67 L. Ed. 2d 732 (1981) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S. Ct. 1347, 1352, 4 L. Ed. 2d 1409 (1960) ("The grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government"). The Supreme Court has declined, however, to "impose a universal exhaustion requirement lest employees with meritorious § 301 claims be forced to exhaust themselves and their resources by submitting their claims to potentially lengthy internal procedures that may not be adequate to redress their underlying grievances." Local Union No. 1075, United Rubber Cork, Linoleum and Plastic Workers of Am, AFL-CIO v. United Rubber Cork, Linoleum and Plastic Workers of Am, AFL-CIO, 716 F.2d 182, 185 (3d Cir.1983) (citing Clayton, 451 U.S. at 689, 101 S. Ct. at 2094-95). Discretion is employed to decide when exhaustion by an employee is required. Clayton, 451 U.S. at 689, 101 S. Ct. at 2094-95 (citing National Labor Relations Bd. v. Marine Workers, 391 U.S. 418, 426 & n. 8, 88 S. Ct. 1717, 1722 & n. 8, 20 L. Ed. 2d 706 (1968)). This discretion is narrowed by consideration of, at least, three relevant factors. Id. Exhaustion will not be required where 1) union officials are so hostile to the employee that the employee could not hope to obtain a fair hearing on the claim 2) the internal union procedures would be inadequate to either reactivate the employee's grievance or to award the employee the full relief sought under § 301 of the LMRA or 3) the exhaustion of internal procedures would be an unreasonable delay of the employee's opportunity to obtain a judicial hearing on the merits. Id. The reasonableness of the procedure is paramount. United Rubber, 716 F.2d at 186 (citations omitted). The union bylaws of Local 1262 require a member to exhaust all internal remedies before instituting an external action. Article III, Section D of the Official Bylaws of United Food and Commercial Workers Local 1262, AFL-CIO ("Local 1262 Bylaws") provides: No member shall institute an action outside the Union against the International Union, Local Union or any of their officers or representatives without first exhausting all remedies provided by the Local Union bylaws and rules and the Constitution of the International Union. Local 1262 Bylaws, attached to Nardone Cert. as Exhibit 37; attached to Arturi Cert. as Exhibit H; attached to Gaudioso Cert. as Exhibit G. The Local 1262 Bylaws expressly permit a member of the union to appeal the disposition of his or her grievance. Section A. The Local Union shall have the exclusive authority to interpret and enforce the collective bargaining contract. In accordance therewith, the Local Union shall have the exclusive authority to submit grievances to arbitration, withdraw grievances, settle and compromise grievances, and decline to invoke grievance procedure of a collective bargaining contract. Section B. Any member who disagrees with the disposition of his or her grievance by the Local Union President, or the Local Union President's designated representative, shall have the right to appeal the decision to the Local Union Executive Board. Section C. The member shall submit the appeal within [fifteen] days from the date the member is first advised of the *1155 Local Union's disposition of the member's grievance. Section D. The Local Union Executive Board shall consider the appeal at the next regular meeting of the Executive Board. The Executive Board shall treat the appeal as either a request for a review or a request for reconsideration. Section E. The Executive Board shall advise the member of its decision within 30 days from the date of its meeting. There shall be no further appeal from the decision of the Executive Board. Section F. Any member who does not appeal the Local Union's disposition of the member's grievance as provided above shall be deemed to have acquiesced in said disposition. Local 1262 Bylaws, Article XV. Grievance and arbitration procedures are also set forth in Article 14 of the Agreement Between UFCW Local 1262, AFL-CIO, and Foodtown Supermarkets (the "Vitale CBA"). Vitale CBA, attached to Nardone Cert. as Exhibit 36; attached to Arturi Cert. as Exhibit K; attached to Local 1262 Appendix as Exhibit J. Article 14 of the Vitale CBA requires union officials from Local 1262 to confer with designated representatives of Vitale to address and adjust the dispute or grievance. Id. If the grievance cannot be satisfactorily resolved, then either the union officials from Local 1262 or the representative from Vitale may submit the master to a mutually agreed upon impartial arbitrator: In order to comply with the Union's internal appeal procedure, the Union shall have ninety (90) days from the date of the initial filing to notify the Employer that it may go to arbitration. Vitale CBA, Article 14, Section 4 (emphasis added). The right to demand arbitration is solely that of Vitale or Local 1262. It is undisputed that Downey did not exhaust his intra-union remedies. Downey contends he had no duty to exhaust his intra-union remedies because Local 1262 had breached its duty of fair representation and, therefore, exhaustion would have been futile. Opposition Brief at 34.[17] Downey asserts the second Clayton consideration is controlling in this case because the intra-union appeal process could not give Downey the relief he sought reinstatement of full-time status and complete back pay. Opposition Brief at 35. Downey reasons that, pursuant to the terms of the Vitale CBA, Local 1262 was required to notify Vitale of its intent to proceed to arbitration within ninety days of the filing of the grievance. The grievance was filed on 7 June 1995. Therefore, "the deadline to proceed to arbitration, and thereby reactivate the grievance, was [5 September 1995]." Id. Downey further argues, pursuant to the Local 1262 Bylaws, he could only appeal the Local 1262 decision within fifteen days of when he was first advised of the resolution of the grievance. Local 1262 Bylaws, Article 15. According to Downey, he did not know until the 24 August Simonoff Letter that Local 1262 saw "no reason to go to arbitration for an employee who can have his job back plus $2,000 and who is refusing to return to that job." Nardone Cert. at Exhibit 29. Based on this accrual date, Downey had until 9 September to appeal to the Local Union Executive Board (the "Executive Board").[18] *1156 The Board did not have to address the appeal until the next regularly scheduled meeting.[19] Local 1262 Bylaws, Article 15. The Board had an additional thirty days to decide the appeal. Id. Downey argues that if he filed his appeal on 9 September 1995, he was already passed the 5 September 1995 deadline, "too late to reactivate Downey's grievance and proceed to arbitration...." Opposition Brief at 36. Downey claims this is the "exact fact pattern in Clayton where the employee's time to proceed to arbitration would have expired before the intra-union appeals process was completed." Id. Clayton, however, is distinguishable on its facts. In Clayton, the time to proceed to arbitration had expired when the employee first learned of the final resolution of the grievance. Accordingly, arbitration could not have been demanded even if the internal appeal had reactivated the grievance. In his § 301 suit, Clayton sought reinstatement and back pay, which could not be obtained because the CBA did not vest the union with the power to order reinstatement. The Clayton Court held that where the internal procedures can result in "either complete relief to an aggrieved party or reactivation of a grievance, exhaustion would advance the national labor policy of encouraging private resolution of contractual disputes." Clayton, 451 U.S. at 692, 101 S. Ct. at 2097. Where an aggrieved party cannot obtain the substantive relief he seeks, however, exhaustion would be futile. Id. at 693, 101 S. Ct. at 2097. Downey has not established that pursuing the internal appeal procedures would have been a fruitless gesture. Unlike the grievant in Clayton, Downey had time (more than a week if employing the 24 August 1995 date supplied by Downey) to institute an appeal to the Executive Board before the expiration of time when Local 1262 had to notify Vitale that it may proceed to arbitration. The Vitale CBA does not require the arbitration to proceed by the ninetieth day following the entrance of a grievance. Rather, Local 1262 has ninety days to notify Vitale that it may go to arbitration "in order to comply with Union's internal appeal procedure." Vitale CBA, Article 14, Section 4(d). Downey does not address the situation whereby Local 1262 could have notified Vitale that it may go to arbitration, pending the outcome of Downey's appeal procedure. The Vitale CBA does not compel the arbitration to be complete by 5 September 1995, nor does it compel the commencement of the arbitration proceeding by 5 September 1995. Downey had time to file an appeal before the time for notification of arbitration had expired.[20] Downey has not demonstrated that the appeal procedure was inadequate to reactivate his grievance. Downey has not demonstrated that he is excused from his failure to exhaust the intra-union appeal procedure, *1157 which would have resulted in review and reconsideration of his grievance.[21] Downey also seeks reprieve from the exhaustion requirement on the ground that the exhaustion rule "works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such discriminatory, dishonest, arbitrary or perfunctory fashion such as to breach its duty of fair representation." Opposition Brief at 36-37 (citing DelCostello, 462 U.S. at 164, 103 S. Ct. at 2290-91). Downey argues that an employee may be excused from pursuing internal or private proceedings whenever the union breaches its duty of fair representation, which, Downey contends, the courts have equated with futility. Opposition Brief at 37 (citing Balsavage, 712 F.Supp. at 467).[22] If an employee can prove that the union breached its duty of fair representation, a wrongfully discharged employee may bring an action against his employer despite failing to exhaust the administrative remedies. Vaca v. Sipes, 386 U.S. 171, 185, 87 S. Ct. 903, 914, 17 L. Ed. 2d 842 (1967). In Vaca, the union arbitrarily, capriciously and without reason refused to take the grievance to arbitration under the fifth step of the bargaining agreement procedures. Id. at 173, 87 S. Ct. at 907-08. The union had the sole power to invoke the higher grievance procedures and wrongfully refused to do so. Accordingly, the employee was excused from exhausting the internal procedures. Id. at 185, 87 S. Ct. at 914. Downey contends Local 1262 breached its duty of fair representation, excusing him from exhausting the internal appeal procedures. Opposition Brief at 36-38. A breach of the duty of fair representation requires a demonstration that the "union's actions are arbitrary or discriminatory where it ignores or perfunctorily handles grievances or where its acts or omissions reflect reckless disregard for the rights of the individual employee." Castaneda v. Dura-Vent Corp., 648 F.2d 612, 618 (9th Cir.1981) (citations omitted). In the instant case, Local 1262 did not arbitrarily refuse to press the grievance of Downey, but pursued it to what it considered to be an adequate Settlement Agreement with Vitale. The Smith and DuBose Affidavits demonstrate Local 1262 actively processed Downey's grievance. Local 1262 met with Vitale representatives, investigated the evidence against Downey and arrived at a resolution with Martin Vitale, Vitale President and CEO. The result of Local 1262 *1158 efforts was reinstatement of Downey and recovery two-thirds back pay. Downey does not dispute that a Settlement Agreement had been reached, but alleges the settlement was inadequate because Local 1262 relied on the misleading information provided to them by Vitale. Downey contends Local 1262 failed to conduct "the most rudimentary investigation concerning the events that led to Downey's discharge from Kearny Foodtown on 2 June 1995." Opposition Brief at 25-26. Downey contends a more thorough investigation would have revealed that the genesis of the criminal charges against Downey were lodged by Vitale. Downey argues a more thorough investigation would have shown that there were no formal company accounting procedures in place, the non-compliance of which would have justified a reduction in back pay. Downey also argues an investigation would have demonstrated that no other bookkeepers who were on duty on the days Cordero was stealing were questioned or sanctioned, that a manager was not needed to override a manually entered credit card and that Cordero could have obtained the three digit code of another cashier without the help of a bookkeeper. Finally, Downey argues that if Local 1262 had investigated the grievance more thoroughly, it would have uncovered evidence to show Downey was not the least senior employee warranting the reduction to part-time status. Opposition Brief at 26-30. The Vitale CBA indicates "[t]he employer agrees to supply the Union with the relevant information necessary to process the grievance." Vitale CBA, Article 14, Section 2. If the information was misleading or lacking, Downey could have presented his concerns to the Executive Board for review and reconsideration. The issues could have been addressed there first, and more quickly. Moreover, any opposition Downey had with respect to the reduction to part-time status, could have been addressed in an additional grievance instituted after his reinstatement to the Hoboken Foodtown. Downey has not presented evidence sufficient from which a trier of fact could determine that Local 1262 had perfunctorily dismissed his grievance, discriminated against Downey or arbitrarily refused to investigate his grievance to warrant the failure to exhaust his intra-union remedies. See Hendricks v. Edgewater Steel Co., 898 F.2d 385 (3d Cir.1990) (union member failed to show that union acted perfunctorily or arbitrarily in refusing to investigate grievance in order to invoke exception to requirement of exhaustion of union remedies). If Downey disagreed with the Settlement Agreement, he had the obligation to pursue an appeal to the Executive Board to review and reconsider the decision, before instituting a lawsuit. Indeed, the Local 1262 Bylaws indicate a grievant is deemed to have acquiesced in the disposition of the grievance if no appeal is filed. Local 1262 Bylaws, Article XV, Section F. Under the Local 1262 Bylaws, Local 1262 had the exclusive discretion to submit grievances to arbitration, withdraw grievances and decline to invoke the grievance procedures. Local 1262 Bylaws, Article XV. An individual employee does not have the absolute right to have his or her grievance taken to arbitration. Vaca, 386 U.S. at 191, 87 S. Ct. at 917. Nor does a union breach its duty of fair representation merely because it failed to take the grievance to arbitration. Id. Viewed in a light most favorable to Downey, the facts fail to demonstrate how an appeal to the Executive Board would have be futile. As discussed, rather than instituting the instant suit, Downey should have made an appeal before the Executive Board. The Local 1262 Bylaws indicate the Executive Board is made up of the constitutional officers of the Local Union. Local 1262 Bylaws, Article VIII. There is no evidence to suggest the Executive Board would not have made a fair and independent assessment of Downey's claim.[23] *1159 The parties did not address the third Clayton consideration for excusing the failure to exhaust administrative remedies. That consideration excuses exhaustion of internal union appeals where the appeal would result in unreasonable delay of the opportunity of the employee to obtain a judicial hearing. Because this suit is still pending more than a year since the filing of the grievance, as compared to a few weeks in the internal union appeal procedures, a discussion of this consideration is not merited. Downey did not exhaust his internal appeal procedures before bringing this suit. Downey presented no evidence from which a trier of fact could determine that the union had perfunctorily dismissed his suit to relieve him of the duty to exhaust the internal remedies by appealing to the Executive Board. Accordingly, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted.
C. Dismissal of State Law Claims
Downey failed to exhaust his internal union appeal procedures prior to instituting this lawsuit. Downey failed to establish any reasons to excuse himself from the exhaustion requirement. Downey is therefore precluded from bringing a cause of action against Vitale and Local 1262 under § 301 of the LMRA, 29 U.S.C. § 185, which is the only basis for Federal subject matter jurisdiction in this action. See Wheeler, 985 F.2d at 112. Pursuant to 28 U.S.C. § 1367(c)(3), the remaining state law causes of action brought by Downey will be dismissed, without prejudice. See 28 U.S.C. § 1367(c)(3). Section 1367(c)(3) of title 28 provides, in relevant part, The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). Supplemental jurisdiction is a doctrine of discretion, not of plaintiff's right. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S. Ct. 1130, 1139-40, 16 L. Ed. 2d 218 (1966)). If the claim over which the district court has original jurisdiction is dismissed, the district court should decline to decide the pendent state claims, absent considerations of judicial economy, convenience, and fairness to the parties. Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir.1993); Lovell Mfg., a Div. of Patterson-Erie Corp. v. Export-Import Bank of the United States, 843 F.2d 725 (3d Cir.1988). As a matter of comity, decisions of state law by the Federal courts should be avoided. If Federal claims are dismissed before trial, then the state law claims should be dismissed as well. Borough of West Mifflin, 45 F.3d at 788; Stokes v. Local 116 of Int'l Union of Electronic, Elec., Salaried, Mach. and Furniture Workers, No. Civ.A. 92-3131, 1993 WL 23895, at *1 (E.D.Pa., Feb. 02, 1993); Nicandro v. Berkeley Farms, Inc., No. C 93-2317 SBA, 1994 WL 705267, at *1 (N.D.Cal. Dec. 14, 1994); Hebert v. Post Machinery Co., 495 F. Supp. 285 (D.N.H.1980). Accordingly, Downey's state law claims are dismissed without prejudice. A determination of whether any of the state law claims brought by Downey are preempted under the LMRA is reserved for the state tribunal.
D. Vitale Request for Rule 11 Sanctions
In addition to the Motion for Summary Judgment, the Vitale Defendants submitted the Vitale Motion for Sanctions against counsel for Downey pursuant to Fed.R.Civ.P. 11 ("Rule 11"). The Vitale Defendants submitted the application within their Motion for *1160 Summary Judgment. Rule 11 requires that "[a] motion for sanctions ... shall be made separately from other motions or requests...." Rule 11; Omega Sports, Inc. v. Sunkyong Am., Inc., 872 F. Supp. 201, 203 (E.D.Pa.1995). The Vitale Defendants admit they violated Rule 11 by submitting the Vitale Motion for Sanctions with the Vitale Motion for Summary Judgment. By way of explanation, the Vitale Defendants cite Rule 12L of the General Rules for the District of New Jersey ("Rule 12L"). Rule 12L states: All applications for sanctions pursuant to Rule 11 or 37 of the Federal Rules of Civil Procedure shall be filed with the Clerk prior to any entry of final judgment notwithstanding the provisions of any other Rule of this Court.[24] Rule 12L. The Vitale Defendants are seeking final judgment in their Motion for Summary Judgment. They contend that if they did not submit the Vitale Motion for Sanctions with the Vitale Motion for Summary Judgment, they would risk forfeiting their right to move for sanctions. While this contention may be accurate, the Vitale Defendants themselves were responsible for setting the timing and pace of this motion. Indeed, with a little foresight, the Vitale Defendants could have submitted a Motion for Rule 11 Sanctions and then filed the Motion for Summary Judgment. Notwithstanding the requirement of a separate motion, it is not clear sanctions are warranted in this action. The Vitale Defendants contend Rule 11 sanctions in the form of attorney's fees and cost of suit are appropriate because of the frivolous nature of Downey's action. Vitale Moving Brief at 28-29. The Vitale Defendants argue there is no fact upon which Downey can rely "beyond bare allegations" to prove Local 1262 breached its duty of fair representation. Id. at 30. The Vitale Defendants argue a reasonable inquiry into the facts and law of the action would have revealed that an LMRA claim would not succeed. The Vitale Defendants contend, therefore, that Rule 11 sanctions are proper. The standard for imposing Rule 11 sanctions is one based upon objective reasonableness under the circumstances. Bad faith on the part of the plaintiff is not required. Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir.1995) (citations omitted). Sanctions are appropriate only if "the filing of the complaint constituted abusive litigation or misuse of the court's process." Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir.1994) (citing Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F.2d 66, 68 (3d Cir.), cert. denied sub nom., Herman Bros., Inc. v. Teamsters Local Union No. 430, 488 U.S. 848, 109 S. Ct. 128, 102 L. Ed. 2d 101 (1988)). "[T]he mere failure of a complaint to withstand a motion for summary judgment or a motion to dismiss should not be thought to establish a rule violation." Simmerman, 27 F.3d at 62; see also Arab African Int'l Bank v. Epstein, 10 F.3d 168, 175 (3d Cir.1993). The Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment were granted based upon a procedural defect, not on the substantive merits of Downey's claims. Rule 11 sanctions are reserved only for claims that are patently unmeritorious or frivolous. Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988). The claims of Downey do not fall within that classification. The Vitale Motion for Sanctions is denied.
Conclusion For the reasons stated, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted. The state law claims brought by Downey are dismissed without prejudice. The Vitale Motion for Sanctions is denied. NOTES [1] In support of the Motion for Summary Judgment and for Sanctions Pursuant to Rule 11, the Vitale Defendants submitted: Defendants' Notice of Motion for Summary Judgment and Dismissing Plaintiff's Claims Against Vitale Supermarkets, Inc., Kenneth Heller and John McElroy ("Vitale Notice of Motion"); Brief of Defendants, Vitale Supermarkets, Kenneth Heller and John McElroy, In Support Of Their Motion For Summary Judgment Dismissing Plaintiff's Claims Against Them and For Sanctions Pursuant To Rule 11 ("Vitale Moving Brief"); Anthony X. Arturi, Jr.'s Certification Of Counsel In Support of Defendants' Motion For Judgment ("Arturi Cert."), dated 2 July 1996, with Exhibits A through S attached; Anthony X. Arturi, Jr.'s Certification of Counsel In Support Of Defendants' Motion for Judgment Per Defendants' Reply Brief ("Arturi Reply Cert."), dated 19 August 1996, with Exhibits T through Z, AA through DD attached; Reply Brief Of Defendants' Vitale Supermarkets, Kenneth Heller, And John McElroy In Support Of Their Motion For Summary Judgment ("Vitale Reply Brief"); Vitale Defendants' Rule 12G Statement of Undisputed Facts ("Vitale 12G Statement"); Anthony X. Arturi, Jr.'s Affidavit In Opposition To Plaintiff's Rule 56f Application ("Vitale Rule 56f Statement").
In support of the Local 1262 Motion for Summary Judgment, Local 1262 submitted: Defendants' Notice of Motion For Summary Judgment And Dismissing Plaintiff's Claims Against Union Local 1262 ("Union Notice of Motion"); Defendant United Food And Commercial Worker Local 1262's Brief In Support Of Motion to Dismiss Amended Complaint And For Summary Judgment ("Local 1262 Moving Brief"); Certification Of David A. Gaudioso In Support of Defendants' Motion To Dismiss Amended Complaint And For Summary Judgment ("Gaudioso Cert."), dated 14 August 1996, with Exhibit Appendix A through K attached; Defendant United Food And Commercial Workers' Reply Brief To Plaintiff's Brief In Opposition To Defendants Motion For Summary Judgment ("Local 1262 Reply Brief"); Defendant United Food And Commercial Workers' Statement of Material Facts Pursuant To Rule 12G (adopting Vitale 12G Statement); Defendant United Food And Commercial Workers Union Local 1262's Affidavit In Response To The Rule 56f Affidavit Of The Plaintiff ("Local 1262 Rule 56f Statement"); Proposed Forms of Order. In opposition to the Motion for Summary Judgment, Downey submitted: Plaintiff's Brief in Opposition to Defendant's Motions for Summary Judgment ("Opposition Brief"); Certification of Diane C. Nardone ("Nardone Cert."), dated 7 August 1996, with Exhibits 1 through 37 attached; Certification of Elise P. Rossbach ("Rossbach Cert."), dated 7 August 1996; Plaintiff's Rule 12G Statement ("Downey Rule 12G Statement"); Rule 56f Affidavit for Continuance of Motion Returnable September 9, 1996 ("Downey Rule 56f Statement"); Plaintiff's Affidavit of Service. [2] The Grievance Report filed by Downey on 7 June 1995 indicates Downey was suspended on 2 June 1995. UFCW Local 1262 Grievance Report, dated 7 June 1995, attached to Gaudioso Cert. as Exhibit C. The Police Report, dated 2 June 1995 (the "2 June 1995 Police Report") prepared by Michael Cinardo ("Cinardo") indicates Heller told him Downey had been discharged. 2 June 1995 Police Report, attached to Nardone Cert. as Exhibit 6. Cinardo testified in his deposition (the transcript of which was not submitted by Downey) Downey told him he had been discharged. This disputed fact is not material to preclude the grant of summary judgment. [3] During his deposition, Cordero testified Downey would ask Cordero if Downey could scan his credit card through the machine so that Cordero could give him money from the register. Cordero Dep. Tr. 21:22-24. Cordero would refuse, but allowed Downey to process the transaction while Cordero was away from the register on his break. Cordero Dep. Tr. 21:25 to 23:2. Downey would give Cordero a credit card slip at the end of his shift. Cordero Dep. Tr. 23:2-11. Cordero testified Downey told Cordero he was using other people's credit cards. Cordero Dep. Tr. 34:17-18. Cordero testified Downey told Cordero he could not get caught because Downey took care of all the money in the store. Cordero Dep. Tr. 26:18-21. After Downey convinced Cordero he would not be caught, Cordero also began using other credit cards to process fraudulent transactions and take money from the register. Cordero Dep. Tr. 35:25. Cordero testified he would share the money he took from the register with Downey. Cordero Dep. Tr. 40:18-19. [4] The Police Report Notes state that it was "verified Downey working on all occasions of theft" but do not indicate who verified the information. Nardone Cert. at Exhibit 9. [5] The transcript for the Cinardo deposition was not submitted by Downey to support this statement. The excerpts from the 6 August 1996 Deposition of Michael Cinardo ("Cinardo Dep."), attached to the Arturi Reply Cert. as Exhibit X, do not reference this statement. Heller denied making these statements. Heller Dep. Tr. 225:16 to 226:14. [6] There is a discrepancy in the submissions regarding the spelling of SanFillipo. [7] The transcript for the SanFilippo deposition was not submitted. [8] These unsworn facts are provided for back-ground and are not relevant to the disposition of the instant motions. [9] Smith had not yet been deposed by counsel for Downey at the time of the filing of the instant motions. The Smith Affidavit was submitted by Local 1262. The facts presented in the Smith Affidavit are provided for background and are not material to the disposition of these motions. [10] Downey contends that although other bookkeepers cashed out Cordero on the days he was making fraudulent transactions, no other bookkeepers had been reprimanded for failing to comply with company accounting procedures. Opposition Brief at 19. Downey provides no certification to support this contention. [11] Downey contends there was evidence to indicate that he was not the least senior employee and that there were part-time employees with less seniority. Plishka Dep. 93:8-96:24. Downey argues the failure of Local 1262 to investigate his seniority status is further evidence of the breach of the duty of fair representation. Opposition Brief at 30, 33-34. The Vitale Defendants and Local 1262 point out that nothing in the Vitale CBA requires the Vitale to lay off multiple part-time employees to create a full time position. Local 1262 Reply Brief at 10. [12] The Defendants contend the criminal charges against Downey were processed solely by the Kearny Municipal Prosecutor's Office, beyond the control of Local 1262. [13] These facts are not contested by Downey. [14] The Opposition Brief does not cite to a certification to support these contentions. [15] The Opposition Brief and Downey Rule 56f Statement argue summary judgment is premature because, at the time of the original filing of the motions on 7 August 1996, discovery had not been completed. Opposition Brief at 2. The depositions of several witnesses had not been completed, including those of Heller, Smith and DuBose. The Downey Rule 56f Statement requested the court to enter a continuance of the motion until 23 September 1996 and requested the opportunity to submit a sur-reply. Downey Rule 56f Statement, ¶¶ 2, 20.
Due to problems with the submissions, the instant motions were filed on 29 August with a return date of 23 September. The motions are granted on the basis of procedural facts, not substantive facts. Accordingly, the inability of Downey to answer the original motions without taking certain depositions or receiving the transcripts of certain depositions does not create any issue, much more a genuine issue, of material fact to preclude summary judgment. [16] Summary judgment is granted on the grounds that Downey failed to exhaust his internal remedies prior to bringing this lawsuit and, therefore, does not have a viable claim. A brief discussion of the statute of limitation argument is included, however the other arguments presented by the Defendants in support of summary judgment are not addressed. [17] The Opposition Brief suggests Downey should not be barred for failing "to exhaust an administrative remedy he did not know about." Opposition Brief at 34. Local 1262 Bylaws indicate that every member, upon request, shall be given a copy of both the Vitale CBA, the Local 1262 Bylaws and the International Constitution. Article XVI, Local 1262 Bylaws; 26 March 1996 Affidavit of Russell Atkin, attached to Gaudioso Cert. as Exhibit I; March 1996 Affidavit of Frank Margiotta, attached to Gaudioso Cert. as Exhibit I, ¶ 1. Downey, and his counsel, had access to these documents and to the grievance appeal procedures. See Hersh v. Allen Prod. Co., Inc., 789 F.2d 230, 232 (3d Cir.1986); Balsavage v. Ryder Truck Rental, Inc., 712 F. Supp. 461, 473 (D.N.J.1989) (employee is under a duty of due diligence, which means "familiarity with the collective bargaining agreement, and the making of such inquiries as would be reasonably calculated to acquire the pertinent information concerning the union's breach"). [18] The Defendants contend Downey knew of the resolution of the grievance at an earlier date, on 2 August 1995. Local 1262 Reply Brief at 13. In a summary judgment motion, the facts are considered in the light most favorable to the non-moving party. Healey, 78 F.3d at 130-31. Accordingly, the 24 August 1995 date will be used. There is strong indication in the record, however, that Downey believed his grievance to be resolved before 24 August 1995, triggering the start of the time to appeal. First, Downey had appointments with Smith on several days in late July to sign the Grievance Release to acknowledge his acceptance of Settlement Agreement. Second, Downey had been placed on the schedule at Hoboken Foodtown in accordance with the Settlement Agreement as early as 21 July 1995. Third, Smith alleges he spoke with Downey on 26 July 1995 and told him that, as far as Smith was concerned, the grievance had been resolved. Finally, Downey felt the need to retain an attorney as early as 21 July 1995 to protect his interests. These facts suggest Downey had recognized Local 1262 believed the grievance had been adjusted before the 24 August Simonoff Letter. [19] A schedule of dates for the regular Executive Board meetings was not provided in the record. For the basis of his argument, Downey assumes that a regularly scheduled meeting of the Executive Board did not occur until 9 September 1995, after the 5 September 1995 arbitration deadline. The Local 1262 Bylaws indicate the President of the union is authorized to call additional meetings of the Executive Board whenever it is deemed advisable. Local 1262 Bylaws, Article VIII. [20] Downey contends even if he pursued the intra-union appeal process, it would not give Downey the relief he sought reinstatement of full-time status and back pay due to the time restriction in requesting arbitration. The more reasonable viewpoint is that Downey had a greater chance of obtaining the relief he sought through intra-union appeal, rather than bringing a § 301 suit. The internal appeal would have taken only a few weeks for a resolution. The appeal would have allowed for review and reconsideration of Downey's grievance. Downey's suit, however, will not result in reinstatement. Downey's Complaint does not request reinstatement, only compensatory and punitive damages. [21] The Vitale Defendants and Local 1262 claim the right to demand arbitration was that of Local 1262 and not of Downey. The Vitale Defendants and Local 1262 contend Downey's argument that the appeal would be futile because it could not be completed in time to demand the arbitration relief is irrelevant. The Vitale Defendants and Local 1262 contend Downey could not have demanded arbitration in any event. Downey's argument does not fail, however, because he did not have the personal right to demand arbitration. Downey's argument fails on the ground that he did not file an appeal at all, despite the existence of time for Local 1262 to notify Vitale that arbitration may occur. In Clayton, the right to demand arbitration was that of the union, not the grievant. Clayton, 451 U.S. at 682 & n. 1, 101 S. Ct. at 2091-92 & n. 1. The Court held the internal procedures were inadequate because the period to request arbitration had expired when Clayton first received notice of the union's decision not to pursue the grievance. When Downey first received notice of the decision of Local 1262 not to proceed, there was still time to request arbitration. [22] Balsavage, and the other cases cited by Downey to support this contention (Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632, 637 (D.N.J.1991); Proudfoot v. Seafarer's Int'l Union, 779 F.2d 1558, 1559 (11th Cir.1986) and Adkins v. Int'l Union of Elec. Radio & Mach. Workers, 769 F.2d 330, 336 (6th Cir.1985)), address exhaustion of the grievance procedure in the context of deciding whether the claim before the court had accrued, triggering the statute of limitations.
In the last case cited by Downey to support this contention, Boone v. Armstrong Cork Co., 384 F.2d 285, 288, 291-292 (5th Cir.1967), the Fifth Circuit addressed the question of whether the plaintiff could maintain a suit in view of the fact the grievance procedure had not been used. The failure to resort to the grievance procedure was due to a general misunderstanding among all of the parties as to the availability of the procedures. Id. at 290. Acknowledging the strong policy of favoring resolution of grievances under contractual procedures, the Fifth Circuit suspended the judicial proceedings until the parties had an opportunity to exhaust the grievance procedure. Id. at 292. [23] The Local 1262 Moving Brief states that Local 1262 generally prohibits paid Local 1262 officers and staff from deciding the appeals of the disposition of a grievance. Local 1262 Moving Brief at 14-15. Instead, the appeal is determined by eighteen rank and file members of Local 1262 who are Vice Presidents and who are employed in the supermarkets and stores represented by the Local 1262. Local 1262 Moving Brief at 14, Vitale Moving Brief at 15. The Vitale Defendants and Local 1262 point out these individuals can, and have, reversed the decision of paid officers of Local 1262 in the past. Local 1262 Moving Brief at 15. In support of these contentions, Local 1262 cites to paragraphs 9 to 15 of the Affidavit of Louis Marcucci, which they indicate is attached as Exhibit K to the Local 1262 Brief. The Exhibit K filed with the Clerk's Office in support of the instant motions, however, consists of the 13 August 1996 Affidavit of Louis Marcucci. This Affidavit contains only seven paragraphs and does not describe the Executive Board as referenced in the brief. Therefore, the information regarding the composition of the appeal board was not regarded as fact in the determination of the instant motions. [24] The General Rules define "Rule" as a rule under the General Rules, not under the Federal Rules of Civil Procedure. | 10-30-2013 | [
"946 F. Supp. 1141 (1996) Thomas DOWNEY, Plaintiff, v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 1262, United Food and Commercial Workers Union, Vitale Enterprises, Inc. Foodtown Supermarkets, Kenneth Heller, John McElroy, and Luis Cordero. Civil Action No. 96-874 (AJL). United States District Court, D. New Jersey. October 2, 1996. *1142 *1143 *1144 Diane C. Nardone, Elise Rossbach, Jemas, Nardone & Burnside, Newark, NJ, for Plaintiff. Carmine R. Alampi, Anthony X. Arturi, Jr., Smith, Don, Alampi, D'Argenio & Arturi, Englewood Cliffs, NJ, for Vitale Enterprises, Inc., Kenneth Heller, and John McElroy. Bernard N. Katz, David A. Gaudioso, Meranze and Katz, Camden, NJ, for United Food and Commercial Workers Union Local 1262, AFL-CIO.",
"Luis Cordero, Belleville, NJ, Pro Se. OPINION LECHNER, District Judge. This is a wrongful termination action brought by plaintiff Thomas Downey III (\"Downey\") against defendants United Food and Commercial Workers Union Local 1262 (\"Local 1262\"), the United Food and Commercial Worker's Union (\"UFCW\"), Vitale Enterprises, Inc. Foodtown Supermarkets, (\"Vitale\"), Kenneth Heller (\"Heller\"), John McElroy (\"McElroy\") and Luis Cordero (\"Cordero\") (collectively, the \"Defendants\"). Jurisdiction over the first count of the complaint is alleged pursuant to 29 U.S.C. § 185. Downey alleges supplemental jurisdiction over the remaining counts. On 5 March 1996, Downey filed a seven count amended complaint (the \"Complaint\"). Downey alleges claims of breach of the collective bargaining agreement, wrongful termination, breach of the duty of fair representation, unlawful discrimination pursuant to N.J.S.A. § 10:5-1 et seq., false arrest, false imprisonment, defamation and intentional interference with employment. Downey seeks compensatory and punitive damages, attorney's fees, costs of suit and other such equitable relief as deemed proper.",
"On 29 August 1996, the Defendants submitted two separate motions, pursuant to Rule 12N, Appendix N (\"Rule 12N\") of the General Rules for the District of New Jersey. Defendants Vitale, Heller and McElroy (the \"Vitale Defendants\") submitted a combined Motion for Summary Judgment Dismissing Plaintiff's Claims Against Them and For Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure (\"Rule 11\") (the \"Vitale Motion for Summary Judgment\" and the \"Vitale Motion for Sanctions\"). Defendant Local 1262 submitted a Motion to Dismiss Amended Complaint and For Summary Judgment (the \"Local 1262 Motion for Summary Judgment\"). [1] *1145 For the reasons stated below, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted. The Vitale Motion for Sanctions is denied. The remaining state law claims of Downey against the Defendants are dismissed without prejudice.",
"Facts A. The Parties Downey is a citizen of the State of New Jersey residing in Hudson County. In April 1993, Vitale hired Downey as a part-time bookkeeper for its Foodtown Supermarket in Kearny, New Jersey (the \"Kearny Foodtown\"). Complaint, ¶ 11. Downey became a full-time employee in November 1994 and remained a full-time employee until he was terminated on or about 26 May 1995. [2] Complaint, ¶ 11-12. When hired, Downey became a member with the UFCW and Local 1262. Complaint, ¶ 13. Downey remained in good standing with UFCW and Local 1262 at all times relevant to the Complaint. Complaint, ¶ 1.",
"UFCW and Local 1262 are unincorporated labor associations organized to represent the interests of their members and to negotiate collective bargaining agreements. Complaint, ¶ 2. Local 1262 maintains an office at 1389 Broad Street in Clifton, New Jersey. The UFCW maintains an office at 1775 K Street, N.W., Washington, D.C. Complaint, ¶ 2. Vitale is a corporation organized and existing under the laws of the State of New Jersey. Complaint, ¶ 3. Vitale owns the Kearny Foodtown at which Downey was employed. Complaint, ¶ 3. Vitale maintains an office at 9 Bi-Plaza, Old Tappan, New Jersey. Complaint, ¶ 3. Heller is an individual who resides in Old Tappan, New Jersey.",
"Heller was employed by Vitale as Director of Loss Prevention. Complaint, ¶ 4. Downey alleges at all times relevant to this action, Heller was working with the knowledge and consent of Vitale. Complaint, ¶ 4. Downey alleges Heller has recently been reassigned to the position of assistant store manager. Deposition of Richard Plishka (\"Plishka Dep.Tr. \"), dated 30 July 1996, attached to Nardone Cert. as Exhibit 3; attached to Arturi Reply Cert. as Exhibit U, 7:15-23. McElroy is an individual who resides in Kearny, New Jersey. Complaint, ¶ 5. McElroy was employed in the capacity of a security officer by Vitale. Complaint, ¶ 5. Downey alleges that at all times relevant to this action, McElroy was acting on behalf of and with the consent of Vitale.",
"Complaint, ¶ 5. Cordero is an individual who resides in Belleville, New Jersey. Complaint, ¶ 6. Cordero was employed as a cashier at the Kearny Foodtown. Complaint, ¶ 6. The employment of Cordero at Kearny Foodtown commenced in the Fall of 1994 and terminated on or about 24 May 1996. Complaint, ¶ 6. B. Discovery and Investigation of the Fraudulent Credit Card Charges In early 1995, Vitale became aware that fraudulent credit card charges (\"Fraudulent Credit Card Charges\") were being processed *1146 at the Kearny Foodtown.",
"Transcript of Proceedings, Hudson County Grand Jury Indictment No. 64-01-96, New Jersey v. Thomas Downey and Luis Cordero (\"Grand Jury Tr. \"), dated 14 December 1996, attached to Gaudioso Cert. as Exhibit C, 3:9 to 4:13. The matter was investigated by Heller, Director of Loss Prevention at Vitale. Grand Jury Tr. 3:12-15. Heller discovered the Fraudulent Credit Card Charges were not processed in the usual manner by swiping the purchaser's card through the machine. Grand Jury Tr. 3:17-24. Instead, the transactions were manually punched into the machine by a cashier. Grand Jury Tr. 3:17-24. The cashier number on the Fraudulent Credit Card Charges was that of Cordero. Grand Jury Tr. 4:16-18. On or about 31 May 1995, Heller interviewed Cordero at the Kearny Foodtown about the Fraudulent Credit Card Charges. 8 August 1996 Deposition of Kenneth Heller (\"Heller Dep.Tr. \"), attached to Arturi Reply Cert. as Exhibit W, 140:13-14; Deposition of Luis Cordero (\"Cordero Dep.Tr. \"), dated 25 July 1996, attached to Nardone Cert. at Exhibit 4; attached to Arturi Cert. as Exhibit V, 44:5-18. Heller questioned Cordero for approximately one hour.",
"Cordero Dep.Tr. 50:15-17. Cordero admitted to fraudulently processing the credit card transactions and taking the corresponding amount of cash from the register till. Cordero Dep.Tr. 21:17 to 35:25. Cordero testified that, during the interview, Heller threatened him both physically and emotionally. Cordero Dep.Tr. 53:13-18. Cordero contends Heller threatened to arrest him and threatened to call his parents to inform them Cordero was a homosexual and a thief. Cordero Dep.Tr. 53:13-18. Cordero testified Heller used derogatory language when he referred to Downey and Cordero as homosexuals. Cordero Dep.Tr. 57:11 to 59:11. Cordero contends Heller promised he would not press charges or call his parents if Cordero promised to cooperate.",
"Cordero Dep.Tr. 53:20 to 54:54:1. Cordero testified Heller said he wanted a statement from Cordero so that the owner of the Kearny Foodtown could fire Downey. Cordero Dep. Tr. 83:15 to 83:21. Heller denies threatening Cordero during his interview and denies promising Cordero that Foodtown would not press charges if Cordero implicated Downey. Heller Dep.Tr. 265:11-12. Cordero wrote a two page statement on 2 June 1995 apologizing for his actions and implicating Downey in the Fraudulent Credit Card Charges. [3] Cordero Dep.Tr. 44:22 to 46:25; Handwritten Confession of Luis Cordero (\"Cordero Confession\"), dated 2 June 1995, attached to Arturi Cert. as Exhibit M. C. Downey's Discharge and Arrest On or about 2 June 1995, Heller, accompanied by McElroy, interviewed Downey about the Fraudulent Credit Card Charges at the Kearny Foodtown. Opposition Brief at 6; Vitale Moving Brief at 6. Downey testified Heller and McElroy sat on either side of him at a table, blocking his egress from the room. Deposition of Thomas Downey (\"Downey Dep.Tr. \"), dated 16 July 1996, attached to Nardone Cert.",
"as Exhibit 5; attached to Arturi Reply Cert. as Exhibit T, 50:3 to 51:12. Downey testified he requested several times the opportunity to leave but his requests were ignored by Heller and McElroy. Downey Dep.Tr. 58:1 to 59:9. Downey testified Heller verbally threatened him with jail time. Downey Dep.Tr. 59:10-12. Downey indicated he was afraid Heller or McElroy would become physical with him because of incidents he had witnessed previously between *1147 Heller or McElroy and other people. Downey Dep.Tr. 59:10-25. Following the interview, Heller and McElroy escorted Downey from the store. Opposition Brief at 7. Later in the day on 2 June 1995, Heller went to the Kearny Police Department and reported a theft from Kearny Foodtown in the amount of $3,049.81. Heller implicated Downey and Cordero in the theft. Investigation Report by Kearny Police, dated 2 June 1995, attached to Nardone Cert. as Exhibit 6. Detective Michael Cinardo (\"Cinardo\") met with Cordero at the Kearny Police Department on 3 June 1995.",
"3 June 1995 Police Report, attached to Nardone Cert. as Exhibit 6. Cordero contends Heller was also at the Kearny Police Department and spoke with Cordero prior to his meeting with Cinardo. Cordero Dep.Tr. 48:11 to 49:5. Cordero testified Heller told him to \"answer [the questions] the way that I'm supposed to answer [the questions].\" Cordero Dep.Tr. 48:11 to 49:5. Heller allegedly indicated to Cordero that no charges would be pressed against Cordero and that he would not go to jail. Cordero Dep.Tr. 48:11 to 49:5. Thereafter, Cordero provided a statement to Cinardo implicating Downey in the Fraudulent Credit Card Charges. 3 June 1995 Police Report. Downey contends Heller falsely represented to Cinardo that Downey had worked on all occasions when the Fraudulent Credit Card Charges occurred.",
"Cinardo Police Report Notes, attached to Nardone Cert. as Exhibit 9. [4] Downey contends Cinardo testified Heller referred to Downey and Cordero as \"lovers\" and \"queers.\" Opposition Brief at 9. [5] On 7 June 1995, Downey voluntarily appeared at the Kearny Police Department and was charged with forgery and theft by deception. 7 June 1995 Arrest Report, attached to Nardone Cert. as Exhibit 10. On 10 June 1995, Heller interviewed another Kearny Foodtown cashier, Joy SanFilippo (\"SanFilippo\")[6], regarding a Fraudulent Credit Card Charge that was processed on 12 May 1995. [7] Opposition Brief at 10. Downey contends Heller extracted a statement from SanFilippo that implicated Downey in that incident. Opposition Brief at 9. During her interview with Heller, SanFilippo indicated Downey was the bookkeeper on duty when Cordero used the cashier number of SanFilippo to manually enter a credit card charge of $312.14. Opposition Brief at 9-10. At a later date, SanFilippo reviewed the appropriate time records and realized she was mistaken and Downey was not the bookkeeper on duty. Opposition Brief at 10.",
"SanFilippo testified she believed her statements to be true at the time she made them on 10 June 1995. Opposition Brief at 10-11. [8] On 21 June 1995, Heller provided the Kearny Police Department with additional information regarding Fraudulent Credit Card Charges on 5 May 1995 and 12 May 1995. 23 June 1995 Police Report, attached to Nardone Cert. as Exhibit 16. Detective Vincent Thomas (\"Thomas\") informed Heller that not enough evidence existed to charge Cordero in those incidents. Nardone Cert. at Exhibit 16. Heller then signed a complaint against Cordero for the original incident. Nardone Cert. at Exhibit 16. Ramon de la Cruz, the Hudson County prosecutor who handled the criminal action against Downey and Cordero, testified Heller objected to the disposition of the case through administrative remand and Heller wanted the case to go to the Grand Jury.",
"25 July 1995 Deposition of Ramon de la Cruz (\"Cruz Dep.Tr. \"), *1148 attached to Nardone Cert. as Exhibit 19, 37:12 to 38:16. On 14 December 1995, Heller testified before the Grand Jury about the incidents surrounding the Fraudulent Credit Card Charges. Grand Jury Tr. 3:7 to 8:5. Downey alleges Heller perjured himself when he testified that a manager number was required to override the manual entry of a credit card. Opposition Brief at 13. The procedure of using a manager number to override a manual entry of a credit card was instituted three days after the last Fraudulent Credit Card Charge was made.",
"15 May 1995 Vitale Memorandum, attached to Nardone Cert. as Exhibit 21. D. The Filing of the Downey Grievance On 7 June 1995, Downey met with Peter Smith (\"Smith\"), the business representative for Local 1262, to prepare a grievance report (the \"Grievance Report\"). 7 June 1995 Local 1262 Grievance Report, attached to Nardone Cert. as Exhibit 22. The Grievance Report was filed with Joseph Emerson, store manager at Kearny Foodtown. 28 March 1996 Affidavit of Peter M. Smith (\"Smith Aff. \"), attached to Gaudioso Cert. as Exhibit B; attached to Nardone Cert. as Exhibit 23, ¶ 5. [9] On 29 June 1995, Smith met with George DuBose (\"DuBose\"), a Assistant Field Director of Local 1262, Richard Plishka, Director of Human Resources at Vitale and Heller (the \"29 June Meeting\"). Smith Aff., ¶ 8. Although Downey was invited to the 29 June Meeting, he did not attend.",
"Smith Aff., ¶¶ 7-8. At the 29 June Meeting, Heller and Plishka showed Smith and DuBose the documentation which traced the Fraudulent Credit Card Charges back to Cordero. Smith Aff., ¶ 9. Heller and Plishka told Smith and DuBose that Downey, as a bookkeeper, had to have knowledge of fraud, otherwise he was not properly following company procedures on balancing out the credit card vouchers at the registers. Smith Aff., ¶ 9. Smith and DuBose also received a copy of the Cordero statement implicating Downey, which was taken by the Kearny Police. Smith Aff., ¶ 9. On 6 July 1995, Smith and DuBose again met with Plishka and Heller. Smith Aff., ¶ 13. Downey was also present. Smith Aff., ¶ 13. Plishka told Smith and DuBose that there had been 14 Fraudulent Credit Card Charges and Downey and Cordero were working on each of the days they occurred.",
"Smith Aff., ¶ 13. The Vitale representatives did not have any documentation at the meeting to demonstrate Downey was personally involved, but indicated they would provide it. Smith Aff., ¶ 13. Another meeting was held on 14 July 1995. Smith Aff., ¶ 16. Downey was invited but did not attend. Smith Aff., ¶ 16. Plishka and Heller could not provide documentation implicating Downey because, pursuant to company policy, the sheets recording the reconciliation of each register close out were destroyed the following day. Smith Aff., ¶ 16. Smith met with Martin Vitale (\"Martin Vitale\"), the President and Chief Executive Officer of Vitale, on 17 July 1996.",
"Smith Aff., ¶ 17. Smith told Martin Vitale that it could not be established Downey participated in the Fraudulent Credit Card Charges. Smith Aff., ¶ 17. At best, Vitale would only be able to prove Downey violated company accounting procedures by not informing the company of the volume of credit card transactions. Smith Aff., ¶ 17. Smith told Martin Vitale the violation of company accounting procedures did not warrant termination of employment under the \"proper cause\" provisions of the collective bargaining agreement (the \"Vitale CBA\"). Smith Aff., ¶ 17. Smith negotiated a settlement with Vitale whereby Downey received two-thirds of his back pay and reinstatement to his position at the Hoboken Foodtown (the \"Settlement Agreement\"). Smith Aff., ¶ 17. Downey did not receive full back pay because Vitale believed the failure of Downey to follow the company accounting procedures warranted some discipline. [10] Smith Aff., ¶ 17. *1149 Prior to the end of the meeting, Martin Vitale was reminded that a Foodtown in Union City had been closed. Smith Aff., ¶ 17.",
"In accordance with the Vitale CBA, Downey, as the least senior full-time employee, had the option of accepting a lay-off or being reduced to part-time status. Smith Aff., ¶ 17. The Settlement Agreement, therefore, had Downey reporting to the Hoboken Foodtown as a part-time employee. [11] Smith Aff., ¶ 18. At the conclusion of the meeting, Smith called Downey and informed him of the Settlement Agreement. Smith Aff., ¶ 18. Smith and Downey arranged to meet on 21 July 1995 (the \"21 July Meeting\") at the office of Local 1262 so that Downey could sign the grievance release (the \"Grievance Release\"). Smith Aff., ¶ 18. Downey was placed on the work schedule at the Hoboken Foodtown. Smith Aff., ¶ 18; Vitale Work Schedule, attached to Arturi Reply Cert. as Exhibit AA. On the day of the 21 July Meeting, Downey informed Smith he could not attend. Smith Aff., ¶ 19.",
"Downey indicated his attorney wanted Vitale to drop the criminal charges against him prior to his signing the grievance. [12] Smith Aff., ¶ 19. Downey was removed from the work schedule at Hoboken Foodtown pending a determination of when Downey could sign the Grievance Release. Smith Aff., ¶ 19-20. Another meeting was scheduled between Smith and Downey for 26 July 1995 (the \"26 July Meeting\"). Smith Aff., ¶ 21. On the day of the 26 July Meeting, Downey informed Smith he would not attend any meeting unless accompanied by his attorney, who was on vacation until 1 August 1995. Smith Aff., ¶ 21. Smith told Downey that, as far as Smith was concerned, the grievance had been satisfactorily resolved because he had been placed back to work.",
"Smith Aff., ¶ 21. Downey never indicated, prior to 26 July 1995, that he objected to the Settlement Agreement. Smith Aff., ¶ 21. Smith told Downey he needed an answer as to whether he was going to sign the Grievance Release. Downey indicated he would contact Smith with his decision later that day, but he never did. Smith Aff., ¶ 21. [13] On 27 July 1995, Louis Marcucci (\"Marcucci\"), Field Director for Local 1262, sent a letter to Downey. 27 July 1995 Letter of Louis Marcucci (the \"27 July Letter\"), attached to Nardone Cert. as Exhibit 25; attached to Arturi Cert. as Exhibit I; attached to Gaudioso Cert. as Exhibit E. The 27 July Letter stated, in relevant part, This is to advise you that we have received a settlement offer from your Employer concerning the grievance of your discharge. It is the practice of UFCW Local 1262 to communicate such an offer to the affected grievant in person.",
". . . . . We are anxious to meet and discuss with you the company's proposed settlement in order to get your position before UFCW Local 1262 decides how it will proceed. Unless you notify us by August 2, 1995 that you will be meeting with us, we will decide on whether to accept or reject the settlement proposal without having your position on the matter. 27 July Letter. By a letter, dated 2 August 1995 (the \"2 August Reply Letter\"), addressed to Smith and DuBose, Downey, through his attorney, rejected the Settlement Agreement. 2 August *1150 1995 Reply Letter, attached to Nardone Cert. as Exhibit 26; attached to Arturi Cert. as Exhibit J; attached to Gaudioso Cert. as Exhibit F. The 2 August Reply Letter stated, in relevant part, I have been retained to represent Thomas Downey in connection with all civil matters relating to Mr. Downey's employment and wrongful discharge from Foodtown Supermarkets. From this date forward, any and all communications with my client must be made through me. .",
". . . . My investigation into the injustices Foodtown inflicted on my client establishes that nothing short of unconditional restatement, all back pay, plus compensatory damages is acceptable. . . . . . If you intend to make any effort to protect Mr. Downey's rights in accordance with the union agreement, contact me and I will be happy to assist. If you cannot assure me of your intent to help Mr. Downey within the next ten (10) business days, I will take whatever action is necessary to protect his rights for him. 2 August Reply Letter. On 7 August 1995, Howard Simonoff (\"Simonoff\"), attorney for Local 1262, called the attorney for Downey to discuss the Settlement Agreement. 7 August 1996 Certification of Elise P. Rossbach (\"Rossbach Cert. \"), ¶ 11.",
"Simonoff told the attorney for Downey that Downey was not entitled to a full-time position at Hoboken Foodtown because of the closing of the Foodtown in Union City. Rossbach Cert., ¶ 11. Downey's attorney requested Simonoff produce proof that Downey was the least senior employee justifying the reduction to part-time status. Rossbach Cert., ¶ 12. On or about 14 August 1995, Simonoff called the attorney for Downey and provided the names of several people who had been laid off or reduced to part-time employment. Rossbach Cert., ¶ 13. Simonoff did not produce any information to confirm if Downey was least senior to warrant the reduction in status. Rossbach Cert., ¶ 13. By letter, dated 22 August 1995, Simonoff informed Downey that he would be deemed to have abandoned his job unless he reported to work on 28 August 1995.",
"Rossbach Cert., ¶ 14; 22 August Letter of Howard Simonoff (\"22 August Simonoff Letter\"), attached to Nardone Cert. as Exhibit 27; attached to Arturi Cert. as Exhibit Q. On 24 August 1995, the attorney for Downey sent a letter to Simonoff advising Simonoff that Downey would not report to a part-time position. Rossbach Cert., ¶ 15; 24 August 1995 Letter of Elise Rossbach (\"24 August Rossbach Letter\"), attached to Nardone Cert. as Exhibit 28; attached to Arturi Cert.",
"as Exhibit R. The 24 August Letter also demanded Local 1262 refer the matter to arbitration. 24 August Rossbach Letter. By letter, dated the same day, Simonoff indicated: UFCW Local 1262 sees no reason to go to arbitration for an employee who can have his job back plus $2,000 and who is refusing to return to that job. 24 August 1995 Letter of Howard Simonoff (\"24 August Simonoff Letter\"), attached to Nardone Cert. as Exhibit 29. Downey did not appeal the disposition of the grievance. There are twelve Fraudulent Credit Card Charges at issue in this action. Opposition Brief at 18. Downey contends the evidence demonstrates he was either not working or working in a different department on six of the twelve days when the Fraudulent Credit Card Charges occurred.",
"Opposition Brief at 18; Thomas Downey Time Sheets, attached to Nardone Cert. as Exhibit 31. Although other bookkeepers had cashed out Cordero on days he made the Fraudulent Credit Card Charges, none of the other bookkeepers were questioned by Vitale. Opposition Brief at 19. Downey alleges no other bookkeepers had been reprimanded for failing to follow company accounting procedure in monitoring credit card transactions. Downey also contends there is no evidence, other than the statement made by Cordero, to implicate Downey in the Fraudulent Credit Card Charges. Downey finally contends Vitale and Local 1262 failed to conduct an adequate investigation into the Fraudulent Credit Card Charges in May 1995. Had Local 1262 and Vitale conducted an adequate investigation, *1151 Downey contends they would have questioned the indictment of Downey, discovered Downey was not derelict in his duties as bookkeeper and determined that he should not have been reduced to part-time status.",
"Opposition Brief at 19-20. [14] Discussion A. Standard of Review for Summary Judgment Motions To prevail on a motion for summary judgment, the moving party must establish \"there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law.\" Fed.R.Civ.P. 56(c). The present task is to determine whether genuine issues of material fact exist and whether the Defendants are entitled to judgment as a matter of law. A district court may not resolve factual disputes in a motion for summary judgment. Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d 915, 926-27 (3d Cir. 1995) (\"at the summary judgment stage, `the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial'\") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986)); Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir.1992) (\"threshold inquiry is whether there are `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party'\") (citations omitted). In considering a motion for summary judgment, all evidence submitted must be viewed in a light most favorable to the party opposing the motion.",
"Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 130-31 (3d Cir.1996); General Ceramics Inc. v. Firemen's Fund Ins. Cos., 66 F.3d 647, 651 (3d Cir.1995); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 & n. 2 (3d Cir.1983) the court must resolve \"all inferences, doubts and issues of credibility ... against the moving party\", cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). When the resolution of issues depends wholly upon the interpretation of specific statutory language and the applicable law, summary judgment is appropriate. See DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 724 (3d Cir. ), cert. denied, ___ U.S. ___, 116 S. Ct. 306, 133 L. Ed. 2d 210 (1995); see also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) (\"summary judgment is proper where the facts are undisputed\"), cert.",
"denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985). Estate of Reddert v. United States, 925 F. Supp. 261, 265 (D.N.J.1996). In addition, when the nonmoving party bears the burden of proof at trial, the moving party is entitled to summary judgment by showing \"there is an absence of evidence to support the nonmoving party's case.\" Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Once the movant demonstrates an essential element of the nonmovant's case is lacking, the nonmovant must come forward with sufficient evidence to demonstrate there is a factual controversy as to that element.",
"Anderson, 477 U.S. at 247, 106 S. Ct. at 2509-10; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.1995); Witco Corp. v. Beekhuis, 38 F.3d 682, 686. \"The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.\" Anderson, 477 U.S. at 252, 106 S. Ct. at 2512; Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355 (nonmovant must \"do more than simply show that there is some metaphysical doubt as to the material facts\"); accord Siegel, 54 F.3d at 1130-31; Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726 F. Supp.",
"525, 534 (D.N.J.1989), aff'd without Op'n, 899 F.2d 1218 (3d Cir.1990). If the nonmovant fails to make a sufficient showing regarding an essential element of its case upon which it will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial and summary judgment must be granted. Celotex, 477 U.S. at 321, 106 S. Ct. at 2551-52; Siegel, 54 F.3d at *1152 1130-31; see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993) (\"[s]ummary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant\"). The dispute between the parties in the present case rests upon the threshold determination of whether Downey states a viable cause of action under Federal Labor Law.",
"Viewed in a light most favorable to Downey, the evidence presented does not raise a genuine issue of material fact as to whether Downey failed to exhaust his intra-union remedies or whether his failure to do so is excused on the grounds of futility. [15] The resolution of this threshold issue depends wholly upon the interpretation of contractual language and the applicable law. Consideration for the motions for summary judgment is therefore proper. Because Downey did not exhaust his intra-union remedies, summary judgment on the causes of action arising under 29 U.S.C. § 185 is granted in favor of the Defendants.",
"[16] The remaining state law claims are dismissed without prejudice for lack of subject matter jurisdiction. B. Requirements for Relief Under the Labor Management Relations Act The instant case may be classified as a hybrid suit arising under § 301 of the Labor Management Relations Act (\"LMRA\"), 29 U.S.C. § 185. A hybrid suit is defined by the Supreme Court as the concurrent causes of action brought by an employee against a union and an employer. DelCostello v. Int'l Bhd of Teamsters, 462 U.S. 151, 164-65, 103 S. Ct. 2281, 2290-91, 76 L. Ed. 2d 476 (1983). A suit against an employer arises under the LMRA as an alleged breach of the CBA.",
"A cause of action against a union is implied under the LMRA as a breach of the duty of fair representation. Id., at 164, 103 S. Ct. at 2290-91. A hybrid suit against an employer and union must be brought within the six month statute of limitations, pursuant to § 10(b) of the LMRA, 29 U.S.C. § 160(b). DelCostello, 462 U.S. at 155, 103 S. Ct. at 2285-86; Whittle, 56 F.3d at 489. In order to bring a viable hybrid suit, an employee is also required to exhaust any grievance or arbitration remedy provided in the collective bargaining agreement. DelCostello, 462 U.S. at 163, 103 S. Ct. at 2289-90; Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 616, 13 L. Ed.",
"2d 580 (1965); Whittle v. Local 641, Int'l Bhd of Teamsters, 56 F.3d 487, 490 (3d Cir.1995). The Vitale Defendants and Local 1262 argue Downey failed to bring his suit within the statute of limitations and did not exhaust his internal remedies. Accordingly, the Vitale Defendants and Local 1262 urge judgment as a matter of law. 1. Statute of Limitations In order to determine whether Downey filed a timely lawsuit, it must first be determined when the statute of limitations began to run. The Supreme Court has instituted a case-by-case factual standard in determining when the statute of limitations for a hybrid suit begins to accrue. Clayton v. Int'l Union, United Auto., Aerospace, and Agric. Implement Workers of Am., 451 U.S. *1153 679, 689-93, 101 S. Ct. 2088, 2095-98, 68 L. Ed. 2d 538 (1981); Scott v. Local 863, Int'l Bhd of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., 725 F.2d 226, 228 (3d Cir.1984).",
"The Third Circuit has held that the limitations period begins to run when plaintiff knows, or reasonably should have known, of the acts constituting the union's wrongdoing. Miklavic v. USAir, Inc., 21 F.3d 551, 556 (3d Cir.1994); Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir. 1990) (quoting Hersh v. Allen Products Co. Inc., 789 F.2d 230, 232 (3d Cir.1986)). Arriaga-Zayas v. Int'l Ladies' Garment Workers' Union, 835 F.2d 11, 13 (1st Cir.1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2016, 100 L. Ed. 2d 604 (1988); Scott, 725 F.2d 226, 229 (3d Cir.1984). The Vitale Defendants and Local 1262 argue Downey's suit was instituted beyond the six month statute of limitations. The Vitale Defendants and Local 1262 claim Downey knew, or should have known, about the alleged wrongdoing of Local 1262 on or before 2 August 1995.",
"The Vitale Defendants and Local 1262 set forth several facts to support this contention. Smith informed Downey of the Settlement Agreement on 21 July 1995. Several meetings were scheduled between Downey and Smith at which Downey was supposed to sign the Grievance Release. In accordance with the Settlement Agreement, Downey had been placed on the Hoboken Foodtown work schedule on or about 21 July 1995. The 27 July Letter, sent by Marcucci, requested a response from Downey by 2 August 1995 concerning the Settlement Agreement. On 2 August 1995, Downey rejected the Settlement Agreement. The Vitale Defendants and Local 1262 contend Downey should have been aware of the alleged wrongdoing of Local 1262, triggering the statute of limitations on or before 2 August 1995.",
"The Vitale Defendants and Local 1262 claim, therefore, that 2 August 1995 is the latest accrual date for the statute of limitations and Downey's Complaint, filed 16 February 1996, was out of time. While the 2 August Reply Letter from Downey did reject the Settlement Agreement, it is not clear it marked an accrual date triggering the running of the limitations period. The 27 July Letter indicated Local 1262 wanted a response from Downey by 2 August 1995 in order to decide how it would proceed. This language suggests that if Downey was not satisfied, Local 1262 may have continued to adjust the grievance. Downey's Counsel requested Local 1262 to communicate their intent to continue to help Downey within ten business days of 2 August 1995. Phone calls between counsel for Local 1262 and counsel for Downey present questions of fact regarding whether the matter had been resolved or whether Local 1262 was still acting on behalf of Downey. Taking the facts most favorable to Downey, the earliest date the action could have accrued would be ten business days from 2 August 1995 16 August 1995.",
"The latest date the action could have accrued would be 24 August 1995, when Downey received a letter from Simonoff, who indicated Local 1262 refused to request arbitration. In either scenario, the filing of the Complaint on 16 February 1996 was timely. Summary judgment on the basis of the statute of limitations is denied. 2. Failure to Exhaust Under Federal labor law, an aggrieved employee must exhaust the procedures for grievance and arbitration under the CBA before commencing an action in Federal court. \"An employee seeking a remedy for an alleged breach of the collective-bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act....\" Clayton, 451 U.S. 679, 681, 101 S. Ct. 2088, 2091 (1981); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S. Ct. 1048, 1055-56, 47 L. Ed. 2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 913-14, 17 L. Ed. 2d 842 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S. Ct. 614, 616-17, 13 L. Ed.",
"2d 580 (1965) (unless an employee attempted to utilize the contractual procedures for settling his dispute with his employer, his independent *1154 suit against the employer would be dismissed; Wheeler v. Graco Trucking Corp., 985 F.2d 108, 112 (3d Cir.1993); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1537 (3d Cir.1992). If a provision in the CBA permits the reactivation of a grievance after an appeal, an employer or union should be permitted to rely on that provision and defend the § 301 suit on the ground that the employee failed to exhaust internal union procedures. Clayton, 451 U.S. at 692 & n. 20, 101 S. Ct. at 2097 & n. 20. The policy behind the requirement is protection of the integrity of the collective bargaining process and the facilitation of private, rather than judicial, resolution of disputes arising from the CBA. Clayton, 451 U.S. at 687, 101 S. Ct. at 2094 (citing Hines, 424 U.S. at 567, 570-571, 96 S. Ct. at 1057-58, 1059-60). See also United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 63, 101 S. Ct. 1559, 1564, 67 L. Ed.",
"2d 732 (1981) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S. Ct. 1347, 1352, 4 L. Ed. 2d 1409 (1960) (\"The grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government\"). The Supreme Court has declined, however, to \"impose a universal exhaustion requirement lest employees with meritorious § 301 claims be forced to exhaust themselves and their resources by submitting their claims to potentially lengthy internal procedures that may not be adequate to redress their underlying grievances.\" Local Union No. 1075, United Rubber Cork, Linoleum and Plastic Workers of Am, AFL-CIO v. United Rubber Cork, Linoleum and Plastic Workers of Am, AFL-CIO, 716 F.2d 182, 185 (3d Cir.1983) (citing Clayton, 451 U.S. at 689, 101 S. Ct. at 2094-95). Discretion is employed to decide when exhaustion by an employee is required. Clayton, 451 U.S. at 689, 101 S. Ct. at 2094-95 (citing National Labor Relations Bd. v. Marine Workers, 391 U.S. 418, 426 & n. 8, 88 S. Ct. 1717, 1722 & n. 8, 20 L. Ed.",
"2d 706 (1968)). This discretion is narrowed by consideration of, at least, three relevant factors. Id. Exhaustion will not be required where 1) union officials are so hostile to the employee that the employee could not hope to obtain a fair hearing on the claim 2) the internal union procedures would be inadequate to either reactivate the employee's grievance or to award the employee the full relief sought under § 301 of the LMRA or 3) the exhaustion of internal procedures would be an unreasonable delay of the employee's opportunity to obtain a judicial hearing on the merits. Id. The reasonableness of the procedure is paramount. United Rubber, 716 F.2d at 186 (citations omitted). The union bylaws of Local 1262 require a member to exhaust all internal remedies before instituting an external action. Article III, Section D of the Official Bylaws of United Food and Commercial Workers Local 1262, AFL-CIO (\"Local 1262 Bylaws\") provides: No member shall institute an action outside the Union against the International Union, Local Union or any of their officers or representatives without first exhausting all remedies provided by the Local Union bylaws and rules and the Constitution of the International Union.",
"Local 1262 Bylaws, attached to Nardone Cert. as Exhibit 37; attached to Arturi Cert. as Exhibit H; attached to Gaudioso Cert. as Exhibit G. The Local 1262 Bylaws expressly permit a member of the union to appeal the disposition of his or her grievance. Section A. The Local Union shall have the exclusive authority to interpret and enforce the collective bargaining contract. In accordance therewith, the Local Union shall have the exclusive authority to submit grievances to arbitration, withdraw grievances, settle and compromise grievances, and decline to invoke grievance procedure of a collective bargaining contract. Section B. Any member who disagrees with the disposition of his or her grievance by the Local Union President, or the Local Union President's designated representative, shall have the right to appeal the decision to the Local Union Executive Board.",
"Section C. The member shall submit the appeal within [fifteen] days from the date the member is first advised of the *1155 Local Union's disposition of the member's grievance. Section D. The Local Union Executive Board shall consider the appeal at the next regular meeting of the Executive Board. The Executive Board shall treat the appeal as either a request for a review or a request for reconsideration. Section E. The Executive Board shall advise the member of its decision within 30 days from the date of its meeting. There shall be no further appeal from the decision of the Executive Board.",
"Section F. Any member who does not appeal the Local Union's disposition of the member's grievance as provided above shall be deemed to have acquiesced in said disposition. Local 1262 Bylaws, Article XV. Grievance and arbitration procedures are also set forth in Article 14 of the Agreement Between UFCW Local 1262, AFL-CIO, and Foodtown Supermarkets (the \"Vitale CBA\"). Vitale CBA, attached to Nardone Cert. as Exhibit 36; attached to Arturi Cert. as Exhibit K; attached to Local 1262 Appendix as Exhibit J. Article 14 of the Vitale CBA requires union officials from Local 1262 to confer with designated representatives of Vitale to address and adjust the dispute or grievance. Id.",
"If the grievance cannot be satisfactorily resolved, then either the union officials from Local 1262 or the representative from Vitale may submit the master to a mutually agreed upon impartial arbitrator: In order to comply with the Union's internal appeal procedure, the Union shall have ninety (90) days from the date of the initial filing to notify the Employer that it may go to arbitration. Vitale CBA, Article 14, Section 4 (emphasis added). The right to demand arbitration is solely that of Vitale or Local 1262. It is undisputed that Downey did not exhaust his intra-union remedies. Downey contends he had no duty to exhaust his intra-union remedies because Local 1262 had breached its duty of fair representation and, therefore, exhaustion would have been futile. Opposition Brief at 34. [17] Downey asserts the second Clayton consideration is controlling in this case because the intra-union appeal process could not give Downey the relief he sought reinstatement of full-time status and complete back pay. Opposition Brief at 35. Downey reasons that, pursuant to the terms of the Vitale CBA, Local 1262 was required to notify Vitale of its intent to proceed to arbitration within ninety days of the filing of the grievance. The grievance was filed on 7 June 1995.",
"Therefore, \"the deadline to proceed to arbitration, and thereby reactivate the grievance, was [5 September 1995].\" Id. Downey further argues, pursuant to the Local 1262 Bylaws, he could only appeal the Local 1262 decision within fifteen days of when he was first advised of the resolution of the grievance. Local 1262 Bylaws, Article 15. According to Downey, he did not know until the 24 August Simonoff Letter that Local 1262 saw \"no reason to go to arbitration for an employee who can have his job back plus $2,000 and who is refusing to return to that job.\" Nardone Cert. at Exhibit 29. Based on this accrual date, Downey had until 9 September to appeal to the Local Union Executive Board (the \"Executive Board\"). [18] *1156 The Board did not have to address the appeal until the next regularly scheduled meeting.",
"[19] Local 1262 Bylaws, Article 15. The Board had an additional thirty days to decide the appeal. Id. Downey argues that if he filed his appeal on 9 September 1995, he was already passed the 5 September 1995 deadline, \"too late to reactivate Downey's grievance and proceed to arbitration....\" Opposition Brief at 36. Downey claims this is the \"exact fact pattern in Clayton where the employee's time to proceed to arbitration would have expired before the intra-union appeals process was completed.\" Id. Clayton, however, is distinguishable on its facts. In Clayton, the time to proceed to arbitration had expired when the employee first learned of the final resolution of the grievance. Accordingly, arbitration could not have been demanded even if the internal appeal had reactivated the grievance.",
"In his § 301 suit, Clayton sought reinstatement and back pay, which could not be obtained because the CBA did not vest the union with the power to order reinstatement. The Clayton Court held that where the internal procedures can result in \"either complete relief to an aggrieved party or reactivation of a grievance, exhaustion would advance the national labor policy of encouraging private resolution of contractual disputes.\" Clayton, 451 U.S. at 692, 101 S. Ct. at 2097. Where an aggrieved party cannot obtain the substantive relief he seeks, however, exhaustion would be futile. Id. at 693, 101 S. Ct. at 2097. Downey has not established that pursuing the internal appeal procedures would have been a fruitless gesture. Unlike the grievant in Clayton, Downey had time (more than a week if employing the 24 August 1995 date supplied by Downey) to institute an appeal to the Executive Board before the expiration of time when Local 1262 had to notify Vitale that it may proceed to arbitration.",
"The Vitale CBA does not require the arbitration to proceed by the ninetieth day following the entrance of a grievance. Rather, Local 1262 has ninety days to notify Vitale that it may go to arbitration \"in order to comply with Union's internal appeal procedure.\" Vitale CBA, Article 14, Section 4(d). Downey does not address the situation whereby Local 1262 could have notified Vitale that it may go to arbitration, pending the outcome of Downey's appeal procedure. The Vitale CBA does not compel the arbitration to be complete by 5 September 1995, nor does it compel the commencement of the arbitration proceeding by 5 September 1995. Downey had time to file an appeal before the time for notification of arbitration had expired. [20] Downey has not demonstrated that the appeal procedure was inadequate to reactivate his grievance. Downey has not demonstrated that he is excused from his failure to exhaust the intra-union appeal procedure, *1157 which would have resulted in review and reconsideration of his grievance. [21] Downey also seeks reprieve from the exhaustion requirement on the ground that the exhaustion rule \"works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such discriminatory, dishonest, arbitrary or perfunctory fashion such as to breach its duty of fair representation.\"",
"Opposition Brief at 36-37 (citing DelCostello, 462 U.S. at 164, 103 S. Ct. at 2290-91). Downey argues that an employee may be excused from pursuing internal or private proceedings whenever the union breaches its duty of fair representation, which, Downey contends, the courts have equated with futility. Opposition Brief at 37 (citing Balsavage, 712 F.Supp. at 467). [22] If an employee can prove that the union breached its duty of fair representation, a wrongfully discharged employee may bring an action against his employer despite failing to exhaust the administrative remedies. Vaca v. Sipes, 386 U.S. 171, 185, 87 S. Ct. 903, 914, 17 L. Ed. 2d 842 (1967).",
"In Vaca, the union arbitrarily, capriciously and without reason refused to take the grievance to arbitration under the fifth step of the bargaining agreement procedures. Id. at 173, 87 S. Ct. at 907-08. The union had the sole power to invoke the higher grievance procedures and wrongfully refused to do so. Accordingly, the employee was excused from exhausting the internal procedures. Id. at 185, 87 S. Ct. at 914. Downey contends Local 1262 breached its duty of fair representation, excusing him from exhausting the internal appeal procedures. Opposition Brief at 36-38. A breach of the duty of fair representation requires a demonstration that the \"union's actions are arbitrary or discriminatory where it ignores or perfunctorily handles grievances or where its acts or omissions reflect reckless disregard for the rights of the individual employee.\" Castaneda v. Dura-Vent Corp., 648 F.2d 612, 618 (9th Cir.1981) (citations omitted). In the instant case, Local 1262 did not arbitrarily refuse to press the grievance of Downey, but pursued it to what it considered to be an adequate Settlement Agreement with Vitale.",
"The Smith and DuBose Affidavits demonstrate Local 1262 actively processed Downey's grievance. Local 1262 met with Vitale representatives, investigated the evidence against Downey and arrived at a resolution with Martin Vitale, Vitale President and CEO. The result of Local 1262 *1158 efforts was reinstatement of Downey and recovery two-thirds back pay. Downey does not dispute that a Settlement Agreement had been reached, but alleges the settlement was inadequate because Local 1262 relied on the misleading information provided to them by Vitale. Downey contends Local 1262 failed to conduct \"the most rudimentary investigation concerning the events that led to Downey's discharge from Kearny Foodtown on 2 June 1995.\" Opposition Brief at 25-26. Downey contends a more thorough investigation would have revealed that the genesis of the criminal charges against Downey were lodged by Vitale. Downey argues a more thorough investigation would have shown that there were no formal company accounting procedures in place, the non-compliance of which would have justified a reduction in back pay.",
"Downey also argues an investigation would have demonstrated that no other bookkeepers who were on duty on the days Cordero was stealing were questioned or sanctioned, that a manager was not needed to override a manually entered credit card and that Cordero could have obtained the three digit code of another cashier without the help of a bookkeeper. Finally, Downey argues that if Local 1262 had investigated the grievance more thoroughly, it would have uncovered evidence to show Downey was not the least senior employee warranting the reduction to part-time status. Opposition Brief at 26-30. The Vitale CBA indicates \"[t]he employer agrees to supply the Union with the relevant information necessary to process the grievance.\" Vitale CBA, Article 14, Section 2.",
"If the information was misleading or lacking, Downey could have presented his concerns to the Executive Board for review and reconsideration. The issues could have been addressed there first, and more quickly. Moreover, any opposition Downey had with respect to the reduction to part-time status, could have been addressed in an additional grievance instituted after his reinstatement to the Hoboken Foodtown. Downey has not presented evidence sufficient from which a trier of fact could determine that Local 1262 had perfunctorily dismissed his grievance, discriminated against Downey or arbitrarily refused to investigate his grievance to warrant the failure to exhaust his intra-union remedies.",
"See Hendricks v. Edgewater Steel Co., 898 F.2d 385 (3d Cir.1990) (union member failed to show that union acted perfunctorily or arbitrarily in refusing to investigate grievance in order to invoke exception to requirement of exhaustion of union remedies). If Downey disagreed with the Settlement Agreement, he had the obligation to pursue an appeal to the Executive Board to review and reconsider the decision, before instituting a lawsuit. Indeed, the Local 1262 Bylaws indicate a grievant is deemed to have acquiesced in the disposition of the grievance if no appeal is filed. Local 1262 Bylaws, Article XV, Section F. Under the Local 1262 Bylaws, Local 1262 had the exclusive discretion to submit grievances to arbitration, withdraw grievances and decline to invoke the grievance procedures. Local 1262 Bylaws, Article XV. An individual employee does not have the absolute right to have his or her grievance taken to arbitration. Vaca, 386 U.S. at 191, 87 S. Ct. at 917. Nor does a union breach its duty of fair representation merely because it failed to take the grievance to arbitration.",
"Id. Viewed in a light most favorable to Downey, the facts fail to demonstrate how an appeal to the Executive Board would have be futile. As discussed, rather than instituting the instant suit, Downey should have made an appeal before the Executive Board. The Local 1262 Bylaws indicate the Executive Board is made up of the constitutional officers of the Local Union. Local 1262 Bylaws, Article VIII. There is no evidence to suggest the Executive Board would not have made a fair and independent assessment of Downey's claim. [23] *1159 The parties did not address the third Clayton consideration for excusing the failure to exhaust administrative remedies. That consideration excuses exhaustion of internal union appeals where the appeal would result in unreasonable delay of the opportunity of the employee to obtain a judicial hearing. Because this suit is still pending more than a year since the filing of the grievance, as compared to a few weeks in the internal union appeal procedures, a discussion of this consideration is not merited. Downey did not exhaust his internal appeal procedures before bringing this suit.",
"Downey presented no evidence from which a trier of fact could determine that the union had perfunctorily dismissed his suit to relieve him of the duty to exhaust the internal remedies by appealing to the Executive Board. Accordingly, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted. C. Dismissal of State Law Claims Downey failed to exhaust his internal union appeal procedures prior to instituting this lawsuit. Downey failed to establish any reasons to excuse himself from the exhaustion requirement.",
"Downey is therefore precluded from bringing a cause of action against Vitale and Local 1262 under § 301 of the LMRA, 29 U.S.C. § 185, which is the only basis for Federal subject matter jurisdiction in this action. See Wheeler, 985 F.2d at 112. Pursuant to 28 U.S.C. § 1367(c)(3), the remaining state law causes of action brought by Downey will be dismissed, without prejudice. See 28 U.S.C. § 1367(c)(3). Section 1367(c)(3) of title 28 provides, in relevant part, The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). Supplemental jurisdiction is a doctrine of discretion, not of plaintiff's right. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S. Ct. 1130, 1139-40, 16 L. Ed. 2d 218 (1966)). If the claim over which the district court has original jurisdiction is dismissed, the district court should decline to decide the pendent state claims, absent considerations of judicial economy, convenience, and fairness to the parties.",
"Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir.1993); Lovell Mfg., a Div. of Patterson-Erie Corp. v. Export-Import Bank of the United States, 843 F.2d 725 (3d Cir.1988). As a matter of comity, decisions of state law by the Federal courts should be avoided. If Federal claims are dismissed before trial, then the state law claims should be dismissed as well. Borough of West Mifflin, 45 F.3d at 788; Stokes v. Local 116 of Int'l Union of Electronic, Elec., Salaried, Mach. and Furniture Workers, No. Civ.A. 92-3131, 1993 WL 23895, at *1 (E.D.Pa., Feb. 02, 1993); Nicandro v. Berkeley Farms, Inc., No. C 93-2317 SBA, 1994 WL 705267, at *1 (N.D.Cal. Dec. 14, 1994); Hebert v. Post Machinery Co., 495 F. Supp. 285 (D.N.H.1980).",
"Accordingly, Downey's state law claims are dismissed without prejudice. A determination of whether any of the state law claims brought by Downey are preempted under the LMRA is reserved for the state tribunal. D. Vitale Request for Rule 11 Sanctions In addition to the Motion for Summary Judgment, the Vitale Defendants submitted the Vitale Motion for Sanctions against counsel for Downey pursuant to Fed.R.Civ.P. 11 (\"Rule 11\"). The Vitale Defendants submitted the application within their Motion for *1160 Summary Judgment. Rule 11 requires that \"[a] motion for sanctions ... shall be made separately from other motions or requests....\" Rule 11; Omega Sports, Inc. v. Sunkyong Am., Inc., 872 F. Supp. 201, 203 (E.D.Pa.1995).",
"The Vitale Defendants admit they violated Rule 11 by submitting the Vitale Motion for Sanctions with the Vitale Motion for Summary Judgment. By way of explanation, the Vitale Defendants cite Rule 12L of the General Rules for the District of New Jersey (\"Rule 12L\"). Rule 12L states: All applications for sanctions pursuant to Rule 11 or 37 of the Federal Rules of Civil Procedure shall be filed with the Clerk prior to any entry of final judgment notwithstanding the provisions of any other Rule of this Court. [24] Rule 12L. The Vitale Defendants are seeking final judgment in their Motion for Summary Judgment.",
"They contend that if they did not submit the Vitale Motion for Sanctions with the Vitale Motion for Summary Judgment, they would risk forfeiting their right to move for sanctions. While this contention may be accurate, the Vitale Defendants themselves were responsible for setting the timing and pace of this motion. Indeed, with a little foresight, the Vitale Defendants could have submitted a Motion for Rule 11 Sanctions and then filed the Motion for Summary Judgment. Notwithstanding the requirement of a separate motion, it is not clear sanctions are warranted in this action. The Vitale Defendants contend Rule 11 sanctions in the form of attorney's fees and cost of suit are appropriate because of the frivolous nature of Downey's action.",
"Vitale Moving Brief at 28-29. The Vitale Defendants argue there is no fact upon which Downey can rely \"beyond bare allegations\" to prove Local 1262 breached its duty of fair representation. Id. at 30. The Vitale Defendants argue a reasonable inquiry into the facts and law of the action would have revealed that an LMRA claim would not succeed. The Vitale Defendants contend, therefore, that Rule 11 sanctions are proper. The standard for imposing Rule 11 sanctions is one based upon objective reasonableness under the circumstances. Bad faith on the part of the plaintiff is not required. Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir.1995) (citations omitted). Sanctions are appropriate only if \"the filing of the complaint constituted abusive litigation or misuse of the court's process.\"",
"Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir.1994) (citing Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F.2d 66, 68 (3d Cir. ), cert. denied sub nom., Herman Bros., Inc. v. Teamsters Local Union No. 430, 488 U.S. 848, 109 S. Ct. 128, 102 L. Ed. 2d 101 (1988)). \"[T]he mere failure of a complaint to withstand a motion for summary judgment or a motion to dismiss should not be thought to establish a rule violation.\" Simmerman, 27 F.3d at 62; see also Arab African Int'l Bank v. Epstein, 10 F.3d 168, 175 (3d Cir.1993). The Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment were granted based upon a procedural defect, not on the substantive merits of Downey's claims. Rule 11 sanctions are reserved only for claims that are patently unmeritorious or frivolous.",
"Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988). The claims of Downey do not fall within that classification. The Vitale Motion for Sanctions is denied. Conclusion For the reasons stated, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted. The state law claims brought by Downey are dismissed without prejudice. The Vitale Motion for Sanctions is denied. NOTES [1] In support of the Motion for Summary Judgment and for Sanctions Pursuant to Rule 11, the Vitale Defendants submitted: Defendants' Notice of Motion for Summary Judgment and Dismissing Plaintiff's Claims Against Vitale Supermarkets, Inc., Kenneth Heller and John McElroy (\"Vitale Notice of Motion\"); Brief of Defendants, Vitale Supermarkets, Kenneth Heller and John McElroy, In Support Of Their Motion For Summary Judgment Dismissing Plaintiff's Claims Against Them and For Sanctions Pursuant To Rule 11 (\"Vitale Moving Brief\"); Anthony X. Arturi, Jr.'s Certification Of Counsel In Support of Defendants' Motion For Judgment (\"Arturi Cert. \"), dated 2 July 1996, with Exhibits A through S attached; Anthony X. Arturi, Jr.'s Certification of Counsel In Support Of Defendants' Motion for Judgment Per Defendants' Reply Brief (\"Arturi Reply Cert.",
"\"), dated 19 August 1996, with Exhibits T through Z, AA through DD attached; Reply Brief Of Defendants' Vitale Supermarkets, Kenneth Heller, And John McElroy In Support Of Their Motion For Summary Judgment (\"Vitale Reply Brief\"); Vitale Defendants' Rule 12G Statement of Undisputed Facts (\"Vitale 12G Statement\"); Anthony X. Arturi, Jr.'s Affidavit In Opposition To Plaintiff's Rule 56f Application (\"Vitale Rule 56f Statement\"). In support of the Local 1262 Motion for Summary Judgment, Local 1262 submitted: Defendants' Notice of Motion For Summary Judgment And Dismissing Plaintiff's Claims Against Union Local 1262 (\"Union Notice of Motion\"); Defendant United Food And Commercial Worker Local 1262's Brief In Support Of Motion to Dismiss Amended Complaint And For Summary Judgment (\"Local 1262 Moving Brief\"); Certification Of David A. Gaudioso In Support of Defendants' Motion To Dismiss Amended Complaint And For Summary Judgment (\"Gaudioso Cert. \"), dated 14 August 1996, with Exhibit Appendix A through K attached; Defendant United Food And Commercial Workers' Reply Brief To Plaintiff's Brief In Opposition To Defendants Motion For Summary Judgment (\"Local 1262 Reply Brief\"); Defendant United Food And Commercial Workers' Statement of Material Facts Pursuant To Rule 12G (adopting Vitale 12G Statement); Defendant United Food And Commercial Workers Union Local 1262's Affidavit In Response To The Rule 56f Affidavit Of The Plaintiff (\"Local 1262 Rule 56f Statement\"); Proposed Forms of Order.",
"In opposition to the Motion for Summary Judgment, Downey submitted: Plaintiff's Brief in Opposition to Defendant's Motions for Summary Judgment (\"Opposition Brief\"); Certification of Diane C. Nardone (\"Nardone Cert. \"), dated 7 August 1996, with Exhibits 1 through 37 attached; Certification of Elise P. Rossbach (\"Rossbach Cert. \"), dated 7 August 1996; Plaintiff's Rule 12G Statement (\"Downey Rule 12G Statement\"); Rule 56f Affidavit for Continuance of Motion Returnable September 9, 1996 (\"Downey Rule 56f Statement\"); Plaintiff's Affidavit of Service. [2] The Grievance Report filed by Downey on 7 June 1995 indicates Downey was suspended on 2 June 1995. UFCW Local 1262 Grievance Report, dated 7 June 1995, attached to Gaudioso Cert.",
"as Exhibit C. The Police Report, dated 2 June 1995 (the \"2 June 1995 Police Report\") prepared by Michael Cinardo (\"Cinardo\") indicates Heller told him Downey had been discharged. 2 June 1995 Police Report, attached to Nardone Cert. as Exhibit 6. Cinardo testified in his deposition (the transcript of which was not submitted by Downey) Downey told him he had been discharged. This disputed fact is not material to preclude the grant of summary judgment. [3] During his deposition, Cordero testified Downey would ask Cordero if Downey could scan his credit card through the machine so that Cordero could give him money from the register. Cordero Dep. Tr. 21:22-24. Cordero would refuse, but allowed Downey to process the transaction while Cordero was away from the register on his break. Cordero Dep. Tr. 21:25 to 23:2. Downey would give Cordero a credit card slip at the end of his shift. Cordero Dep. Tr.",
"23:2-11. Cordero testified Downey told Cordero he was using other people's credit cards. Cordero Dep. Tr. 34:17-18. Cordero testified Downey told Cordero he could not get caught because Downey took care of all the money in the store. Cordero Dep. Tr. 26:18-21. After Downey convinced Cordero he would not be caught, Cordero also began using other credit cards to process fraudulent transactions and take money from the register. Cordero Dep. Tr. 35:25. Cordero testified he would share the money he took from the register with Downey. Cordero Dep.",
"Tr. 40:18-19. [4] The Police Report Notes state that it was \"verified Downey working on all occasions of theft\" but do not indicate who verified the information. Nardone Cert. at Exhibit 9. [5] The transcript for the Cinardo deposition was not submitted by Downey to support this statement. The excerpts from the 6 August 1996 Deposition of Michael Cinardo (\"Cinardo Dep. \"), attached to the Arturi Reply Cert. as Exhibit X, do not reference this statement. Heller denied making these statements. Heller Dep. Tr. 225:16 to 226:14. [6] There is a discrepancy in the submissions regarding the spelling of SanFillipo. [7] The transcript for the SanFilippo deposition was not submitted. [8] These unsworn facts are provided for back-ground and are not relevant to the disposition of the instant motions. [9] Smith had not yet been deposed by counsel for Downey at the time of the filing of the instant motions. The Smith Affidavit was submitted by Local 1262. The facts presented in the Smith Affidavit are provided for background and are not material to the disposition of these motions.",
"[10] Downey contends that although other bookkeepers cashed out Cordero on the days he was making fraudulent transactions, no other bookkeepers had been reprimanded for failing to comply with company accounting procedures. Opposition Brief at 19. Downey provides no certification to support this contention. [11] Downey contends there was evidence to indicate that he was not the least senior employee and that there were part-time employees with less seniority. Plishka Dep. 93:8-96:24. Downey argues the failure of Local 1262 to investigate his seniority status is further evidence of the breach of the duty of fair representation. Opposition Brief at 30, 33-34.",
"The Vitale Defendants and Local 1262 point out that nothing in the Vitale CBA requires the Vitale to lay off multiple part-time employees to create a full time position. Local 1262 Reply Brief at 10. [12] The Defendants contend the criminal charges against Downey were processed solely by the Kearny Municipal Prosecutor's Office, beyond the control of Local 1262. [13] These facts are not contested by Downey. [14] The Opposition Brief does not cite to a certification to support these contentions. [15] The Opposition Brief and Downey Rule 56f Statement argue summary judgment is premature because, at the time of the original filing of the motions on 7 August 1996, discovery had not been completed. Opposition Brief at 2. The depositions of several witnesses had not been completed, including those of Heller, Smith and DuBose.",
"The Downey Rule 56f Statement requested the court to enter a continuance of the motion until 23 September 1996 and requested the opportunity to submit a sur-reply. Downey Rule 56f Statement, ¶¶ 2, 20. Due to problems with the submissions, the instant motions were filed on 29 August with a return date of 23 September. The motions are granted on the basis of procedural facts, not substantive facts. Accordingly, the inability of Downey to answer the original motions without taking certain depositions or receiving the transcripts of certain depositions does not create any issue, much more a genuine issue, of material fact to preclude summary judgment. [16] Summary judgment is granted on the grounds that Downey failed to exhaust his internal remedies prior to bringing this lawsuit and, therefore, does not have a viable claim.",
"A brief discussion of the statute of limitation argument is included, however the other arguments presented by the Defendants in support of summary judgment are not addressed. [17] The Opposition Brief suggests Downey should not be barred for failing \"to exhaust an administrative remedy he did not know about.\" Opposition Brief at 34. Local 1262 Bylaws indicate that every member, upon request, shall be given a copy of both the Vitale CBA, the Local 1262 Bylaws and the International Constitution. Article XVI, Local 1262 Bylaws; 26 March 1996 Affidavit of Russell Atkin, attached to Gaudioso Cert. as Exhibit I; March 1996 Affidavit of Frank Margiotta, attached to Gaudioso Cert.",
"as Exhibit I, ¶ 1. Downey, and his counsel, had access to these documents and to the grievance appeal procedures. See Hersh v. Allen Prod. Co., Inc., 789 F.2d 230, 232 (3d Cir.1986); Balsavage v. Ryder Truck Rental, Inc., 712 F. Supp. 461, 473 (D.N.J.1989) (employee is under a duty of due diligence, which means \"familiarity with the collective bargaining agreement, and the making of such inquiries as would be reasonably calculated to acquire the pertinent information concerning the union's breach\"). [18] The Defendants contend Downey knew of the resolution of the grievance at an earlier date, on 2 August 1995. Local 1262 Reply Brief at 13. In a summary judgment motion, the facts are considered in the light most favorable to the non-moving party.",
"Healey, 78 F.3d at 130-31. Accordingly, the 24 August 1995 date will be used. There is strong indication in the record, however, that Downey believed his grievance to be resolved before 24 August 1995, triggering the start of the time to appeal. First, Downey had appointments with Smith on several days in late July to sign the Grievance Release to acknowledge his acceptance of Settlement Agreement. Second, Downey had been placed on the schedule at Hoboken Foodtown in accordance with the Settlement Agreement as early as 21 July 1995.",
"Third, Smith alleges he spoke with Downey on 26 July 1995 and told him that, as far as Smith was concerned, the grievance had been resolved. Finally, Downey felt the need to retain an attorney as early as 21 July 1995 to protect his interests. These facts suggest Downey had recognized Local 1262 believed the grievance had been adjusted before the 24 August Simonoff Letter. [19] A schedule of dates for the regular Executive Board meetings was not provided in the record. For the basis of his argument, Downey assumes that a regularly scheduled meeting of the Executive Board did not occur until 9 September 1995, after the 5 September 1995 arbitration deadline. The Local 1262 Bylaws indicate the President of the union is authorized to call additional meetings of the Executive Board whenever it is deemed advisable. Local 1262 Bylaws, Article VIII. [20] Downey contends even if he pursued the intra-union appeal process, it would not give Downey the relief he sought reinstatement of full-time status and back pay due to the time restriction in requesting arbitration.",
"The more reasonable viewpoint is that Downey had a greater chance of obtaining the relief he sought through intra-union appeal, rather than bringing a § 301 suit. The internal appeal would have taken only a few weeks for a resolution. The appeal would have allowed for review and reconsideration of Downey's grievance. Downey's suit, however, will not result in reinstatement. Downey's Complaint does not request reinstatement, only compensatory and punitive damages. [21] The Vitale Defendants and Local 1262 claim the right to demand arbitration was that of Local 1262 and not of Downey.",
"The Vitale Defendants and Local 1262 contend Downey's argument that the appeal would be futile because it could not be completed in time to demand the arbitration relief is irrelevant. The Vitale Defendants and Local 1262 contend Downey could not have demanded arbitration in any event. Downey's argument does not fail, however, because he did not have the personal right to demand arbitration. Downey's argument fails on the ground that he did not file an appeal at all, despite the existence of time for Local 1262 to notify Vitale that arbitration may occur. In Clayton, the right to demand arbitration was that of the union, not the grievant. Clayton, 451 U.S. at 682 & n. 1, 101 S. Ct. at 2091-92 & n. 1.",
"The Court held the internal procedures were inadequate because the period to request arbitration had expired when Clayton first received notice of the union's decision not to pursue the grievance. When Downey first received notice of the decision of Local 1262 not to proceed, there was still time to request arbitration. [22] Balsavage, and the other cases cited by Downey to support this contention (Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632, 637 (D.N.J.1991); Proudfoot v. Seafarer's Int'l Union, 779 F.2d 1558, 1559 (11th Cir.1986) and Adkins v. Int'l Union of Elec. Radio & Mach. Workers, 769 F.2d 330, 336 (6th Cir.1985)), address exhaustion of the grievance procedure in the context of deciding whether the claim before the court had accrued, triggering the statute of limitations.",
"In the last case cited by Downey to support this contention, Boone v. Armstrong Cork Co., 384 F.2d 285, 288, 291-292 (5th Cir.1967), the Fifth Circuit addressed the question of whether the plaintiff could maintain a suit in view of the fact the grievance procedure had not been used. The failure to resort to the grievance procedure was due to a general misunderstanding among all of the parties as to the availability of the procedures.",
"Id. at 290. Acknowledging the strong policy of favoring resolution of grievances under contractual procedures, the Fifth Circuit suspended the judicial proceedings until the parties had an opportunity to exhaust the grievance procedure. Id. at 292. [23] The Local 1262 Moving Brief states that Local 1262 generally prohibits paid Local 1262 officers and staff from deciding the appeals of the disposition of a grievance. Local 1262 Moving Brief at 14-15. Instead, the appeal is determined by eighteen rank and file members of Local 1262 who are Vice Presidents and who are employed in the supermarkets and stores represented by the Local 1262. Local 1262 Moving Brief at 14, Vitale Moving Brief at 15. The Vitale Defendants and Local 1262 point out these individuals can, and have, reversed the decision of paid officers of Local 1262 in the past. Local 1262 Moving Brief at 15. In support of these contentions, Local 1262 cites to paragraphs 9 to 15 of the Affidavit of Louis Marcucci, which they indicate is attached as Exhibit K to the Local 1262 Brief.",
"The Exhibit K filed with the Clerk's Office in support of the instant motions, however, consists of the 13 August 1996 Affidavit of Louis Marcucci. This Affidavit contains only seven paragraphs and does not describe the Executive Board as referenced in the brief. Therefore, the information regarding the composition of the appeal board was not regarded as fact in the determination of the instant motions. [24] The General Rules define \"Rule\" as a rule under the General Rules, not under the Federal Rules of Civil Procedure."
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-5, 7, 13, 18, 20, 22, 23, 24, 25, 27 and 28 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614). With respect to the limitations of claim 1, Trzeciak teaches a system (Figs 1-3, warming apparatus 20, Col 2) adapted to connect to handheld devices (Fig 1, handle 32, Col 2) for warming; the system comprising: an outer layer (first sheet 46, col 3); a heating layer comprising a heating device (heat pack 50, Cols 2, 3); an insulation layer (second sheet 47, Col 3, Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being insulating materials) against the heating layer, the heating layer being between and against the outer layer and insulation layer (Figs 1, 4, pouch 70, Col 3); and (d) a fastener arrangement (attachment means 60, fastener 62, Col 3) to removably fasten the system to a handheld device. Trzeciak discloses the claimed invention except for the fastener arrangement is a slap-on device comprising at least one slap band constructed and arranged to curl responsive to being slapped against a handheld device. However, Newman discloses the fastener arrangement is a slap-on device comprising at least one slap band (Figs 1-4, bistable spring band 114, 0030) constructed and arranged to curl responsive to being slapped against (0037) a handheld device (bar 108, 0026) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak having a fastener arrangement with the fastener arrangement is a slap-on device comprising at least one slap band constructed and arranged to curl responsive to being slapped against a handheld device of Newman for the purpose of providing a known alternative fastener configuration that allows a device to be quickly attached and removed with relative ease (0037-00038), thereby improving the overall convenience of the device. With respect to the limitations of claims 2, 3, 4, 5 and 7, Trzeciak teaches the outer layer is one of water proof or water resistant (Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being water proof or water resistant materials); the outer layer comprises a fabric (Col 5, Lines 20-27, cloth, denim, plastic, vinyl, neoprene, rubber, polyester being materials having a surface that is capable of accepting a sublimation print) that is capable of being printed upon using sublimation printing; the heating device is an electronic heating device (Col 4, Lines 20-23, in one preferred embodiment, heat pack 50 generates heat using a battery-powered devices that heats a series of resistive elements or coils through the electricity stored in the batteries); the heating device is a non-electronic heating device (Col 4, Lines 12-20); the heating device is at least one of: removable from the system and replaceable in the system (Col 3, Lines 35-40, Col 4, Line 1); the fastener arrangement comprises one of at least: a slap-on device; an edge wrap; hook and loop; zippers; hooks and eye; frog fasteners; toggle fasteners; metal fasteners; grommets; eyelets; buttons; belts; and cords (Col 3, Lines 17-27). With respect to the limitations of claim 13, Trzeciak teaches a method of warming an appendage, comprising the steps of: positioning a warming wrap (Figs 1-3, warming apparatus 20, Col 2) around a handheld device (Fig 1, handle 32, Col 2), the warming wrap having at least an outer layer (first sheet 46, col 3), a heating layer (outer surface of heat pack 50, Cols 2, 3), an insulation layer (second sheet 47, Col 3, Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being insulating materials), a heating device (chemical contents of heat pack 50 provide heat when exposed to oxygen, Col 4, Lines 6-18) to provide heat from the heating layer, and a fastener arrangement (attachment means 60, fastener 62, Col 3); fastening the warming wrap using the fastener arrangement to the handheld device (see figures 1, 4); and placing the appendage on the outer layer, heat from the heating layer transmits through the outer layer to the appendage (hands of user are heated by warming apparatus 20). Trzeciak discloses the claimed invention except for the fastener arrangement is a slap band; and fastening the device by slapping the wrap having the slap band onto the handheld device to curl the wrap around the handheld device with the slap band. However, Newman discloses the fastener arrangement is a slap band (Figs 1-4, bistable spring band 114, 0030); and fastening the device by slapping (0037) the wrap having the slap band onto the handheld device (bar 108, 0026) to curl the wrap around the handheld device with the slap band is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the method of warming an appendage of Trzeciak having a fastener arrangement with the fastener arrangement is a slap band; and fastening the device by slapping the wrap having the slap band onto the handheld device to curl the wrap around the handheld device with the slap band of Newman for the purpose of providing a known alternative fastener configuration that allows a device to be quickly attached and removed with relative ease (0037-00038), thereby improving the overall convenience of the device. With respect to the limitations of claim 18, Trzeciak teaches the step of using the fastener arrangement includes using a snap-on device (Col 3, Lines 20-30, a snap fit member); the step of using the fastener arrangement includes using an edge wrap (Figs 1, 4, Velcro attachment covers an edge of the warming apparatus 20); further comprising a step of inserting the heating device into a heating device chamber within the heating layer (see figures 1, 2, 4, 5). With respect to the limitations of claim 20, Trzeciak teaches a handheld device including a warming wrap (Figs 1-3, warming apparatus 20, Col 2), the warming wrap comprising: an outer layer (first sheet 46, col 3); a heating layer comprising a heating device (heat pack 50, Cols 2, 3); an insulation layer (second sheet 47, Col 3, Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being insulating materials) against the heating layer, the heating layer being between and against the outer layer and insulation layer (Figs 1, 4, pouch 70, Col 3); and a fastener arrangement (attachment means 60, fastener 62, Col 3) to fasten the warming wrap to the handheld device; the fastener arrangement is removable (Col 3, Lines 21-28). Trzeciak discloses the claimed invention except for the fastener arrangement is a slap-on device comprising at least one slap band to fasten to the handheld device, the slap band being flat in a first state and curled in a second state responsive to being slapped against the handheld device. However, Newman discloses the fastener arrangement is a slap-on device comprising at least one slap band (Figs 1-4, bistable spring band 114, 0030) to fasten to the handheld device (bar 108, 0026), the slap band being flat in a first state and curled in a second state responsive (0037) to being slapped against the handheld device is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming device of Trzeciak having a fastener arrangement with the fastener arrangement is a slap-on device comprising at least one slap band to fasten to the handheld device, the slap band being flat in a first state and curled in a second state responsive to being slapped against the handheld device of Newman for the purpose of providing a known alternative fastener configuration that allows a device to be quickly attached and removed with relative ease (0037-00038), thereby improving the overall convenience of the device. With respect to the limitations of claims 22, 23, 24, 25, 27 and 28, Trzeciak in view of Newman discloses the slap band includes a bi-stable ribbon spring (Newman, Fig 4, first bistable spring band 114, 0023) and self-coiling metal strips (second and third bistable spring band 114); the at least one slap band is integrated in the insulation layer (Newman, Figs 2, 4, spring bands 114 located between top elastomeric layer 102 and bottom elastomeric layer 104, 0022); the at least one slap band includes a plurality of slap bands (Newman, Fig 4, multiple bistable spring bands 114); the at least one slap band further includes a separate fastening device (Figs 1, 4, Velco 106A, 106B, 0026).
Claims 26, 29 and 30 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied to claims 1, 5, 13 and 20, further in view of Krupa (US 3,980,070). With respect to the limitations of claims 26, 29 and 30, Trzeciak using a chemical heater (Col 4, Lines 5-10, heat pack 50…generate heat through a chemical reaction). Additionally, Newman discloses an attachment device being a slap band that is attached by slapping against a handheld device. Trzeciak in view of Newman discloses the claimed invention except for the chemical heating device includes a heat press with a chemical reactant where warming is activated in response agitation of the chemical heating device. However, Krupa discloses the chemical heating device includes a heat press with a chemical reactant (Figs 1-5, heating pack 1, inner bag 2, chemical composition 3, Cols 2, 3) where warming is activated in response agitation of the chemical heating device (Col 8, Lines 35-40, agitated by finger motion or shaking) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system and method of Trzeciak in view of Newman having a chemical heating device and slap band with the chemical heating device includes a heat press with a chemical reactant where warming is activated in response agitation of the chemical heating device of Krupa for the purpose of providing a known warming device that is connected to handheld devices being activated by the agitating motion of the warming device. With respect to the limitations of claims 26, 29 and 30 and “the heating device includes a heat press with a chemical reactant and positioned to be activated in response to the slap band being slapped against the handheld device; a step of slapping the warming wrap onto the handheld device activated the chemical reactant in the heating device”, it is interpreted that adapting the warming device of Trzeciak having the snap band attachment of Newman with the chemical heater activated by agitation or shaking of Krupa would result in activation of warming of the chemical heater as the warming device is slapped onto a handheld device, and therefore fully discloses the recited claim limitations.
Claim 6 is rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied 1, further in view of Yates (US 5,928,275). With respect to the limitations of claim 6, Trzeciak discloses further comprising an opening (pouch 70) and a heating device chamber the opening provides access to insert and remove a heating device (heat pack 50). Trzeciak in view of Newman discloses the claimed invention except for further comprising an opening in the outer layer. However, Yates discloses further comprising an opening (Figs 1, 2, opening 15, Col 2) in the outer layer (flaps 26, layer 12, Col 2) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak in view of Newman having and opening and outer layer with the further comprising an opening in the outer layer of Yates for the purpose of providing a known opening configuration that allows the opening to be protected by a flap, thereby ensuring that the contents inserted into the opening do not easily fall out.
Claim 8, 9, 10 and 11 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied 1, further in view of Walsh (US 2019/0168946). With respect to the limitations of claims 8, 9, 10 and 11, Trzeciak in view of Newman discloses the claimed invention except for further comprising a computer brain to control the level of heat produced by the heating layer; further comprising a switch connected to the computer brain; further comprising a display to provide information regarding the system; the display provides information including one or more of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information. However, Walsh discloses further comprising a computer brain (Fig 4, processor 432, 0040) to control the level of heat (0043) produced by the heating layer (Figs 2A, 2B, heating element 222a, 0028); further comprising a switch (0041, 0047, turning the sleeve or light on/off requires a switch connected to processor 432) connected to the computer brain; further comprising a display (Fig 4, display 444, 0052) to provide information regarding the system; the display provides information including one or more of: heat level (0052, temperature measured by a temperature level), external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak in view of Newman having a heating element silent to computer brain, switch and display with the further comprising a computer brain to control the level of heat produced by the heating layer; further comprising a switch connected to the computer brain; further comprising a display to provide information regarding the system; the display provides information including one or more of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information of Walsh for the purpose of providing a known computer brain, switch and display configuration that works in conjunction with the heating element to control, switch on/off and display temperature information related to the heating element of the warming device (0041, 0052).
Claims 14 and 31 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied 1, further in view of Farrington (US 2008/0272104) or Hadzizukic (US 6,727,467). With respect to the limitations of claims 14 and 31, Trzeciak teaches the step of positioning a warming wrap around a handheld device (see figures 1 and 4). Trzeciak in view of Newman discloses the claimed invention except for explicitly showing positioning the warming wrap around a ski pole or ski poles. However, Farrington discloses positioning the warming wrap around a ski pole (0005, ski poles) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the positioning a warming wrap around a handle of Trzeciak in view of Newman with the positioning the warming wrap around a ski pole of Farrington for the purpose of adapting the warming device to similar devices with handles that are cold and uncomfortable to touch when subject to cold winter temperatures (0004), thereby improving the overall comfort of the user. Additionally, Hadzizukic also discloses positioning the warming wrap around a ski pole or ski poles (Col 2, Lines 6-8, ski poles) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the positioning a warming wrap around a handle of Trzeciak in view of Newman with the positioning the warming wrap around a ski pole of Hadzizukic for the purpose of adapting the warming device to similar devices with handles that are cold and uncomfortable to touch when subject to cold winter temperatures (Col 2, Lines 3-10), thereby improving the overall comfort of the user.
Claims 9, 17 and 19 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied to claims 1, 8 and 13, further in view of Mak (WO 2014/107840). An English machine translation of Mak (WO 2014/107840) is included in the Notice of Reference Cited (PTO-892). With respect to the limitations of claims 9, 17 and 19, Trzeciak in view of Newman discloses the claimed invention except for explicitly showing further comprising a switch connected to the computer brain; further comprising a step of activating the heating layer using a switch to control a temperature of the heating layer; the step of using a switch includes activating a display connected to the switch, the display providing information including at least one or a combination of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information. However, Mak discloses the warming device (Figs 1-4, heat generating band 10, Pg 7) further comprising a switch (Fig 6, on/off switch 52, Pg 9) connected to the computer brain (controller 50, Pg 9); further comprising a step of activating the heating layer using a switch (52) to control a temperature of the heating layer (Fig 4, heater 40, temperature sensor 20, Pg 9); the step of using a switch (52) includes activating a display (LCD display 51, Pg 9) connected to the switch (52), the display providing information including at least one or a combination of: heat level (Pg 3, Par 3, a display for displaying the temperature; Pg 9, Par 3, too cold, too hot), external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak in view of Newman having a heating element silent to computer brain, switch and display with the further comprising a switch connected to the computer brain; further comprising a step of activating the heating layer using a switch to control a temperature of the heating layer; the step of using a switch includes activating a display connected to the switch, the display providing information including at least one or a combination of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information of Mak for the purpose of providing a known computer brain, switch and display configuration that works in conjunction with the heating element to control, switch on/off and display temperature information related to the heating element of the warming device (Pg 3, Par 3, Pg 9).
Response to Amendments Claims 1, 13, 14 and 20 have been amended. Claims 12, 15, 16 and 21 are cancelled. Claims 22-31 are new. Claims 1-11, 13, 14, 17-20 and 22-31 are pending.
Response to Arguments Applicant’s arguments, see Remarks, filed 5/24/2022, with respect to the rejections of claims 1-5, 7, 12, 13, 15, 16, 18, 20 and 21 as being anticipated by Trzeciak (US 6,427,678) as not teaching the amended claim limitations have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as set forth in the rejection above.
Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to THIEN S TRAN whose telephone number is (571)270-7745. The examiner can normally be reached on Monday-Friday [8:00-5:00]. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ibrahime Abraham can be reached on 571-270-5569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/THIEN S TRAN/Primary Examiner, Art Unit 3761 7/15/2022 | 2022-07-24T22:06:07 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Priority In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C.",
"103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1-5, 7, 13, 18, 20, 22, 23, 24, 25, 27 and 28 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614). With respect to the limitations of claim 1, Trzeciak teaches a system (Figs 1-3, warming apparatus 20, Col 2) adapted to connect to handheld devices (Fig 1, handle 32, Col 2) for warming; the system comprising: an outer layer (first sheet 46, col 3); a heating layer comprising a heating device (heat pack 50, Cols 2, 3); an insulation layer (second sheet 47, Col 3, Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being insulating materials) against the heating layer, the heating layer being between and against the outer layer and insulation layer (Figs 1, 4, pouch 70, Col 3); and (d) a fastener arrangement (attachment means 60, fastener 62, Col 3) to removably fasten the system to a handheld device.",
"Trzeciak discloses the claimed invention except for the fastener arrangement is a slap-on device comprising at least one slap band constructed and arranged to curl responsive to being slapped against a handheld device. However, Newman discloses the fastener arrangement is a slap-on device comprising at least one slap band (Figs 1-4, bistable spring band 114, 0030) constructed and arranged to curl responsive to being slapped against (0037) a handheld device (bar 108, 0026) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak having a fastener arrangement with the fastener arrangement is a slap-on device comprising at least one slap band constructed and arranged to curl responsive to being slapped against a handheld device of Newman for the purpose of providing a known alternative fastener configuration that allows a device to be quickly attached and removed with relative ease (0037-00038), thereby improving the overall convenience of the device.",
"With respect to the limitations of claims 2, 3, 4, 5 and 7, Trzeciak teaches the outer layer is one of water proof or water resistant (Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being water proof or water resistant materials); the outer layer comprises a fabric (Col 5, Lines 20-27, cloth, denim, plastic, vinyl, neoprene, rubber, polyester being materials having a surface that is capable of accepting a sublimation print) that is capable of being printed upon using sublimation printing; the heating device is an electronic heating device (Col 4, Lines 20-23, in one preferred embodiment, heat pack 50 generates heat using a battery-powered devices that heats a series of resistive elements or coils through the electricity stored in the batteries); the heating device is a non-electronic heating device (Col 4, Lines 12-20); the heating device is at least one of: removable from the system and replaceable in the system (Col 3, Lines 35-40, Col 4, Line 1); the fastener arrangement comprises one of at least: a slap-on device; an edge wrap; hook and loop; zippers; hooks and eye; frog fasteners; toggle fasteners; metal fasteners; grommets; eyelets; buttons; belts; and cords (Col 3, Lines 17-27).",
"With respect to the limitations of claim 13, Trzeciak teaches a method of warming an appendage, comprising the steps of: positioning a warming wrap (Figs 1-3, warming apparatus 20, Col 2) around a handheld device (Fig 1, handle 32, Col 2), the warming wrap having at least an outer layer (first sheet 46, col 3), a heating layer (outer surface of heat pack 50, Cols 2, 3), an insulation layer (second sheet 47, Col 3, Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being insulating materials), a heating device (chemical contents of heat pack 50 provide heat when exposed to oxygen, Col 4, Lines 6-18) to provide heat from the heating layer, and a fastener arrangement (attachment means 60, fastener 62, Col 3); fastening the warming wrap using the fastener arrangement to the handheld device (see figures 1, 4); and placing the appendage on the outer layer, heat from the heating layer transmits through the outer layer to the appendage (hands of user are heated by warming apparatus 20). Trzeciak discloses the claimed invention except for the fastener arrangement is a slap band; and fastening the device by slapping the wrap having the slap band onto the handheld device to curl the wrap around the handheld device with the slap band. However, Newman discloses the fastener arrangement is a slap band (Figs 1-4, bistable spring band 114, 0030); and fastening the device by slapping (0037) the wrap having the slap band onto the handheld device (bar 108, 0026) to curl the wrap around the handheld device with the slap band is known in the art.",
"It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the method of warming an appendage of Trzeciak having a fastener arrangement with the fastener arrangement is a slap band; and fastening the device by slapping the wrap having the slap band onto the handheld device to curl the wrap around the handheld device with the slap band of Newman for the purpose of providing a known alternative fastener configuration that allows a device to be quickly attached and removed with relative ease (0037-00038), thereby improving the overall convenience of the device.",
"With respect to the limitations of claim 18, Trzeciak teaches the step of using the fastener arrangement includes using a snap-on device (Col 3, Lines 20-30, a snap fit member); the step of using the fastener arrangement includes using an edge wrap (Figs 1, 4, Velcro attachment covers an edge of the warming apparatus 20); further comprising a step of inserting the heating device into a heating device chamber within the heating layer (see figures 1, 2, 4, 5). With respect to the limitations of claim 20, Trzeciak teaches a handheld device including a warming wrap (Figs 1-3, warming apparatus 20, Col 2), the warming wrap comprising: an outer layer (first sheet 46, col 3); a heating layer comprising a heating device (heat pack 50, Cols 2, 3); an insulation layer (second sheet 47, Col 3, Col 5, Lines 20-27, plastic, vinyl, neoprene, rubber, polyester being insulating materials) against the heating layer, the heating layer being between and against the outer layer and insulation layer (Figs 1, 4, pouch 70, Col 3); and a fastener arrangement (attachment means 60, fastener 62, Col 3) to fasten the warming wrap to the handheld device; the fastener arrangement is removable (Col 3, Lines 21-28).",
"Trzeciak discloses the claimed invention except for the fastener arrangement is a slap-on device comprising at least one slap band to fasten to the handheld device, the slap band being flat in a first state and curled in a second state responsive to being slapped against the handheld device. However, Newman discloses the fastener arrangement is a slap-on device comprising at least one slap band (Figs 1-4, bistable spring band 114, 0030) to fasten to the handheld device (bar 108, 0026), the slap band being flat in a first state and curled in a second state responsive (0037) to being slapped against the handheld device is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming device of Trzeciak having a fastener arrangement with the fastener arrangement is a slap-on device comprising at least one slap band to fasten to the handheld device, the slap band being flat in a first state and curled in a second state responsive to being slapped against the handheld device of Newman for the purpose of providing a known alternative fastener configuration that allows a device to be quickly attached and removed with relative ease (0037-00038), thereby improving the overall convenience of the device.",
"With respect to the limitations of claims 22, 23, 24, 25, 27 and 28, Trzeciak in view of Newman discloses the slap band includes a bi-stable ribbon spring (Newman, Fig 4, first bistable spring band 114, 0023) and self-coiling metal strips (second and third bistable spring band 114); the at least one slap band is integrated in the insulation layer (Newman, Figs 2, 4, spring bands 114 located between top elastomeric layer 102 and bottom elastomeric layer 104, 0022); the at least one slap band includes a plurality of slap bands (Newman, Fig 4, multiple bistable spring bands 114); the at least one slap band further includes a separate fastening device (Figs 1, 4, Velco 106A, 106B, 0026).",
"Claims 26, 29 and 30 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied to claims 1, 5, 13 and 20, further in view of Krupa (US 3,980,070). With respect to the limitations of claims 26, 29 and 30, Trzeciak using a chemical heater (Col 4, Lines 5-10, heat pack 50…generate heat through a chemical reaction). Additionally, Newman discloses an attachment device being a slap band that is attached by slapping against a handheld device. Trzeciak in view of Newman discloses the claimed invention except for the chemical heating device includes a heat press with a chemical reactant where warming is activated in response agitation of the chemical heating device.",
"However, Krupa discloses the chemical heating device includes a heat press with a chemical reactant (Figs 1-5, heating pack 1, inner bag 2, chemical composition 3, Cols 2, 3) where warming is activated in response agitation of the chemical heating device (Col 8, Lines 35-40, agitated by finger motion or shaking) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system and method of Trzeciak in view of Newman having a chemical heating device and slap band with the chemical heating device includes a heat press with a chemical reactant where warming is activated in response agitation of the chemical heating device of Krupa for the purpose of providing a known warming device that is connected to handheld devices being activated by the agitating motion of the warming device.",
"With respect to the limitations of claims 26, 29 and 30 and “the heating device includes a heat press with a chemical reactant and positioned to be activated in response to the slap band being slapped against the handheld device; a step of slapping the warming wrap onto the handheld device activated the chemical reactant in the heating device”, it is interpreted that adapting the warming device of Trzeciak having the snap band attachment of Newman with the chemical heater activated by agitation or shaking of Krupa would result in activation of warming of the chemical heater as the warming device is slapped onto a handheld device, and therefore fully discloses the recited claim limitations. Claim 6 is rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied 1, further in view of Yates (US 5,928,275).",
"With respect to the limitations of claim 6, Trzeciak discloses further comprising an opening (pouch 70) and a heating device chamber the opening provides access to insert and remove a heating device (heat pack 50). Trzeciak in view of Newman discloses the claimed invention except for further comprising an opening in the outer layer. However, Yates discloses further comprising an opening (Figs 1, 2, opening 15, Col 2) in the outer layer (flaps 26, layer 12, Col 2) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak in view of Newman having and opening and outer layer with the further comprising an opening in the outer layer of Yates for the purpose of providing a known opening configuration that allows the opening to be protected by a flap, thereby ensuring that the contents inserted into the opening do not easily fall out. Claim 8, 9, 10 and 11 are rejected under 35 U.S.C.",
"103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied 1, further in view of Walsh (US 2019/0168946). With respect to the limitations of claims 8, 9, 10 and 11, Trzeciak in view of Newman discloses the claimed invention except for further comprising a computer brain to control the level of heat produced by the heating layer; further comprising a switch connected to the computer brain; further comprising a display to provide information regarding the system; the display provides information including one or more of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information. However, Walsh discloses further comprising a computer brain (Fig 4, processor 432, 0040) to control the level of heat (0043) produced by the heating layer (Figs 2A, 2B, heating element 222a, 0028); further comprising a switch (0041, 0047, turning the sleeve or light on/off requires a switch connected to processor 432) connected to the computer brain; further comprising a display (Fig 4, display 444, 0052) to provide information regarding the system; the display provides information including one or more of: heat level (0052, temperature measured by a temperature level), external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information is known in the art.",
"It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak in view of Newman having a heating element silent to computer brain, switch and display with the further comprising a computer brain to control the level of heat produced by the heating layer; further comprising a switch connected to the computer brain; further comprising a display to provide information regarding the system; the display provides information including one or more of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information of Walsh for the purpose of providing a known computer brain, switch and display configuration that works in conjunction with the heating element to control, switch on/off and display temperature information related to the heating element of the warming device (0041, 0052). Claims 14 and 31 are rejected under 35 U.S.C.",
"103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied 1, further in view of Farrington (US 2008/0272104) or Hadzizukic (US 6,727,467). With respect to the limitations of claims 14 and 31, Trzeciak teaches the step of positioning a warming wrap around a handheld device (see figures 1 and 4). Trzeciak in view of Newman discloses the claimed invention except for explicitly showing positioning the warming wrap around a ski pole or ski poles. However, Farrington discloses positioning the warming wrap around a ski pole (0005, ski poles) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the positioning a warming wrap around a handle of Trzeciak in view of Newman with the positioning the warming wrap around a ski pole of Farrington for the purpose of adapting the warming device to similar devices with handles that are cold and uncomfortable to touch when subject to cold winter temperatures (0004), thereby improving the overall comfort of the user.",
"Additionally, Hadzizukic also discloses positioning the warming wrap around a ski pole or ski poles (Col 2, Lines 6-8, ski poles) is known in the art. It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the positioning a warming wrap around a handle of Trzeciak in view of Newman with the positioning the warming wrap around a ski pole of Hadzizukic for the purpose of adapting the warming device to similar devices with handles that are cold and uncomfortable to touch when subject to cold winter temperatures (Col 2, Lines 3-10), thereby improving the overall comfort of the user. Claims 9, 17 and 19 are rejected under 35 U.S.C. 103 as being obvious over Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as applied to claims 1, 8 and 13, further in view of Mak (WO 2014/107840).",
"An English machine translation of Mak (WO 2014/107840) is included in the Notice of Reference Cited (PTO-892). With respect to the limitations of claims 9, 17 and 19, Trzeciak in view of Newman discloses the claimed invention except for explicitly showing further comprising a switch connected to the computer brain; further comprising a step of activating the heating layer using a switch to control a temperature of the heating layer; the step of using a switch includes activating a display connected to the switch, the display providing information including at least one or a combination of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information. However, Mak discloses the warming device (Figs 1-4, heat generating band 10, Pg 7) further comprising a switch (Fig 6, on/off switch 52, Pg 9) connected to the computer brain (controller 50, Pg 9); further comprising a step of activating the heating layer using a switch (52) to control a temperature of the heating layer (Fig 4, heater 40, temperature sensor 20, Pg 9); the step of using a switch (52) includes activating a display (LCD display 51, Pg 9) connected to the switch (52), the display providing information including at least one or a combination of: heat level (Pg 3, Par 3, a display for displaying the temperature; Pg 9, Par 3, too cold, too hot), external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information is known in the art.",
"It would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to adapt the warming system of Trzeciak in view of Newman having a heating element silent to computer brain, switch and display with the further comprising a switch connected to the computer brain; further comprising a step of activating the heating layer using a switch to control a temperature of the heating layer; the step of using a switch includes activating a display connected to the switch, the display providing information including at least one or a combination of: heat level, external temperature, snow temperature, snow reports, light condition, snow depth, time, geographic location, altitude, maps, trail reports, test reports, weather, advertisements, news updates, and ski lift information of Mak for the purpose of providing a known computer brain, switch and display configuration that works in conjunction with the heating element to control, switch on/off and display temperature information related to the heating element of the warming device (Pg 3, Par 3, Pg 9).",
"Response to Amendments Claims 1, 13, 14 and 20 have been amended. Claims 12, 15, 16 and 21 are cancelled. Claims 22-31 are new. Claims 1-11, 13, 14, 17-20 and 22-31 are pending. Response to Arguments Applicant’s arguments, see Remarks, filed 5/24/2022, with respect to the rejections of claims 1-5, 7, 12, 13, 15, 16, 18, 20 and 21 as being anticipated by Trzeciak (US 6,427,678) as not teaching the amended claim limitations have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Trzeciak (US 6,427,678) in view of Newman (US 2014/0274614) as set forth in the rejection above. Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL.",
"See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to THIEN S TRAN whose telephone number is (571)270-7745. The examiner can normally be reached on Monday-Friday [8:00-5:00]. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ibrahime Abraham can be reached on 571-270-5569. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).",
"If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /THIEN S TRAN/Primary Examiner, Art Unit 3761 7/15/2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-24.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1019150
Decision Date: 05/24/10 Archive Date: 06/04/10
DOCKET NO. 04-37 763 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David S. Ames, Counsel
INTRODUCTION
The Veteran served on active duty from February 1963 to
February 1966.
This matter comes properly before the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Columbia, South Carolina (RO). This case was remanded by the
Board in July 2006 and December 2008 for additional
development.
FINDING OF FACT
The Veteran has a current diagnosis of posttraumatic stress
disorder (PTSD) that is associated with an in-service
stressor which is corroborated by credible supporting
evidence.
CONCLUSION OF LAW
PTSD was incurred in active military service. 38 U.S.C.A. §§
1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.304, 4.125 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009). VA
has issued regulations implementing the VCAA. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2009). Without deciding
whether the notice and development requirements of the VCAA
have been satisfied in the present case, this law does not
preclude the Board from adjudicating the issue involving the
Veteran's claim for service connection for PTSD as the Board
is taking action favorable to the Veteran by granting service
connection for this disorder. As such, this decision poses
no risk of prejudice to the Veteran. See, e.g., Bernard v.
Brown, 4 Vet. App. 384 (1993); see also Pelegrini v.
Principi, 17 Vet. App. 412 (2004).
Generally, service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. § 3.303(a). In addition, service connection may be
granted for any disease diagnosed after discharge, when all
the evidence including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
Service connection for PTSD requires (1) medical evidence
diagnosing the condition in accordance with 38 C.F.R. §
4.125(a); (2) a link, established by medical evidence,
between current symptoms and an in-service stressor; and (3)
credible supporting evidence that the claimed in-service
stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of
a mental disorder, including PTSD, must conform to the
criteria of DSM-IV. 38 C.F.R. § 4.125.
If the evidence establishes that the Veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the Veteran's service, the Veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §
3.304(f)(1).
Furthermore, if the Veteran did not engage in combat with the
enemy or if the claimed stressors are not related to combat,
then the Veteran's testimony alone is not sufficient to
establish the occurrence of the claimed stressors, and his
testimony must be corroborated by credible supporting
evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997);
Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9
Vet. App. 163 (1996); Fossie v. West, 12 Vet. App. 1, 6
(1998).
The Veteran's service treatment records show that the Veteran
was given a psychiatric evaluation in December 1965. After
mental status examination, the impression was mildly
inadequate personality.
After separation from military service, VA mental health
reports dated from September 1983 to November 1983 gave
diagnoses of alcoholism.
A January 1999 VA outpatient mental health report included a
review of the Veteran's history and a mental status
examination. The diagnoses were adjustment reaction, not
otherwise specified, and anxiety state, not otherwise
specified.
In a March 2002 VA outpatient mental health report, the
Veteran reported that a recent traumatic incident had caused
nightmares about an old traumatic incident during military
service. The Veteran reported that during military service
he had been attacked while he was sleeping by men who beat
him, resulting in eight stitches to his face. The diagnosis
was PTSD. The medical evidence of record shows that PTSD has
been consistently diagnosed since March 2002.
The medical evidence of record clearly shows that the Veteran
has a current diagnosis of PTSD for VA purposes that has been
related to an in-service stressor. See 38 C.F.R. § 4.125.
However, the Veteran's claim has been repeatedly denied on
the basis that there was no objective evidence that
established that the Veteran "engaged in combat with the
enemy" and there was insufficient evidence to corroborate the
claimed stressor. See VAOPGCPREC 12-99; 65 Fed. Reg. 6257
(2000). In this regard, there are no references to combat in
the Veteran's service personnel records and he did not earn
any decorations, medals, badges, ribbons, or awards
indicative of participation in combat. As such, the
Veteran's claimed stressor must be corroborated by credible
supporting evidence. 38 C.F.R. § 3.304(f).
The evidence of record includes credible supporting evidence
which corroborates the Veteran's claimed stressor. The
Veteran has submitted numerous statements which provide
further details about the alleged in-service stressor. While
the dates and some minor details vary in these accounts, the
general description remains the same. The Veteran reported
that the incident occurred in 1965 while he was stationed
onboard the USS TERREBONNE PARISH (LST-1156). He reported
that while the ship was docked in Baltimore, Maryland, he was
assaulted at night while he was sleeping by other sailors,
resulting in injuries to his eye. The Veteran stated that he
was taken to a local civilian hospital in Baltimore, where he
received multiple stitches for this injury.
The Veteran's description of his traumatic stressor very
closely matches the description of an incident described in
the log book of the USS TERREBONNE PARISH. In the log book
for August 1965, an entry for an unlisted day stated that
from 12:00 a.m. to 4:00 a.m. the ship was in drydock in
Baltimore, Maryland. The entry stated that at 3:00 a.m., the
Veteran "received a cut over his left eye when he was
allegedly struck by [another service member]. Treatment was
administered at South Baltimore General Hospital." This log
report matches the Veteran's description of his reported
traumatic stressor in essentially every detail, and clearly
identifies the Veteran as the victim by using his full name
and his service identification number. Thus, the August 1965
deck log from the USS TERREBONNE PARISH provides credible
evidence which is consistent with the Veteran's claimed
stressor.
Accordingly, there is credible supporting evidence of record
which corroborates the Veteran's claimed stressor. See
Suozzi v. Brown, 10 Vet. App. 307, 311 (1997) (holding that
corroboration does not require "that there be corroboration
of every detail including the appellant's personal
participation in the identifying process."); see also
Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002)
(finding that while the Veteran's unit records did not
specifically show that he was present during the alleged
rocket attacks, "the fact that he was stationed with a unit
that was present while such attacks occurred would strongly
suggest that he was, in fact, exposed to the attacks."). As
such, the Board finds that the Veteran has a current
diagnosis of PTSD that is associated with an in-service
stressor which is corroborated by credible supporting
evidence. See 38 C.F.R. § 3.304(f).
Accordingly, applying the doctrine of reasonable doubt, the
Board finds that the Veteran's PTSD is related to active
military service and therefore, service connection for PTSD
is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for PTSD is granted.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 05-24-2010 | [
"Citation Nr: 1019150 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 04-37 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1966. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). This case was remanded by the Board in July 2006 and December 2008 for additional development.",
"FINDING OF FACT The Veteran has a current diagnosis of posttraumatic stress disorder (PTSD) that is associated with an in-service stressor which is corroborated by credible supporting evidence. CONCLUSION OF LAW PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the Veteran's claim for service connection for PTSD as the Board is taking action favorable to the Veteran by granting service connection for this disorder.",
"As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).",
"Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of DSM-IV. 38 C.F.R. § 4.125. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.",
"38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1). Furthermore, if the Veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App.",
"163 (1996); Fossie v. West, 12 Vet. App. 1, 6 (1998). The Veteran's service treatment records show that the Veteran was given a psychiatric evaluation in December 1965. After mental status examination, the impression was mildly inadequate personality. After separation from military service, VA mental health reports dated from September 1983 to November 1983 gave diagnoses of alcoholism. A January 1999 VA outpatient mental health report included a review of the Veteran's history and a mental status examination.",
"The diagnoses were adjustment reaction, not otherwise specified, and anxiety state, not otherwise specified. In a March 2002 VA outpatient mental health report, the Veteran reported that a recent traumatic incident had caused nightmares about an old traumatic incident during military service. The Veteran reported that during military service he had been attacked while he was sleeping by men who beat him, resulting in eight stitches to his face. The diagnosis was PTSD. The medical evidence of record shows that PTSD has been consistently diagnosed since March 2002. The medical evidence of record clearly shows that the Veteran has a current diagnosis of PTSD for VA purposes that has been related to an in-service stressor.",
"See 38 C.F.R. § 4.125. However, the Veteran's claim has been repeatedly denied on the basis that there was no objective evidence that established that the Veteran \"engaged in combat with the enemy\" and there was insufficient evidence to corroborate the claimed stressor. See VAOPGCPREC 12-99; 65 Fed. Reg. 6257 (2000). In this regard, there are no references to combat in the Veteran's service personnel records and he did not earn any decorations, medals, badges, ribbons, or awards indicative of participation in combat. As such, the Veteran's claimed stressor must be corroborated by credible supporting evidence. 38 C.F.R. § 3.304(f). The evidence of record includes credible supporting evidence which corroborates the Veteran's claimed stressor. The Veteran has submitted numerous statements which provide further details about the alleged in-service stressor. While the dates and some minor details vary in these accounts, the general description remains the same.",
"The Veteran reported that the incident occurred in 1965 while he was stationed onboard the USS TERREBONNE PARISH (LST-1156). He reported that while the ship was docked in Baltimore, Maryland, he was assaulted at night while he was sleeping by other sailors, resulting in injuries to his eye. The Veteran stated that he was taken to a local civilian hospital in Baltimore, where he received multiple stitches for this injury. The Veteran's description of his traumatic stressor very closely matches the description of an incident described in the log book of the USS TERREBONNE PARISH. In the log book for August 1965, an entry for an unlisted day stated that from 12:00 a.m. to 4:00 a.m. the ship was in drydock in Baltimore, Maryland.",
"The entry stated that at 3:00 a.m., the Veteran \"received a cut over his left eye when he was allegedly struck by [another service member]. Treatment was administered at South Baltimore General Hospital.\" This log report matches the Veteran's description of his reported traumatic stressor in essentially every detail, and clearly identifies the Veteran as the victim by using his full name and his service identification number. Thus, the August 1965 deck log from the USS TERREBONNE PARISH provides credible evidence which is consistent with the Veteran's claimed stressor. Accordingly, there is credible supporting evidence of record which corroborates the Veteran's claimed stressor. See Suozzi v. Brown, 10 Vet. App. 307, 311 (1997) (holding that corroboration does not require \"that there be corroboration of every detail including the appellant's personal participation in the identifying process. \"); see also Pentecost v. Principi, 16 Vet. App.",
"124, 128-29 (2002) (finding that while the Veteran's unit records did not specifically show that he was present during the alleged rocket attacks, \"the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks.\"). As such, the Board finds that the Veteran has a current diagnosis of PTSD that is associated with an in-service stressor which is corroborated by credible supporting evidence. See 38 C.F.R. § 3.304(f). Accordingly, applying the doctrine of reasonable doubt, the Board finds that the Veteran's PTSD is related to active military service and therefore, service connection for PTSD is warranted.",
"Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
544 U.S. 923 SALGADO-RODRIGUEZv.UNITED STATES. No. 04-5453. Supreme Court of United States. March 21, 2005.
1 C. A. 5th Cir. Certiorari denied. Reported below: 95 Fed. Appx. 603. | 04-28-2010 | [
"544 U.S. 923 SALGADO-RODRIGUEZv.UNITED STATES. No. 04-5453. Supreme Court of United States. March 21, 2005. 1 C. A. 5th Cir. Certiorari denied. Reported below: 95 Fed. Appx. 603."
]
| https://www.courtlistener.com/api/rest/v3/opinions/143196/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Walter Dennis prosecutes this appeal to reverse a judgment of conviction against him for the crime of grand larceny. The first assignment of error is that the evidence is not legally sufficient to support the verdict. According to the testimony of the witnesses for the State, the storehouse of Elmer Carter at Durham, Washington County, Arkansas, was broken into in the nighttime somewhere near the 16th day of July, 1924, and between sixty and seventy-five dollars' worth of tobacco and a sack of sugar were taken therefrom. In a day or two afterwards, Carter received information that his tobacco was in a storehouse at Tahlequah, Oklahoma. He immediately went there and identified a quantity of tobacco in the storehouse of C. C. Estepp as being the tobacco which had been stolen from his store. Carter had been in partnership with his brother-in-law under the firm name of Carter Anderson. He bought his brother-in-law's interest in the store and continued to run it in the name of Carter Anderson. The tobacco in question was shipped to him in the name of "Carter Anderson, Durham, Ark.," and these words were marked on the tobacco boxes. The tobacco boxes found in the store of C. C. Estepp were plainly marked with the words, " Anderson, Durham, Ark.," and the word "Carter" had been partially rubbed off or scratched out. C. C. Estepp bought the tobacco from W. D. Dennis, and gave him a check for $29.91 in payment of it. This was something like one-half of the invoiced value of the tobacco. A short time after Estepp bought the tobacco, he told the chief of police of Tahlequah about having purchased it and the price he paid for it. The chief of police examined the tobacco box, and, when he found that the word "Carter" had been marked or scratched off, he asked Estepp for and obtained this piece of wood. *Page 507 The chief of police wrote to the sheriff of Washington County to find out if a store had been burglarized there, and, after he found out that it had been, he turned over this piece of plank or wood to the sheriff of Washington County, Ark. He also turned over to him the check which Estepp had given the defendant in payment of the tobacco, and this check bore the indorsement, "W. D. Dennis." This check was given the chief of police by Estepp. Another witness testified that he had examined the check in question and recognized the indorsement as the handwriting of W. D. Dennis. The defendant relied upon the defense of an alibi, and introduced evidence tending to establish it. The evidence for the State, if believed by the jury, was sufficient to warrant it in returning a verdict of guilty. Possession of property recently stolen justifies the inference that the possession is a guilty possession, and may be of controlling weight, unless explained by circumstances or accounted for in some way consistent with innocence. We have repeatedly held that the recent possession of stolen property by the defendant unexplained, when taken in connection with other circumstances similar to those proved in this case, is sufficient to warrant a verdict of guilty. Indeed, the recent possession stolen property by the accused, unexplained, warrants the jury in returning a verdict of guilty. McDonald v. State, 165 Ark. 411, and cased cited. The third assignment of error is that the court erred in permitting the State to read in evidence the stub of the check which was claimed to have been given by C. C. Estepp to the defendant in payment of the tobacco. The record shows that Estepp gave to Dennis a check for $29.91 for some tobacco purchased by him from the defendant, and that this tobacco was identified by Elmer Carter as the tobacco which is charged to have been stolen from him. Estepp turned this check over to the chief of police of Tahlequah, Oklahoma, and he in *Page 508 turn turned the check over to the sheriff of Washington County. It was placed among the papers in the grand jury room, but in some unaccountable way it became lost. Upon proof of these facts the court allowed the stub of the check, which was identified as such, to be introduced as evidence in the case. Under the circumstances there was no error in permitting the stub to be introduced as secondary evidence of the check which had been shown to be lost. If the check had not been lost, it would have been admissible in evidence. The general rule is that evidence is competent and admissible, though it may not be such as of itself to establish a fact, if it is such that the jury may, in connection with it and other relevant facts, make a finding respecting some issue material to the cause. Carter had identified the tobacco for which the check was given in payment as the tobacco which had been recently stolen from him when his store was burglarized. Hence its relevancy is apparent. Then, upon the same principle of law, there was no error in allowing the State to introduce the plank on which appeared the words " Anderson, Durham, Ark.," and which showed that the word "Carter," appearing before these words, had been nearly scratched off. Under the circumstances, this attempted mutilation of the plank might be construed by the jury as an attempt on the part of the defendant, who had possession of the tobacco, to keep it from being traced as the tobacco which had been taken from the store of Elmer Carter when it was burglarized. Other assignments of error are based upon the court allowing the State to prove by the sheriff that the defendant had stated to him when arrested that he had been in Ft. Smith, Arkansas, on the night the robbery was charged to have been committed. On this point the record shows that the defendant was arrested in Madison County in July, 1924, by the sheriff of that county, and the defendant was told by him *Page 509 that, if he could prove his whereabouts on the night the store was burglarized, he could prove his innocence. The defendant replied that he was visiting his mother over close to Ft. Smith on that night. This answer was voluntarily given by the defendant. On the trial of the case, he relied upon the defense of an alibi, and several witnesses including himself testified that he was at the home of his brother-in-law on the night in question, and that his brother-in-law lived in Washington County, quite a distance from Ft. Smith. Under the present state of the record there can be no doubt that the statement made by the defendant to the sheriff that he was in Ft. Smith on the night of the alleged burglary was false. If it was intentionally false, it tended to show the guilt of the defendant because it was in the nature of an admission of guilt. Of course, it was not necessary in order to render the evidence admissible that it should be sufficient to establish the guilt of the defendant. Its weight was for the jury, and it is sufficient that it tended to establish a material issue in the case. We have examined the instructions given by the court and consider them to be correct declarations of law as applicable to the facts. We find no reversible error in the record, and the judgment will be affirmed. | 07-05-2016 | [
"Walter Dennis prosecutes this appeal to reverse a judgment of conviction against him for the crime of grand larceny. The first assignment of error is that the evidence is not legally sufficient to support the verdict. According to the testimony of the witnesses for the State, the storehouse of Elmer Carter at Durham, Washington County, Arkansas, was broken into in the nighttime somewhere near the 16th day of July, 1924, and between sixty and seventy-five dollars' worth of tobacco and a sack of sugar were taken therefrom. In a day or two afterwards, Carter received information that his tobacco was in a storehouse at Tahlequah, Oklahoma.",
"He immediately went there and identified a quantity of tobacco in the storehouse of C. C. Estepp as being the tobacco which had been stolen from his store. Carter had been in partnership with his brother-in-law under the firm name of Carter Anderson. He bought his brother-in-law's interest in the store and continued to run it in the name of Carter Anderson. The tobacco in question was shipped to him in the name of \"Carter Anderson, Durham, Ark.,\" and these words were marked on the tobacco boxes. The tobacco boxes found in the store of C. C. Estepp were plainly marked with the words, \" Anderson, Durham, Ark.,\" and the word \"Carter\" had been partially rubbed off or scratched out. C. C. Estepp bought the tobacco from W. D. Dennis, and gave him a check for $29.91 in payment of it.",
"This was something like one-half of the invoiced value of the tobacco. A short time after Estepp bought the tobacco, he told the chief of police of Tahlequah about having purchased it and the price he paid for it. The chief of police examined the tobacco box, and, when he found that the word \"Carter\" had been marked or scratched off, he asked Estepp for and obtained this piece of wood. *Page 507 The chief of police wrote to the sheriff of Washington County to find out if a store had been burglarized there, and, after he found out that it had been, he turned over this piece of plank or wood to the sheriff of Washington County, Ark. He also turned over to him the check which Estepp had given the defendant in payment of the tobacco, and this check bore the indorsement, \"W. D. Dennis.\"",
"This check was given the chief of police by Estepp. Another witness testified that he had examined the check in question and recognized the indorsement as the handwriting of W. D. Dennis. The defendant relied upon the defense of an alibi, and introduced evidence tending to establish it. The evidence for the State, if believed by the jury, was sufficient to warrant it in returning a verdict of guilty. Possession of property recently stolen justifies the inference that the possession is a guilty possession, and may be of controlling weight, unless explained by circumstances or accounted for in some way consistent with innocence.",
"We have repeatedly held that the recent possession of stolen property by the defendant unexplained, when taken in connection with other circumstances similar to those proved in this case, is sufficient to warrant a verdict of guilty. Indeed, the recent possession stolen property by the accused, unexplained, warrants the jury in returning a verdict of guilty. McDonald v. State, 165 Ark. 411, and cased cited. The third assignment of error is that the court erred in permitting the State to read in evidence the stub of the check which was claimed to have been given by C. C. Estepp to the defendant in payment of the tobacco. The record shows that Estepp gave to Dennis a check for $29.91 for some tobacco purchased by him from the defendant, and that this tobacco was identified by Elmer Carter as the tobacco which is charged to have been stolen from him. Estepp turned this check over to the chief of police of Tahlequah, Oklahoma, and he in *Page 508 turn turned the check over to the sheriff of Washington County. It was placed among the papers in the grand jury room, but in some unaccountable way it became lost.",
"Upon proof of these facts the court allowed the stub of the check, which was identified as such, to be introduced as evidence in the case. Under the circumstances there was no error in permitting the stub to be introduced as secondary evidence of the check which had been shown to be lost. If the check had not been lost, it would have been admissible in evidence. The general rule is that evidence is competent and admissible, though it may not be such as of itself to establish a fact, if it is such that the jury may, in connection with it and other relevant facts, make a finding respecting some issue material to the cause. Carter had identified the tobacco for which the check was given in payment as the tobacco which had been recently stolen from him when his store was burglarized.",
"Hence its relevancy is apparent. Then, upon the same principle of law, there was no error in allowing the State to introduce the plank on which appeared the words \" Anderson, Durham, Ark.,\" and which showed that the word \"Carter,\" appearing before these words, had been nearly scratched off. Under the circumstances, this attempted mutilation of the plank might be construed by the jury as an attempt on the part of the defendant, who had possession of the tobacco, to keep it from being traced as the tobacco which had been taken from the store of Elmer Carter when it was burglarized. Other assignments of error are based upon the court allowing the State to prove by the sheriff that the defendant had stated to him when arrested that he had been in Ft. Smith, Arkansas, on the night the robbery was charged to have been committed. On this point the record shows that the defendant was arrested in Madison County in July, 1924, by the sheriff of that county, and the defendant was told by him *Page 509 that, if he could prove his whereabouts on the night the store was burglarized, he could prove his innocence.",
"The defendant replied that he was visiting his mother over close to Ft. Smith on that night. This answer was voluntarily given by the defendant. On the trial of the case, he relied upon the defense of an alibi, and several witnesses including himself testified that he was at the home of his brother-in-law on the night in question, and that his brother-in-law lived in Washington County, quite a distance from Ft. Smith. Under the present state of the record there can be no doubt that the statement made by the defendant to the sheriff that he was in Ft. Smith on the night of the alleged burglary was false. If it was intentionally false, it tended to show the guilt of the defendant because it was in the nature of an admission of guilt. Of course, it was not necessary in order to render the evidence admissible that it should be sufficient to establish the guilt of the defendant.",
"Its weight was for the jury, and it is sufficient that it tended to establish a material issue in the case. We have examined the instructions given by the court and consider them to be correct declarations of law as applicable to the facts. We find no reversible error in the record, and the judgment will be affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3267989/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: Stephen Cathalan to Thomas Jefferson, 12 July 1816 From: Cathalan, Stephen (Etienne) To: Jefferson, Thomas
My Dear sir— Marseilles the 12th July 1816 I have the honor of Remitting you herein Inclosed the 2ta of my Last Respects of the 19th ulto via Bordeaux, whereof Mr D. Strobel in the absence of Wam Lée Esqr & acting in his Stead as Consul of the U.s. =has acknowledged me Receipt= by his Letter of the 2d Inst =which he was forwarding by the Ship Tontine to Sail for new york with first fair wind;= This will Reach you by Capn Isaac Doane of the Brig David Moffit of Philada Ready to Sail from this Port for hyeres near Toulon to take in a Cargo of Salt for Philada; I Intrusted Said Capn with one Small Box Containing Immortelles, or Eternal Flowers (cassidony) which I have Gathered in the 1st days of this month at my Country Seat, directed to you under Cares & Thro’ the Collector of Philada to whom Said Capn has Promised to deliver it, with my Letter of advice, to him, on his Safe arival. when this Box will Reach you, I Beg your Leave to offer it to your Grand Daughters, as the only Flowers of my Garden worth to be Sent & offered to them in a Good State at Such a Great distance, tho’ I am as much as Possible Situated at hand, as the U/ States Frigate United states Commodore John Shaw, was anchored Twice at one half Gun Shot, distance where Gathered from the 29th april to the 5th may & from the 22d do to the 29th Last may; & in that Intervall I had the Pleasure of his Company on that mountanious Spot & we Drank together to your Good & Lasting health;— if Such flowers are Acceptable I Engage myself to Send them Yearly a fresh & even larger Supply, I am not Certain whether Such a plant Grows in virginia, but if next Spring there is here an American vessel Bound for norfolk or alexandria or any Port in the cheasapeack I will Send you Some Plants in vases, also Some Layers or Twigs in a Terrine, hopping that Provided the Capn Takes Care of them in the Passage, they may Succeed & propagate very fast at Monticello with but Little Care, at Least into a Summer house in winter; here tho’ we have in that Season 4 to 6 Degrées of Frost they Succeed very Easily into dry & poor Earth, where they are Cultivated with Great advantage not only as an ornment in our Parterres but Even in Small fields, without being need to water them in the Summer & Dry Season, & Since Peace with England that flower being Purchased at advantageous Prices for the planters & those of my Country Seat are preffered to any others of my neighbourghs, I am Encreasing their Plantation yearly, observing it becomes an yearly Revenue, to me & my Gardner (Joint account) the English and northern Countries purchasing them at Good Prices, I am Glad to Draw a Tribute tho’ Small as it may be from the British, a very Short Compensation indeed of for the Losses I have Suffered by them during the war, & of for what we have Still to pay to them Since they Returned into France with their allies, to have Let Scape the Destructor of mankind from the Island of Elbe in March 1815; Regretting, no Doubt, their pretended Generosity by the Treaty of 1814—being moved by Self Interest & Machiavelism,! how has Behavied their Lord Exmouth, lately, toward the Dey of algiers,! I do not pretend to plead in favour of their chief of Pirates, but why before entering into further negotiations with him, why he did not fullfill the Payment of the napolitan Captives &a he had Redeemed by a Treaty, Shamefull perhaps for his honor & of his nation, the God neptun;—it was Reserved to the united States to Shew to all Eurpope & christian Powers, how to treat with Success with the Powers of Barbary, but when,? when the treaties were Brocken or unexecuted by Such powers, but not by a foolish or sottish & Matchiavelick agression, as he has done;— we will Soon See if the Result of their chalenge under Command of their Same admiral with Great forces, will be So Prompt & Successfull as the one of Commodore Ducatur ariving last year with only one Division of the u. states Frigates, without waiting for Superior forces with or by the 2d Division under Commodore Bainbridge; as I have not yet any official account on from our Consl Gal &a at algiers, this is Confidentialy hazarded on the Reports direct or the British news Papers. but what disgression digression from my 1st topic, the Immortelles Flowers! which made me forget, that of the 1st ones I Gathered in the year 1804 I made a garland over the Bust in Marble of the Immotrtal Gen. Washington your Predecessor President, which I Possess, & this Garland is as yet as Fresh as if it was of this Season. Pray, how has Succeeded the Plantation of olive Trées in south Carolina? I hope now to Receive soon, & probably by our Ministers Messrs Galatin or Pinkney, a Letter from you, acknowledging the Receipt of my 1st Invoice;— I hope also to be honored with a Letter from the Secretary of State, in answer to my claims, also the acts of Congress Respecting Consuls &a which may have been issued & not Received Since the term of your Presidency Expired. as to the 2d Bel of wine of Roussillon I Just Receivd, at Last, a Letter from Mr Durand of Perpignan in answer to mine of the 2d June, Informing me that he is on the eve of Sending it to me, by the 1st opportunity and of the Same qty of the 1st Bel; his Letter is of the 9th Inst & I had wrote him again on that Same Day, to Recall this object to his memory; I Received by this Same mail a Letter from henry Jackson Esqr our chargé d’affairs at Paris of the 6th Inst =Informing me of Mr Gallatin’s arival at havre on the 3d Inst in the Peacock Sloop of war, to be at Paris on the 9 or 10th Inst, he had not yet forwarded to him the Letters & packets for him, he has therefore as yet no Information to Communicate= begging you to Excuse my Prolixity, bad Hand & Tedious Style I apprehending to have abused in this, of the Friendship you are So kind as to honor me with. I remain with Great Respect & veneration my Dear sir your most obedt & Devoted Servant Stephen Cathalan. | 07-12-1816 | [
"Title: Stephen Cathalan to Thomas Jefferson, 12 July 1816 From: Cathalan, Stephen (Etienne) To: Jefferson, Thomas My Dear sir— Marseilles the 12th July 1816 I have the honor of Remitting you herein Inclosed the 2ta of my Last Respects of the 19th ulto via Bordeaux, whereof Mr D. Strobel in the absence of Wam Lée Esqr & acting in his Stead as Consul of the U.s. =has acknowledged me Receipt= by his Letter of the 2d Inst =which he was forwarding by the Ship Tontine to Sail for new york with first fair wind;= This will Reach you by Capn Isaac Doane of the Brig David Moffit of Philada Ready to Sail from this Port for hyeres near Toulon to take in a Cargo of Salt for Philada; I Intrusted Said Capn with one Small Box Containing Immortelles, or Eternal Flowers (cassidony) which I have Gathered in the 1st days of this month at my Country Seat, directed to you under Cares & Thro’ the Collector of Philada to whom Said Capn has Promised to deliver it, with my Letter of advice, to him, on his Safe arival.",
"when this Box will Reach you, I Beg your Leave to offer it to your Grand Daughters, as the only Flowers of my Garden worth to be Sent & offered to them in a Good State at Such a Great distance, tho’ I am as much as Possible Situated at hand, as the U/ States Frigate United states Commodore John Shaw, was anchored Twice at one half Gun Shot, distance where Gathered from the 29th april to the 5th may & from the 22d do to the 29th Last may; & in that Intervall I had the Pleasure of his Company on that mountanious Spot & we Drank together to your Good & Lasting health;— if Such flowers are Acceptable I Engage myself to Send them Yearly a fresh & even larger Supply, I am not Certain whether Such a plant Grows in virginia, but if next Spring there is here an American vessel Bound for norfolk or alexandria or any Port in the cheasapeack I will Send you Some Plants in vases, also Some Layers or Twigs in a Terrine, hopping that Provided the Capn Takes Care of them in the Passage, they may Succeed & propagate very fast at Monticello with but Little Care, at Least into a Summer house in winter; here tho’ we have in that Season 4 to 6 Degrées of Frost they Succeed very Easily into dry & poor Earth, where they are Cultivated with Great advantage not only as an ornment in our Parterres but Even in Small fields, without being need to water them in the Summer & Dry Season, & Since Peace with England that flower being Purchased at advantageous Prices for the planters & those of my Country Seat are preffered to any others of my neighbourghs, I am Encreasing their Plantation yearly, observing it becomes an yearly Revenue, to me & my Gardner (Joint account) the English and northern Countries purchasing them at Good Prices, I am Glad to Draw a Tribute tho’ Small as it may be from the British, a very Short Compensation indeed of for the Losses I have Suffered by them during the war, & of for what we have Still to pay to them Since they Returned into France with their allies, to have Let Scape the Destructor of mankind from the Island of Elbe in March 1815; Regretting, no Doubt, their pretended Generosity by the Treaty of 1814—being moved by Self Interest & Machiavelism,!",
"how has Behavied their Lord Exmouth, lately, toward the Dey of algiers,! I do not pretend to plead in favour of their chief of Pirates, but why before entering into further negotiations with him, why he did not fullfill the Payment of the napolitan Captives &a he had Redeemed by a Treaty, Shamefull perhaps for his honor & of his nation, the God neptun;—it was Reserved to the united States to Shew to all Eurpope & christian Powers, how to treat with Success with the Powers of Barbary, but when,? when the treaties were Brocken or unexecuted by Such powers, but not by a foolish or sottish & Matchiavelick agression, as he has done;— we will Soon See if the Result of their chalenge under Command of their Same admiral with Great forces, will be So Prompt & Successfull as the one of Commodore Ducatur ariving last year with only one Division of the u. states Frigates, without waiting for Superior forces with or by the 2d Division under Commodore Bainbridge; as I have not yet any official account on from our Consl Gal &a at algiers, this is Confidentialy hazarded on the Reports direct or the British news Papers. but what disgression digression from my 1st topic, the Immortelles Flowers!",
"which made me forget, that of the 1st ones I Gathered in the year 1804 I made a garland over the Bust in Marble of the Immotrtal Gen. Washington your Predecessor President, which I Possess, & this Garland is as yet as Fresh as if it was of this Season. Pray, how has Succeeded the Plantation of olive Trées in south Carolina? I hope now to Receive soon, & probably by our Ministers Messrs Galatin or Pinkney, a Letter from you, acknowledging the Receipt of my 1st Invoice;— I hope also to be honored with a Letter from the Secretary of State, in answer to my claims, also the acts of Congress Respecting Consuls &a which may have been issued & not Received Since the term of your Presidency Expired.",
"as to the 2d Bel of wine of Roussillon I Just Receivd, at Last, a Letter from Mr Durand of Perpignan in answer to mine of the 2d June, Informing me that he is on the eve of Sending it to me, by the 1st opportunity and of the Same qty of the 1st Bel; his Letter is of the 9th Inst & I had wrote him again on that Same Day, to Recall this object to his memory; I Received by this Same mail a Letter from henry Jackson Esqr our chargé d’affairs at Paris of the 6th Inst =Informing me of Mr Gallatin’s arival at havre on the 3d Inst in the Peacock Sloop of war, to be at Paris on the 9 or 10th Inst, he had not yet forwarded to him the Letters & packets for him, he has therefore as yet no Information to Communicate= begging you to Excuse my Prolixity, bad Hand & Tedious Style I apprehending to have abused in this, of the Friendship you are So kind as to honor me with. I remain with Great Respect & veneration my Dear sir your most obedt & Devoted Servant Stephen Cathalan."
]
| https://founders.archives.gov/API/docdata/Jefferson/03-10-02-0125 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PUTNAM INVESTORS FUND INTERIM MANAGEMENT CONTRACT This Management Contract is dated as of October 8, 2013 between PUTNAM INVESTORS FUND, a Massachusetts business trust (the “Fund”), and PUTNAM INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the “Manager”). In consideration of the mutual covenants herein contained, it is agreed as follows: 1. SERVICES TO BE RENDERED BY MANAGER TO FUND. (a) The Manager, at its expense, will furnish continuously an investment program for the Fund or, in the case of a Fund that has divided its shares into two or more series under Section 18(f)(2) of the Investment Company Act of 1940, as amended (the “1940 Act”), each series of the Fund identified from time to time on Schedule A to this Contract (each reference in this Contract to “a Fund” or to “the Fund” is also deemed to be a reference to any existing series of the Fund, as appropriate in the particular context), will determine what investments will be purchased, held, sold or exchanged by the Fund and what portion, if any, of the assets of the Fund will be held uninvested and will, on behalf of the Fund, make changes in such investments. Subject always to the control of the Trustees of the Fund and except for the functions carried out by the officers and personnel referred to in Section 1(d), the Manager will also manage, supervise and conduct the other affairs and business of the Fund and matters incidental thereto. In the performance of its duties, the Manager will comply with the provisions of the Agreement and Declaration of Trust and By-Laws of the Fund and the stated investment objectives, policies and restrictions of the Fund, will use its best efforts to safeguard and promote the welfare of the Fund and to comply with other policies which the Trustees may from time to time determine and will exercise the same care and diligence expected of the Trustees. (b) The Manager, at its expense, except as such expense is paid by the Fund as provided in Section 1(d), will furnish (1) all necessary investment and management facilities, including salaries of personnel, required for it to execute its duties faithfully; (2) suitable office space for the Fund; and (3) administrative facilities, including bookkeeping, clerical personnel and equipment necessary for the efficient conduct of the affairs of the Fund, including determination of the net asset value of the Fund, but excluding shareholder accounting services. Except as otherwise provided in Section 1(d), the Manager will pay the compensation, if any, of the officers of the Fund. (c) The Manager, at its expense, will place all orders for the purchase and sale of portfolio investments for the Fund’s account with brokers or dealers selected by the Manager. In the selection of such brokers or dealers and the placing of such orders, the Manager will use its best efforts to obtain for the Fund the most favorable price and execution available, except to the extent it may be permitted to pay higher brokerage commissions for brokerage and research services as described below. In using its best efforts to obtain for the Fund the most favorable price and execution available, the Manager, bearing in mind the Fund’s best interests at all times, will consider all factors it deems relevant, including by way of illustration, price, the size of the transaction, the nature of the market for the security, the amount of the commission, the timing of the transaction taking into account market prices and trends, the reputation, experience and financial stability of the broker or dealer involved and the quality of service rendered by the broker or dealer in other transactions. Subject to such policies as the Trustees of the Fund may determine, the Manager will not be deemed to have acted unlawfully or to have breached any duty created by this Contract or otherwise solely by reason of its having caused the Fund to pay a broker or dealer that provides brokerage and research services to the Manager an amount of commission for effecting a portfolio investment transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction, if the Manager determines in good faith that such amount of commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Manager’s overall responsibilities with respect to the Fund and to other clients of the Manager as to which the Manager exercises investment discretion. The Manager agrees that in connection with purchases or sales of portfolio investments for the Fund’s account, neither the Manager nor any officer, director, employee or agent of the Manager shall act as a principal or receive any commission other than as provided in Section 3. (d) The Fund will pay or reimburse the Manager for the compensation in whole or in part of such officers of the Fund and persons assisting them as may be determined from time to time by the Trustees of the Fund. The Fund will also pay or reimburse the Manager for all or part of the cost of suitable office space, utilities, support services and equipment attributable to such officers and persons as may be determined in each case by the Trustees of the Fund. The Fund will pay the fees, if any, of the Trustees of the Fund. (e) The Manager will not be obligated to pay any expenses of or for the Fund not expressly assumed by the Manager pursuant to this Section 1 other than as provided in Section 3. (f) Subject to the prior approval of a majority of the Trustees, including a majority of the Trustees who are not “interested persons” and, to the extent required by the 1940 Act and the rules and regulations under the 1940 Act, subject to any applicable guidance or interpretation of the Securities and Exchange Commission or its staff, by the shareholders of the Fund, the Manager may, from time to time, delegate to a sub-adviser or sub-administrator any of the Manager’s duties under this Contract, including the management of all or a portion of the assets being managed. In all instances, however, the Manager must oversee the provision of delegated services, the Manager must bear the separate costs of employing any sub-adviser or sub-administrator, and no delegation will relieve the Manager of any of its obligations under this Contract. 2. OTHER AGREEMENTS, ETC. It is understood that any of the shareholders, Trustees, officers and employees of the Fund may be a shareholder, director, officer or employee of, or be otherwise interested in, the Manager, and in any person controlled by or under common control with the Manager, and that the Manager and any person controlled by or under common control with the Manager may have an interest in the Fund. It is also understood that the Manager and any person controlled by or - 2 - under common control with the Manager may have advisory, management, service or other contracts with other organizations and persons and may have other interests and business. 3. COMPENSATION TO BE PAID BY THE FUND TO THE MANAGER. The Fund will pay to the Manager as compensation for the Manager’s services rendered, for the facilities furnished and for the expenses borne by the Manager pursuant to paragraphs (a), (b), and (c) of Section 1, a fee, based on the Fund’s Average Net Assets, computed and paid monthly at the annual rates set forth on Schedule B attached to this Contract, as from time to time amended. The Fund’s “Average Net Assets” means the average of all of the determinations of the Fund’s net asset value at the close of business on each business day during each month while this Contract is in effect. The fee is payable for each month within 15 days after the close of the month. The fees payable by the Fund to the Manager pursuant to this Section 3 will be reduced by any commissions, fees, brokerage or similar payments received by the Manager or any affiliated person of the Manager in connection with the purchase and sale of portfolio investments of the Fund, less any direct expenses approved by the Trustees incurred by the Manager or any affiliated person of the Manager in connection with obtaining such payments. In the event that expenses of the Fund for any fiscal year exceed the expense limitation on investment company expenses imposed by any statute or regulatory authority of any jurisdiction in which shares of the Fund are qualified for offer or sale, the compensation due the Manager for such fiscal year will be reduced by the amount of excess by a reduction or refund thereof. In the event that the expenses of the Fund exceed any expense limitation which the Manager may, by written notice to the Fund, voluntarily declare to be effective subject to such terms and conditions as the Manager may prescribe in such notice, the compensation due the Manager will be reduced, and if necessary, the Manager will assume expenses of the Fund, to the extent required by the terms and conditions of such expense limitation. If the Manager serves for less than the whole of a month, the foregoing compensation will be prorated. 4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT. This Contract will automatically terminate, without the payment of any penalty, in the event of its assignment, provided that no delegation of responsibilities by the Manager pursuant to Section 1(f) will be deemed to constitute an assignment. No provision of this Contract may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. No amendment of this Contract is effective until approved in a manner consistent with the 1940 Act, the rules and regulations under the 1940 Act and any applicable guidance or interpretation of the Securities and Exchange Commission or its staff. - 3 - 5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT. This Contract is effective on the date first above written, and unless sooner terminated automatically as set forth in Section 4 or unless sooner terminated as hereinafter provided, this Contract will remain in full force and effect as to a Fund until the earlier of (i) 150 days from the date first above written, or (ii) the effective date of a new management contract by and between the Fund and the Manager that has been approved by the affirmative vote of a majority of the outstanding shares of the respective Fund; provided, however, that it will remain in full force and effect for such longer period as the Securities and Exchange Commission or its staff shall permit. Either party hereto may at any time terminate this Contract as to a Fund by not less than 60 days’ written notice delivered or mailed by registered mail, postage prepaid, to the other party. Action with respect to a Fund may be taken either (i) by vote of a majority of the Trustees or (ii) by the affirmative vote of a majority of the outstanding shares of the respective Fund. Termination of this Contract pursuant to this Section 5 will be without the payment of any penalty. 6. CERTAIN DEFINITIONS. For the purposes of this Contract, the “affirmative vote of a majority of the outstanding shares” of a Fund means the affirmative vote, at a duly called and held meeting of shareholders of the respective Fund, (a) of the holders of 67% or more of the shares of the Fund present (in person or by proxy) and entitled to vote at the meeting, if the holders of more than 50% of the outstanding shares of the Fund entitled to vote at the meeting are present in person or by proxy or (b) of the holders of more than 50% of the outstanding shares of the Fund entitled to vote at the meeting, whichever is less. For the purposes of this Contract, the terms “affiliated person,” “control,” “interested person” and “assignment” have their respective meanings defined in the 1940 Act, subject, however, to the rules and regulations under the 1940 Act and any applicable guidance or interpretation of the Securities and Exchange Commission or its staff; the term “approve at least annually” will be construed in a manner consistent with the 1940 Act and the rules and regulations under the 1940 Act and any applicable guidance or interpretation of the Securities and Exchange Commission or its staff; and the term “brokerage and research services” has the meaning given in the Securities Exchange Act of 1934 and the rules and regulations under the Securities Exchange Act of 1934 and under any applicable guidance or interpretation of the Securities and Exchange Commission or its staff. 7. NON-LIABILITY OF MANAGER. In the absence of willful misfeasance, bad faith or gross negligence on the part of the Manager, or reckless disregard of its obligations and duties hereunder, the Manager shall not be subject to any liability to the Fund or to any shareholder of the Fund for any act or omission in the course of, or connected with, rendering services hereunder. - 4 - 8. LIMITATION OF LIABILITY OF THE TRUSTEES, OFFICERS, AND SHAREHOLDERS. A copy of the Agreement and Declaration of Trust of the Fund is on file with the Secretary of The Commonwealth of Massachusetts, and notice is hereby given that this instrument is executed on behalf of the Trustees of the Fund as Trustees and not individually and that the obligations of or arising out of this instrument are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and property of the respective Fund. [The remainder of this page intentionally left blank.] - 5 - IN WITNESS WHEREOF, PUTNAM INVESTORS FUND and PUTNAM INVESTMENT MANAGEMENT, LLC have each caused this instrument to be signed on its behalf by its President or a Vice President thereunto duly authorized, all as of the day and year first above written. PUTNAM INVESTORS FUND By: /s/ Jonathan S. Horwitz Jonathan S. Horwitz Executive Vice President, Principal Executive Officer, and Compliance Liaison PUTNAM INVESTMENT MANAGEMENT, LLC By: /s/ James P. Pappas James P. Pappas Director of Trustee Relations and Authorized Person - 6 - Schedule A Not applicable. - 7 - Schedule B 0.710% of the first $5 billion of Total Open-End Mutual Fund Average Net Assets; 0.660% of the next $5 billion of Total Open-End Mutual Fund Average Net Assets; 0.610% of the next $10 billion of Total Open-End Mutual Fund Average Net Assets; 0.560% of the next $10 billion of Total Open-End Mutual Fund Average Net Assets; 0.510% of the next $50 billion of Total Open-End Mutual Fund Average Net Assets; 0.490% of the next $50 billion of Total Open-End Mutual Fund Average Net Assets; 0.480% of the next $100 billion of Total Open-End Mutual Fund Average Net Assets; 0.475% of any excess thereafter. “Total Open-End Mutual Fund Average Net Assets” means the average of all of the determinations of the aggregate net assets of all open-end funds sponsored by Putnam Management (excluding the net assets of such funds investing in, or invested in by, other such funds, such as Putnam RetirementReady® Funds and Putnam Money Market Liquidity Fund, to the extent necessary to avoid "double-counting" of such net assets) at the close of business on each business day during each month while the Management Contract is in effect. - 8 - | [
"PUTNAM INVESTORS FUND INTERIM MANAGEMENT CONTRACT This Management Contract is dated as of October 8, 2013 between PUTNAM INVESTORS FUND, a Massachusetts business trust (the “Fund”), and PUTNAM INVESTMENT MANAGEMENT, LLC, a Delaware limited liability company (the “Manager”). In consideration of the mutual covenants herein contained, it is agreed as follows: 1. SERVICES TO BE RENDERED BY MANAGER TO FUND. (a) The Manager, at its expense, will furnish continuously an investment program for the Fund or, in the case of a Fund that has divided its shares into two or more series under Section 18(f)(2) of the Investment Company Act of 1940, as amended (the “1940 Act”), each series of the Fund identified from time to time on Schedule A to this Contract (each reference in this Contract to “a Fund” or to “the Fund” is also deemed to be a reference to any existing series of the Fund, as appropriate in the particular context), will determine what investments will be purchased, held, sold or exchanged by the Fund and what portion, if any, of the assets of the Fund will be held uninvested and will, on behalf of the Fund, make changes in such investments. Subject always to the control of the Trustees of the Fund and except for the functions carried out by the officers and personnel referred to in Section 1(d), the Manager will also manage, supervise and conduct the other affairs and business of the Fund and matters incidental thereto.",
"In the performance of its duties, the Manager will comply with the provisions of the Agreement and Declaration of Trust and By-Laws of the Fund and the stated investment objectives, policies and restrictions of the Fund, will use its best efforts to safeguard and promote the welfare of the Fund and to comply with other policies which the Trustees may from time to time determine and will exercise the same care and diligence expected of the Trustees. (b) The Manager, at its expense, except as such expense is paid by the Fund as provided in Section 1(d), will furnish (1) all necessary investment and management facilities, including salaries of personnel, required for it to execute its duties faithfully; (2) suitable office space for the Fund; and (3) administrative facilities, including bookkeeping, clerical personnel and equipment necessary for the efficient conduct of the affairs of the Fund, including determination of the net asset value of the Fund, but excluding shareholder accounting services. Except as otherwise provided in Section 1(d), the Manager will pay the compensation, if any, of the officers of the Fund. (c) The Manager, at its expense, will place all orders for the purchase and sale of portfolio investments for the Fund’s account with brokers or dealers selected by the Manager.",
"In the selection of such brokers or dealers and the placing of such orders, the Manager will use its best efforts to obtain for the Fund the most favorable price and execution available, except to the extent it may be permitted to pay higher brokerage commissions for brokerage and research services as described below. In using its best efforts to obtain for the Fund the most favorable price and execution available, the Manager, bearing in mind the Fund’s best interests at all times, will consider all factors it deems relevant, including by way of illustration, price, the size of the transaction, the nature of the market for the security, the amount of the commission, the timing of the transaction taking into account market prices and trends, the reputation, experience and financial stability of the broker or dealer involved and the quality of service rendered by the broker or dealer in other transactions. Subject to such policies as the Trustees of the Fund may determine, the Manager will not be deemed to have acted unlawfully or to have breached any duty created by this Contract or otherwise solely by reason of its having caused the Fund to pay a broker or dealer that provides brokerage and research services to the Manager an amount of commission for effecting a portfolio investment transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction, if the Manager determines in good faith that such amount of commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Manager’s overall responsibilities with respect to the Fund and to other clients of the Manager as to which the Manager exercises investment discretion.",
"The Manager agrees that in connection with purchases or sales of portfolio investments for the Fund’s account, neither the Manager nor any officer, director, employee or agent of the Manager shall act as a principal or receive any commission other than as provided in Section 3. (d) The Fund will pay or reimburse the Manager for the compensation in whole or in part of such officers of the Fund and persons assisting them as may be determined from time to time by the Trustees of the Fund. The Fund will also pay or reimburse the Manager for all or part of the cost of suitable office space, utilities, support services and equipment attributable to such officers and persons as may be determined in each case by the Trustees of the Fund. The Fund will pay the fees, if any, of the Trustees of the Fund.",
"(e) The Manager will not be obligated to pay any expenses of or for the Fund not expressly assumed by the Manager pursuant to this Section 1 other than as provided in Section 3. (f) Subject to the prior approval of a majority of the Trustees, including a majority of the Trustees who are not “interested persons” and, to the extent required by the 1940 Act and the rules and regulations under the 1940 Act, subject to any applicable guidance or interpretation of the Securities and Exchange Commission or its staff, by the shareholders of the Fund, the Manager may, from time to time, delegate to a sub-adviser or sub-administrator any of the Manager’s duties under this Contract, including the management of all or a portion of the assets being managed. In all instances, however, the Manager must oversee the provision of delegated services, the Manager must bear the separate costs of employing any sub-adviser or sub-administrator, and no delegation will relieve the Manager of any of its obligations under this Contract.",
"2. OTHER AGREEMENTS, ETC. It is understood that any of the shareholders, Trustees, officers and employees of the Fund may be a shareholder, director, officer or employee of, or be otherwise interested in, the Manager, and in any person controlled by or under common control with the Manager, and that the Manager and any person controlled by or under common control with the Manager may have an interest in the Fund. It is also understood that the Manager and any person controlled by or - 2 - under common control with the Manager may have advisory, management, service or other contracts with other organizations and persons and may have other interests and business. 3.",
"COMPENSATION TO BE PAID BY THE FUND TO THE MANAGER. The Fund will pay to the Manager as compensation for the Manager’s services rendered, for the facilities furnished and for the expenses borne by the Manager pursuant to paragraphs (a), (b), and (c) of Section 1, a fee, based on the Fund’s Average Net Assets, computed and paid monthly at the annual rates set forth on Schedule B attached to this Contract, as from time to time amended. The Fund’s “Average Net Assets” means the average of all of the determinations of the Fund’s net asset value at the close of business on each business day during each month while this Contract is in effect.",
"The fee is payable for each month within 15 days after the close of the month. The fees payable by the Fund to the Manager pursuant to this Section 3 will be reduced by any commissions, fees, brokerage or similar payments received by the Manager or any affiliated person of the Manager in connection with the purchase and sale of portfolio investments of the Fund, less any direct expenses approved by the Trustees incurred by the Manager or any affiliated person of the Manager in connection with obtaining such payments. In the event that expenses of the Fund for any fiscal year exceed the expense limitation on investment company expenses imposed by any statute or regulatory authority of any jurisdiction in which shares of the Fund are qualified for offer or sale, the compensation due the Manager for such fiscal year will be reduced by the amount of excess by a reduction or refund thereof.",
"In the event that the expenses of the Fund exceed any expense limitation which the Manager may, by written notice to the Fund, voluntarily declare to be effective subject to such terms and conditions as the Manager may prescribe in such notice, the compensation due the Manager will be reduced, and if necessary, the Manager will assume expenses of the Fund, to the extent required by the terms and conditions of such expense limitation. If the Manager serves for less than the whole of a month, the foregoing compensation will be prorated. 4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT. This Contract will automatically terminate, without the payment of any penalty, in the event of its assignment, provided that no delegation of responsibilities by the Manager pursuant to Section 1(f) will be deemed to constitute an assignment. No provision of this Contract may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought.",
"No amendment of this Contract is effective until approved in a manner consistent with the 1940 Act, the rules and regulations under the 1940 Act and any applicable guidance or interpretation of the Securities and Exchange Commission or its staff. - 3 - 5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT. This Contract is effective on the date first above written, and unless sooner terminated automatically as set forth in Section 4 or unless sooner terminated as hereinafter provided, this Contract will remain in full force and effect as to a Fund until the earlier of (i) 150 days from the date first above written, or (ii) the effective date of a new management contract by and between the Fund and the Manager that has been approved by the affirmative vote of a majority of the outstanding shares of the respective Fund; provided, however, that it will remain in full force and effect for such longer period as the Securities and Exchange Commission or its staff shall permit.",
"Either party hereto may at any time terminate this Contract as to a Fund by not less than 60 days’ written notice delivered or mailed by registered mail, postage prepaid, to the other party. Action with respect to a Fund may be taken either (i) by vote of a majority of the Trustees or (ii) by the affirmative vote of a majority of the outstanding shares of the respective Fund. Termination of this Contract pursuant to this Section 5 will be without the payment of any penalty. 6. CERTAIN DEFINITIONS. For the purposes of this Contract, the “affirmative vote of a majority of the outstanding shares” of a Fund means the affirmative vote, at a duly called and held meeting of shareholders of the respective Fund, (a) of the holders of 67% or more of the shares of the Fund present (in person or by proxy) and entitled to vote at the meeting, if the holders of more than 50% of the outstanding shares of the Fund entitled to vote at the meeting are present in person or by proxy or (b) of the holders of more than 50% of the outstanding shares of the Fund entitled to vote at the meeting, whichever is less.",
"For the purposes of this Contract, the terms “affiliated person,” “control,” “interested person” and “assignment” have their respective meanings defined in the 1940 Act, subject, however, to the rules and regulations under the 1940 Act and any applicable guidance or interpretation of the Securities and Exchange Commission or its staff; the term “approve at least annually” will be construed in a manner consistent with the 1940 Act and the rules and regulations under the 1940 Act and any applicable guidance or interpretation of the Securities and Exchange Commission or its staff; and the term “brokerage and research services” has the meaning given in the Securities Exchange Act of 1934 and the rules and regulations under the Securities Exchange Act of 1934 and under any applicable guidance or interpretation of the Securities and Exchange Commission or its staff. 7. NON-LIABILITY OF MANAGER. In the absence of willful misfeasance, bad faith or gross negligence on the part of the Manager, or reckless disregard of its obligations and duties hereunder, the Manager shall not be subject to any liability to the Fund or to any shareholder of the Fund for any act or omission in the course of, or connected with, rendering services hereunder.",
"- 4 - 8. LIMITATION OF LIABILITY OF THE TRUSTEES, OFFICERS, AND SHAREHOLDERS. A copy of the Agreement and Declaration of Trust of the Fund is on file with the Secretary of The Commonwealth of Massachusetts, and notice is hereby given that this instrument is executed on behalf of the Trustees of the Fund as Trustees and not individually and that the obligations of or arising out of this instrument are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and property of the respective Fund. [The remainder of this page intentionally left blank.]",
"- 5 - IN WITNESS WHEREOF, PUTNAM INVESTORS FUND and PUTNAM INVESTMENT MANAGEMENT, LLC have each caused this instrument to be signed on its behalf by its President or a Vice President thereunto duly authorized, all as of the day and year first above written. PUTNAM INVESTORS FUND By: /s/ Jonathan S. Horwitz Jonathan S. Horwitz Executive Vice President, Principal Executive Officer, and Compliance Liaison PUTNAM INVESTMENT MANAGEMENT, LLC By: /s/ James P. Pappas James P. Pappas Director of Trustee Relations and Authorized Person - 6 - Schedule A Not applicable. - 7 - Schedule B 0.710% of the first $5 billion of Total Open-End Mutual Fund Average Net Assets; 0.660% of the next $5 billion of Total Open-End Mutual Fund Average Net Assets; 0.610% of the next $10 billion of Total Open-End Mutual Fund Average Net Assets; 0.560% of the next $10 billion of Total Open-End Mutual Fund Average Net Assets; 0.510% of the next $50 billion of Total Open-End Mutual Fund Average Net Assets; 0.490% of the next $50 billion of Total Open-End Mutual Fund Average Net Assets; 0.480% of the next $100 billion of Total Open-End Mutual Fund Average Net Assets; 0.475% of any excess thereafter. “Total Open-End Mutual Fund Average Net Assets” means the average of all of the determinations of the aggregate net assets of all open-end funds sponsored by Putnam Management (excluding the net assets of such funds investing in, or invested in by, other such funds, such as Putnam RetirementReady® Funds and Putnam Money Market Liquidity Fund, to the extent necessary to avoid \"double-counting\" of such net assets) at the close of business on each business day during each month while the Management Contract is in effect.",
"- 8 -"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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963 A.2d 576 (2008) COM. v. WATTS. No. 3396 EDA 2007. Superior Court of Pennsylvania. September 10, 2008. Affirmed. | 10-30-2013 | [
"963 A.2d 576 (2008) COM. v. WATTS. No. 3396 EDA 2007. Superior Court of Pennsylvania. September 10, 2008. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2154477/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10
11 AURORA CERVANTES., Case No. 1:18-cv-01730-LJO-BAM 12 Plaintiff, ORDER TO SHOW CAUSE WHY 13 SANCTIONS SHOULD NOT BE IMPOSED v. FOR FAILURE TO APPEAR AND FAILURE 14 TO PROSECUTE THIS ACTION SAFIA ALI QASEM, et al., 15 Defendants. FOURTEEN (14) DAY DEADLINE 16
17 Plaintiff Aurora Cervantes (“Plaintiff”) filed this action against Defendants Safia Ali
18 Qasem (“Defendant Qasem”) and Balbir Singh (“Defendant Singh”) on December 24, 2018.
19 (Doc. No. 1.) On March 14, 2019, Plaintiff filed her First Amended Complaint. (Doc. No. 8.) 20 On March 26, 2019, Plaintiff and Defendant Qasem appeared before the Court for an Initial
21 Scheduling Conference wherein counsel for Plaintiff informed the Court that Plaintiff intended
22 to serve the First Amended Complaint on Defendant Singh and, if appropriate, request that the
23 Clerk of Court enter default against Defendant Singh. (See Doc. No. 9.) Accordingly, the Initial
24 Scheduling Conference was continued to April 23, 2019. (Id.) On April 22, 2019, Plaintiff filed
25 a notice that the matter had been settled with respect to Defendant Qasem. (Doc. No. 10.)
26 Plaintiff was ordered to file appropriate papers to dismiss or conclude this action as to Defendant 27 Qasem by August 20, 2019, and the Court converted the April 23, 2019 Scheduling Conference
28 to a Status Conference to discuss the status of service on Defendant Singh. (Doc. No. 12.)
1 1 At the April 23, 2019 Status Conference, counsel for Plaintiff informed the Court that
2 Defendant Singh had been personally served with the summons and operative complaint and
3 Plaintiff intended to request entry of default against him but was in the process of accomplishing
4 alternative mechanisms of service in order to reduce the possibility that Defendant Singh may
5 attempt to set aside any entry of default. Accordingly, this Court issued an order setting a Status
6 Conference for June 5, 2019, at 9:00 a.m. before Magistrate Judge Barbara A. McAuliffe to
7 discuss the status of service on Defendant Singh. (Doc. No. 14.)
8 On June 5, 2019, counsel for Plaintiff failed to appear at the Status Conference. As a
9 result, the Status Conference could not proceed without the necessary input from Plaintiff,
10 resulting in delay of this action. To date, Plaintiff has not filed a proof of service of the summons
11 and operative complaint on Defendant Singh or a request that the Clerk of Court enter default
12 against him.
13 Pursuant to Local Rule 110, “[f]ailure of counsel or of a party to comply with . . . any
14 order of the Court may be grounds for the imposition by the Court of any and all sanctions . . .
15 within the inherent power of the Court.” L.R. 110. “District courts have inherent power to control
16 their dockets,” and in exercising that power, a court may impose sanctions, including dismissal
17 of an action.” Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).
18 A court may dismiss an action with prejudice based on a party’s failure to prosecute an action or
19 failure to obey a court order, or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 20 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order); Malone
21 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a
22 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to
23 prosecute and to comply with local rules).
24 Accordingly, Daniel Malakauskas, counsel for Plaintiff Aurora Cervantes, is hereby
25 ORDERED TO SHOW CAUSE why this Court should not impose sanctions for his failure to
26 appear at the June 5, 2019 Status Conference and failure to prosecute this action. Mr.
27 Malakauskas shall file a written response to this Order to Show Cause within fourteen (14) days
28 of service of this order. If Plaintiff no longer intends to pursue this case, the Order to Show
2 1 Cause may be satisfied by filing a Notice of Voluntary Dismissal pursuant to Federal Rule of
2 Civil Procedure 41(a)(1)(A).
3 Failure to respond to this order will result in the imposition of sanctions, including
4 monetary sanctions and/or dismissal of this action with prejudice for failure to appear and
5 failure to prosecute.
6 IT IS SO ORDERED. 7
8 Dated: June 5, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9
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"1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AURORA CERVANTES., Case No. 1:18-cv-01730-LJO-BAM 12 Plaintiff, ORDER TO SHOW CAUSE WHY 13 SANCTIONS SHOULD NOT BE IMPOSED v. FOR FAILURE TO APPEAR AND FAILURE 14 TO PROSECUTE THIS ACTION SAFIA ALI QASEM, et al., 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Aurora Cervantes (“Plaintiff”) filed this action against Defendants Safia Ali 18 Qasem (“Defendant Qasem”) and Balbir Singh (“Defendant Singh”) on December 24, 2018. 19 (Doc. No. 1.) On March 14, 2019, Plaintiff filed her First Amended Complaint. (Doc. No.",
"8.) 20 On March 26, 2019, Plaintiff and Defendant Qasem appeared before the Court for an Initial 21 Scheduling Conference wherein counsel for Plaintiff informed the Court that Plaintiff intended 22 to serve the First Amended Complaint on Defendant Singh and, if appropriate, request that the 23 Clerk of Court enter default against Defendant Singh. (See Doc. No. 9.) Accordingly, the Initial 24 Scheduling Conference was continued to April 23, 2019. (Id.) On April 22, 2019, Plaintiff filed 25 a notice that the matter had been settled with respect to Defendant Qasem. (Doc. No. 10.) 26 Plaintiff was ordered to file appropriate papers to dismiss or conclude this action as to Defendant 27 Qasem by August 20, 2019, and the Court converted the April 23, 2019 Scheduling Conference 28 to a Status Conference to discuss the status of service on Defendant Singh.",
"(Doc. No. 12.) 1 1 At the April 23, 2019 Status Conference, counsel for Plaintiff informed the Court that 2 Defendant Singh had been personally served with the summons and operative complaint and 3 Plaintiff intended to request entry of default against him but was in the process of accomplishing 4 alternative mechanisms of service in order to reduce the possibility that Defendant Singh may 5 attempt to set aside any entry of default. Accordingly, this Court issued an order setting a Status 6 Conference for June 5, 2019, at 9:00 a.m. before Magistrate Judge Barbara A. McAuliffe to 7 discuss the status of service on Defendant Singh. (Doc. No. 14.) 8 On June 5, 2019, counsel for Plaintiff failed to appear at the Status Conference.",
"As a 9 result, the Status Conference could not proceed without the necessary input from Plaintiff, 10 resulting in delay of this action. To date, Plaintiff has not filed a proof of service of the summons 11 and operative complaint on Defendant Singh or a request that the Clerk of Court enter default 12 against him. 13 Pursuant to Local Rule 110, “[f]ailure of counsel or of a party to comply with . . . any 14 order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . 15 within the inherent power of the Court.” L.R. 110. “District courts have inherent power to control 16 their dockets,” and in exercising that power, a court may impose sanctions, including dismissal 17 of an action.” Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.",
"1986). 18 A court may dismiss an action with prejudice based on a party’s failure to prosecute an action or 19 failure to obey a court order, or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 20 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order); Malone 21 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a 22 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 23 prosecute and to comply with local rules). 24 Accordingly, Daniel Malakauskas, counsel for Plaintiff Aurora Cervantes, is hereby 25 ORDERED TO SHOW CAUSE why this Court should not impose sanctions for his failure to 26 appear at the June 5, 2019 Status Conference and failure to prosecute this action. Mr. 27 Malakauskas shall file a written response to this Order to Show Cause within fourteen (14) days 28 of service of this order. If Plaintiff no longer intends to pursue this case, the Order to Show 2 1 Cause may be satisfied by filing a Notice of Voluntary Dismissal pursuant to Federal Rule of 2 Civil Procedure 41(a)(1)(A). 3 Failure to respond to this order will result in the imposition of sanctions, including 4 monetary sanctions and/or dismissal of this action with prejudice for failure to appear and 5 failure to prosecute. 6 IT IS SO ORDERED. 7 8 Dated: June 5, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/90097729/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam. This action is in replevin to recover the possession of certain articles of household furniture covered by a chattel mortgage given to the plaintiff-respondent by the defendants James Fell and Madeline Fell. The defendant-appellant Henry *138Fell answered claiming ownership of the furniture and re-replevied it. The defendants James Fell and Madeline Fell defaulted. The furniture here in dispute had been owned by the defendant-appellant Henry Fell. It was testified by the defendants James Fell and Madeline Fell that it had been given to them by Henry Fell and it was included with other personal property in the chattel mortgage given by James and Madeline Fell to the plaintiff-respondent. Henry Fell denied ever having made a gift of the furniture and claimed that it was in his ownership and possession at the time it was replevied by the plaintiff. The trial court charged that the plaintiff had such an interest in the property covered by the- chattel mortgage as entitled it to immediate possession of the property; that there was an argument between the father, Henry Fell, and the son and the daughter-in-law, James and Madeline Fell, as to the ownership of the property and that the plaintiff had taken its chattel mortgage in good faith and then asked the jury to decide whether the plaintiff was to suffer by reason of the fact that there was a dispute over the ownership of the articles; also that the plaintiff was not bound either legally or otherwise to trace the ownership of each article which was covered by its chattel mortgage and that it had a right to assume that this was the property of James Fell and wife because, as the court stated, it was in the possession of James Fell and that was prima facie evidence of ownership. The court further charged that the plaintiff was not bound or concerned with any question of ownership between James and Madeline Fell and Henry Fell and that if there was any question as to that the proper procedure would have been for Henry Fell to contest such ownership with James Fell and wife. All of this was over the exception of the defendant-appellant and was obvious error. The judgment should be reversed upon the law and facts, with costs in this court and the court below to the defendant-appellant against the plaintiff-respondent, and a new trial granted. All concur. Judgment reversed upon the law and facts, with costs in this court and in the court below to the defendant-appellant against the plaintiff-respondent, and new trial granted. | 01-08-2022 | [
"Per Curiam. This action is in replevin to recover the possession of certain articles of household furniture covered by a chattel mortgage given to the plaintiff-respondent by the defendants James Fell and Madeline Fell. The defendant-appellant Henry *138Fell answered claiming ownership of the furniture and re-replevied it. The defendants James Fell and Madeline Fell defaulted. The furniture here in dispute had been owned by the defendant-appellant Henry Fell. It was testified by the defendants James Fell and Madeline Fell that it had been given to them by Henry Fell and it was included with other personal property in the chattel mortgage given by James and Madeline Fell to the plaintiff-respondent. Henry Fell denied ever having made a gift of the furniture and claimed that it was in his ownership and possession at the time it was replevied by the plaintiff. The trial court charged that the plaintiff had such an interest in the property covered by the- chattel mortgage as entitled it to immediate possession of the property; that there was an argument between the father, Henry Fell, and the son and the daughter-in-law, James and Madeline Fell, as to the ownership of the property and that the plaintiff had taken its chattel mortgage in good faith and then asked the jury to decide whether the plaintiff was to suffer by reason of the fact that there was a dispute over the ownership of the articles; also that the plaintiff was not bound either legally or otherwise to trace the ownership of each article which was covered by its chattel mortgage and that it had a right to assume that this was the property of James Fell and wife because, as the court stated, it was in the possession of James Fell and that was prima facie evidence of ownership.",
"The court further charged that the plaintiff was not bound or concerned with any question of ownership between James and Madeline Fell and Henry Fell and that if there was any question as to that the proper procedure would have been for Henry Fell to contest such ownership with James Fell and wife. All of this was over the exception of the defendant-appellant and was obvious error. The judgment should be reversed upon the law and facts, with costs in this court and the court below to the defendant-appellant against the plaintiff-respondent, and a new trial granted. All concur. Judgment reversed upon the law and facts, with costs in this court and in the court below to the defendant-appellant against the plaintiff-respondent, and new trial granted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5358932/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 32.02 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Quarterly Report of Morgan Stanley Smith Barney Charter Aspect L.P. (the “Partnership”) on Form10-Q for the quarter ended March 31, 2013, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Damian George, Chief Financial Officer and Director of Ceres Managed Futures LLC, the General Partner of the Partnership, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership. By: /s/Damian George Name: Damian George Title: Chief Financial Officer and Director of Ceres Managed Futures LLC General Partner of the registrant Date: May 13, 2013 | [
"EXHIBIT 32.02 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Quarterly Report of Morgan Stanley Smith Barney Charter Aspect L.P. (the “Partnership”) on Form10-Q for the quarter ended March 31, 2013, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Damian George, Chief Financial Officer and Director of Ceres Managed Futures LLC, the General Partner of the Partnership, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership.",
"By: /s/Damian George Name: Damian George Title: Chief Financial Officer and Director of Ceres Managed Futures LLC General Partner of the registrant Date: May 13, 2013"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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In re Johnson, Reginald; — Plaintiff(s); applying for supervisory and/or remedial writs and writ of mandamus; Parish of Tangipahoa, Twenty-First Judicial District Court, Div. “F”, No. 57922. Denied. Relator’s record in the district court does not contain the motions he alleges he has filed. Relator should submit his motions to the district court for its consideration. | 07-29-2022 | [
"In re Johnson, Reginald; — Plaintiff(s); applying for supervisory and/or remedial writs and writ of mandamus; Parish of Tangipahoa, Twenty-First Judicial District Court, Div. “F”, No. 57922. Denied. Relator’s record in the district court does not contain the motions he alleges he has filed. Relator should submit his motions to the district court for its consideration."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7577566/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Examiner’s Amendment An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee.
The application has been amended as follows:
1. (Currently amended) An information processing apparatus, comprising: a memory; and a processor, coupled to the memory, configured to: determine, for each task of a plurality of tasks executed in a distributed stream data processing platform, a log score based on an indication associated with easiness of occurrence of a failure; output a log message for each task of the plurality of tasks at an output frequency determined based on a log score of the task and a log score of at least one of an upstream task located upstream of the task and a downstream task located downstream of the task; and in the plurality of tasks, a first downstream task is disposed downstream of a first task and the first downstream task and a second downstream task are disposed downstream of a second task, output a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task, the log score for each task is determined according to at least one of a processing time of the task, a load applied to the processor for the task, and an amount of memory used for the task
6. (Currently amended) A method of causing a processor to execute a process, the process comprising: determining, for each task of a plurality of tasks executed in a distributed stream data processing platform, a log score based on an indication associated with easiness of occurrence of a failure; outputting a log message for each task of the plurality of tasks at an output frequency determined based on a log score of the task and a log score of at least one of an upstream task located upstream of the task and a downstream task located downstream of the task; and in the plurality of tasks, a first downstream task is disposed downstream of a first task and the first downstream task and a second downstream task are disposed downstream of a second task, outputting a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task, the log score for each task is determined according to at least one of a processing time of the task, a load applied to the processor for the task, and an amount of memory used for the task
7. (Currently amended) A non-transitory computer-readable recording medium having stored therein a program for causing a processor to execute a process, the process comprising: determining, for each task of a plurality of tasks executed in a distributed stream data processing platform, a log score based on an indication associated with easiness of occurrence of a failure; outputting a log message for each task of the plurality of tasks at an output frequency determined based on a log score of the task and a log score of at least one of an upstream task located upstream of the task and a downstream task located downstream of the task; and in the plurality of tasks, a first downstream task is disposed downstream of a first task and the first downstream task and a second downstream task are disposed downstream of a second task, outputting a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task, the log score for each task is determined according to at least one of a processing time of the task, a load applied to the processor for the task, and an amount of memory used for the task
Allowable Subject Matter Claims 1 and 3-7 are allowed.
The following is an examiner’s statement of reasons for allowance: The elements of independent claims 1, 6, and 7 were not found through a search of the prior art, nor were they considered obvious by the examiner. In particular, the prior art of record does not teach or suggest, in combination with the remaining limitations, “output a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task.”
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Philip Guyton whose telephone number is (571)272-3807. The examiner can normally be reached M-F 8:00-4:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bryce Bonzo can be reached on (571)272-3655. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/PHILIP GUYTON/Primary Examiner, Art Unit 2113 | 2022-07-13T16:27:07 | [
"DETAILED ACTION Examiner’s Amendment An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The application has been amended as follows: 1. (Currently amended) An information processing apparatus, comprising: a memory; and a processor, coupled to the memory, configured to: determine, for each task of a plurality of tasks executed in a distributed stream data processing platform, a log score based on an indication associated with easiness of occurrence of a failure; output a log message for each task of the plurality of tasks at an output frequency determined based on a log score of the task and a log score of at least one of an upstream task located upstream of the task and a downstream task located downstream of the task; and in the plurality of tasks, a first downstream task is disposed downstream of a first task and the first downstream task and a second downstream task are disposed downstream of a second task, output a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task, the log score for each task is determined according to at least one of a processing time of the task, a load applied to the processor for the task, and an amount of memory used for the task 6.",
"(Currently amended) A method of causing a processor to execute a process, the process comprising: determining, for each task of a plurality of tasks executed in a distributed stream data processing platform, a log score based on an indication associated with easiness of occurrence of a failure; outputting a log message for each task of the plurality of tasks at an output frequency determined based on a log score of the task and a log score of at least one of an upstream task located upstream of the task and a downstream task located downstream of the task; and in the plurality of tasks, a first downstream task is disposed downstream of a first task and the first downstream task and a second downstream task are disposed downstream of a second task, outputting a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task, the log score for each task is determined according to at least one of a processing time of the task, a load applied to the processor for the task, and an amount of memory used for the task 7.",
"(Currently amended) A non-transitory computer-readable recording medium having stored therein a program for causing a processor to execute a process, the process comprising: determining, for each task of a plurality of tasks executed in a distributed stream data processing platform, a log score based on an indication associated with easiness of occurrence of a failure; outputting a log message for each task of the plurality of tasks at an output frequency determined based on a log score of the task and a log score of at least one of an upstream task located upstream of the task and a downstream task located downstream of the task; and in the plurality of tasks, a first downstream task is disposed downstream of a first task and the first downstream task and a second downstream task are disposed downstream of a second task, outputting a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task, the log score for each task is determined according to at least one of a processing time of the task, a load applied to the processor for the task, and an amount of memory used for the task Allowable Subject Matter Claims 1 and 3-7 are allowed. The following is an examiner’s statement of reasons for allowance: The elements of independent claims 1, 6, and 7 were not found through a search of the prior art, nor were they considered obvious by the examiner.",
"In particular, the prior art of record does not teach or suggest, in combination with the remaining limitations, “output a log message of the first task at a higher output frequency than that of the second task when a log score of the first downstream task is higher than that of the second downstream task.” Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Philip Guyton whose telephone number is (571)272-3807. The examiner can normally be reached M-F 8:00-4:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bryce Bonzo can be reached on (571)272-3655. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).",
"If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /PHILIP GUYTON/Primary Examiner, Art Unit 2113"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-17.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 1-42, are pending in this application. Restriction 37 CFR 1.135(a) specifies that an application becomes abandoned if applicant "fails to reply" to an office action within the fixed statutory period. This failure may result either from (A) failure to reply within the statutory period, or (B) insufficiency of reply, i.e., failure to file a "complete and proper reply, as the condition of the case may require" within the statutory period. The response by applicant filed 5/11/22, is not a complete and proper reply to the restriction requirement mailed 3/17/22. Under election of species in the restriction, section 2, requires applicant to identify parts of the species corresponding to each substituent in the corresponding formula. Applicant failed to meet this requirement. Therefore, the Examiner assumed in the species Ar1 is substituted aryl, R53 is aryl, X is SO2, W1 is CH2. Improper Markush Rejection When an examiner determines that the members of a Markush group lack either a single structural similarity or a common use, or if the single structural similarity is a substantial structural feature of a chemical compound that is not essential to the common use, then a rejection on the basis that the claim contains an "improper Markush grouping" is appropriate (see subsection II). Note that this is a rejection on the merits and may be appealed to the Patent Trial and Appeal Board in accordance with 35 U.S.C. 134 and 37 CFR 41.31(a)(1). Claims 2, 14-21, 24, 34-41, are rejected on the basis that they contain an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 706.03(y). The grouping of compounds of the claims is improper because, the alternatives defined by the group do not share both a single structural similarity and a common use for the following reasons: 1) the compounds are different for each definition of Ar1, R53, X and W1, some of which have sub-definitions, and 2) there are non-specific aryl, cycloalkene, heteroaryl, heterocycloalkyl, heteroarylalkyl, heteroalkyl, which may be substituted. The single structural element shared by all the compounds is PNG media_image1.png 108 80 media_image1.png Greyscale . However, according to the specification PNG media_image1.png 108 80 media_image1.png Greyscale does not have the asserted utility. Therefore, the grouping of the compounds is improper. To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use. The elected species is not found in condition for allowance but since the claims are drawn to method of use the search was extended to include compounds, wherein Ar1 is optionally substituted phenyl, X is SO2, W1 and R53 are as defined in the claims. The search was stopped because prior arts were found and the non-elected species are not sufficiently few in numbers and have different structures. The remaining non-elected species are held withdrawn from further consideration. “If on examination the elected species is found to be anticipated or rendered obvious by prior art, the Markush claim and claims to the elected species will be rejected, and claims to the nonelected species will be held withdrawn from further consideration.” MPEP 803.02 IIIA. “If the examiner determines that the elected species is allowable over the prior art, the examination of the Markush claim will be extended. If prior art is then found that anticipates or renders obvious the Markush claim with respect to a nonelected species, the Markush claim shall be rejected; claims to the nonelected species would still be held withdrawn from further consideration. The prior art search will not be extended unnecessarily to cover all nonelected species.” MPEP 803.02 IIIA. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), first paragraph: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-13, 22-23, 25-33, 42, are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The claims are drawn to aspartyl beta-hydroxylase (ASPH) inhibitors, known today and those that may be discovered in the future. There are known ASPH, such as those cited in the specification. To ascertain the inhibitors, one must read the specification and other external sources into the claims contrary to several precedent decisions by the US courts. The specification fails to disclose enablement for ASPHs that are not disclosed in the specification but embraced by the claims. There are no disclosures of publications where such information may be found and the publications are not incorporated by reference. The invention is an invitation to a POSA to perform experiments using any known procedure to identify applicable ASPH inhibitors. There is no evidence in the specification that such experiments would work, and if successful the POSA would correctly be designated the inventor. Applicant should note that enablement requirement is an ‘“essential material’. See 37 CFR 1.57(b), 1.57(c)(1) to (2). See also MPEP 608.01(p), which states: A mere reference to another application, publication or patent is not an incorporation of anything therein into the application containing such reference for the purpose of satisfying the requirement of 35 USC 112, first paragraph. In re de Seversky, 474 F.2d 671, 177 USPQ 144 (CCPA 1973). . . . Particular attention should be directed to the subject matter and the specific portions of the referenced document where the subject matter being incorporated may be found. “All questions of enablement are evaluated against the claimed subject matter. The focus of the examination inquiry is whether everything within the scope of the claim is enabled. Accordingly, the first analytical step requires that the examiner determine exactly what subject matter is encompassed by the claims.” See, e.g., AK Steel Corp. v. Sollac, 344 F.3d 1234, 1244, 68 USPQ2d 1280, 1287 (Fed. Cir. 2003). The term therapeutically effective amount in claims 23-42 implies the claims are for treatment, which is claimed in claims 1-22. For claims 1-22, to be effective, metastasis cancer must be suppressed. Therefore, claims 23-42 are substantial duplicates of claims 1-22. Under the US patent practice, duplicates or substantial duplicate claims cannot be in the same application. By deleting one of the duplicates the rejection would be overcome. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-42, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wands et al., US 2015/0210677 A1 (effective 9/21/12). Wands et al., teach method of treating proliferative disease, such as cancer, by administering ASPH inhibitors. Administering is by conventional techniques [0036], [0211], [0215]. The cancer overexpressed ASPH, which is suppressed by the inhibitors [0005]. See the entire document, particularly, [0003], [0005]-[0057] and the following compounds, pp. 23-35:
PNG media_image2.png 306 470 media_image2.png Greyscale PNG media_image3.png 249 459 media_image3.png Greyscale PNG media_image4.png 750 505 media_image4.png Greyscale PNG media_image5.png 729 503 media_image5.png Greyscale PNG media_image6.png 751 506 media_image6.png Greyscale PNG media_image7.png 775 481 media_image7.png Greyscale PNG media_image8.png 748 483 media_image8.png Greyscale PNG media_image9.png 762 496 media_image9.png Greyscale PNG media_image10.png 757 500 media_image10.png Greyscale PNG media_image11.png 740 500 media_image11.png Greyscale PNG media_image12.png 762 496 media_image12.png Greyscale PNG media_image13.png 747 490 media_image13.png Greyscale PNG media_image14.png 770 486 media_image14.png Greyscale
In the compounds, wherein Ar1 is optionally substituted aryl or heteroaryl; R53 is optionally substituted alkyl, optionally substituted aryl or heteroaryl; X is SO2, CS or CO; W1 is a bond or CR50R51, and R50, R51 are H. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) 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. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-42, are rejected under 35 U.S.C. 103(a) as being unpatentable over Wands et al., WO 2015/0210677 A1 (effective filed date 9/21/12). Applicant claims method of treating proliferative disease, such as cancer, by administering ASPH inhibitors. Administering is by conventional techniques (claims 22, 42), which are the same as Wands et al. [0036], [0211], [0215]. The cancer overexpressed ASPH and is suppressed by the inhibitors. The compounds are the same as the prior art. Determination of the scope and content of the prior art (MPEP 2141.01 Wands et al., teach the same method by administering the same compounds. See as set forth under anticipatory rejection above. Ascertainment of the difference between the prior art and the claims (MPEP 2141.02) The difference between the instant invention and Wands et al., is that applicant claims treatment of gastric, sarcoma and leukemia cancers. Finding of prima facie obviousness---rational and motivation (MPEP 2142.2413) “[R]eason, suggestion, or motivation to combine may be found explicitly or implicitly: 1) in the prior art references themselves; 2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or 3) from the nature of the problem to be solved.” Ruiz v. A.B. Chance Co., 234 F.3d 654, 665; 57 USPQ2d 1161 (Fed. Cir. 2000); see In re Dembiczak, 175 F.3d 994, 999; 50 USPQ2d 1614 (Fed. Cir. 1999). Also, KSR 550 US 398, 82 USPQ2d 1385 (2007), instructs courts to take a more “expansive and flexible approach” in determining whether a patented invention was obvious at the time it was filed. 550 U.S. at 415. In particular, the Court emphasized the role of “common sense”. “Rigid preventative rules that deny fact finders recourse to common sense … are neither necessary under our case law nor consistent with it.” Id. at 421. See Wyers v. Master Lock Co, 95 USPQ2d 1525, (Fed. Cir. 2010). In the instant, the motivation is from the prior art, knowledge of those of ordinary skill in cancers and from the nature of the problem to be solved: 1) applicant wanted to treat cancers and 2) avoid the prior art. Wands et al., treat proliferative (metastasis) disorder, such as cancer. It is well-known in the art that cancer embraced gastric, sarcoma and leukemia cancers. There is no negative teaching away from gastric, sarcoma and leukemia cancers by the prior art. Having known the teaching by the prior art, one of ordinary skill would have known and be motivated to claim treatment of any cancer at the time the invention was filed. The choice of gastric, sarcoma and leukemia cancers is an obvious modification available for the preference of an artisan. There is reasonable expectation of success because the inventions are in the same field of endeavor. Therefore, the instant invention is prima facie obvious from the teachings of the prior art. Telephone Inquiry Any inquiry concerning this communication or earlier communications from the examiner should be directed to Taofiq A. Solola, whose telephone number is (571) 272-0709. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Anna Jiang, can be reached on (571) 272-0627. The fax phone number for this Group is (571) 273-8300. Any inquiry of a general nature or relating to the status of this application or proceeding should be directed to the Group receptionist whose telephone number is (571) 272-1600.
/TAOFIQ A SOLOLA/ Primary Examiner, Art Unit 1625 May 15, 2022 | 2022-05-25T11:42:12 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 1-42, are pending in this application. Restriction 37 CFR 1.135(a) specifies that an application becomes abandoned if applicant \"fails to reply\" to an office action within the fixed statutory period. This failure may result either from (A) failure to reply within the statutory period, or (B) insufficiency of reply, i.e., failure to file a \"complete and proper reply, as the condition of the case may require\" within the statutory period. The response by applicant filed 5/11/22, is not a complete and proper reply to the restriction requirement mailed 3/17/22.",
"Under election of species in the restriction, section 2, requires applicant to identify parts of the species corresponding to each substituent in the corresponding formula. Applicant failed to meet this requirement. Therefore, the Examiner assumed in the species Ar1 is substituted aryl, R53 is aryl, X is SO2, W1 is CH2. Improper Markush Rejection When an examiner determines that the members of a Markush group lack either a single structural similarity or a common use, or if the single structural similarity is a substantial structural feature of a chemical compound that is not essential to the common use, then a rejection on the basis that the claim contains an \"improper Markush grouping\" is appropriate (see subsection II). Note that this is a rejection on the merits and may be appealed to the Patent Trial and Appeal Board in accordance with 35 U.S.C. 134 and 37 CFR 41.31(a)(1). Claims 2, 14-21, 24, 34-41, are rejected on the basis that they contain an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat.",
"App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 706.03(y).",
"The grouping of compounds of the claims is improper because, the alternatives defined by the group do not share both a single structural similarity and a common use for the following reasons: 1) the compounds are different for each definition of Ar1, R53, X and W1, some of which have sub-definitions, and 2) there are non-specific aryl, cycloalkene, heteroaryl, heterocycloalkyl, heteroarylalkyl, heteroalkyl, which may be substituted. The single structural element shared by all the compounds is PNG media_image1.png 108 80 media_image1.png Greyscale . However, according to the specification PNG media_image1.png 108 80 media_image1.png Greyscale does not have the asserted utility. Therefore, the grouping of the compounds is improper. To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use. The elected species is not found in condition for allowance but since the claims are drawn to method of use the search was extended to include compounds, wherein Ar1 is optionally substituted phenyl, X is SO2, W1 and R53 are as defined in the claims.",
"The search was stopped because prior arts were found and the non-elected species are not sufficiently few in numbers and have different structures. The remaining non-elected species are held withdrawn from further consideration. “If on examination the elected species is found to be anticipated or rendered obvious by prior art, the Markush claim and claims to the elected species will be rejected, and claims to the nonelected species will be held withdrawn from further consideration.” MPEP 803.02 IIIA. “If the examiner determines that the elected species is allowable over the prior art, the examination of the Markush claim will be extended. If prior art is then found that anticipates or renders obvious the Markush claim with respect to a nonelected species, the Markush claim shall be rejected; claims to the nonelected species would still be held withdrawn from further consideration. The prior art search will not be extended unnecessarily to cover all nonelected species.” MPEP 803.02 IIIA.",
"Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), first paragraph: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same and shall set forth the best mode contemplated by the inventor of carrying out his invention. Claims 1, 3-13, 22-23, 25-33, 42, are rejected under 35 U.S.C.",
"112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The claims are drawn to aspartyl beta-hydroxylase (ASPH) inhibitors, known today and those that may be discovered in the future. There are known ASPH, such as those cited in the specification. To ascertain the inhibitors, one must read the specification and other external sources into the claims contrary to several precedent decisions by the US courts. The specification fails to disclose enablement for ASPHs that are not disclosed in the specification but embraced by the claims.",
"There are no disclosures of publications where such information may be found and the publications are not incorporated by reference. The invention is an invitation to a POSA to perform experiments using any known procedure to identify applicable ASPH inhibitors. There is no evidence in the specification that such experiments would work, and if successful the POSA would correctly be designated the inventor. Applicant should note that enablement requirement is an ‘“essential material’. See 37 CFR 1.57(b), 1.57(c)(1) to (2).",
"See also MPEP 608.01(p), which states: A mere reference to another application, publication or patent is not an incorporation of anything therein into the application containing such reference for the purpose of satisfying the requirement of 35 USC 112, first paragraph. In re de Seversky, 474 F.2d 671, 177 USPQ 144 (CCPA 1973). . . . Particular attention should be directed to the subject matter and the specific portions of the referenced document where the subject matter being incorporated may be found. “All questions of enablement are evaluated against the claimed subject matter. The focus of the examination inquiry is whether everything within the scope of the claim is enabled. Accordingly, the first analytical step requires that the examiner determine exactly what subject matter is encompassed by the claims.” See, e.g., AK Steel Corp. v. Sollac, 344 F.3d 1234, 1244, 68 USPQ2d 1280, 1287 (Fed.",
"Cir. 2003). The term therapeutically effective amount in claims 23-42 implies the claims are for treatment, which is claimed in claims 1-22. For claims 1-22, to be effective, metastasis cancer must be suppressed. Therefore, claims 23-42 are substantial duplicates of claims 1-22. Under the US patent practice, duplicates or substantial duplicate claims cannot be in the same application. By deleting one of the duplicates the rejection would be overcome. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claims 1-42, are rejected under 35 U.S.C.",
"102(a)(1) as being anticipated by Wands et al., US 2015/0210677 A1 (effective 9/21/12). Wands et al., teach method of treating proliferative disease, such as cancer, by administering ASPH inhibitors. Administering is by conventional techniques [0036], [0211], [0215]. The cancer overexpressed ASPH, which is suppressed by the inhibitors [0005]. See the entire document, particularly, [0003], [0005]-[0057] and the following compounds, pp. 23-35: PNG media_image2.png 306 470 media_image2.png Greyscale PNG media_image3.png 249 459 media_image3.png Greyscale PNG media_image4.png 750 505 media_image4.png Greyscale PNG media_image5.png 729 503 media_image5.png Greyscale PNG media_image6.png 751 506 media_image6.png Greyscale PNG media_image7.png 775 481 media_image7.png Greyscale PNG media_image8.png 748 483 media_image8.png Greyscale PNG media_image9.png 762 496 media_image9.png Greyscale PNG media_image10.png 757 500 media_image10.png Greyscale PNG media_image11.png 740 500 media_image11.png Greyscale PNG media_image12.png 762 496 media_image12.png Greyscale PNG media_image13.png 747 490 media_image13.png Greyscale PNG media_image14.png 770 486 media_image14.png Greyscale In the compounds, wherein Ar1 is optionally substituted aryl or heteroaryl; R53 is optionally substituted alkyl, optionally substituted aryl or heteroaryl; X is SO2, CS or CO; W1 is a bond or CR50R51, and R50, R51 are H. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) 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.",
"Patentability shall not be negatived by the manner in which the invention was made. Claims 1-42, are rejected under 35 U.S.C. 103(a) as being unpatentable over Wands et al., WO 2015/0210677 A1 (effective filed date 9/21/12). Applicant claims method of treating proliferative disease, such as cancer, by administering ASPH inhibitors. Administering is by conventional techniques (claims 22, 42), which are the same as Wands et al. [0036], [0211], [0215]. The cancer overexpressed ASPH and is suppressed by the inhibitors. The compounds are the same as the prior art. Determination of the scope and content of the prior art (MPEP 2141.01 Wands et al., teach the same method by administering the same compounds. See as set forth under anticipatory rejection above. Ascertainment of the difference between the prior art and the claims (MPEP 2141.02) The difference between the instant invention and Wands et al., is that applicant claims treatment of gastric, sarcoma and leukemia cancers. Finding of prima facie obviousness---rational and motivation (MPEP 2142.2413) “[R]eason, suggestion, or motivation to combine may be found explicitly or implicitly: 1) in the prior art references themselves; 2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or 3) from the nature of the problem to be solved.” Ruiz v. A.B. Chance Co., 234 F.3d 654, 665; 57 USPQ2d 1161 (Fed.",
"Cir. 2000); see In re Dembiczak, 175 F.3d 994, 999; 50 USPQ2d 1614 (Fed. Cir. 1999). Also, KSR 550 US 398, 82 USPQ2d 1385 (2007), instructs courts to take a more “expansive and flexible approach” in determining whether a patented invention was obvious at the time it was filed. 550 U.S. at 415. In particular, the Court emphasized the role of “common sense”. “Rigid preventative rules that deny fact finders recourse to common sense … are neither necessary under our case law nor consistent with it.” Id. at 421. See Wyers v. Master Lock Co, 95 USPQ2d 1525, (Fed. Cir. 2010). In the instant, the motivation is from the prior art, knowledge of those of ordinary skill in cancers and from the nature of the problem to be solved: 1) applicant wanted to treat cancers and 2) avoid the prior art.",
"Wands et al., treat proliferative (metastasis) disorder, such as cancer. It is well-known in the art that cancer embraced gastric, sarcoma and leukemia cancers. There is no negative teaching away from gastric, sarcoma and leukemia cancers by the prior art. Having known the teaching by the prior art, one of ordinary skill would have known and be motivated to claim treatment of any cancer at the time the invention was filed. The choice of gastric, sarcoma and leukemia cancers is an obvious modification available for the preference of an artisan. There is reasonable expectation of success because the inventions are in the same field of endeavor.",
"Therefore, the instant invention is prima facie obvious from the teachings of the prior art. Telephone Inquiry Any inquiry concerning this communication or earlier communications from the examiner should be directed to Taofiq A. Solola, whose telephone number is (571) 272-0709. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Anna Jiang, can be reached on (571) 272-0627. The fax phone number for this Group is (571) 273-8300. Any inquiry of a general nature or relating to the status of this application or proceeding should be directed to the Group receptionist whose telephone number is (571) 272-1600. /TAOFIQ A SOLOLA/ Primary Examiner, Art Unit 1625 May 15, 2022"
]
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Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 1 of 62
20 Civ. 06274 (LAK) United States District Court
for the Southern District of New York
IN RE TRANSCARE CORPORATION, ET AL. DEBTORS,
PATRIARCH PARTNERS AGENCY SERVICES, LLC, ET AL.
DEFENDANTS-APPELLANTS, —against— SALVATORE LAMONICA, AS CHAPTER 7 TRUSTEE OF THE JOINTLY- ADMINISTERED ESTATES OF TRANSCARE CORPORATION, ET AL.,
PLAINTIFF-APPELLEE.
ON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (BERNSTEIN, J.)
IN RE: TRANSCARE CORPORATION, ET AL., CASE NO. 16-10407 (SMB) LAMONICA V. TILTON, ET AL., ADV. PROC. NO. 18-1021 (SMB)
APPENDIX TO BRIEF FOR THE APPELLANTS
Volume XXXII- A3790-A3850 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 2 of 62
DX 147 LaMonica v. Tilton, et al. 18-01021-smb
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A3804 TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 17 of 62 STR ICTLY P R IVATE & CONFIDENTIAL Full Year OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 2016 % of Sales as of 2/21 Paratransit MD PA HV WP Monti-BL Corporate Patient Revenue Ambulance Revenue 364.1 1,508.3 1,549.6 1,549.6 1,549.6 1,572.9 1,572.9 1,572.9 1,595.9 1,595.9 1,595.9 - - 5,704.9 10,322.5 - - - 16,027.4 Transit Services 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 - - - - - - 21,161.0 Service Revenue 769.0 3,452.0 3,499.0 3,564.0 3,567.4 3,657.9 3,657.9 3,624.9 3,787.0 3,716.3 3,893.0 21,161.0 - 5,704.9 10,322.5 - - - 37,188.4 Premium Revenue - - - - - - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - - - - - - Total Operating Revenue 769.0 3,452.0 3,499.0 3,564.0 3,567.4 3,657.9 3,657.9 3,624.9 3,787.0 3,716.3 3,893.0 21,161.0 - 5,704.9 10,322.5 - - - 37,188.4
COST OF SERVICE Driver Compensation & Related 351.0 1,483.0 1,453.9 1,483.9 1,471.0 1,476.7 1,441.0 1,420.8 1,452.9 1,419.2 1,491.8 9,335.6 - 1,684.8 3,924.7 - - - 14,945.1 40.2% Benefits 72.0 304.3 298.1 304.1 301.4 302.6 295.5 291.6 298.2 291.2 305.7 1,867.1 - 412.8 784.9 - - - 3,064.8 8.2% Workers Comp 33.1 137.2 137.2 137.2 137.2 137.2 137.2 137.2 137.2 137.2 137.2 870.5 - 274.8 259.4 - - - 1,404.7 3.8% COPY/DISPATCH'S Compensation 12.1 58.3 58.5 60.4 60.5 62.6 62.6 61.6 65.7 63.6 68.9 634.8 - - - - - - 634.8 1.7% Fleet Maint Compensation 58.1 230.6 222.9 228.1 228.4 234.8 234.8 232.1 244.3 238.6 252.8 1,692.9 - 228.2 484.5 - - - 2,405.6 6.5% Repairs & Maintenance 86.9 171.7 173.0 177.5 177.7 183.0 183.0 180.7 191.0 186.0 198.4 1,481.3 - 221.1 206.5 - - - 1,908.9 5.1% Accident Costs 14.4 60.4 61.7 61.9 61.9 62.9 62.9 62.8 64.1 63.9 64.4 63.5 - 268.1 309.7 - - - 641.3 1.7% Fuel, Tolls & Parking Costs 10.5 44.3 45.3 45.5 45.6 46.3 46.3 46.2 47.2 47.0 47.6 63.5 - 171.1 237.4 - - - 472.0 1.3% Medical Supplies, Rentals & Repairs 7.8 33.0 33.7 33.9 33.9 34.6 34.6 34.5 35.3 35.1 35.6 63.5 - 102.7 185.8 - - - 351.9 0.9% Communications 4.0 17.8 18.1 18.4 18.4 18.9 18.9 18.7 19.5 19.2 20.0 105.8 - 30.6 55.4 - - - 191.8 0.5% Uniforms 1.7 7.8 7.9 8.0 8.0 8.3 8.3 8.2 8.6 8.4 8.9 55.0 - 10.3 18.6 - - - 83.9 0.2% Equipment 2.5 10.6 10.8 10.9 10.9 11.1 11.1 11.1 11.4 11.3 11.5 23.3 - 32.0 57.8 - - - 113.1 0.3% Health & Safety .1 .5 .5 .5 .5 .5 .5 .5 .5 .5 .5 - - 1.7 3.1 - - - 4.9 0.0% Licenses & Permits .9 4.0 4.0 4.1 4.1 4.3 4.3 4.2 4.4 4.3 4.6 31.7 - 4.1 7.4 - - - 43.2 0.1% SUB TOTAL - COST OF SERVICE 655.1 2,563.4 2,525.6 2,574.6 2,559.5 2,583.6 2,540.7 2,510.1 2,580.2 2,525.4 2,647.8 16,288.5 - 3,442.4 6,535.2 - - - 26,266.1 70.6%
Gross Profit 113.9 888.6 973.5 989.4 1,007.9 1,074.3 1,117.2 1,114.7 1,206.7 1,190.9 1,245.2 4,872.5 - 2,262.6 3,787.3 - - - 10,922.3 GP % 14.8% 25.7% 27.8% 27.8% 28.3% 29.4% 30.5% 30.8% 31.9% 32.0% 32.0% 23.0% #DIV/0! 39.7% 36.7% #DIV/0! #DIV/0! #DIV/0! 29.4%
OPERATING EXPENSES Management/Administrative Staffing 72.5 300.3 300.3 300.3 300.3 300.3 300.3 300.3 300.3 300.3 300.3 1,791.2 - 560.1 724.4 - - - 3,075.6 8.3% Facility Costs 31.9 132.1 132.1 132.1 132.1 132.1 132.1 132.1 132.1 132.1 132.1 871.7 - 278.8 202.1 - - - 1,352.6 3.6% ` Insurance Auto/Liability/D&O 26.2 108.7 108.7 108.7 108.7 108.7 108.7 108.7 108.7 108.7 108.7 358.4 - 413.9 340.8 - - - 1,113.1 3.0% Professional Fees 3.4 14.2 14.2 14.2 14.2 14.2 14.2 14.2 14.2 14.2 14.2 102.4 - 17.4 25.1 - - - 145.0 0.4% All Other SG&A 82.8 73.7 73.7 73.7 73.7 73.7 73.7 73.7 73.7 73.7 73.7 577.1 - 139.8 102.4 - - - 819.3 2.2% Transition Services - Payment to OldCo 5.9 24.5 24.5 24.5 24.5 24.5 24.5 24.5 24.5 24.5 24.5 157.6 - 5.9 87.0 - - - 250.5 0.7% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - - - - - - - 0.0% Bad Debt 21.8 90.5 93.0 93.0 93.0 94.4 94.4 94.4 95.8 95.8 95.8 - - 342.3 619.4 - - - 961.6 2.6% TOTAL OPERATING EXPENSES 244.5 743.8 746.3 746.3 746.3 747.7 747.7 747.7 749.1 749.1 749.1 3,858.4 - 1,758.1 2,101.3 - - - 7,717.8 20.8%
EBITDA (130.7) 144.7 227.1 243.1 261.6 326.6 369.5 367.0 457.6 441.8 496.1 1,014.0 - 504.4 1,686.0 - - - 3,204.5 8.6% -17.0% 4.2% 6.5% 6.8% 7.3% 8.9% 10.1% 10.1% 12.1% 11.9% 12.7% 4.8% #DIV/0! 8.8% 16.3% #DIV/0! #DIV/0! #DIV/0! 8.6% 0.0% Other Expense - - - - - - - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - - - - - - - 0.0% Depreciation 5.5 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 - - 41.8 125.6 - - - 167.4 0.5% Management Fees (PPAS) - - - - - - - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - - - - - - - 0.0% Subtotal Other 5.5 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 167.4 0.5% 0.0% Net Income (136.2) 128.6 210.9 226.9 245.4 310.4 353.3 350.8 441.4 425.6 479.9 1,014.0 - 504.4 1,686.0 - - - 3,037.1 8.2%
By Div DSO PMT Terms DSO 45 from ME 90 55 60 75 75 - Full Year
A3805 NewCo Financial Model TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 18 of 62 STR ICTLY P R IVATE & CONFIDENTIAL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 2016 as of 2/21 Paratransit MD PA HV WP Monti-BL Corporate Current Assets Cash and cash equivalents - (540.7) (25.3) (1,164.8) (1,014.9) (811.4) (513.5) (162.7) 295.8 738.7 1,172.5 1,675.0 (582.7) - 486.3 1,771.5 - - - 1,675.0 Patient Account Receivables (OldCo) - - - - - - - - - - - - - - - - - - - - Patient Account Receivables (NewCo) 5,209.6 5,614.5 6,012.9 6,385.6 6,583.3 6,735.0 6,875.5 6,988.5 6,985.5 7,126.2 7,217.2 7,338.1 4,417.5 - 885.2 2,035.4 - - - 7,338.1 6% Allowance for Bad Debt (122.6) (144.5) (235.0) (328.0) (420.9) (513.9) (608.3) (702.7) (797.0) (892.8) (988.5) (1,084.3) - - (384.6) (699.7) - - - (1,084.3) - Inventory Add Inventory 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 439.2 - 68.3 170.4 - - - 677.9 Prepaid and Other Current Assets - - - - - - - - - - - - - - - - - - - - Total Current Assets 5,764.8 5,607.3 6,430.6 5,570.7 5,825.4 6,087.6 6,431.6 6,801.1 7,162.2 7,650.0 8,079.2 8,606.8 4,274.0 - 1,055.2 3,277.6 - - - 8,606.8 - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - PPE Add Property, Plant and Equipment 6,785.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 - - 3,934.1 3,151.8 - - - 7,085.9 Accumulated Depreciation (6,429.1) (6,435.4) (6,451.6) (6,467.8) (6,484.0) (6,500.2) (6,516.4) (6,532.5) (6,548.7) (6,564.9) (6,581.1) (6,597.3) - - (3,622.1) (2,975.2) - - - (6,597.3) Property and equipment, net 356.9 650.5 634.4 618.2 602.0 585.8 569.6 553.4 537.2 521.0 504.8 488.7 - - 312.0 176.7 - - - 488.7 - - - - - - - - - - - Other Assets - - - - - - - - - - - Goodwill - - - - - - - - - - - - - - - - - - - - - Other Assets Add Other Assets 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 150.0 - 49.4 975.0 - - - 1,174.4 Total Other Assets 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 150.0 - 49.4 975.0 - - - 1,174.4 - Total Assets 7,296.2 7,432.2 8,239.4 7,363.3 7,601.8 7,847.8 8,175.7 8,528.9 8,873.9 9,345.5 9,758.4 10,269.9 4,424.0 - 1,416.7 4,429.2 - - - 10,269.9
Current Operating Liabilities 60 DPO Accounts payable 1,502.5 1,775.5 2,454.1 1,367.1 1,378.7 1,379.4 1,396.8 1,396.8 1,390.9 1,421.0 1,408.4 1,439.9 770.0 - 323.1 346.7 - - - 1,439.9 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - - - - - - - - - Chng in acc. exp para only Accrued PTO 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 322.8 - 60.1 126.0 - - - 508.9 InterCompany Balance - - - - - - - - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - - - - - - - - Total Current Liabilities 2,011.4 2,284.4 2,963.0 1,876.0 1,887.6 1,888.2 1,905.7 1,905.7 1,899.8 1,929.9 1,917.3 1,948.8 1,092.8 - 383.2 472.8 - - - 1,948.8
Other Long Term Liabilities Assumes no ABL Asset Based Loan - - - - - - - - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - - - - - - - - Fixed amount New Term Loan - - - - - - - - - - - - - - - - - - - - Fixed amount Capital Lease - - - - - - - - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - -
Total Liabilities 2,011.4 2,284.4 2,963.0 1,876.0 1,887.6 1,888.2 1,905.7 1,905.7 1,899.8 1,929.9 1,917.3 1,948.8 1,092.8 - 383.2 472.8 - - - 1,948.8
Common Equity 5,284.8 5,148.7 5,277.2 5,488.1 5,715.0 5,960.4 6,270.8 6,624.1 6,975.0 7,416.4 7,842.0 8,321.9 3,331.1 - 1,033.5 3,957.3 - - - 8,321.9 Total Equity 5,284.8 5,148.7 5,277.2 5,488.1 5,715.0 5,960.4 6,270.8 6,624.1 6,975.0 7,416.4 7,842.0 8,321.9 3,331.1 - 1,033.5 3,957.3 - - - 8,321.9
Check - (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) - - (.0) (.8) - - - (.8)
Full Year
A3806 NewCo Financial Model TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 19 of 62 STR ICTLY P R IVATE & CONFIDENTIAL Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 2016 Paratransit MD PA HV WP Monti-BL Corporate
Net Income (136.2) 128.6 210.9 226.9 245.4 310.4 353.3 350.8 441.4 425.6 479.9 1,014.0 - 462.6 1,560.4 - - - 3,037.1 Total Adjustments - - - - - - - - Adjustment to reconcile to net income - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - - - - - - - Provision for doubtful accounts 21.8 90.5 93.0 93.0 93.0 94.4 94.4 94.4 95.8 95.8 95.8 - - 342.3 619.4 - - - 961.6 Depreciation and amortization 5.5 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 - - 41.8 125.6 - - - 167.4 Deferred rent - - - - - - - - - - - - - - - - - - - Total Adj to reconcile to net income (108.8) 235.2 320.1 336.1 354.5 421.0 463.8 461.4 553.4 537.5 591.9 1,014.0 - 846.7 2,305.4 - - - 4,166.1 Operating Adjustments - - - - - - - - (Increase) Decrease in Assets - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - - - - - - - Accounts Receivable (NewCo) (405.0) (398.4) (372.7) (197.7) (151.7) (140.5) (113.0) 3.0 (140.7) (91.1) (120.9) (1,252.0) - (180.4) (696.1) - - - (2,128.5) Inventory - - - - - - - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - - - - - - - Total (Increase) Decrease in Assets (405.0) (398.4) (372.7) (197.7) (151.7) (140.5) (113.0) 3.0 (140.7) (91.1) (120.9) (1,252.0) - (180.4) (696.1) - - - (2,128.5) Increase (Decrease) In Liabilities - - - - - - - - A/P and Accrued Expenses 273.1 678.6 (1,087.0) 11.6 .6 17.4 - (5.9) 30.1 (12.6) 31.5 (344.8) - 120.0 162.2 - - - (62.6) Accrued Management Fees - - - - - - - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities 273.1 678.6 (1,087.0) 11.6 .6 17.4 - (5.9) 30.1 (12.6) 31.5 (344.8) - 120.0 162.2 - - - (62.6) Total Operating Adjustments (240.7) 515.4 (1,139.5) 150.0 203.4 297.9 350.8 458.5 442.8 433.9 502.5 (582.7) - 786.3 1,771.5 - - - 1,975.0
Investing Adjustments - - - - - - - - Capital Expenditures (300.0) - - - - - - - - - - - - (300.0) - - - - (300.0) Total Investing Adjustments (300.0) - - - - - - - - - - - - (300.0) - - - - (300.0) - - - - - - - Financing Adjustments - - - - - - - - Accrued Interest - - - - - - - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - - - - - - Total Cash Flow (540.7) 515.4 (1,139.5) 150.0 203.4 297.9 350.8 458.5 442.8 433.9 502.5 (582.7) - 486.3 1,771.5 - - - 1,675.0
A3807 NewCo Financial Model TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Quarter Q1 Document Q1 Q1 11-32 Q2 Filed Q2 09/30/20 Q2 Page Q3 20Q3of 62 Q3 Q4 Q4 Q4 FY STR ICTLY P R IVATE & CONFIDENTIAL Month Jan-16 Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales Total Days 31 29 31 30 31 30 31 31 30 31 30 31 366 Actual Days 0 7 31 30 31 30 31 31 30 31 30 31 313 DIVISION TOGGLE Division Included in NewCo? (1 = Yes, 0 = No) Paratransit 1 Maryland 0 PA/Pittsburgh 1 Hudson Valley 1 WP/Westchester 0 Monti/BL - Bronx/Lebanon and Montefiore 0
Corporate & Divisonal Payments
General Corporate 114,167 Management/Admin. Staffing Corporate Team - Monthly Salary & Benefits 0 0 0 0 0 0 0 0 0 0 0 0 0 0 22,500 All Other SG&A Monthly $15k Bank Fees & $7.5k Standard Business Costs 0 0 0 0 0 0 0 0 0 0 0 0 0 0 50,000 Management Fees (PPAS) Management Fees (PPAS) - Monthly 0 0 0 0 0 0 0 0 0 0 0 0 0 0 75,000 Agency Fee (PPAS) Agency Fees (Annual) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 60,000 Insurance Auto/Liability/D&O D&O/Crime Insurance (estimate) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 35,000 Professional Fees Professional Services and Other Fees 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Monthly payments from OldCo to NewCo - Corporate 0 Transition Services Risk Management Services/Safety - John Foerst 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2,500 Transition Services Compliance / QA - Margaret Azizo 0 0 0 0 0 0 0 0 0 0 0 0 0 0 169,218 Transition Services 159 Owned Vehicles to be used by OldCo 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Monthly Payments from OldCo to NewCo - Corporate 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Monthly payments from NewCo to OldCo - Corporate 0 Transition Services Billing - Various Employees 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Facilities - Corporate employees only 0 0 0 0 0 0 0 0 0 0 0 0 0 9,000 Transition Services Finance & Acconting - 4 resources 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2,500 Transition Services HR - P. Hunter & A. Bailey 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Insurance 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Payroll - Y. Servinenko 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5,000 Transition Services Revenue Cycle Mgmt - J. Koppel 0 0 0 0 0 0 0 0 0 0 0 0 0 0 25,000 Transition Services Telecomm - Voice 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Monthly Payments from NewCo to OldCo - Corporate 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Monthly payments from NewCo to OldCo - Divisional 15,388 Transition Services Ambulances - 7 vehicles 15,388 0 3,714 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 157,594 0 Transition Services MTA Facility 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Transit Total 15,388 0 3,714 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 157,594 72 Transition Services Ventilators - 1 units 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services MD Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 574 Transition Services Ventilators - 8 units 574 0 138 574 574 574 574 574 574 574 574 574 574 5,876 Transition Services PA Total 574 0 138 574 574 574 574 574 574 574 574 574 574 5,876 359 Transition Services Ventilators - 5 units 359 0 87 359 359 359 359 359 359 359 359 359 359 3,673 8,140 Transition Services Ambulances - 5 vehicles 8,140 0 1,965 8,140 8,140 8,140 8,140 8,140 8,140 8,140 8,140 8,140 8,140 83,365 Transition Services HV Total 8,499 0 2,051 8,499 8,499 8,499 8,499 8,499 8,499 8,499 8,499 8,499 8,499 87,037 430 Transition Services Ventilators - 6 units 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6,341 Transition Services Facilities (lease and Utilities) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Westchester/WP Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4,993 Transition Services Radios 0 0 0 0 0 0 0 0 0 0 0 0 0 0 359 Transition Services Ventilators - 5 units 0 0 0 0 0 0 0 0 0 0 0 0 0 0 18,888 Transition Services Facilities (lease and Utilities) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Montefiore/BL Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0
A3808 Inputs Paratransit Case 1:20-cv-06274-LAK Division Toggle: 1 Document 11-32 Filed 09/30/20 Page 21 of 62 TOTAL REVENUES Bulk (Subsidy) 0 0% Lance $404,972 $1,943,700 $1,949,400 $2,014,380 $2,017,800 $2,085,060 $2,085,060 $2,052,000 $2,191,080 $2,120,400 $2,297,100 21,160,952 100% Lette 0 0% Total Paratransit Revenues $404,972 $1,943,700 $1,949,400 $2,014,380 $2,017,800 $2,085,060 $2,085,060 $2,052,000 $2,191,080 $2,120,400 $2,297,100 $21,160,952 100%
Trip Revenues Month Accounting Reconciliation (4-4-5 schedule) - Ignore 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% Total Routes 300 300 300 300 300 300 300 300 300 300 300 300 Contract Utilization 55% 55% 57% 57% 59% 59% 59% 60% 62% 62% 65% Routes Completed 165 165 171 171 177 177 177 180 186 186 195 Daily Trips per Route 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 Revenue per Trip $56.1 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 Total Monthly Revenues $404,972 $1,943,700 $1,949,400 $2,014,380 $2,017,800 $2,085,060 $2,085,060 $2,052,000 $2,191,080 $2,120,400 $2,297,100 $21,160,952 100%
Expenses Cost of Service (Direct Costs)
Driver Compensation & Related Ambulance Monthly Trips Completed 7,219 31,969 32,063 33,131 33,188 34,294 34,294 33,750 36,038 34,875 37,781 Service Hours / Trip 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 UHU (# of Trips per Hour) 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Total Unit Hours 9,023 39,961 40,078 41,414 41,484 42,867 42,867 42,188 45,047 43,594 47,227 Unit Hour Cost $24.17 $23.33 $22.50 $22.50 $22.50 $21.67 $20.83 $20.83 $20.00 $20.00 $20.00 Total Ambulance $218,066 $932,422 $901,758 $931,816 $933,398 $928,789 $893,066 $878,906 $900,938 $871,875 $944,531 $9,335,566 Driver Compensation & Related Expense (Total) $218,066 $932,422 $901,758 $931,816 $933,398 $928,789 $893,066 $878,906 $900,938 $871,875 $944,531 $9,335,566 44.1% Benefits 20.00% 43,613 186,484 180,352 186,363 186,680 185,758 178,613 175,781 180,188 174,375 188,906 1,867,113 8.8% Workers Comp 85,000 20,517 85,000 85,000 85,000 85,000 85,000 85,000 85,000 85,000 85,000 85,000 870,517 4.1% COPY/DISPATCH'S Compensation 3.00% 12,149 58,311 58,482 60,431 60,534 62,552 62,552 61,560 65,732 63,612 68,913 634,829 3.0% Fleet Maint Compensation 8.00% 32,398 155,496 155,952 161,150 161,424 166,805 166,805 164,160 175,286 169,632 183,768 1,692,876 8.0% Repairs & Maintenance 7.00% 28,348 136,059 136,458 141,007 141,246 145,954 145,954 143,640 153,376 148,428 160,797 1,481,267 7.0% Accident Costs 0.30% 1,215 5,831 5,848 6,043 6,053 6,255 6,255 6,156 6,573 6,361 6,891 63,483 0.3% Fuel, Tolls & Parking Costs 0.30% 1,215 5,831 5,848 6,043 6,053 6,255 6,255 6,156 6,573 6,361 6,891 63,483 0.3% Medical Supplies, Rentals & Repairs 0.30% 1,215 5,831 5,848 6,043 6,053 6,255 6,255 6,156 6,573 6,361 6,891 63,483 0.3% Communications 0.50% 2,025 9,719 9,747 10,072 10,089 10,425 10,425 10,260 10,955 10,602 11,486 105,805 0.5% Uniforms 0.26% 1,053 5,054 5,068 5,237 5,246 5,421 5,421 5,335 5,697 5,513 5,972 55,018 0.3% Equipment 0.11% 445 2,138 2,144 2,216 2,220 2,294 2,294 2,257 2,410 2,332 2,527 23,277 0.1% Health & Safety 0.00% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Licenses & Permits 0.15% 607 2,916 2,924 3,022 3,027 3,128 3,128 3,078 3,287 3,181 3,446 31,741 0.2% Total Cost of Service $362,867 $1,591,091 $1,555,430 $1,604,444 $1,607,024 $1,614,891 $1,572,024 $1,548,446 $1,602,588 $1,553,634 $1,676,020 $16,288,459 77.0%
Operating Expenses (Indirect Costs) Management/Admin. Staffing 174,896 42,216 174,896 174,896 174,896 174,896 174,896 174,896 174,896 174,896 174,896 174,896 1,791,175 8.5% Facility Costs 85,120 20,546 85,120 85,120 85,120 85,120 85,120 85,120 85,120 85,120 85,120 85,120 871,746 4.1% Insurance Auto/Liability 35,000 8,448 35,000 35,000 35,000 35,000 35,000 35,000 35,000 35,000 35,000 35,000 358,448 1.7% Professional Fees 10,000 2,414 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 102,414 0.5% All Other SG&A 50,000 77,069 50,000 50,000 50,000 50,000 50,000 50,000 50,000 50,000 50,000 50,000 577,069 2.7% Bad Debt 0.00% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $150,693 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $3,700,852 17.5% -26.8% -0.1% 2.0% 2.7% 2.8% 5.5% 7.6% 7.2% 10.7% 10.0% 11.6% Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Depreciation 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0%
A3809 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 22 of 62 Maryland Division Toggle: 0
TOTAL REVENUES Bulk (Subsidy) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Total Maryland Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Bulk Revenues University of Maryland - Monthly Bulk 210,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Others 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Lance Revenues University of Maryland Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 960 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 12.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $320 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 University of Maryland Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Others Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 12.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $320 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 Other Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Lette Revenues University of Maryland Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 220 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 University of Maryland Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Others Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 Other Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Expenses Cost of Service (Direct Costs)
Driver Compensation & Related Ambulance Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.24 0.30 0.31 0.31 0.31 0.31 0.31 0.31 0.31 0.32 0.32 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $65.00 $65.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 Total Ambulance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Ambulette Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.24 0.25 0.26 0.27 0.28 0.30 0.30 0.30 0.30 0.31 0.31 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 Total Ambulette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Driver Compensation & Related Expense (Total) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Benefits 20.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Workers Comp 26,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! COPY/DISPATCH'S Compensation 5.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fleet Maint Compensation 4.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Repairs & Maintenance 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Accident Costs 4.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fuel, Tolls & Parking Costs 3.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Medical Supplies, Rentals & Repairs 0.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Communications 0.4% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Uniforms 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Equipment 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Health & Safety 0.3% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Licenses & Permits 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Cost of Service $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
A3810 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 23 of 62 Operating Expenses (Indirect Costs) Management/Admin. Staffing 43,490 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Facility Costs 20,262 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Insurance Auto/Liability 16,847 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Professional Fees 1,601 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other SG&A 12,694 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Bad Debt 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Depreciation 3,052 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
PA/Pittsburgh Division Toggle: 1
TOTAL REVENUES Bulk (Subsidy) $19,310 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 819,310 14.4% Lance $101,379 $420,000 $424,950 $424,950 $424,950 $432,927 $432,927 $432,927 $440,346 $440,346 $440,346 4,416,050 77.4% Lette $11,067 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 469,567 8.2% Total Pittsburgh Revenues $131,757 $545,850 $550,800 $550,800 $550,800 $558,777 $558,777 $558,777 $566,196 $566,196 $566,196 $5,704,927 100.0%
Bulk Revenues VA PITTSBURGH HEALTH CARE SYS 80,000 19,310 80,000 80,000 80,000 80,000 80,000 80,000 80,000 80,000 80,000 80,000 Others 0 0 0 0 0 0 0 0 0 0 0 0 Total Revenues $19,310 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $819,310 14.4%
Lance Revenues VA PITTSBURGH HEALTH CARE SYS Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 495 119 495 495 495 495 495 495 495 495 495 495 5,069 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 VA PITTSBURGH HEALTH CARE SYS Revenues $35,845 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $1,520,845 26.7% UPM Trips Growth (Quarterly) 6.0% 6.0% 5.0% # of Trips 275 66 275 292 292 292 309 309 309 324 324 324 3,116 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 UPM Revenues $19,914 $82,500 $87,450 $87,450 $87,450 $92,697 $92,697 $92,697 $97,332 $97,332 $97,332 $934,850 16.4% MANORCARE Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 75 18 75 75 75 75 75 75 75 75 75 75 768 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 MANORCARE Revenues $5,431 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $230,431 4.0% LIFECARE HOSPITALS OF PGH Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 60 14 60 60 60 60 60 60 60 60 60 60 614 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 LIFECARE HOSPITALS OF PGH Revenues $4,345 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $184,345 3.2% HEALTHSOUTH REHAB Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 40 10 40 40 40 40 40 40 40 40 40 40 410 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 HEALTHSOUTH REHAB Revenues $2,897 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $122,897 2.2% All Other Trips Growth (Quarterly) 0.0% 2.0% 2.0% # of Trips 455 110 455 455 455 455 464 464 464 473 473 473 4,742 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 All Other Revenues $32,948 $136,500 $136,500 $136,500 $136,500 $139,230 $139,230 $139,230 $142,015 $142,015 $142,015 $1,422,682 24.9% Total Lance Revenues $101,379 $420,000 $424,950 $424,950 $424,950 $432,927 $432,927 $432,927 $440,346 $440,346 $440,346 $4,416,050 77.4%
A3811 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 24 of 62 Lette Revenues UPM Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 125 30 125 125 125 125 125 125 125 125 125 125 1,280 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 UPM Revenues $2,112 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $89,612 1.6% MANORCARE Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 130 31 130 130 130 130 130 130 130 130 130 130 1,331 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 MANORCARE Revenues $2,197 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $93,197 1.6% All Other Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 400 97 400 400 400 400 400 400 400 400 400 400 4,097 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 All Other $6,759 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $286,759 5.0% Total Lette Revenues $11,067 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $469,567 8.2%
Expenses Cost of Service (Direct Costs)
Driver Compensation & Related Ambulance Trips Completed per Month 338 1,400 1,417 1,417 1,417 1,443 1,443 1,443 1,468 1,468 1,468 14,720 UHU (# of Trips per Hour) 0.32 0.32 0.32 0.32 0.33 0.33 0.33 0.32 0.32 0.33 0.33 Total Unit Hours 1,056 4,375 4,427 4,427 4,292 4,373 4,373 4,510 4,587 4,448 4,448 Unit Hour Cost $36.00 $36.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 Total Ambulance $38,017 $157,500 $150,503 $150,503 $145,942 $148,682 $148,682 $153,328 $155,956 $151,230 $151,230 $1,551,574 27.2% Ambulette Trips Completed per Month 158 655 655 655 655 655 655 655 655 655 655 6,708 UHU (# of Trips per Hour) 0.55 0.55 0.55 0.55 0.55 0.55 0.55 0.56 0.56 0.56 0.56 Total Unit Hours 287 1,191 1,191 1,191 1,191 1,191 1,191 1,170 1,170 1,170 1,170 Unit Hour Cost $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 Total Ambulette $3,162 $13,100 $13,100 $13,100 $13,100 $13,100 $13,100 $12,866 $12,866 $12,866 $12,866 $133,226 2.3% Driver Compensation & Related Expense (Total) $41,179 $170,600 $163,603 $163,603 $159,042 $161,782 $161,782 $166,194 $168,822 $164,096 $164,096 $1,684,801 29.5% Benefits 24.5% 10,089 41,797 40,083 40,083 38,965 39,637 39,637 40,718 41,361 40,204 40,204 412,776 7.2% Workers Comp 26,833 6,477 26,833 26,833 26,833 26,833 26,833 26,833 26,833 26,833 26,833 26,833 274,807 4.8% COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Fleet Maint Compensation 4.0% 5,270 21,834 22,032 22,032 22,032 22,351 22,351 22,351 22,648 22,648 22,648 228,197 4.0% Repairs & Maintenance 3.0% 53,953 16,376 16,524 16,524 16,524 16,763 16,763 16,763 16,986 16,986 16,986 221,148 3.9% Accident Costs 4.7% 6,193 25,655 25,888 25,888 25,888 26,263 26,263 26,263 26,611 26,611 26,611 268,132 4.7% Fuel, Tolls & Parking Costs 3.0% 3,953 16,376 16,524 16,524 16,524 16,763 16,763 16,763 16,986 16,986 16,986 171,148 3.0% Medical Supplies, Rentals & Repairs 1.8% 2,371 9,824 9,913 9,913 9,913 10,056 10,056 10,056 10,190 10,190 10,190 102,670 1.8% Communications 0.5% 707 2,929 2,955 2,955 2,955 2,998 2,998 2,998 3,038 3,038 3,038 30,609 0.5% Uniforms 0.2% 238 985 994 994 994 1,009 1,009 1,009 1,022 1,022 1,022 10,297 0.2% Equipment 0.6% 738 3,059 3,087 3,087 3,087 3,131 3,131 3,131 3,173 3,173 3,173 31,970 0.6% Health & Safety 0.0% 40 166 167 167 167 170 170 170 172 172 172 1,731 0.0% Licenses & Permits 0.1% 94 391 395 395 395 400 400 400 406 406 406 4,087 0.1% Total Cost of Service $131,302 $336,823 $328,997 $328,997 $323,319 $328,156 $328,156 $333,649 $338,247 $332,363 $332,363 $3,442,373 60.3%
Operating Expenses (Indirect Costs) Management/Admin. Staffing 54,688 13,200 54,688 54,688 54,688 54,688 54,688 54,688 54,688 54,688 54,688 54,688 560,075 9.8% Facility Costs 27,219 6,570 27,219 27,219 27,219 27,219 27,219 27,219 27,219 27,219 27,219 27,219 278,764 4.9% Insurance Auto/Liability 40,410 9,754 40,410 40,410 40,410 40,410 40,410 40,410 40,410 40,410 40,410 40,410 413,854 7.3% Professional Fees 1,703 411 1,703 1,703 1,703 1,703 1,703 1,703 1,703 1,703 1,703 1,703 17,438 0.3% All Other SG&A 13,653 3,296 13,653 13,653 13,653 13,653 13,653 13,653 13,653 13,653 13,653 13,653 139,829 2.5% Bad Debt 6.0% 7,905 32,751 33,048 33,048 33,048 33,527 33,527 33,527 33,972 33,972 33,972 342,296 6.0% Total Operating Expenses $41,137 $170,424 $170,721 $170,721 $170,721 $171,199 $171,199 $171,199 $171,645 $171,645 $171,645 $1,752,255 30.7%
Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Depreciation 3,927 2,537 3,927 3,927 3,927 3,927 3,927 3,927 3,927 3,927 3,927 3,927 41,807 0.7% Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $2,537 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $41,807 0.7%
A3812 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 25 of 62
Hudson Valley Division Toggle: 1
TOTAL REVENUES Bulk (Subsidy) $56,724 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 2,406,724 23.3% Lance $175,590 $727,445 $763,818 $763,818 $763,818 $779,094 $779,094 $779,094 $794,676 $794,676 $794,676 7,915,799 76.7% Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 0.0% Total Hudson Valley Revenues $232,314 $962,445 $998,818 $998,818 $998,818 $1,014,094 $1,014,094 $1,014,094 $1,029,676 $1,029,676 $1,029,676 $10,322,523 100.0%
Bulk Revenues Putnam County 106,780 25,774 106,780 106,780 106,780 106,780 106,780 106,780 106,780 106,780 106,780 106,780 1,093,570 10.6% Unionvale 911 12,515 3,021 12,515 12,515 12,515 12,515 12,515 12,515 12,515 12,515 12,515 12,515 128,173 1.2% Pawling 911 26,735 6,453 26,735 26,735 26,735 26,735 26,735 26,735 26,735 26,735 26,735 26,735 273,808 2.7% Beekman 911 31,026 7,489 31,026 31,026 31,026 31,026 31,026 31,026 31,026 31,026 31,026 31,026 317,752 3.1% Millbrook 911 15,985 3,858 15,985 15,985 15,985 15,985 15,985 15,985 15,985 15,985 15,985 15,985 163,704 1.6% Others 41,959 10,128 41,959 41,959 41,959 41,959 41,959 41,959 41,959 41,959 41,959 41,959 429,719 4.2% Total Revenues $56,724 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $2,406,724 23.3%
Lance Revenues Health Quest Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 620 150 620 651 651 651 664 664 664 677 677 677 6,747 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $340 $340 $340 $340 $340 $340 $340 $340 $340 $340 $340 $340 Health Quest Revenues $50,883 $210,800 $221,340 $221,340 $221,340 $225,767 $225,767 $225,767 $230,282 $230,282 $230,282 $2,293,850 22.2% New York Presbyterian of Hudson Valley Hospital Ce Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 210 51 210 221 221 221 225 225 225 229 229 229 2,285 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 New York Presbyterian of Hudson Valley Hospital Ce Revenues $15,967 $66,150 $69,458 $69,458 $69,458 $70,847 $70,847 $70,847 $72,264 $72,264 $72,264 $719,820 7.0% Putnam County Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 220 53 220 231 231 231 236 236 236 240 240 240 2,394 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $432 $432 $432 $432 $432 $432 $432 $432 $432 $432 $432 $432 Putnam County Revenues $22,941 $95,040 $99,792 $99,792 $99,792 $101,788 $101,788 $101,788 $103,824 $103,824 $103,824 $1,034,191 10.0% Medicaid Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 50 12 50 53 53 53 54 54 54 55 55 55 544 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $290 $290 $290 $290 $290 $290 $290 $290 $290 $290 $290 $290 Medicaid Revenues $3,500 $14,500 $15,225 $15,225 $15,225 $15,530 $15,530 $15,530 $15,840 $15,840 $15,840 $157,784 1.5% Pawling 911 Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 45 11 45 47 47 47 48 48 48 49 49 49 490 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $540 $540 $540 $540 $540 $540 $540 $540 $540 $540 $540 $540 Pawling 911 Revenues $5,866 $24,300 $25,515 $25,515 $25,515 $26,025 $26,025 $26,025 $26,546 $26,546 $26,546 $264,424 2.6% Wappinger 911 Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 130 31 130 137 137 137 139 139 139 142 142 142 1,415 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $475 $475 $475 $475 $475 $475 $475 $475 $475 $475 $475 $475 Wappinger 911 Revenues $14,905 $61,750 $64,838 $64,838 $64,838 $66,134 $66,134 $66,134 $67,457 $67,457 $67,457 $671,941 6.5% VA Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 100 24 100 105 105 105 107 107 107 109 109 109 1,088 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $350 $350 $350 $350 $350 $350 $350 $350 $350 $350 $350 $350 VA Revenues $8,448 $35,000 $36,750 $36,750 $36,750 $37,485 $37,485 $37,485 $38,235 $38,235 $38,235 $380,857 3.7% All Other Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 525 127 525 551 551 551 562 562 562 574 574 574 5,713 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $419 $419 $419 $419 $419 $419 $419 $419 $419 $419 $419 $419 All Other Revenues $53,081 $219,905 $230,901 $230,901 $230,901 $235,519 $235,519 $235,519 $240,229 $240,229 $240,229 $2,392,931 23.2% Total Lance Revenues $175,590 $727,445 $763,818 $763,818 $763,818 $779,094 $779,094 $779,094 $794,676 $794,676 $794,676 $7,915,799 76.7%
Lette Revenues Total Rides 20,675 Health Quest Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
A3813 Inputs Ave. Patient Charge Case 1:20-cv-06274-LAK $670 Document $670 $670 11-32 $670 Filed $670 09/30/20 $670 Page $670 26 $670of 62 $670 $670 $670 $670 Health Quest Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% New York Presbyterian of Hudson Valley Hospital Ce Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $600 $600 $600 $600 $600 $600 $600 $600 $600 $600 $600 $600 New York Presbyterian of Hudson Valley Hospital Ce Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% All Other Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $500 $500 $500 $500 $500 $500 $500 $500 $500 $500 $500 $500 All Other $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0%
Expenses Cost of Service (Direct Costs)
Driver Compensation & Related Ambulance Trips Completed per Month 459 1,900 1,995 1,995 1,995 2,035 2,035 2,035 2,076 2,076 2,076 20,675 UHU (# of Trips per Hour) 0.19 0.19 0.19 0.19 0.20 0.20 0.20 0.20 0.20 0.20 0.20 Total Unit Hours 2,414 10,000 10,500 10,500 10,231 10,435 10,435 10,435 10,644 10,644 10,644 106,883 Unit Hour Cost $38.00 $38.00 $37.00 $37.00 $37.00 $37.00 $37.00 $36.00 $36.00 $36.00 $36.00 Total Ambulance $91,724 $380,000 $388,500 $388,500 $378,538 $386,109 $386,109 $375,674 $383,187 $383,187 $383,187 $3,924,717 38.0% Ambulette Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 Total Ambulette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% Driver Compensation & Related Expense (Total) $91,724 $380,000 $388,500 $388,500 $378,538 $386,109 $386,109 $375,674 $383,187 $383,187 $383,187 $3,924,717 38.0% Benefits 20.0% 18,345 76,000 77,700 77,700 75,708 77,222 77,222 75,135 76,637 76,637 76,637 784,943 7.6% Workers Comp 25,325 6,113 25,325 25,325 25,325 25,325 25,325 25,325 25,325 25,325 25,325 25,325 259,366 2.5% COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Fleet Maint Compensation 4.5% 20,454 53,310 44,947 44,947 44,947 45,634 45,634 45,634 46,335 46,335 46,335 484,514 4.7% Repairs & Maintenance 2.0% 4,646 19,249 19,976 19,976 19,976 20,282 20,282 20,282 20,594 20,594 20,594 206,450 2.0% Accident Costs 3.0% 6,969 28,873 29,965 29,965 29,965 30,423 30,423 30,423 30,890 30,890 30,890 309,676 3.0% Fuel, Tolls & Parking Costs 2.3% 5,343 22,136 22,973 22,973 22,973 23,324 23,324 23,324 23,683 23,683 23,683 237,418 2.3% Medical Supplies, Rentals & Repairs 1.8% 4,181 17,321 17,975 17,975 17,975 18,250 18,250 18,250 18,531 18,531 18,531 185,771 1.8% Communications 0.5% 1,246 5,164 5,359 5,359 5,359 5,441 5,441 5,441 5,525 5,525 5,525 55,385 0.5% Uniforms 0.2% 419 1,737 1,803 1,803 1,803 1,830 1,830 1,830 1,859 1,859 1,859 18,632 0.2% Equipment 0.6% 1,302 5,393 5,597 5,597 5,597 5,683 5,683 5,683 5,770 5,770 5,770 57,846 0.6% Health & Safety 0.0% 70 292 303 303 303 308 308 308 312 312 312 3,132 0.0% Licenses & Permits 0.1% 166 690 716 716 716 727 727 727 738 738 738 7,395 0.1% Total Cost of Service $160,981 $635,491 $641,139 $641,139 $629,185 $640,558 $640,558 $628,036 $639,386 $639,386 $639,386 $6,535,247 63.3%
Operating Expenses (Indirect Costs) Management/Admin. Staffing 70,729 17,073 70,729 70,729 70,729 70,729 70,729 70,729 70,729 70,729 70,729 70,729 724,364 7.0% Facility Costs 19,735 4,764 19,735 19,735 19,735 19,735 19,735 19,735 19,735 19,735 19,735 19,735 202,112 2.0% Insurance Auto/Liability 33,279 8,033 33,279 33,279 33,279 33,279 33,279 33,279 33,279 33,279 33,279 33,279 340,823 3.3% Professional Fees 2,456 593 2,456 2,456 2,456 2,456 2,456 2,456 2,456 2,456 2,456 2,456 25,148 0.2% All Other SG&A 10,000 2,414 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 102,414 1.0% Bad Debt 6.0% 13,939 57,747 59,929 59,929 59,929 60,846 60,846 60,846 61,781 61,781 61,781 619,351 6.0% Total Operating Expenses $46,814 $193,945 $196,128 $196,128 $196,128 $197,044 $197,044 $197,044 $197,979 $197,979 $197,979 $2,014,213 19.5%
Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Depreciation 12,262 2,960 12,262 12,262 12,262 12,262 12,262 12,262 12,262 12,262 12,262 12,262 125,576 1.2% Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $2,960 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $125,576 1.2%
A3814 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 27 of 62 Westchester/WP Division Toggle: 0
TOTAL REVENUES 0 #DIV/0! Bulk (Subsidy) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Total WP Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Bulk Revenues White Plains 50,888 0 0 0 0 0 0 0 0 0 0 0 New Rochelle 0 0 0 0 0 0 0 0 0 0 0 0 Mt. Pleasant 0 0 0 0 0 0 0 0 0 0 0 0 Others 0 0 0 0 0 0 0 0 0 0 0 0 Total Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Lance Revenues White Plains Trips Growth (Quarterly) 2.0% 2.0% 1.0% # of Trips 510 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 White Plains Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! New Rochelle Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 New Rochelle Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Mt. Vernon Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 Mt. Vernon Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $400 $400 $400 $400 $400 $400 $400 $400 $400 $400 $400 $400 All Other Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Lette Revenues White Plains Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $50 $50 $50 $50 $50 $50 $50 $50 $50 $50 $50 $50 White Plains Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 All Other $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Expenses Cost of Service (Direct Costs)
Driver Compensation & Related Ambulance Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.23 0.23 0.23 0.23 0.25 0.25 0.25 0.25 0.25 0.25 0.25 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 Total Ambulance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Ambulette Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00
A3815 Inputs Total Ambulette Case 1:20-cv-06274-LAK Document $0 $0 11-32$0 Filed $0 09/30/20 $0 Page $0 28 of$0 62 $0 $0 $0 $0 Driver Compensation & Related Expense (Total) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Benefits 20.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Workers Comp 18,954 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fleet Maint Compensation 4.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Repairs & Maintenance 3.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Accident Costs 4.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fuel, Tolls & Parking Costs 3.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Medical Supplies, Rentals & Repairs 1.8% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Communications 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Uniforms 0.2% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Equipment 0.6% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Health & Safety 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Licenses & Permits 0.1% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Cost of Service $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Operating Expenses (Indirect Costs) Management/Admin. Staffing 7,292 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Facility Costs 8,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Insurance Auto/Liability 9,508 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Professional Fees 1,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other SG&A 2,500 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Bad Debt 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Depreciation 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Monti/BL - Bronx Lebanon/Montefiore Division Toggle: 0
TOTAL REVENUES Bulk (Subsidy) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Total Bronx Lebanon/Montefiore Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Bulk Revenues 117,500 BRONX LEBANON 117,500 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Montefiore - EMS 174,579 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! 72,691 Montefiore - Non-Emergency/Core 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Mount Vernon EMS 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! ST BARNABAS 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Others 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Lance Revenues Bronx Lebanon Trips Growth (Quarterly) 1.0% 3.0% 1.0% 1,885 # of Trips 1,885 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $235 $235 $235 $235 $235 $235 $235 $235 $235 $235 $235 $235 Bronx Lebanon Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Montefiore - EMS Trips Growth (Quarterly) 1.0% 3.0% -1.0% # of Trips 1,723 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $270 $270 $270 $270 $270 $270 $270 $270 $270 $270 $270 $270 Montefiore - EMS Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Montefiore - Non-Emergency/Core Trips Growth (Quarterly) 2.0% 2.0% 3.0% 1,150 # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $263 $263 $263 $263 $263 $263 $263 $263 $263 $263 $263 $263 Montefiore - Non-Emergency/Core Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Mount Vernon EMS Trips Growth (Quarterly) 0.0% 2.0% 0.0%
A3816 Inputs 540 # of Trips Case 1:20-cv-06274-LAK 0 Document 0 0 11-32 0 Filed 0 09/30/20 0 Page 0 290 of 62 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 Mount Vernon EMS Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! St. Barnabas Trips Growth (Quarterly) 1.0% 3.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $229 $229 $229 $229 $229 $229 $229 $229 $229 $229 $229 $229 St. Barnabas Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 1.0% 3.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 10.0% 0.0% 0.0% -9.0% 0.0% 0.0% Ave. Patient Charge $225 $225 $225 $225 $225 $225 $248 $248 $248 $225 $225 $225 All Other Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Lette Revenues BRONX LEBANON Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Bronx Lebanon Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! St. Barnabas Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 St. Barnabas Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Mt. Sinai Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Mt. Sinai Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 All Other $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Expenses
A3817 Inputs Cost of Service (Direct Costs) Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 30 of 62 Driver Compensation & Related Ambulance Ambulances - NYC 911 and Others Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.34 0.34 0.35 0.35 0.35 0.35 0.35 0.35 0.35 0.35 0.35 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Ambulances - Montefiore Non-EMS & Mount Vernon EMS Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.26 0.26 0.26 0.26 0.27 0.27 0.27 0.27 0.27 0.27 0.27 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $50.00 $50.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 Total Ambulance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Ambulette Trips Completed per Day 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 Total Ambulette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Driver Compensation & Related Expense (Total) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Benefits 20.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Workers Comp 86,627 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fleet Maint Compensation 3.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Repairs & Maintenance 0.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Accident Costs 1.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fuel, Tolls & Parking Costs 1.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Medical Supplies, Rentals & Repairs 1.7% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Communications 0.2% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Uniforms 0.1% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Equipment 0.2% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Health & Safety 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Licenses & Permits 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Cost of Service $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Operating Expenses (Indirect Costs) 62,500 Management/Admin. Staffing 92,708 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Facility Costs 20,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Insurance Auto/Liability 28,525 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Professional Fees 2,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other SG&A 5,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Bad Debt 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Depreciation 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!
A3818 Inputs TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 31 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
CONSOLIDATED
Paratransit
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Patient Revenue Ambulance Revenue - - - - - - - - - - - - - 0.0% Transit Services - 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 100.0% Service Revenue - 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 100.0% Premium Revenue - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - Total Operating Revenue - 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 100.0% - - - - - - - - - - - - - COST OF SERVICE 0 0 0 0 0 0 0 0 0 0 0 0 0 Driver Compensation & Related - 218.1 932.4 901.8 931.8 933.4 928.8 893.1 878.9 900.9 871.9 944.5 9,335.6 44.1% Benefits - 43.6 186.5 180.4 186.4 186.7 185.8 178.6 175.8 180.2 174.4 188.9 1,867.1 8.8% Workers Comp - 20.5 85.0 85.0 85.0 85.0 85.0 85.0 85.0 85.0 85.0 85.0 870.5 4.1% COPY/DISPATCH'S Compensation - 12.1 58.3 58.5 60.4 60.5 62.6 62.6 61.6 65.7 63.6 68.9 634.8 3.0% Fleet Maint Compensation - 32.4 155.5 156.0 161.2 161.4 166.8 166.8 164.2 175.3 169.6 183.8 1,692.9 8.0% Repairs & Maintenance - 28.3 136.1 136.5 141.0 141.2 146.0 146.0 143.6 153.4 148.4 160.8 1,481.3 7.0% Accident Costs - 1.2 5.8 5.8 6.0 6.1 6.3 6.3 6.2 6.6 6.4 6.9 63.5 0.3% Fuel, Tolls & Parking Costs - 1.2 5.8 5.8 6.0 6.1 6.3 6.3 6.2 6.6 6.4 6.9 63.5 0.3% Medical Supplies, Rentals & Repairs - 1.2 5.8 5.8 6.0 6.1 6.3 6.3 6.2 6.6 6.4 6.9 63.5 0.3% Communications - 2.0 9.7 9.7 10.1 10.1 10.4 10.4 10.3 11.0 10.6 11.5 105.8 0.5% Uniforms - 1.1 5.1 5.1 5.2 5.2 5.4 5.4 5.3 5.7 5.5 6.0 55.0 0.3% Equipment - .4 2.1 2.1 2.2 2.2 2.3 2.3 2.3 2.4 2.3 2.5 23.3 0.1% Health & Safety - - - - - - - - - - - - - 0.0% Licenses & Permits - .6 2.9 2.9 3.0 3.0 3.1 3.1 3.1 3.3 3.2 3.4 31.7 0.2% SUB TOTAL - COST OF SERVICE - 362.9 1,591.1 1,555.4 1,604.4 1,607.0 1,614.9 1,572.0 1,548.4 1,602.6 1,553.6 1,676.0 16,288.5 77.0% - - - - - - - - - - - - - Gross Profit - 42.1 352.6 394.0 409.9 410.8 470.2 513.0 503.6 588.5 566.8 621.1 4,872.5 GP % 0.0% 10.4% 18.1% 20.2% 20.4% 20.4% 22.5% 24.6% 24.5% 26.9% 26.7% 27.0% 241.8% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% OPERATING EXPENSES - - - - - - - - - - - - - Management/Administrative Staffing - 42.2 174.9 174.9 174.9 174.9 174.9 174.9 174.9 174.9 174.9 174.9 1,791.2 8.5% Facility Costs - 20.5 85.1 85.1 85.1 85.1 85.1 85.1 85.1 85.1 85.1 85.1 871.7 4.1% Insurance Auto/Liability/D&O - 8.4 35.0 35.0 35.0 35.0 35.0 35.0 35.0 35.0 35.0 35.0 358.4 1.7% Professional Fees - 2.4 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 102.4 0.5% All Other SG&A - 77.1 50.0 50.0 50.0 50.0 50.0 50.0 50.0 50.0 50.0 50.0 577.1 2.7% Transition Services - Payment to OldCo - 3.7 15.4 15.4 15.4 15.4 15.4 15.4 15.4 15.4 15.4 15.4 157.6 0.7% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - 0.0% Bad Debt - - - - - - - - - - - - - 0.0% TOTAL OPERATING EXPENSES - 154.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 3,858.4 18.2% 0 EBITDA - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 4.8% 0.0% -27.7% -0.9% 1.2% 2.0% 2.0% 4.8% 6.8% 6.5% 10.0% 9.3% 10.9% 24.8% 0.0% Other Expense - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - 0.0% Depreciation - - - - - - - - - - - - - 0.0% Management Fees (PPAS) - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - 0.0% Subtotal Other - - - - - - - - - - - - - 0.0% - - - - - - - - - - - - - 0.0% Net Income - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 4.8%
Financials by Division A3819 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 32 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Current Assets - - - - - - - - - - - - Cash and cash equivalents - (372.7) (180.7) (1,240.9) (1,260.5) (1,287.9) (1,246.8) (1,171.5) (1,011.1) (874.3) (758.9) (582.7) (582.7) Patient Account Receivables (OldCo) - - - - - - - - - - - - - Patient Account Receivables (NewCo) 3,165.5 3,570.5 3,714.2 3,893.1 3,963.8 4,032.2 4,102.9 4,170.1 4,137.1 4,243.1 4,311.5 4,417.5 4,417.5 Provision for Bad Debt - - - - - - - - - - - - - Inventory 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 Prepaid and Other Current Assets - - - - - - - - - - - - - Total Current Assets 3,604.7 3,637.0 3,972.7 3,091.3 3,142.5 3,183.5 3,295.2 3,437.9 3,565.1 3,808.0 3,991.8 4,274.0 4,274.0 - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Accumulated Depreciation - - - - - - - - - - - - - Property and equipment, net - - - - - - - - - - - - - - - - - - - - - - - - - - Other Assets - - - - - - - - - - - - - Goodwill - - - - - - - - - - - - - Other Assets 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 Total Other Assets 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 - - - - - - - - - - - - - Total Assets 3,754.7 3,787.0 4,122.7 3,241.3 3,292.5 3,333.5 3,445.2 3,587.9 3,715.1 3,958.0 4,141.8 4,424.0 4,424.0 - - - - - - - - - - - - - - - - - - - - - - - - - - Current Operating Liabilities - - - - - - - - - - - - - Accounts payable 1,114.8 1,259.4 1,612.9 708.0 719.6 720.2 732.2 732.2 726.3 751.1 738.5 770.0 770.0 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - Accrued PTO 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 InterCompany Balance - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - Total Current Liabilities 1,437.6 1,582.2 1,935.7 1,030.8 1,042.4 1,043.0 1,055.0 1,055.0 1,049.1 1,073.9 1,061.3 1,092.8 1,092.8 - - - - - - - - - - - - - Other Long Term Liabilities - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - New Term Loan - - - - - - - - - - - - - Capital Lease - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - - - - - - - - Total Liabilities 1,437.6 1,582.2 1,935.7 1,030.8 1,042.4 1,043.0 1,055.0 1,055.0 1,049.1 1,073.9 1,061.3 1,092.8 1,092.8 - - - - - - - - - - - - - Common Equity 2,317.1 2,204.8 2,187.0 2,210.6 2,250.1 2,290.5 2,390.2 2,532.9 2,666.0 2,884.1 3,080.5 3,331.1 3,331.1 Total Equity 2,317.1 2,204.8 2,187.0 2,210.6 2,250.1 2,290.5 2,390.2 2,532.9 2,666.0 2,884.1 3,080.5 3,331.1 3,331.1 - - - - - - - - - - - - - Check - - - - - - - - - - - - -
Financials by Division A3820 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 33 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit 0 0 0 0 0 0 0 0 0 0 0 0 0 Net Income - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 Total Adjustments - - - - - - - - - - - - - Adjustment to reconcile to net income - - - - - - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - Provision for doubtful accounts - - - - - - - - - - - - - Depreciation and amortization - - - - - - - - - - - - - Deferred rent - - - - - - - - - - - - - Total Adj to reconcile to net income - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 Operating Adjustments - - - - - - - - - - - - - (Increase) Decrease in Assets - - - - - - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - Accounts Receivable (NewCo) - (405.0) (143.7) (178.9) (70.7) (68.4) (70.7) (67.3) 33.1 (106.0) (68.4) (106.0) (1,252.0) Inventory - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - Total (Increase) Decrease in Assets - (405.0) (143.7) (178.9) (70.7) (68.4) (70.7) (67.3) 33.1 (106.0) (68.4) (106.0) (1,252.0) Increase (Decrease) In Liabilities - - - - - - - - - - - - - A/P and Accrued Expenses - 144.6 353.5 (904.9) 11.6 .6 12.0 - (5.9) 24.8 (12.6) 31.5 (344.8) Accrued Management Fees - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities - 144.6 353.5 (904.9) 11.6 .6 12.0 - (5.9) 24.8 (12.6) 31.5 (344.8) Total Operating Adjustments - (372.7) 192.0 (1,060.3) (19.6) (27.4) 41.1 75.4 160.3 136.9 115.4 176.2 (582.7) - - - - - - - - - - - - - Investing Adjustments - - - - - - - - - - - - - Capital Expenditures - - - - - - - - - - - - - Total Investing Adjustments - - - - - - - - - - - - - - - - - - - - - - - - - - Financing Adjustments - - - - - - - - - - - - - Accrued Interest - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - Total Cash Flow - (372.7) 192.0 (1,060.3) (19.6) (27.4) 41.1 75.4 160.3 136.9 115.4 176.2 (582.7)
Financials by Division A3821 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 34 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
Maryland
Pittsburgh/PA
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales PA PA PA PA PA PA PA PA PA PA PA PA PA Patient Revenue Ambulance Revenue - 131.8 545.9 550.8 550.8 550.8 558.8 558.8 558.8 566.2 566.2 566.2 5,704.9 100.0% Transit Services - - - - - - - - - - - - - 0.0% Service Revenue - 131.8 545.9 550.8 550.8 550.8 558.8 558.8 558.8 566.2 566.2 566.2 5,704.9 100.0% Premium Revenue - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - Total Operating Revenue - 131.8 545.9 550.8 550.8 550.8 558.8 558.8 558.8 566.2 566.2 566.2 5,704.9 100.0% - - - - - - - - - - - - - COST OF SERVICE 0 0 0 0 0 0 0 0 0 0 0 0 0 Driver Compensation & Related - 41.2 170.6 163.6 163.6 159.0 161.8 161.8 166.2 168.8 164.1 164.1 1,684.8 29.5% Benefits - 10.1 41.8 40.1 40.1 39.0 39.6 39.6 40.7 41.4 40.2 40.2 412.8 7.2% Workers Comp - 6.5 26.8 26.8 26.8 26.8 26.8 26.8 26.8 26.8 26.8 26.8 274.8 4.8% COPY/DISPATCH'S Compensation - - - - - - - - - - - - - 0.0% Fleet Maint Compensation - 5.3 21.8 22.0 22.0 22.0 22.4 22.4 22.4 22.6 22.6 22.6 228.2 4.0% Repairs & Maintenance - 54.0 16.4 16.5 16.5 16.5 16.8 16.8 16.8 17.0 17.0 17.0 221.1 3.9% Accident Costs - 6.2 25.7 25.9 25.9 25.9 26.3 26.3 26.3 26.6 26.6 26.6 268.1 4.7% Fuel, Tolls & Parking Costs - 4.0 16.4 16.5 16.5 16.5 16.8 16.8 16.8 17.0 17.0 17.0 171.1 3.0% Medical Supplies, Rentals & Repairs - 2.4 9.8 9.9 9.9 9.9 10.1 10.1 10.1 10.2 10.2 10.2 102.7 1.8% Communications - .7 2.9 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 30.6 0.5% Uniforms - .2 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 10.3 0.2% Equipment - .7 3.1 3.1 3.1 3.1 3.1 3.1 3.1 3.2 3.2 3.2 32.0 0.6% Health & Safety - .0 .2 .2 .2 .2 .2 .2 .2 .2 .2 .2 1.7 0.0% Licenses & Permits - .1 .4 .4 .4 .4 .4 .4 .4 .4 .4 .4 4.1 0.1% SUB TOTAL - COST OF SERVICE - 131.3 336.8 329.0 329.0 323.3 328.2 328.2 333.6 338.2 332.4 332.4 3,442.4 60.3% - - - - - - - - - - - - - Gross Profit - .5 209.0 221.8 221.8 227.5 230.6 230.6 225.1 227.9 233.8 233.8 2,262.6 GP % 0.0% 0.3% 38.3% 40.3% 40.3% 41.3% 41.3% 41.3% 40.3% 40.3% 41.3% 41.3% 406.2% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% OPERATING EXPENSES - - - - - - - - - - - - - Management/Administrative Staffing - 13.2 54.7 54.7 54.7 54.7 54.7 54.7 54.7 54.7 54.7 54.7 560.1 9.8% Facility Costs - 6.6 27.2 27.2 27.2 27.2 27.2 27.2 27.2 27.2 27.2 27.2 278.8 4.9% Insurance Auto/Liability/D&O - 9.8 40.4 40.4 40.4 40.4 40.4 40.4 40.4 40.4 40.4 40.4 413.9 7.3% Professional Fees - .4 1.7 1.7 1.7 1.7 1.7 1.7 1.7 1.7 1.7 1.7 17.4 0.3% All Other SG&A - 3.3 13.7 13.7 13.7 13.7 13.7 13.7 13.7 13.7 13.7 13.7 139.8 2.5% Transition Services - Payment to OldCo - .1 .6 .6 .6 .6 .6 .6 .6 .6 .6 .6 5.9 0.1% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - 0.0% Bad Debt - 7.9 32.8 33.0 33.0 33.0 33.5 33.5 33.5 34.0 34.0 34.0 342.3 6.0% TOTAL OPERATING EXPENSES - 41.3 171.0 171.3 171.3 171.3 171.8 171.8 171.8 172.2 172.2 172.2 1,758.1 30.8% 0 0 0 0 0 0 0 0 0 0 0 0 0 EBITDA - (40.8) 38.0 50.5 50.5 56.2 58.8 58.8 53.4 55.7 61.6 61.6 504.4 8.8% 0.0% -31.0% 7.0% 9.2% 9.2% 10.2% 10.5% 10.5% 9.5% 9.8% 10.9% 10.9% 66.7% 0.0% Other Expense - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - 0.0% Depreciation - 2.5 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 41.8 0.7% Management Fees (PPAS) - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - 0.0% Subtotal Other - 2.5 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 41.8 0.7% - - - - - - - - - - - - - 0.0% Net Income - (43.4) 34.1 46.6 46.6 52.3 54.9 54.9 49.4 51.8 57.7 57.7 462.6 8.1%
Financials by Division A3822 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 35 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 PA PA PA PA PA PA PA PA PA PA PA PA PA Current Assets Cash and cash equivalents - (244.6) (74.6) (161.7) (102.2) (27.7) 53.0 136.9 218.7 302.7 393.6 486.3 486.3 Patient Account Receivables (OldCo) - - - - - - - - - - - - - Patient Account Receivables (NewCo) 704.8 704.8 764.3 803.7 827.7 842.4 856.3 864.8 869.9 877.6 882.3 885.2 885.2 Provision for Bad Debt (42.3) (50.2) (82.9) (116.0) (149.0) (182.1) (215.6) (249.1) (282.7) (316.6) (350.6) (384.6) (384.6) Inventory 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 Prepaid and Other Current Assets - - - - - - - - - - - - - Total Current Assets 730.8 478.3 675.0 594.3 644.8 701.0 762.0 820.9 874.2 932.0 993.6 1,055.2 1,055.2 - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Property, Plant and Equipment 3,634.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 Accumulated Depreciation (3,580.3) (3,582.9) (3,586.8) (3,590.7) (3,594.6) (3,598.6) (3,602.5) (3,606.4) (3,610.3) (3,614.3) (3,618.2) (3,622.1) (3,622.1) Property and equipment, net 53.8 351.3 347.3 343.4 339.5 335.6 331.6 327.7 323.8 319.8 315.9 312.0 312.0 - - - - - - - - - - - - - Other Assets - - - - - - - - - - - - - Goodwill - - - - - - - - - - - - - Other Assets 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 Total Other Assets 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 - - - - - - - - - - - - - Total Assets 834.0 879.0 1,071.8 987.1 1,033.7 1,086.0 1,143.1 1,198.0 1,247.4 1,301.3 1,359.0 1,416.7 1,416.7 - - - - - - - - - - - - - - - - - - - - - - - - - - Current Operating Liabilities - - - - - - - - - - - - - Accounts payable 203.1 291.4 450.2 318.9 318.9 318.9 321.1 321.1 321.1 323.1 323.1 323.1 323.1 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - Accrued PTO 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 InterCompany Balance - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - Total Current Liabilities 263.2 351.5 510.2 378.9 378.9 378.9 381.2 381.2 381.2 383.2 383.2 383.2 383.2 - - - - - - - - - - - - - Other Long Term Liabilities - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - New Term Loan - - - - - - - - - - - - - Capital Lease - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - - - - - - - - Total Liabilities 263.2 351.5 510.2 378.9 378.9 378.9 381.2 381.2 381.2 383.2 383.2 383.2 383.2 - - - - - - - - - - - - - Common Equity 570.8 527.5 561.6 608.2 654.8 707.0 761.9 816.9 866.3 918.1 975.8 1,033.5 1,033.5 Total Equity 570.8 527.5 561.6 608.2 654.8 707.0 761.9 816.9 866.3 918.1 975.8 1,033.5 1,033.5 - - - - - - - - - - - - - Check - (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0)
Financials by Division A3823 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 36 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 PA PA PA PA PA PA PA PA PA PA PA PA PA 0 Net Income - (43.4) 34.1 46.6 46.6 52.3 54.9 54.9 49.4 51.8 57.7 57.7 462.6 Total Adjustments - - - - - - - - - - - - - Adjustment to reconcile to net income - - - - - - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - Provision for doubtful accounts - 7.9 32.8 33.0 33.0 33.0 33.5 33.5 33.5 34.0 34.0 34.0 342.3 Depreciation and amortization - 2.5 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 41.8 Deferred rent - - - - - - - - - - - - - Total Adj to reconcile to net income - (32.9) 70.8 83.6 83.6 89.2 92.4 92.4 86.9 89.7 95.6 95.6 846.7 Operating Adjustments - - - - - - - - - - - - - (Increase) Decrease in Assets - - - - - - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - Accounts Receivable (NewCo) - - (59.5) (39.4) (24.1) (14.7) (13.9) (8.5) (5.2) (7.7) (4.7) (2.9) (180.4) Inventory - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - Total (Increase) Decrease in Assets - - (59.5) (39.4) (24.1) (14.7) (13.9) (8.5) (5.2) (7.7) (4.7) (2.9) (180.4) Increase (Decrease) In Liabilities - - - - - - - - - - - - - A/P and Accrued Expenses - 88.3 158.7 (131.3) - - 2.2 - - 2.1 - - 120.0 Accrued Management Fees - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities - 88.3 158.7 (131.3) - - 2.2 - - 2.1 - - 120.0 Total Operating Adjustments - 55.4 170.0 (87.1) 59.5 74.5 80.7 83.9 81.7 84.1 90.9 92.7 786.3 - - - - - - - - - - - - - Investing Adjustments - - - - - - - - - - - - - Capital Expenditures - (300.0) - - - - - - - - - - (300.0) Total Investing Adjustments - (300.0) - - - - - - - - - - (300.0) - - - - - - - - - - - - - Financing Adjustments - - - - - - - - - - - - - Accrued Interest - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - Total Cash Flow - (244.6) 170.0 (87.1) 59.5 74.5 80.7 83.9 81.7 84.1 90.9 92.7 486.3
Financials by Division A3824 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 37 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
Hudson Valley
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales HV HV HV HV HV HV HV HV HV HV HV HV HV Patient Revenue Ambulance Revenue - 232.3 962.4 998.8 998.8 998.8 1,014.1 1,014.1 1,014.1 1,029.7 1,029.7 1,029.7 10,322.5 100.0% Transit Services - - - - - - - - - - - - - 0.0% Service Revenue - 232.3 962.4 998.8 998.8 998.8 1,014.1 1,014.1 1,014.1 1,029.7 1,029.7 1,029.7 10,322.5 100.0% Premium Revenue - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - Total Operating Revenue - 232.3 962.4 998.8 998.8 998.8 1,014.1 1,014.1 1,014.1 1,029.7 1,029.7 1,029.7 10,322.5 100.0% - - - - - - - - - - - - - COST OF SERVICE Driver Compensation & Related - 91.7 380.0 388.5 388.5 378.5 386.1 386.1 375.7 383.2 383.2 383.2 3,924.7 38.0% Benefits - 18.3 76.0 77.7 77.7 75.7 77.2 77.2 75.1 76.6 76.6 76.6 784.9 7.6% Workers Comp - 6.1 25.3 25.3 25.3 25.3 25.3 25.3 25.3 25.3 25.3 25.3 259.4 2.5% COPY/DISPATCH'S Compensation - - - - - - - - - - - - - 0.0% Fleet Maint Compensation - 20.5 53.3 44.9 44.9 44.9 45.6 45.6 45.6 46.3 46.3 46.3 484.5 4.7% Repairs & Maintenance - 4.6 19.2 20.0 20.0 20.0 20.3 20.3 20.3 20.6 20.6 20.6 206.5 2.0% Accident Costs - 7.0 28.9 30.0 30.0 30.0 30.4 30.4 30.4 30.9 30.9 30.9 309.7 3.0% Fuel, Tolls & Parking Costs - 5.3 22.1 23.0 23.0 23.0 23.3 23.3 23.3 23.7 23.7 23.7 237.4 2.3% Medical Supplies, Rentals & Repairs - 4.2 17.3 18.0 18.0 18.0 18.3 18.3 18.3 18.5 18.5 18.5 185.8 1.8% Communications - 1.2 5.2 5.4 5.4 5.4 5.4 5.4 5.4 5.5 5.5 5.5 55.4 0.5% Uniforms - .4 1.7 1.8 1.8 1.8 1.8 1.8 1.8 1.9 1.9 1.9 18.6 0.2% Equipment - 1.3 5.4 5.6 5.6 5.6 5.7 5.7 5.7 5.8 5.8 5.8 57.8 0.6% Health & Safety - .1 .3 .3 .3 .3 .3 .3 .3 .3 .3 .3 3.1 0.0% Licenses & Permits - .2 .7 .7 .7 .7 .7 .7 .7 .7 .7 .7 7.4 0.1% SUB TOTAL - COST OF SERVICE - 161.0 635.5 641.1 641.1 629.2 640.6 640.6 628.0 639.4 639.4 639.4 6,535.2 63.3% - - - - - - - - - - - - - Gross Profit - 71.3 327.0 357.7 357.7 369.6 373.5 373.5 386.1 390.3 390.3 390.3 3,787.3 GP % 0.0% 30.7% 34.0% 35.8% 35.8% 37.0% 36.8% 36.8% 38.1% 37.9% 37.9% 37.9% 398.8% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% OPERATING EXPENSES - - - - - - - - - - - - - Management/Administrative Staffing - 17.1 70.7 70.7 70.7 70.7 70.7 70.7 70.7 70.7 70.7 70.7 724.4 7.0% Facility Costs - 4.8 19.7 19.7 19.7 19.7 19.7 19.7 19.7 19.7 19.7 19.7 202.1 2.0% Insurance Auto/Liability/D&O - 8.0 33.3 33.3 33.3 33.3 33.3 33.3 33.3 33.3 33.3 33.3 340.8 3.3% Professional Fees - .6 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 25.1 0.2% All Other SG&A - 2.4 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 102.4 1.0% Transition Services - Payment to OldCo - 2.1 8.5 8.5 8.5 8.5 8.5 8.5 8.5 8.5 8.5 8.5 87.0 0.8% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - 0.0% Bad Debt - 13.9 57.7 59.9 59.9 59.9 60.8 60.8 60.8 61.8 61.8 61.8 619.4 6.0% TOTAL OPERATING EXPENSES - 48.9 202.4 204.6 204.6 204.6 205.5 205.5 205.5 206.5 206.5 206.5 2,101.3 20.4% 0 0 0 0 0 0 0 0 0 0 0 0 0 EBITDA - 22.5 124.5 153.1 153.1 165.0 168.0 168.0 180.5 183.8 183.8 183.8 1,686.0 16.3% 0.0% 9.7% 12.9% 15.3% 15.3% 16.5% 16.6% 16.6% 17.8% 17.9% 17.9% 17.9% 16.3% 0.0% Other Expense - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - 0.0% Depreciation - 3.0 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 125.6 1.2% Management Fees (PPAS) - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - 0.0% Subtotal Other - 3.0 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 125.6 1.2% - - - - - - - - - - - - - 0.0% Net Income - 19.5 112.2 140.8 140.8 152.7 155.7 155.7 168.3 171.6 171.6 171.6 1,560.4 15.1%
Financials by Division A3825 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 38 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 HV HV HV HV HV HV HV HV HV HV HV HV HV Current Assets Cash and cash equivalents - 76.6 229.9 237.8 347.9 504.2 680.3 871.8 1,088.3 1,310.2 1,537.9 1,771.5 1,771.5 Patient Account Receivables (OldCo) - - - - - - - - - - - - - Patient Account Receivables (NewCo) 1,339.3 1,339.3 1,534.5 1,688.9 1,791.8 1,860.4 1,916.3 1,953.6 1,978.5 2,005.4 2,023.4 2,035.4 2,035.4 Provision for Bad Debt (80.4) (94.3) (152.0) (212.0) (271.9) (331.8) (392.7) (453.5) (514.4) (576.1) (637.9) (699.7) (699.7) Inventory 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 Prepaid and Other Current Assets - - - - - - - - - - - - - Total Current Assets 1,429.4 1,492.0 1,782.8 1,885.1 2,038.2 2,203.2 2,374.4 2,542.4 2,722.9 2,910.0 3,093.8 3,277.6 3,277.6 - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Property, Plant and Equipment 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 Accumulated Depreciation (2,848.8) (2,852.6) (2,864.8) (2,877.1) (2,889.3) (2,901.6) (2,913.9) (2,926.1) (2,938.4) (2,950.7) (2,962.9) (2,975.2) (2,975.2) Property and equipment, net 303.1 299.3 287.0 274.8 262.5 250.2 238.0 225.7 213.4 201.2 188.9 176.7 176.7 - - - - - - - - - - - - - Other Assets - - - - - - - - - - - - - Goodwill - - - - - - - - - - - - - Other Assets 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 Total Other Assets 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 - - - - - - - - - - - - - Total Assets 2,707.4 2,766.3 3,044.8 3,134.9 3,275.7 3,428.4 3,587.3 3,743.1 3,911.3 4,086.1 4,257.7 4,429.2 4,429.2 - - - - - - - - - - - - - - - - - - - - - - - - - - Current Operating Liabilities - - - - - - - - - - - - - Accounts payable 184.5 224.7 391.0 340.3 340.3 340.3 343.5 343.5 343.5 346.7 346.7 346.7 346.7 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - Accrued PTO 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 InterCompany Balance - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - Total Current Liabilities 310.6 350.7 517.1 466.3 466.3 466.3 469.5 469.5 469.5 472.8 472.8 472.8 472.8 - - - - - - - - - - - - - Other Long Term Liabilities - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - New Term Loan - - - - - - - - - - - - - Capital Lease - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - - - - - - - - Total Liabilities 310.6 350.7 517.1 466.3 466.3 466.3 469.5 469.5 469.5 472.8 472.8 472.8 472.8 - - - - - - - - - - - - - Common Equity 2,396.9 2,416.4 2,528.6 2,669.4 2,810.2 2,962.9 3,118.7 3,274.4 3,442.7 3,614.2 3,785.8 3,957.3 3,957.3 Total Equity 2,396.9 2,416.4 2,528.6 2,669.4 2,810.2 2,962.9 3,118.7 3,274.4 3,442.7 3,614.2 3,785.8 3,957.3 3,957.3 - - - - - - - - - - - - - Check - (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8)
Financials by Division A3826 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 39 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL
OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 HV HV HV HV HV HV HV HV HV HV HV HV HV 0 Net Income - 19.5 112.2 140.8 140.8 152.7 155.7 155.7 168.3 171.6 171.6 171.6 1,560.4 Total Adjustments - - - - - - - - - - - - - Adjustment to reconcile to net income - - - - - - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - Provision for doubtful accounts - 13.9 57.7 59.9 59.9 59.9 60.8 60.8 60.8 61.8 61.8 61.8 619.4 Depreciation and amortization - 3.0 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 125.6 Deferred rent - - - - - - - - - - - - - Total Adj to reconcile to net income - 36.4 182.3 213.0 213.0 224.9 228.8 228.8 241.4 245.6 245.6 245.6 2,305.4 Operating Adjustments - - - - - - - - - - - - - (Increase) Decrease in Assets - - - - - - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - Accounts Receivable (NewCo) - - (195.2) (154.4) (102.9) (68.6) (55.9) (37.3) (24.9) (27.0) (18.0) (12.0) (696.1) Inventory - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - Total (Increase) Decrease in Assets - - (195.2) (154.4) (102.9) (68.6) (55.9) (37.3) (24.9) (27.0) (18.0) (12.0) (696.1) Increase (Decrease) In Liabilities - - - - - - - - - - - - - A/P and Accrued Expenses - 40.1 166.3 (50.7) - - 3.2 - - 3.3 - - 162.2 Accrued Management Fees - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities - 40.1 166.3 (50.7) - - 3.2 - - 3.3 - - 162.2 Total Operating Adjustments - 76.6 153.4 7.9 110.1 156.3 176.1 191.6 216.5 221.9 227.6 233.6 1,771.5 - - - - - - - - - - - - - Investing Adjustments - - - - - - - - - - - - - Capital Expenditures - - - - - - - - - - - - - Total Investing Adjustments - - - - - - - - - - - - - - - - - - - - - - - - - - Financing Adjustments - - - - - - - - - - - - - Accrued Interest - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - Total Cash Flow - 76.6 153.4 7.9 110.1 156.3 176.1 191.6 216.5 221.9 227.6 233.6 1,771.5
WP/Westchester
TC Amb - Bronx/Lebanon & Montefiore
Corporate
Financials by Division A3827 Assumptions Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 40 of 62 - Trip counts based on historical information ramping up to Q2 2015 levels. - Employee wages are on an hourly basis. - Ambulances staffed with 1 paramedic and 1 EMT. - Bad debt is assumed at 6% of revenue. - All existing leases with total lease payments of $48k are assumed by OldCo with a charge to NewCo. - Unit hour cost based on historical information. Benefit cost added on top of unit hour cost. - Insurance (auto/liability) and workers comp. allocated to the divisional level. - Ambulette has 1 driver on the vehichle at $10.00 - $18.00 an hour depending on the market. - Ambulance has either 2 EMTs ($18.62 each) or 1 EMT and 1 paramedic ($31.92) on a vehicle. - Facility costs based on current rent schedule. Westchester EMS (25%) and Bronx 911 (75%) will share the Mount Vernon turnout facility ($22k per month). - Paratransit administrative staffing includes the addition of a project manager ($100k) and controller ($75k) in that division. - Discuss Sez Foster (MTA past due amount). - PTO policy (only assumes 5 days) - Includes leases of 2 vehicles Bronx Lebanon, 4 non-emergency vehicles (Pittsburgh), 4 wheelchair vans (Pittsburgh) - Insurance: Auto - $15,000 per unit (100 units) = $1.5MM, MTA = $135k, Excess = $400k, G/L,P/L $1MM. Workers comp. = PA workers comp. = $250k, NY workers comp. assumes 60% of current amount.
General: 1 Open A/R is as follows
Note that in the model, the Paratransit A/R formula is different than the other divisions due to payment cycle. Please note that $1.8mm is used for recent A/R.
2 PTO a Total PTO accrued for 5 days calculated as 1/4th of April 2016 Compensation (est. $730.4k); no cash payouts of PTO b Assuming no cash payouts of PTO c However, per John P., we would need to accrue based on existing plan; calculations per Gerry: PA $ 120 MD $ - HV $ 241 Transit $ 426 Mont/BL TBD WP/Wstch TBD $ 787
3 Go-forward PPAS Management Fees of $50k/month; February pro-rated for 9 days
4 Go-forward PPAS Agency Fees of $75k/year; February pro-rated for 9 days
5 Newco does not assume any existing capital leases; fees related to relevant equipment vehicles will be incorporated into transition agreement; expensed at the Divisional level a Might want to consider assuming Ventilator leases; only 3 months left + 2 months past due - total cost of $9k for 25 ventilators (including 1 for MD)
6 Corporate compensation estimated at $100k/month
7 Bank Fees are estimated at $350k/year annualized and are being
8 Newco assumes Transit Facility and Garage Leases; past due rent balances included in opening AP
9 Removed all Prepaid Insurance balances; assumes new insurance policies or payments to OldCo
10 Depreciation based on the variance between October 2015 and September 2015 accumulated depreciation per the Trial balance; HV and Mont/BL allocated from NY balance Decreases in the month that a specific category of PP&E is fully depreciated
Transit: 1 Opening inventory represents 31.5% of total NY Inventory as of 10.31.15; no new inventory purchases
2 No PP&E; all vehicles owned by MTA
3 Other Assets represents 1 New York Operating License with a value of $150k, per 2013 financial statements (intangible asset; does not amortize)
4 Transit Opening AP of $1,449k based off of - will need to be refined a Includes facilities-related; parts/vehicles-related/legal only; amount Derived from Company provided Critical Payment schedule -> "Vendors for Payment Schedule v2"
A3828 Assumptions b Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 41 of 62 Amount includes almost everything for NY - most of HV, Mont/BL, and WP/Wstch c Excludes past due CADI payment ($1.2m) d Includes past due rent related to Transit's Facility and Garage leases
Maryland 1 Opening inventory represents total MD Inventory as of 10.31.15; assumes new inventory purchases of $25k in February 2016 and August 2016
2 Opening PP&E calculated from 10.31.15 balance with a monthly increase in accumulated depreciation; assumes a purchase of 1 vehicle in February 2016 for $120k
3 Other Assets represents a Security Deposit of $20.7k per 10.31.15 trial balance
4 Opening Accounts Payable estimated at $50k; to be further refined with additional detail
Pennsylvania 1 Opening inventory represents total PA Inventory as of 10.31.15; assumes new inventory purchases of $25k in March 2016 and Sept. 2016
2 Opening PP&E calculated from 10.31.15 balance with a monthly increase in accumulated depreciation
3 Other Assets represents a Security Deposit of $49.4k per 10.31.15 trial balance
4 Opening Accounts Payable of $145k Includes facilities-related; parts/vehicles-related/legal only from Company provided Critical Payment schedule -> "Vendors for Payment Schedule v2"
5 Includes purchase of 5 ambulances ($300k) in February
Hudson Valley 1 Opening inventory represents 12.24% of total NY Inventory as of 10.31.15; no new inventory purchases
2 Opening PP&E represents 12.24% of total NY Inventory as of 10.31.15; with a monthly increase in accumulated depreciation
3 Other Assets represents 1 Hudson Valley Operating License with a value of $975k, per 2013 financial statements (intangible asset; does not amortize)
4 Opening Accounts Payable of $126k Includes facilities-related; parts/vehicles-related/legal only from Company provided Critical Payment schedule -> "Vendors for Payment Schedule v2" Additional HV payables are likely included in the Transit opening balance above
Montefiore/Bronx Lebanon (TC Amb) 1 Opening inventory represents 24% of total NY Inventory as of 10.31.15; no new inventory purchases
2 No opening PP&E; all assets owned by Transcare NY
3 Includes Bronx/Lebanon.
4 No opening Accounts Payable broken out; amount included in Transit opening balance above
5 Assumes that 2 ambulances (Type III) for $300k for Bronx Lebanon
White Plains/Westchester 1 No opening inventory
2 No opening PP&E
3 Other Assets represents 1 Westchester Operating License with a value of $100k, per 2013 financial statements (intangible asset; does not amortize)
4 No opening Accounts Payable broken out; amount included in Transit opening balance above
A3829 Assumptions Questions and Open Items Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 42 of 62 1 PTO a Align on calculation methodology b Currently assuming no cash payout of PTO - is this correct? c OPEN - PTO estimates for: Montefiore/BL, White Plains/Westchester, Corporate
2 Transition Services Related a Finalized allocation of NewCo resources to be used by OldCo b Windown assumptions related to vehicles owned by NewCo to be used by OldCo c Finalized allocaiton of OldCo resources to be used by NewCo d Estimated facilities charge for: Mont/BL, White Plans/Wstchstr, and Corporate employees (not sure where they are sitting) e Transit faciltity - is NewCo taking Transit Lease - past due Transit balance is included in opening AP f Insurance g What will happen when/if equipment and vehicles' lease terminates; $1 buyout option? How to model? h Need to finalize final Equipment/Vehicle payments i Billing costs ? (Currently being estimated at $50k/month)
3 Need to validate a Actual Hudson Valley and Montefiore/BL PP&E / Assets b Actual Hudson Valley and Montefiore Inventory c Opening Accounts Payable for Transit, as well as split between Transit, HV, Mont/BL, and WP/Wstchstr d Any WP/Wstchstr Inventory
4 Corporate - Need to finalize a Actual future Corporate employees and related PTO b Facilties assumpions - where they will be located and related transition costs c. Insurance - Corporate or Divisional level (modeling purposes)
5 Do we want to assume Ventilator Capital leases; only 3 months left + 2 months past due - total cost of $9k for 25 ventilators (including 1 for MD) a Only 24 month lease, so shouldn't be too old unless we are leasing used equipment
A3830 Questions Questions Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 43 of 62 STR ICTLY P R IVATE & CONFIDENTIAL
- How do UMD Lance & lette contracts change for trips and APC? grow quarterly? - February is a stub month so only 9 of 29 days, other months don’t include stub formula - Trips grow quarterly - APC grows monthly - What are enhancement units? Bronx Lebanon - Paratransit has extra $65k plugged in other SG&A - Need to confirm monthly surge (Row 15 in paratransit) - Unit Hour Utilization = # of Trips per Hour - Need to add trips for each division - Need to add calendar at top for each division - Need to relook at transit- why is there 100% and 120%? Why is vikram’s formulas not working? - Should bad debt expense be on total revenues or just lance and lett? - Bad debt expense is % of total revenues (6% of total) - PA- random $50k hardcoded in repairs and Maintenance in Feb. HV has $10k for Feb and March - Bronx Lebanon. Feb lance trips don’t match… their numbers are hard coded
- Removed Bronx Lebanon from Montefiore/BL, and included Mount Vernon EMS and Montefiore (Non-Emergency/Core)
A3831 VA Questions Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 44 of 62
A3832 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 45 of 62
DX 171 LaMonica v. Tilton, et al. 18-01021-smb
A3833 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 46 of 62
A3834 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 47 of 62
DX 174 LaMonica v. Tilton, et al. 18-01021-smb
A3835 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 48 of 62
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A3838 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 51 of 62
A3839 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 52 of 62
DX 195 LaMonica v. Tilton, et al. 18-01021-smb
A3840 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 53 of 62
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A3842 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 55 of 62
A3843 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 56 of 62
PX 003 LaMonica v. Tilton, et al., 18-1021-smb
A3844 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 57 of 62
A3845 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 58 of 62
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A3847 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 60 of 62
PX 132 A3848 LaMonica v. Tilton, et al., 18-1021-smb Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 61 of 62
A3849 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 62 of 62
A3850 | 2020-09-30 | [
"Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 1 of 62 20 Civ. 06274 (LAK) United States District Court for the Southern District of New York IN RE TRANSCARE CORPORATION, ET AL. DEBTORS, PATRIARCH PARTNERS AGENCY SERVICES, LLC, ET AL. DEFENDANTS-APPELLANTS, —against— SALVATORE LAMONICA, AS CHAPTER 7 TRUSTEE OF THE JOINTLY- ADMINISTERED ESTATES OF TRANSCARE CORPORATION, ET AL., PLAINTIFF-APPELLEE. ON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (BERNSTEIN, J.) IN RE: TRANSCARE CORPORATION, ET AL., CASE NO. 16-10407 (SMB) LAMONICA V. TILTON, ET AL., ADV. PROC. NO.",
"18-1021 (SMB) APPENDIX TO BRIEF FOR THE APPELLANTS Volume XXXII- A3790-A3850 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 2 of 62 DX 147 LaMonica v. Tilton, et al. 18-01021-smb A3790 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 3 of 62 A3791 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 4 of 62 DX 150 LaMonica v. Tilton, et al. 18-01021-smb A3792 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 5 of 62 DX 151 LaMonica v. Tilton, et al. 18-01021-smb A3793 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 6 of 62 A3794 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 7 of 62 DX 157 LaMonica v. Tilton, et al. 18-01021-smb A3795 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 8 of 62 A3796 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 9 of 62 A3797 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 10 of 62 DX 163 LaMonica v. Tilton, et al.",
"18-01021-smb A3798 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 11 of 62 A3799 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 12 of 62 DX 166 LaMonica v. Tilton, et al.",
"18-01021-smb A3800 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 13 of 62 A3801 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 14 of 62 A3802 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 15 of 62 A3803 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 16 of 62 A3804 TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 17 of 62 STR ICTLY P R IVATE & CONFIDENTIAL Full Year OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 2016 % of Sales as of 2/21 Paratransit MD PA HV WP Monti-BL Corporate Patient Revenue Ambulance Revenue 364.1 1,508.3 1,549.6 1,549.6 1,549.6 1,572.9 1,572.9 1,572.9 1,595.9 1,595.9 1,595.9 - - 5,704.9 10,322.5 - - - 16,027.4 Transit Services 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 - - - - - - 21,161.0 Service Revenue 769.0 3,452.0 3,499.0 3,564.0 3,567.4 3,657.9 3,657.9 3,624.9 3,787.0 3,716.3 3,893.0 21,161.0 - 5,704.9 10,322.5 - - - 37,188.4 Premium Revenue - - - - - - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - - - - - - Total Operating Revenue 769.0 3,452.0 3,499.0 3,564.0 3,567.4 3,657.9 3,657.9 3,624.9 3,787.0 3,716.3 3,893.0 21,161.0 - 5,704.9 10,322.5 - - - 37,188.4 COST OF SERVICE Driver Compensation & Related 351.0 1,483.0 1,453.9 1,483.9 1,471.0 1,476.7 1,441.0 1,420.8 1,452.9 1,419.2 1,491.8 9,335.6 - 1,684.8 3,924.7 - - - 14,945.1 40.2% Benefits 72.0 304.3 298.1 304.1 301.4 302.6 295.5 291.6 298.2 291.2 305.7 1,867.1 - 412.8 784.9 - - - 3,064.8 8.2% Workers Comp 33.1 137.2 137.2 137.2 137.2 137.2 137.2 137.2 137.2 137.2 137.2 870.5 - 274.8 259.4 - - - 1,404.7 3.8% COPY/DISPATCH'S Compensation 12.1 58.3 58.5 60.4 60.5 62.6 62.6 61.6 65.7 63.6 68.9 634.8 - - - - - - 634.8 1.7% Fleet Maint Compensation 58.1 230.6 222.9 228.1 228.4 234.8 234.8 232.1 244.3 238.6 252.8 1,692.9 - 228.2 484.5 - - - 2,405.6 6.5% Repairs & Maintenance 86.9 171.7 173.0 177.5 177.7 183.0 183.0 180.7 191.0 186.0 198.4 1,481.3 - 221.1 206.5 - - - 1,908.9 5.1% Accident Costs 14.4 60.4 61.7 61.9 61.9 62.9 62.9 62.8 64.1 63.9 64.4 63.5 - 268.1 309.7 - - - 641.3 1.7% Fuel, Tolls & Parking Costs 10.5 44.3 45.3 45.5 45.6 46.3 46.3 46.2 47.2 47.0 47.6 63.5 - 171.1 237.4 - - - 472.0 1.3% Medical Supplies, Rentals & Repairs 7.8 33.0 33.7 33.9 33.9 34.6 34.6 34.5 35.3 35.1 35.6 63.5 - 102.7 185.8 - - - 351.9 0.9% Communications 4.0 17.8 18.1 18.4 18.4 18.9 18.9 18.7 19.5 19.2 20.0 105.8 - 30.6 55.4 - - - 191.8 0.5% Uniforms 1.7 7.8 7.9 8.0 8.0 8.3 8.3 8.2 8.6 8.4 8.9 55.0 - 10.3 18.6 - - - 83.9 0.2% Equipment 2.5 10.6 10.8 10.9 10.9 11.1 11.1 11.1 11.4 11.3 11.5 23.3 - 32.0 57.8 - - - 113.1 0.3% Health & Safety .1 .5 .5 .5 .5 .5 .5 .5 .5 .5 .5 - - 1.7 3.1 - - - 4.9 0.0% Licenses & Permits .9 4.0 4.0 4.1 4.1 4.3 4.3 4.2 4.4 4.3 4.6 31.7 - 4.1 7.4 - - - 43.2 0.1% SUB TOTAL - COST OF SERVICE 655.1 2,563.4 2,525.6 2,574.6 2,559.5 2,583.6 2,540.7 2,510.1 2,580.2 2,525.4 2,647.8 16,288.5 - 3,442.4 6,535.2 - - - 26,266.1 70.6% Gross Profit 113.9 888.6 973.5 989.4 1,007.9 1,074.3 1,117.2 1,114.7 1,206.7 1,190.9 1,245.2 4,872.5 - 2,262.6 3,787.3 - - - 10,922.3 GP % 14.8% 25.7% 27.8% 27.8% 28.3% 29.4% 30.5% 30.8% 31.9% 32.0% 32.0% 23.0% #DIV/0!",
"39.7% 36.7% #DIV/0! #DIV/0! #DIV/0! 29.4% OPERATING EXPENSES Management/Administrative Staffing 72.5 300.3 300.3 300.3 300.3 300.3 300.3 300.3 300.3 300.3 300.3 1,791.2 - 560.1 724.4 - - - 3,075.6 8.3% Facility Costs 31.9 132.1 132.1 132.1 132.1 132.1 132.1 132.1 132.1 132.1 132.1 871.7 - 278.8 202.1 - - - 1,352.6 3.6% ` Insurance Auto/Liability/D&O 26.2 108.7 108.7 108.7 108.7 108.7 108.7 108.7 108.7 108.7 108.7 358.4 - 413.9 340.8 - - - 1,113.1 3.0% Professional Fees 3.4 14.2 14.2 14.2 14.2 14.2 14.2 14.2 14.2 14.2 14.2 102.4 - 17.4 25.1 - - - 145.0 0.4% All Other SG&A 82.8 73.7 73.7 73.7 73.7 73.7 73.7 73.7 73.7 73.7 73.7 577.1 - 139.8 102.4 - - - 819.3 2.2% Transition Services - Payment to OldCo 5.9 24.5 24.5 24.5 24.5 24.5 24.5 24.5 24.5 24.5 24.5 157.6 - 5.9 87.0 - - - 250.5 0.7% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - - - - - - - 0.0% Bad Debt 21.8 90.5 93.0 93.0 93.0 94.4 94.4 94.4 95.8 95.8 95.8 - - 342.3 619.4 - - - 961.6 2.6% TOTAL OPERATING EXPENSES 244.5 743.8 746.3 746.3 746.3 747.7 747.7 747.7 749.1 749.1 749.1 3,858.4 - 1,758.1 2,101.3 - - - 7,717.8 20.8% EBITDA (130.7) 144.7 227.1 243.1 261.6 326.6 369.5 367.0 457.6 441.8 496.1 1,014.0 - 504.4 1,686.0 - - - 3,204.5 8.6% -17.0% 4.2% 6.5% 6.8% 7.3% 8.9% 10.1% 10.1% 12.1% 11.9% 12.7% 4.8% #DIV/0!",
"8.8% 16.3% #DIV/0! #DIV/0! #DIV/0!",
"8.6% 0.0% Other Expense - - - - - - - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - - - - - - - 0.0% Depreciation 5.5 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 - - 41.8 125.6 - - - 167.4 0.5% Management Fees (PPAS) - - - - - - - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - - - - - - - 0.0% Subtotal Other 5.5 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 167.4 0.5% 0.0% Net Income (136.2) 128.6 210.9 226.9 245.4 310.4 353.3 350.8 441.4 425.6 479.9 1,014.0 - 504.4 1,686.0 - - - 3,037.1 8.2% By Div DSO PMT Terms DSO 45 from ME 90 55 60 75 75 - Full Year A3805 NewCo Financial Model TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 18 of 62 STR ICTLY P R IVATE & CONFIDENTIAL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 2016 as of 2/21 Paratransit MD PA HV WP Monti-BL Corporate Current Assets Cash and cash equivalents - (540.7) (25.3) (1,164.8) (1,014.9) (811.4) (513.5) (162.7) 295.8 738.7 1,172.5 1,675.0 (582.7) - 486.3 1,771.5 - - - 1,675.0 Patient Account Receivables (OldCo) - - - - - - - - - - - - - - - - - - - - Patient Account Receivables (NewCo) 5,209.6 5,614.5 6,012.9 6,385.6 6,583.3 6,735.0 6,875.5 6,988.5 6,985.5 7,126.2 7,217.2 7,338.1 4,417.5 - 885.2 2,035.4 - - - 7,338.1 6% Allowance for Bad Debt (122.6) (144.5) (235.0) (328.0) (420.9) (513.9) (608.3) (702.7) (797.0) (892.8) (988.5) (1,084.3) - - (384.6) (699.7) - - - (1,084.3) - Inventory Add Inventory 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 677.9 439.2 - 68.3 170.4 - - - 677.9 Prepaid and Other Current Assets - - - - - - - - - - - - - - - - - - - - Total Current Assets 5,764.8 5,607.3 6,430.6 5,570.7 5,825.4 6,087.6 6,431.6 6,801.1 7,162.2 7,650.0 8,079.2 8,606.8 4,274.0 - 1,055.2 3,277.6 - - - 8,606.8 - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - PPE Add Property, Plant and Equipment 6,785.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 7,085.9 - - 3,934.1 3,151.8 - - - 7,085.9 Accumulated Depreciation (6,429.1) (6,435.4) (6,451.6) (6,467.8) (6,484.0) (6,500.2) (6,516.4) (6,532.5) (6,548.7) (6,564.9) (6,581.1) (6,597.3) - - (3,622.1) (2,975.2) - - - (6,597.3) Property and equipment, net 356.9 650.5 634.4 618.2 602.0 585.8 569.6 553.4 537.2 521.0 504.8 488.7 - - 312.0 176.7 - - - 488.7 - - - - - - - - - - - Other Assets - - - - - - - - - - - Goodwill - - - - - - - - - - - - - - - - - - - - - Other Assets Add Other Assets 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 150.0 - 49.4 975.0 - - - 1,174.4 Total Other Assets 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 1,174.4 150.0 - 49.4 975.0 - - - 1,174.4 - Total Assets 7,296.2 7,432.2 8,239.4 7,363.3 7,601.8 7,847.8 8,175.7 8,528.9 8,873.9 9,345.5 9,758.4 10,269.9 4,424.0 - 1,416.7 4,429.2 - - - 10,269.9 Current Operating Liabilities 60 DPO Accounts payable 1,502.5 1,775.5 2,454.1 1,367.1 1,378.7 1,379.4 1,396.8 1,396.8 1,390.9 1,421.0 1,408.4 1,439.9 770.0 - 323.1 346.7 - - - 1,439.9 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - - - - - - - - - Chng in acc.",
"exp para only Accrued PTO 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 508.9 322.8 - 60.1 126.0 - - - 508.9 InterCompany Balance - - - - - - - - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - - - - - - - - Total Current Liabilities 2,011.4 2,284.4 2,963.0 1,876.0 1,887.6 1,888.2 1,905.7 1,905.7 1,899.8 1,929.9 1,917.3 1,948.8 1,092.8 - 383.2 472.8 - - - 1,948.8 Other Long Term Liabilities Assumes no ABL Asset Based Loan - - - - - - - - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - - - - - - - - Fixed amount New Term Loan - - - - - - - - - - - - - - - - - - - - Fixed amount Capital Lease - - - - - - - - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - Total Liabilities 2,011.4 2,284.4 2,963.0 1,876.0 1,887.6 1,888.2 1,905.7 1,905.7 1,899.8 1,929.9 1,917.3 1,948.8 1,092.8 - 383.2 472.8 - - - 1,948.8 Common Equity 5,284.8 5,148.7 5,277.2 5,488.1 5,715.0 5,960.4 6,270.8 6,624.1 6,975.0 7,416.4 7,842.0 8,321.9 3,331.1 - 1,033.5 3,957.3 - - - 8,321.9 Total Equity 5,284.8 5,148.7 5,277.2 5,488.1 5,715.0 5,960.4 6,270.8 6,624.1 6,975.0 7,416.4 7,842.0 8,321.9 3,331.1 - 1,033.5 3,957.3 - - - 8,321.9 Check - (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) - - (.0) (.8) - - - (.8) Full Year A3806 NewCo Financial Model TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 19 of 62 STR ICTLY P R IVATE & CONFIDENTIAL Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 2016 Paratransit MD PA HV WP Monti-BL Corporate Net Income (136.2) 128.6 210.9 226.9 245.4 310.4 353.3 350.8 441.4 425.6 479.9 1,014.0 - 462.6 1,560.4 - - - 3,037.1 Total Adjustments - - - - - - - - Adjustment to reconcile to net income - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - - - - - - - Provision for doubtful accounts 21.8 90.5 93.0 93.0 93.0 94.4 94.4 94.4 95.8 95.8 95.8 - - 342.3 619.4 - - - 961.6 Depreciation and amortization 5.5 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 16.2 - - 41.8 125.6 - - - 167.4 Deferred rent - - - - - - - - - - - - - - - - - - - Total Adj to reconcile to net income (108.8) 235.2 320.1 336.1 354.5 421.0 463.8 461.4 553.4 537.5 591.9 1,014.0 - 846.7 2,305.4 - - - 4,166.1 Operating Adjustments - - - - - - - - (Increase) Decrease in Assets - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - - - - - - - Accounts Receivable (NewCo) (405.0) (398.4) (372.7) (197.7) (151.7) (140.5) (113.0) 3.0 (140.7) (91.1) (120.9) (1,252.0) - (180.4) (696.1) - - - (2,128.5) Inventory - - - - - - - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - - - - - - - Total (Increase) Decrease in Assets (405.0) (398.4) (372.7) (197.7) (151.7) (140.5) (113.0) 3.0 (140.7) (91.1) (120.9) (1,252.0) - (180.4) (696.1) - - - (2,128.5) Increase (Decrease) In Liabilities - - - - - - - - A/P and Accrued Expenses 273.1 678.6 (1,087.0) 11.6 .6 17.4 - (5.9) 30.1 (12.6) 31.5 (344.8) - 120.0 162.2 - - - (62.6) Accrued Management Fees - - - - - - - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities 273.1 678.6 (1,087.0) 11.6 .6 17.4 - (5.9) 30.1 (12.6) 31.5 (344.8) - 120.0 162.2 - - - (62.6) Total Operating Adjustments (240.7) 515.4 (1,139.5) 150.0 203.4 297.9 350.8 458.5 442.8 433.9 502.5 (582.7) - 786.3 1,771.5 - - - 1,975.0 Investing Adjustments - - - - - - - - Capital Expenditures (300.0) - - - - - - - - - - - - (300.0) - - - - (300.0) Total Investing Adjustments (300.0) - - - - - - - - - - - - (300.0) - - - - (300.0) - - - - - - - Financing Adjustments - - - - - - - - Accrued Interest - - - - - - - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - - - - - - Total Cash Flow (540.7) 515.4 (1,139.5) 150.0 203.4 297.9 350.8 458.5 442.8 433.9 502.5 (582.7) - 486.3 1,771.5 - - - 1,675.0 A3807 NewCo Financial Model TRANSCARE NEWCO MODEL Case 1:20-cv-06274-LAK Quarter Q1 Document Q1 Q1 11-32 Q2 Filed Q2 09/30/20 Q2 Page Q3 20Q3of 62 Q3 Q4 Q4 Q4 FY STR ICTLY P R IVATE & CONFIDENTIAL Month Jan-16 Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales Total Days 31 29 31 30 31 30 31 31 30 31 30 31 366 Actual Days 0 7 31 30 31 30 31 31 30 31 30 31 313 DIVISION TOGGLE Division Included in NewCo?",
"(1 = Yes, 0 = No) Paratransit 1 Maryland 0 PA/Pittsburgh 1 Hudson Valley 1 WP/Westchester 0 Monti/BL - Bronx/Lebanon and Montefiore 0 Corporate & Divisonal Payments General Corporate 114,167 Management/Admin.",
"Staffing Corporate Team - Monthly Salary & Benefits 0 0 0 0 0 0 0 0 0 0 0 0 0 0 22,500 All Other SG&A Monthly $15k Bank Fees & $7.5k Standard Business Costs 0 0 0 0 0 0 0 0 0 0 0 0 0 0 50,000 Management Fees (PPAS) Management Fees (PPAS) - Monthly 0 0 0 0 0 0 0 0 0 0 0 0 0 0 75,000 Agency Fee (PPAS) Agency Fees (Annual) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 60,000 Insurance Auto/Liability/D&O D&O/Crime Insurance (estimate) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 35,000 Professional Fees Professional Services and Other Fees 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Monthly payments from OldCo to NewCo - Corporate 0 Transition Services Risk Management Services/Safety - John Foerst 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2,500 Transition Services Compliance / QA - Margaret Azizo 0 0 0 0 0 0 0 0 0 0 0 0 0 0 169,218 Transition Services 159 Owned Vehicles to be used by OldCo 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Monthly Payments from OldCo to NewCo - Corporate 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Monthly payments from NewCo to OldCo - Corporate 0 Transition Services Billing - Various Employees 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Facilities - Corporate employees only 0 0 0 0 0 0 0 0 0 0 0 0 0 9,000 Transition Services Finance & Acconting - 4 resources 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2,500 Transition Services HR - P. Hunter & A. Bailey 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Insurance 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Payroll - Y. Servinenko 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5,000 Transition Services Revenue Cycle Mgmt - J. Koppel 0 0 0 0 0 0 0 0 0 0 0 0 0 0 25,000 Transition Services Telecomm - Voice 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Monthly Payments from NewCo to OldCo - Corporate 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Monthly payments from NewCo to OldCo - Divisional 15,388 Transition Services Ambulances - 7 vehicles 15,388 0 3,714 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 157,594 0 Transition Services MTA Facility 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Transit Total 15,388 0 3,714 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 15,388 157,594 72 Transition Services Ventilators - 1 units 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services MD Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 574 Transition Services Ventilators - 8 units 574 0 138 574 574 574 574 574 574 574 574 574 574 5,876 Transition Services PA Total 574 0 138 574 574 574 574 574 574 574 574 574 574 5,876 359 Transition Services Ventilators - 5 units 359 0 87 359 359 359 359 359 359 359 359 359 359 3,673 8,140 Transition Services Ambulances - 5 vehicles 8,140 0 1,965 8,140 8,140 8,140 8,140 8,140 8,140 8,140 8,140 8,140 8,140 83,365 Transition Services HV Total 8,499 0 2,051 8,499 8,499 8,499 8,499 8,499 8,499 8,499 8,499 8,499 8,499 87,037 430 Transition Services Ventilators - 6 units 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6,341 Transition Services Facilities (lease and Utilities) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Westchester/WP Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4,993 Transition Services Radios 0 0 0 0 0 0 0 0 0 0 0 0 0 0 359 Transition Services Ventilators - 5 units 0 0 0 0 0 0 0 0 0 0 0 0 0 0 18,888 Transition Services Facilities (lease and Utilities) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Transition Services Montefiore/BL Total 0 0 0 0 0 0 0 0 0 0 0 0 0 0 A3808 Inputs Paratransit Case 1:20-cv-06274-LAK Division Toggle: 1 Document 11-32 Filed 09/30/20 Page 21 of 62 TOTAL REVENUES Bulk (Subsidy) 0 0% Lance $404,972 $1,943,700 $1,949,400 $2,014,380 $2,017,800 $2,085,060 $2,085,060 $2,052,000 $2,191,080 $2,120,400 $2,297,100 21,160,952 100% Lette 0 0% Total Paratransit Revenues $404,972 $1,943,700 $1,949,400 $2,014,380 $2,017,800 $2,085,060 $2,085,060 $2,052,000 $2,191,080 $2,120,400 $2,297,100 $21,160,952 100% Trip Revenues Month Accounting Reconciliation (4-4-5 schedule) - Ignore 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% Total Routes 300 300 300 300 300 300 300 300 300 300 300 300 Contract Utilization 55% 55% 57% 57% 59% 59% 59% 60% 62% 62% 65% Routes Completed 165 165 171 171 177 177 177 180 186 186 195 Daily Trips per Route 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 6.3 Revenue per Trip $56.1 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 $60.8 Total Monthly Revenues $404,972 $1,943,700 $1,949,400 $2,014,380 $2,017,800 $2,085,060 $2,085,060 $2,052,000 $2,191,080 $2,120,400 $2,297,100 $21,160,952 100% Expenses Cost of Service (Direct Costs) Driver Compensation & Related Ambulance Monthly Trips Completed 7,219 31,969 32,063 33,131 33,188 34,294 34,294 33,750 36,038 34,875 37,781 Service Hours / Trip 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 1.25 UHU (# of Trips per Hour) 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Total Unit Hours 9,023 39,961 40,078 41,414 41,484 42,867 42,867 42,188 45,047 43,594 47,227 Unit Hour Cost $24.17 $23.33 $22.50 $22.50 $22.50 $21.67 $20.83 $20.83 $20.00 $20.00 $20.00 Total Ambulance $218,066 $932,422 $901,758 $931,816 $933,398 $928,789 $893,066 $878,906 $900,938 $871,875 $944,531 $9,335,566 Driver Compensation & Related Expense (Total) $218,066 $932,422 $901,758 $931,816 $933,398 $928,789 $893,066 $878,906 $900,938 $871,875 $944,531 $9,335,566 44.1% Benefits 20.00% 43,613 186,484 180,352 186,363 186,680 185,758 178,613 175,781 180,188 174,375 188,906 1,867,113 8.8% Workers Comp 85,000 20,517 85,000 85,000 85,000 85,000 85,000 85,000 85,000 85,000 85,000 85,000 870,517 4.1% COPY/DISPATCH'S Compensation 3.00% 12,149 58,311 58,482 60,431 60,534 62,552 62,552 61,560 65,732 63,612 68,913 634,829 3.0% Fleet Maint Compensation 8.00% 32,398 155,496 155,952 161,150 161,424 166,805 166,805 164,160 175,286 169,632 183,768 1,692,876 8.0% Repairs & Maintenance 7.00% 28,348 136,059 136,458 141,007 141,246 145,954 145,954 143,640 153,376 148,428 160,797 1,481,267 7.0% Accident Costs 0.30% 1,215 5,831 5,848 6,043 6,053 6,255 6,255 6,156 6,573 6,361 6,891 63,483 0.3% Fuel, Tolls & Parking Costs 0.30% 1,215 5,831 5,848 6,043 6,053 6,255 6,255 6,156 6,573 6,361 6,891 63,483 0.3% Medical Supplies, Rentals & Repairs 0.30% 1,215 5,831 5,848 6,043 6,053 6,255 6,255 6,156 6,573 6,361 6,891 63,483 0.3% Communications 0.50% 2,025 9,719 9,747 10,072 10,089 10,425 10,425 10,260 10,955 10,602 11,486 105,805 0.5% Uniforms 0.26% 1,053 5,054 5,068 5,237 5,246 5,421 5,421 5,335 5,697 5,513 5,972 55,018 0.3% Equipment 0.11% 445 2,138 2,144 2,216 2,220 2,294 2,294 2,257 2,410 2,332 2,527 23,277 0.1% Health & Safety 0.00% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Licenses & Permits 0.15% 607 2,916 2,924 3,022 3,027 3,128 3,128 3,078 3,287 3,181 3,446 31,741 0.2% Total Cost of Service $362,867 $1,591,091 $1,555,430 $1,604,444 $1,607,024 $1,614,891 $1,572,024 $1,548,446 $1,602,588 $1,553,634 $1,676,020 $16,288,459 77.0% Operating Expenses (Indirect Costs) Management/Admin.",
"Staffing 174,896 42,216 174,896 174,896 174,896 174,896 174,896 174,896 174,896 174,896 174,896 174,896 1,791,175 8.5% Facility Costs 85,120 20,546 85,120 85,120 85,120 85,120 85,120 85,120 85,120 85,120 85,120 85,120 871,746 4.1% Insurance Auto/Liability 35,000 8,448 35,000 35,000 35,000 35,000 35,000 35,000 35,000 35,000 35,000 35,000 358,448 1.7% Professional Fees 10,000 2,414 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 102,414 0.5% All Other SG&A 50,000 77,069 50,000 50,000 50,000 50,000 50,000 50,000 50,000 50,000 50,000 50,000 577,069 2.7% Bad Debt 0.00% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $150,693 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $355,016 $3,700,852 17.5% -26.8% -0.1% 2.0% 2.7% 2.8% 5.5% 7.6% 7.2% 10.7% 10.0% 11.6% Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Depreciation 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% A3809 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 22 of 62 Maryland Division Toggle: 0 TOTAL REVENUES Bulk (Subsidy) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0!",
"Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Total Maryland Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Bulk Revenues University of Maryland - Monthly Bulk 210,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Others 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Lance Revenues University of Maryland Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 960 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 12.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $320 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 University of Maryland Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Others Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 Ave.",
"Patient Charge Growth 12.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $320 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 $358 Other Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Lette Revenues University of Maryland Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 220 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 University of Maryland Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Others Trips Growth (Quarterly) 2.0% 2.0% 2.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 $63 Other Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Expenses Cost of Service (Direct Costs) Driver Compensation & Related Ambulance Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.24 0.30 0.31 0.31 0.31 0.31 0.31 0.31 0.31 0.32 0.32 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $65.00 $65.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 $62.00 Total Ambulance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Ambulette Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.24 0.25 0.26 0.27 0.28 0.30 0.30 0.30 0.30 0.31 0.31 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 $10.00 Total Ambulette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Driver Compensation & Related Expense (Total) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Benefits 20.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Workers Comp 26,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! COPY/DISPATCH'S Compensation 5.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fleet Maint Compensation 4.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Repairs & Maintenance 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Accident Costs 4.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fuel, Tolls & Parking Costs 3.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"Medical Supplies, Rentals & Repairs 0.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Communications 0.4% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Uniforms 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Equipment 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Health & Safety 0.3% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Licenses & Permits 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Cost of Service $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! A3810 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 23 of 62 Operating Expenses (Indirect Costs) Management/Admin. Staffing 43,490 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"Facility Costs 20,262 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Insurance Auto/Liability 16,847 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Professional Fees 1,601 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other SG&A 12,694 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Bad Debt 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Depreciation 3,052 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! PA/Pittsburgh Division Toggle: 1 TOTAL REVENUES Bulk (Subsidy) $19,310 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 819,310 14.4% Lance $101,379 $420,000 $424,950 $424,950 $424,950 $432,927 $432,927 $432,927 $440,346 $440,346 $440,346 4,416,050 77.4% Lette $11,067 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 469,567 8.2% Total Pittsburgh Revenues $131,757 $545,850 $550,800 $550,800 $550,800 $558,777 $558,777 $558,777 $566,196 $566,196 $566,196 $5,704,927 100.0% Bulk Revenues VA PITTSBURGH HEALTH CARE SYS 80,000 19,310 80,000 80,000 80,000 80,000 80,000 80,000 80,000 80,000 80,000 80,000 Others 0 0 0 0 0 0 0 0 0 0 0 0 Total Revenues $19,310 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $80,000 $819,310 14.4% Lance Revenues VA PITTSBURGH HEALTH CARE SYS Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 495 119 495 495 495 495 495 495 495 495 495 495 5,069 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 VA PITTSBURGH HEALTH CARE SYS Revenues $35,845 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $148,500 $1,520,845 26.7% UPM Trips Growth (Quarterly) 6.0% 6.0% 5.0% # of Trips 275 66 275 292 292 292 309 309 309 324 324 324 3,116 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 UPM Revenues $19,914 $82,500 $87,450 $87,450 $87,450 $92,697 $92,697 $92,697 $97,332 $97,332 $97,332 $934,850 16.4% MANORCARE Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 75 18 75 75 75 75 75 75 75 75 75 75 768 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 MANORCARE Revenues $5,431 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $22,500 $230,431 4.0% LIFECARE HOSPITALS OF PGH Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 60 14 60 60 60 60 60 60 60 60 60 60 614 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 LIFECARE HOSPITALS OF PGH Revenues $4,345 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $18,000 $184,345 3.2% HEALTHSOUTH REHAB Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 40 10 40 40 40 40 40 40 40 40 40 40 410 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 HEALTHSOUTH REHAB Revenues $2,897 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $12,000 $122,897 2.2% All Other Trips Growth (Quarterly) 0.0% 2.0% 2.0% # of Trips 455 110 455 455 455 455 464 464 464 473 473 473 4,742 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 $300 All Other Revenues $32,948 $136,500 $136,500 $136,500 $136,500 $139,230 $139,230 $139,230 $142,015 $142,015 $142,015 $1,422,682 24.9% Total Lance Revenues $101,379 $420,000 $424,950 $424,950 $424,950 $432,927 $432,927 $432,927 $440,346 $440,346 $440,346 $4,416,050 77.4% A3811 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 24 of 62 Lette Revenues UPM Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 125 30 125 125 125 125 125 125 125 125 125 125 1,280 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 UPM Revenues $2,112 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $8,750 $89,612 1.6% MANORCARE Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 130 31 130 130 130 130 130 130 130 130 130 130 1,331 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 MANORCARE Revenues $2,197 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $9,100 $93,197 1.6% All Other Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 400 97 400 400 400 400 400 400 400 400 400 400 4,097 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 $70 All Other $6,759 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $28,000 $286,759 5.0% Total Lette Revenues $11,067 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $45,850 $469,567 8.2% Expenses Cost of Service (Direct Costs) Driver Compensation & Related Ambulance Trips Completed per Month 338 1,400 1,417 1,417 1,417 1,443 1,443 1,443 1,468 1,468 1,468 14,720 UHU (# of Trips per Hour) 0.32 0.32 0.32 0.32 0.33 0.33 0.33 0.32 0.32 0.33 0.33 Total Unit Hours 1,056 4,375 4,427 4,427 4,292 4,373 4,373 4,510 4,587 4,448 4,448 Unit Hour Cost $36.00 $36.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 $34.00 Total Ambulance $38,017 $157,500 $150,503 $150,503 $145,942 $148,682 $148,682 $153,328 $155,956 $151,230 $151,230 $1,551,574 27.2% Ambulette Trips Completed per Month 158 655 655 655 655 655 655 655 655 655 655 6,708 UHU (# of Trips per Hour) 0.55 0.55 0.55 0.55 0.55 0.55 0.55 0.56 0.56 0.56 0.56 Total Unit Hours 287 1,191 1,191 1,191 1,191 1,191 1,191 1,170 1,170 1,170 1,170 Unit Hour Cost $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 $11.00 Total Ambulette $3,162 $13,100 $13,100 $13,100 $13,100 $13,100 $13,100 $12,866 $12,866 $12,866 $12,866 $133,226 2.3% Driver Compensation & Related Expense (Total) $41,179 $170,600 $163,603 $163,603 $159,042 $161,782 $161,782 $166,194 $168,822 $164,096 $164,096 $1,684,801 29.5% Benefits 24.5% 10,089 41,797 40,083 40,083 38,965 39,637 39,637 40,718 41,361 40,204 40,204 412,776 7.2% Workers Comp 26,833 6,477 26,833 26,833 26,833 26,833 26,833 26,833 26,833 26,833 26,833 26,833 274,807 4.8% COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Fleet Maint Compensation 4.0% 5,270 21,834 22,032 22,032 22,032 22,351 22,351 22,351 22,648 22,648 22,648 228,197 4.0% Repairs & Maintenance 3.0% 53,953 16,376 16,524 16,524 16,524 16,763 16,763 16,763 16,986 16,986 16,986 221,148 3.9% Accident Costs 4.7% 6,193 25,655 25,888 25,888 25,888 26,263 26,263 26,263 26,611 26,611 26,611 268,132 4.7% Fuel, Tolls & Parking Costs 3.0% 3,953 16,376 16,524 16,524 16,524 16,763 16,763 16,763 16,986 16,986 16,986 171,148 3.0% Medical Supplies, Rentals & Repairs 1.8% 2,371 9,824 9,913 9,913 9,913 10,056 10,056 10,056 10,190 10,190 10,190 102,670 1.8% Communications 0.5% 707 2,929 2,955 2,955 2,955 2,998 2,998 2,998 3,038 3,038 3,038 30,609 0.5% Uniforms 0.2% 238 985 994 994 994 1,009 1,009 1,009 1,022 1,022 1,022 10,297 0.2% Equipment 0.6% 738 3,059 3,087 3,087 3,087 3,131 3,131 3,131 3,173 3,173 3,173 31,970 0.6% Health & Safety 0.0% 40 166 167 167 167 170 170 170 172 172 172 1,731 0.0% Licenses & Permits 0.1% 94 391 395 395 395 400 400 400 406 406 406 4,087 0.1% Total Cost of Service $131,302 $336,823 $328,997 $328,997 $323,319 $328,156 $328,156 $333,649 $338,247 $332,363 $332,363 $3,442,373 60.3% Operating Expenses (Indirect Costs) Management/Admin.",
"Staffing 54,688 13,200 54,688 54,688 54,688 54,688 54,688 54,688 54,688 54,688 54,688 54,688 560,075 9.8% Facility Costs 27,219 6,570 27,219 27,219 27,219 27,219 27,219 27,219 27,219 27,219 27,219 27,219 278,764 4.9% Insurance Auto/Liability 40,410 9,754 40,410 40,410 40,410 40,410 40,410 40,410 40,410 40,410 40,410 40,410 413,854 7.3% Professional Fees 1,703 411 1,703 1,703 1,703 1,703 1,703 1,703 1,703 1,703 1,703 1,703 17,438 0.3% All Other SG&A 13,653 3,296 13,653 13,653 13,653 13,653 13,653 13,653 13,653 13,653 13,653 13,653 139,829 2.5% Bad Debt 6.0% 7,905 32,751 33,048 33,048 33,048 33,527 33,527 33,527 33,972 33,972 33,972 342,296 6.0% Total Operating Expenses $41,137 $170,424 $170,721 $170,721 $170,721 $171,199 $171,199 $171,199 $171,645 $171,645 $171,645 $1,752,255 30.7% Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Depreciation 3,927 2,537 3,927 3,927 3,927 3,927 3,927 3,927 3,927 3,927 3,927 3,927 41,807 0.7% Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $2,537 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $3,927 $41,807 0.7% A3812 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 25 of 62 Hudson Valley Division Toggle: 1 TOTAL REVENUES Bulk (Subsidy) $56,724 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 2,406,724 23.3% Lance $175,590 $727,445 $763,818 $763,818 $763,818 $779,094 $779,094 $779,094 $794,676 $794,676 $794,676 7,915,799 76.7% Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 0.0% Total Hudson Valley Revenues $232,314 $962,445 $998,818 $998,818 $998,818 $1,014,094 $1,014,094 $1,014,094 $1,029,676 $1,029,676 $1,029,676 $10,322,523 100.0% Bulk Revenues Putnam County 106,780 25,774 106,780 106,780 106,780 106,780 106,780 106,780 106,780 106,780 106,780 106,780 1,093,570 10.6% Unionvale 911 12,515 3,021 12,515 12,515 12,515 12,515 12,515 12,515 12,515 12,515 12,515 12,515 128,173 1.2% Pawling 911 26,735 6,453 26,735 26,735 26,735 26,735 26,735 26,735 26,735 26,735 26,735 26,735 273,808 2.7% Beekman 911 31,026 7,489 31,026 31,026 31,026 31,026 31,026 31,026 31,026 31,026 31,026 31,026 317,752 3.1% Millbrook 911 15,985 3,858 15,985 15,985 15,985 15,985 15,985 15,985 15,985 15,985 15,985 15,985 163,704 1.6% Others 41,959 10,128 41,959 41,959 41,959 41,959 41,959 41,959 41,959 41,959 41,959 41,959 429,719 4.2% Total Revenues $56,724 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $235,000 $2,406,724 23.3% Lance Revenues Health Quest Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 620 150 620 651 651 651 664 664 664 677 677 677 6,747 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $340 $340 $340 $340 $340 $340 $340 $340 $340 $340 $340 $340 Health Quest Revenues $50,883 $210,800 $221,340 $221,340 $221,340 $225,767 $225,767 $225,767 $230,282 $230,282 $230,282 $2,293,850 22.2% New York Presbyterian of Hudson Valley Hospital Ce Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 210 51 210 221 221 221 225 225 225 229 229 229 2,285 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 New York Presbyterian of Hudson Valley Hospital Ce Revenues $15,967 $66,150 $69,458 $69,458 $69,458 $70,847 $70,847 $70,847 $72,264 $72,264 $72,264 $719,820 7.0% Putnam County Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 220 53 220 231 231 231 236 236 236 240 240 240 2,394 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $432 $432 $432 $432 $432 $432 $432 $432 $432 $432 $432 $432 Putnam County Revenues $22,941 $95,040 $99,792 $99,792 $99,792 $101,788 $101,788 $101,788 $103,824 $103,824 $103,824 $1,034,191 10.0% Medicaid Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 50 12 50 53 53 53 54 54 54 55 55 55 544 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $290 $290 $290 $290 $290 $290 $290 $290 $290 $290 $290 $290 Medicaid Revenues $3,500 $14,500 $15,225 $15,225 $15,225 $15,530 $15,530 $15,530 $15,840 $15,840 $15,840 $157,784 1.5% Pawling 911 Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 45 11 45 47 47 47 48 48 48 49 49 49 490 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $540 $540 $540 $540 $540 $540 $540 $540 $540 $540 $540 $540 Pawling 911 Revenues $5,866 $24,300 $25,515 $25,515 $25,515 $26,025 $26,025 $26,025 $26,546 $26,546 $26,546 $264,424 2.6% Wappinger 911 Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 130 31 130 137 137 137 139 139 139 142 142 142 1,415 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $475 $475 $475 $475 $475 $475 $475 $475 $475 $475 $475 $475 Wappinger 911 Revenues $14,905 $61,750 $64,838 $64,838 $64,838 $66,134 $66,134 $66,134 $67,457 $67,457 $67,457 $671,941 6.5% VA Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 100 24 100 105 105 105 107 107 107 109 109 109 1,088 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $350 $350 $350 $350 $350 $350 $350 $350 $350 $350 $350 $350 VA Revenues $8,448 $35,000 $36,750 $36,750 $36,750 $37,485 $37,485 $37,485 $38,235 $38,235 $38,235 $380,857 3.7% All Other Trips Growth (Quarterly) 5.0% 2.0% 2.0% # of Trips 525 127 525 551 551 551 562 562 562 574 574 574 5,713 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $419 $419 $419 $419 $419 $419 $419 $419 $419 $419 $419 $419 All Other Revenues $53,081 $219,905 $230,901 $230,901 $230,901 $235,519 $235,519 $235,519 $240,229 $240,229 $240,229 $2,392,931 23.2% Total Lance Revenues $175,590 $727,445 $763,818 $763,818 $763,818 $779,094 $779,094 $779,094 $794,676 $794,676 $794,676 $7,915,799 76.7% Lette Revenues Total Rides 20,675 Health Quest Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% A3813 Inputs Ave. Patient Charge Case 1:20-cv-06274-LAK $670 Document $670 $670 11-32 $670 Filed $670 09/30/20 $670 Page $670 26 $670of 62 $670 $670 $670 $670 Health Quest Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% New York Presbyterian of Hudson Valley Hospital Ce Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $600 $600 $600 $600 $600 $600 $600 $600 $600 $600 $600 $600 New York Presbyterian of Hudson Valley Hospital Ce Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% All Other Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $500 $500 $500 $500 $500 $500 $500 $500 $500 $500 $500 $500 All Other $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% Expenses Cost of Service (Direct Costs) Driver Compensation & Related Ambulance Trips Completed per Month 459 1,900 1,995 1,995 1,995 2,035 2,035 2,035 2,076 2,076 2,076 20,675 UHU (# of Trips per Hour) 0.19 0.19 0.19 0.19 0.20 0.20 0.20 0.20 0.20 0.20 0.20 Total Unit Hours 2,414 10,000 10,500 10,500 10,231 10,435 10,435 10,435 10,644 10,644 10,644 106,883 Unit Hour Cost $38.00 $38.00 $37.00 $37.00 $37.00 $37.00 $37.00 $36.00 $36.00 $36.00 $36.00 Total Ambulance $91,724 $380,000 $388,500 $388,500 $378,538 $386,109 $386,109 $375,674 $383,187 $383,187 $383,187 $3,924,717 38.0% Ambulette Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 0.19 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 Total Ambulette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0.0% Driver Compensation & Related Expense (Total) $91,724 $380,000 $388,500 $388,500 $378,538 $386,109 $386,109 $375,674 $383,187 $383,187 $383,187 $3,924,717 38.0% Benefits 20.0% 18,345 76,000 77,700 77,700 75,708 77,222 77,222 75,135 76,637 76,637 76,637 784,943 7.6% Workers Comp 25,325 6,113 25,325 25,325 25,325 25,325 25,325 25,325 25,325 25,325 25,325 25,325 259,366 2.5% COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Fleet Maint Compensation 4.5% 20,454 53,310 44,947 44,947 44,947 45,634 45,634 45,634 46,335 46,335 46,335 484,514 4.7% Repairs & Maintenance 2.0% 4,646 19,249 19,976 19,976 19,976 20,282 20,282 20,282 20,594 20,594 20,594 206,450 2.0% Accident Costs 3.0% 6,969 28,873 29,965 29,965 29,965 30,423 30,423 30,423 30,890 30,890 30,890 309,676 3.0% Fuel, Tolls & Parking Costs 2.3% 5,343 22,136 22,973 22,973 22,973 23,324 23,324 23,324 23,683 23,683 23,683 237,418 2.3% Medical Supplies, Rentals & Repairs 1.8% 4,181 17,321 17,975 17,975 17,975 18,250 18,250 18,250 18,531 18,531 18,531 185,771 1.8% Communications 0.5% 1,246 5,164 5,359 5,359 5,359 5,441 5,441 5,441 5,525 5,525 5,525 55,385 0.5% Uniforms 0.2% 419 1,737 1,803 1,803 1,803 1,830 1,830 1,830 1,859 1,859 1,859 18,632 0.2% Equipment 0.6% 1,302 5,393 5,597 5,597 5,597 5,683 5,683 5,683 5,770 5,770 5,770 57,846 0.6% Health & Safety 0.0% 70 292 303 303 303 308 308 308 312 312 312 3,132 0.0% Licenses & Permits 0.1% 166 690 716 716 716 727 727 727 738 738 738 7,395 0.1% Total Cost of Service $160,981 $635,491 $641,139 $641,139 $629,185 $640,558 $640,558 $628,036 $639,386 $639,386 $639,386 $6,535,247 63.3% Operating Expenses (Indirect Costs) Management/Admin.",
"Staffing 70,729 17,073 70,729 70,729 70,729 70,729 70,729 70,729 70,729 70,729 70,729 70,729 724,364 7.0% Facility Costs 19,735 4,764 19,735 19,735 19,735 19,735 19,735 19,735 19,735 19,735 19,735 19,735 202,112 2.0% Insurance Auto/Liability 33,279 8,033 33,279 33,279 33,279 33,279 33,279 33,279 33,279 33,279 33,279 33,279 340,823 3.3% Professional Fees 2,456 593 2,456 2,456 2,456 2,456 2,456 2,456 2,456 2,456 2,456 2,456 25,148 0.2% All Other SG&A 10,000 2,414 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 10,000 102,414 1.0% Bad Debt 6.0% 13,939 57,747 59,929 59,929 59,929 60,846 60,846 60,846 61,781 61,781 61,781 619,351 6.0% Total Operating Expenses $46,814 $193,945 $196,128 $196,128 $196,128 $197,044 $197,044 $197,044 $197,979 $197,979 $197,979 $2,014,213 19.5% Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Depreciation 12,262 2,960 12,262 12,262 12,262 12,262 12,262 12,262 12,262 12,262 12,262 12,262 125,576 1.2% Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 0.0% Total Operating Expenses $2,960 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $12,262 $125,576 1.2% A3814 Inputs Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 27 of 62 Westchester/WP Division Toggle: 0 TOTAL REVENUES 0 #DIV/0! Bulk (Subsidy) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0!",
"Lance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Total WP Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Bulk Revenues White Plains 50,888 0 0 0 0 0 0 0 0 0 0 0 New Rochelle 0 0 0 0 0 0 0 0 0 0 0 0 Mt.",
"Pleasant 0 0 0 0 0 0 0 0 0 0 0 0 Others 0 0 0 0 0 0 0 0 0 0 0 0 Total Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Lance Revenues White Plains Trips Growth (Quarterly) 2.0% 2.0% 1.0% # of Trips 510 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 White Plains Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! New Rochelle Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 $275 New Rochelle Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Mt.",
"Vernon Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 Mt. Vernon Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $400 $400 $400 $400 $400 $400 $400 $400 $400 $400 $400 $400 All Other Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Lette Revenues White Plains Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $50 $50 $50 $50 $50 $50 $50 $50 $50 $50 $50 $50 White Plains Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 0.0% 0.0% 0.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 All Other $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Expenses Cost of Service (Direct Costs) Driver Compensation & Related Ambulance Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.23 0.23 0.23 0.23 0.25 0.25 0.25 0.25 0.25 0.25 0.25 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 $38.40 Total Ambulance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Ambulette Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 0.30 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 A3815 Inputs Total Ambulette Case 1:20-cv-06274-LAK Document $0 $0 11-32$0 Filed $0 09/30/20 $0 Page $0 28 of$0 62 $0 $0 $0 $0 Driver Compensation & Related Expense (Total) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Benefits 20.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Workers Comp 18,954 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fleet Maint Compensation 4.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"Repairs & Maintenance 3.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Accident Costs 4.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fuel, Tolls & Parking Costs 3.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Medical Supplies, Rentals & Repairs 1.8% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Communications 0.5% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Uniforms 0.2% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Equipment 0.6% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Health & Safety 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Licenses & Permits 0.1% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Cost of Service $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Operating Expenses (Indirect Costs) Management/Admin. Staffing 7,292 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Facility Costs 8,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Insurance Auto/Liability 9,508 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Professional Fees 1,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other SG&A 2,500 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Bad Debt 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Depreciation 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Monti/BL - Bronx Lebanon/Montefiore Division Toggle: 0 TOTAL REVENUES Bulk (Subsidy) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Lette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 0 #DIV/0! Total Bronx Lebanon/Montefiore Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Bulk Revenues 117,500 BRONX LEBANON 117,500 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Montefiore - EMS 174,579 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"72,691 Montefiore - Non-Emergency/Core 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Mount Vernon EMS 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! ST BARNABAS 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Others 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Lance Revenues Bronx Lebanon Trips Growth (Quarterly) 1.0% 3.0% 1.0% 1,885 # of Trips 1,885 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $235 $235 $235 $235 $235 $235 $235 $235 $235 $235 $235 $235 Bronx Lebanon Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Montefiore - EMS Trips Growth (Quarterly) 1.0% 3.0% -1.0% # of Trips 1,723 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $270 $270 $270 $270 $270 $270 $270 $270 $270 $270 $270 $270 Montefiore - EMS Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Montefiore - Non-Emergency/Core Trips Growth (Quarterly) 2.0% 2.0% 3.0% 1,150 # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $263 $263 $263 $263 $263 $263 $263 $263 $263 $263 $263 $263 Montefiore - Non-Emergency/Core Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Mount Vernon EMS Trips Growth (Quarterly) 0.0% 2.0% 0.0% A3816 Inputs 540 # of Trips Case 1:20-cv-06274-LAK 0 Document 0 0 11-32 0 Filed 0 09/30/20 0 Page 0 290 of 62 0 0 0 0 0 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 $315 Mount Vernon EMS Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! St. Barnabas Trips Growth (Quarterly) 1.0% 3.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $229 $229 $229 $229 $229 $229 $229 $229 $229 $229 $229 $229 St. Barnabas Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 1.0% 3.0% 2.0% # of Trips 0 0 0 0 0 0 0 0 0 0 0 0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 10.0% 0.0% 0.0% -9.0% 0.0% 0.0% Ave. Patient Charge $225 $225 $225 $225 $225 $225 $248 $248 $248 $225 $225 $225 All Other Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lance Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Lette Revenues BRONX LEBANON Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave.",
"Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Bronx Lebanon Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! St. Barnabas Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 St. Barnabas Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Mt. Sinai Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave.",
"Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Mt. Sinai Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! All Other Trips Growth (Quarterly) 2.0% 2.0% 2.0% # of Trips 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0 Ave. Patient Charge Growth 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Ave. Patient Charge $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 All Other $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Total Lette Revenues $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Expenses A3817 Inputs Cost of Service (Direct Costs) Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 30 of 62 Driver Compensation & Related Ambulance Ambulances - NYC 911 and Others Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.34 0.34 0.35 0.35 0.35 0.35 0.35 0.35 0.35 0.35 0.35 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Ambulances - Montefiore Non-EMS & Mount Vernon EMS Trips Completed per Month 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.26 0.26 0.26 0.26 0.27 0.27 0.27 0.27 0.27 0.27 0.27 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $50.00 $50.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 $48.00 Total Ambulance $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Ambulette Trips Completed per Day 0 0 0 0 0 0 0 0 0 0 0 0 UHU (# of Trips per Hour) 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 Total Unit Hours 0 0 0 0 0 0 0 0 0 0 0 Unit Hour Cost $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 $18.00 Total Ambulette $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 Driver Compensation & Related Expense (Total) $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0! Benefits 20.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Workers Comp 86,627 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! COPY/DISPATCH'S Compensation 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fleet Maint Compensation 3.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Repairs & Maintenance 0.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"Accident Costs 1.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Fuel, Tolls & Parking Costs 1.9% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Medical Supplies, Rentals & Repairs 1.7% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Communications 0.2% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Uniforms 0.1% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Equipment 0.2% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Health & Safety 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Licenses & Permits 0.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Cost of Service $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Operating Expenses (Indirect Costs) 62,500 Management/Admin. Staffing 92,708 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Facility Costs 20,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Insurance Auto/Liability 28,525 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Professional Fees 2,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! All Other SG&A 5,000 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Bad Debt 6.0% 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"Other Non-Operating Expenses Other Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Interest Expense 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Capital Leases 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Depreciation 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Management Fees (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Agency Fee (PPAS) 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0!",
"All Other 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Income Tax 0 0 0 0 0 0 0 0 0 0 0 0 0 #DIV/0! Total Operating Expenses $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 #DIV/0!",
"A3818 Inputs TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 31 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL CONSOLIDATED Paratransit OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Patient Revenue Ambulance Revenue - - - - - - - - - - - - - 0.0% Transit Services - 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 100.0% Service Revenue - 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 100.0% Premium Revenue - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - Total Operating Revenue - 405.0 1,943.7 1,949.4 2,014.4 2,017.8 2,085.1 2,085.1 2,052.0 2,191.1 2,120.4 2,297.1 21,161.0 100.0% - - - - - - - - - - - - - COST OF SERVICE 0 0 0 0 0 0 0 0 0 0 0 0 0 Driver Compensation & Related - 218.1 932.4 901.8 931.8 933.4 928.8 893.1 878.9 900.9 871.9 944.5 9,335.6 44.1% Benefits - 43.6 186.5 180.4 186.4 186.7 185.8 178.6 175.8 180.2 174.4 188.9 1,867.1 8.8% Workers Comp - 20.5 85.0 85.0 85.0 85.0 85.0 85.0 85.0 85.0 85.0 85.0 870.5 4.1% COPY/DISPATCH'S Compensation - 12.1 58.3 58.5 60.4 60.5 62.6 62.6 61.6 65.7 63.6 68.9 634.8 3.0% Fleet Maint Compensation - 32.4 155.5 156.0 161.2 161.4 166.8 166.8 164.2 175.3 169.6 183.8 1,692.9 8.0% Repairs & Maintenance - 28.3 136.1 136.5 141.0 141.2 146.0 146.0 143.6 153.4 148.4 160.8 1,481.3 7.0% Accident Costs - 1.2 5.8 5.8 6.0 6.1 6.3 6.3 6.2 6.6 6.4 6.9 63.5 0.3% Fuel, Tolls & Parking Costs - 1.2 5.8 5.8 6.0 6.1 6.3 6.3 6.2 6.6 6.4 6.9 63.5 0.3% Medical Supplies, Rentals & Repairs - 1.2 5.8 5.8 6.0 6.1 6.3 6.3 6.2 6.6 6.4 6.9 63.5 0.3% Communications - 2.0 9.7 9.7 10.1 10.1 10.4 10.4 10.3 11.0 10.6 11.5 105.8 0.5% Uniforms - 1.1 5.1 5.1 5.2 5.2 5.4 5.4 5.3 5.7 5.5 6.0 55.0 0.3% Equipment - .4 2.1 2.1 2.2 2.2 2.3 2.3 2.3 2.4 2.3 2.5 23.3 0.1% Health & Safety - - - - - - - - - - - - - 0.0% Licenses & Permits - .6 2.9 2.9 3.0 3.0 3.1 3.1 3.1 3.3 3.2 3.4 31.7 0.2% SUB TOTAL - COST OF SERVICE - 362.9 1,591.1 1,555.4 1,604.4 1,607.0 1,614.9 1,572.0 1,548.4 1,602.6 1,553.6 1,676.0 16,288.5 77.0% - - - - - - - - - - - - - Gross Profit - 42.1 352.6 394.0 409.9 410.8 470.2 513.0 503.6 588.5 566.8 621.1 4,872.5 GP % 0.0% 10.4% 18.1% 20.2% 20.4% 20.4% 22.5% 24.6% 24.5% 26.9% 26.7% 27.0% 241.8% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% OPERATING EXPENSES - - - - - - - - - - - - - Management/Administrative Staffing - 42.2 174.9 174.9 174.9 174.9 174.9 174.9 174.9 174.9 174.9 174.9 1,791.2 8.5% Facility Costs - 20.5 85.1 85.1 85.1 85.1 85.1 85.1 85.1 85.1 85.1 85.1 871.7 4.1% Insurance Auto/Liability/D&O - 8.4 35.0 35.0 35.0 35.0 35.0 35.0 35.0 35.0 35.0 35.0 358.4 1.7% Professional Fees - 2.4 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 102.4 0.5% All Other SG&A - 77.1 50.0 50.0 50.0 50.0 50.0 50.0 50.0 50.0 50.0 50.0 577.1 2.7% Transition Services - Payment to OldCo - 3.7 15.4 15.4 15.4 15.4 15.4 15.4 15.4 15.4 15.4 15.4 157.6 0.7% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - 0.0% Bad Debt - - - - - - - - - - - - - 0.0% TOTAL OPERATING EXPENSES - 154.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 370.4 3,858.4 18.2% 0 EBITDA - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 4.8% 0.0% -27.7% -0.9% 1.2% 2.0% 2.0% 4.8% 6.8% 6.5% 10.0% 9.3% 10.9% 24.8% 0.0% Other Expense - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - 0.0% Depreciation - - - - - - - - - - - - - 0.0% Management Fees (PPAS) - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - 0.0% Subtotal Other - - - - - - - - - - - - - 0.0% - - - - - - - - - - - - - 0.0% Net Income - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 4.8% Financials by Division A3819 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 32 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Current Assets - - - - - - - - - - - - Cash and cash equivalents - (372.7) (180.7) (1,240.9) (1,260.5) (1,287.9) (1,246.8) (1,171.5) (1,011.1) (874.3) (758.9) (582.7) (582.7) Patient Account Receivables (OldCo) - - - - - - - - - - - - - Patient Account Receivables (NewCo) 3,165.5 3,570.5 3,714.2 3,893.1 3,963.8 4,032.2 4,102.9 4,170.1 4,137.1 4,243.1 4,311.5 4,417.5 4,417.5 Provision for Bad Debt - - - - - - - - - - - - - Inventory 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 439.2 Prepaid and Other Current Assets - - - - - - - - - - - - - Total Current Assets 3,604.7 3,637.0 3,972.7 3,091.3 3,142.5 3,183.5 3,295.2 3,437.9 3,565.1 3,808.0 3,991.8 4,274.0 4,274.0 - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Accumulated Depreciation - - - - - - - - - - - - - Property and equipment, net - - - - - - - - - - - - - - - - - - - - - - - - - - Other Assets - - - - - - - - - - - - - Goodwill - - - - - - - - - - - - - Other Assets 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 Total Other Assets 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 - - - - - - - - - - - - - Total Assets 3,754.7 3,787.0 4,122.7 3,241.3 3,292.5 3,333.5 3,445.2 3,587.9 3,715.1 3,958.0 4,141.8 4,424.0 4,424.0 - - - - - - - - - - - - - - - - - - - - - - - - - - Current Operating Liabilities - - - - - - - - - - - - - Accounts payable 1,114.8 1,259.4 1,612.9 708.0 719.6 720.2 732.2 732.2 726.3 751.1 738.5 770.0 770.0 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - Accrued PTO 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 322.8 InterCompany Balance - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - Total Current Liabilities 1,437.6 1,582.2 1,935.7 1,030.8 1,042.4 1,043.0 1,055.0 1,055.0 1,049.1 1,073.9 1,061.3 1,092.8 1,092.8 - - - - - - - - - - - - - Other Long Term Liabilities - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - New Term Loan - - - - - - - - - - - - - Capital Lease - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - - - - - - - - Total Liabilities 1,437.6 1,582.2 1,935.7 1,030.8 1,042.4 1,043.0 1,055.0 1,055.0 1,049.1 1,073.9 1,061.3 1,092.8 1,092.8 - - - - - - - - - - - - - Common Equity 2,317.1 2,204.8 2,187.0 2,210.6 2,250.1 2,290.5 2,390.2 2,532.9 2,666.0 2,884.1 3,080.5 3,331.1 3,331.1 Total Equity 2,317.1 2,204.8 2,187.0 2,210.6 2,250.1 2,290.5 2,390.2 2,532.9 2,666.0 2,884.1 3,080.5 3,331.1 3,331.1 - - - - - - - - - - - - - Check - - - - - - - - - - - - - Financials by Division A3820 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 33 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit Paratransit 0 0 0 0 0 0 0 0 0 0 0 0 0 Net Income - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 Total Adjustments - - - - - - - - - - - - - Adjustment to reconcile to net income - - - - - - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - Provision for doubtful accounts - - - - - - - - - - - - - Depreciation and amortization - - - - - - - - - - - - - Deferred rent - - - - - - - - - - - - - Total Adj to reconcile to net income - (112.3) (17.8) 23.6 39.5 40.4 99.8 142.6 133.2 218.1 196.4 250.7 1,014.0 Operating Adjustments - - - - - - - - - - - - - (Increase) Decrease in Assets - - - - - - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - Accounts Receivable (NewCo) - (405.0) (143.7) (178.9) (70.7) (68.4) (70.7) (67.3) 33.1 (106.0) (68.4) (106.0) (1,252.0) Inventory - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - Total (Increase) Decrease in Assets - (405.0) (143.7) (178.9) (70.7) (68.4) (70.7) (67.3) 33.1 (106.0) (68.4) (106.0) (1,252.0) Increase (Decrease) In Liabilities - - - - - - - - - - - - - A/P and Accrued Expenses - 144.6 353.5 (904.9) 11.6 .6 12.0 - (5.9) 24.8 (12.6) 31.5 (344.8) Accrued Management Fees - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities - 144.6 353.5 (904.9) 11.6 .6 12.0 - (5.9) 24.8 (12.6) 31.5 (344.8) Total Operating Adjustments - (372.7) 192.0 (1,060.3) (19.6) (27.4) 41.1 75.4 160.3 136.9 115.4 176.2 (582.7) - - - - - - - - - - - - - Investing Adjustments - - - - - - - - - - - - - Capital Expenditures - - - - - - - - - - - - - Total Investing Adjustments - - - - - - - - - - - - - - - - - - - - - - - - - - Financing Adjustments - - - - - - - - - - - - - Accrued Interest - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - Total Cash Flow - (372.7) 192.0 (1,060.3) (19.6) (27.4) 41.1 75.4 160.3 136.9 115.4 176.2 (582.7) Financials by Division A3821 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 34 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL Maryland Pittsburgh/PA OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales PA PA PA PA PA PA PA PA PA PA PA PA PA Patient Revenue Ambulance Revenue - 131.8 545.9 550.8 550.8 550.8 558.8 558.8 558.8 566.2 566.2 566.2 5,704.9 100.0% Transit Services - - - - - - - - - - - - - 0.0% Service Revenue - 131.8 545.9 550.8 550.8 550.8 558.8 558.8 558.8 566.2 566.2 566.2 5,704.9 100.0% Premium Revenue - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - Total Operating Revenue - 131.8 545.9 550.8 550.8 550.8 558.8 558.8 558.8 566.2 566.2 566.2 5,704.9 100.0% - - - - - - - - - - - - - COST OF SERVICE 0 0 0 0 0 0 0 0 0 0 0 0 0 Driver Compensation & Related - 41.2 170.6 163.6 163.6 159.0 161.8 161.8 166.2 168.8 164.1 164.1 1,684.8 29.5% Benefits - 10.1 41.8 40.1 40.1 39.0 39.6 39.6 40.7 41.4 40.2 40.2 412.8 7.2% Workers Comp - 6.5 26.8 26.8 26.8 26.8 26.8 26.8 26.8 26.8 26.8 26.8 274.8 4.8% COPY/DISPATCH'S Compensation - - - - - - - - - - - - - 0.0% Fleet Maint Compensation - 5.3 21.8 22.0 22.0 22.0 22.4 22.4 22.4 22.6 22.6 22.6 228.2 4.0% Repairs & Maintenance - 54.0 16.4 16.5 16.5 16.5 16.8 16.8 16.8 17.0 17.0 17.0 221.1 3.9% Accident Costs - 6.2 25.7 25.9 25.9 25.9 26.3 26.3 26.3 26.6 26.6 26.6 268.1 4.7% Fuel, Tolls & Parking Costs - 4.0 16.4 16.5 16.5 16.5 16.8 16.8 16.8 17.0 17.0 17.0 171.1 3.0% Medical Supplies, Rentals & Repairs - 2.4 9.8 9.9 9.9 9.9 10.1 10.1 10.1 10.2 10.2 10.2 102.7 1.8% Communications - .7 2.9 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 3.0 30.6 0.5% Uniforms - .2 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 10.3 0.2% Equipment - .7 3.1 3.1 3.1 3.1 3.1 3.1 3.1 3.2 3.2 3.2 32.0 0.6% Health & Safety - .0 .2 .2 .2 .2 .2 .2 .2 .2 .2 .2 1.7 0.0% Licenses & Permits - .1 .4 .4 .4 .4 .4 .4 .4 .4 .4 .4 4.1 0.1% SUB TOTAL - COST OF SERVICE - 131.3 336.8 329.0 329.0 323.3 328.2 328.2 333.6 338.2 332.4 332.4 3,442.4 60.3% - - - - - - - - - - - - - Gross Profit - .5 209.0 221.8 221.8 227.5 230.6 230.6 225.1 227.9 233.8 233.8 2,262.6 GP % 0.0% 0.3% 38.3% 40.3% 40.3% 41.3% 41.3% 41.3% 40.3% 40.3% 41.3% 41.3% 406.2% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% OPERATING EXPENSES - - - - - - - - - - - - - Management/Administrative Staffing - 13.2 54.7 54.7 54.7 54.7 54.7 54.7 54.7 54.7 54.7 54.7 560.1 9.8% Facility Costs - 6.6 27.2 27.2 27.2 27.2 27.2 27.2 27.2 27.2 27.2 27.2 278.8 4.9% Insurance Auto/Liability/D&O - 9.8 40.4 40.4 40.4 40.4 40.4 40.4 40.4 40.4 40.4 40.4 413.9 7.3% Professional Fees - .4 1.7 1.7 1.7 1.7 1.7 1.7 1.7 1.7 1.7 1.7 17.4 0.3% All Other SG&A - 3.3 13.7 13.7 13.7 13.7 13.7 13.7 13.7 13.7 13.7 13.7 139.8 2.5% Transition Services - Payment to OldCo - .1 .6 .6 .6 .6 .6 .6 .6 .6 .6 .6 5.9 0.1% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - 0.0% Bad Debt - 7.9 32.8 33.0 33.0 33.0 33.5 33.5 33.5 34.0 34.0 34.0 342.3 6.0% TOTAL OPERATING EXPENSES - 41.3 171.0 171.3 171.3 171.3 171.8 171.8 171.8 172.2 172.2 172.2 1,758.1 30.8% 0 0 0 0 0 0 0 0 0 0 0 0 0 EBITDA - (40.8) 38.0 50.5 50.5 56.2 58.8 58.8 53.4 55.7 61.6 61.6 504.4 8.8% 0.0% -31.0% 7.0% 9.2% 9.2% 10.2% 10.5% 10.5% 9.5% 9.8% 10.9% 10.9% 66.7% 0.0% Other Expense - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - 0.0% Depreciation - 2.5 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 41.8 0.7% Management Fees (PPAS) - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - 0.0% Subtotal Other - 2.5 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 41.8 0.7% - - - - - - - - - - - - - 0.0% Net Income - (43.4) 34.1 46.6 46.6 52.3 54.9 54.9 49.4 51.8 57.7 57.7 462.6 8.1% Financials by Division A3822 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 35 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 PA PA PA PA PA PA PA PA PA PA PA PA PA Current Assets Cash and cash equivalents - (244.6) (74.6) (161.7) (102.2) (27.7) 53.0 136.9 218.7 302.7 393.6 486.3 486.3 Patient Account Receivables (OldCo) - - - - - - - - - - - - - Patient Account Receivables (NewCo) 704.8 704.8 764.3 803.7 827.7 842.4 856.3 864.8 869.9 877.6 882.3 885.2 885.2 Provision for Bad Debt (42.3) (50.2) (82.9) (116.0) (149.0) (182.1) (215.6) (249.1) (282.7) (316.6) (350.6) (384.6) (384.6) Inventory 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 68.3 Prepaid and Other Current Assets - - - - - - - - - - - - - Total Current Assets 730.8 478.3 675.0 594.3 644.8 701.0 762.0 820.9 874.2 932.0 993.6 1,055.2 1,055.2 - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Property, Plant and Equipment 3,634.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 3,934.1 Accumulated Depreciation (3,580.3) (3,582.9) (3,586.8) (3,590.7) (3,594.6) (3,598.6) (3,602.5) (3,606.4) (3,610.3) (3,614.3) (3,618.2) (3,622.1) (3,622.1) Property and equipment, net 53.8 351.3 347.3 343.4 339.5 335.6 331.6 327.7 323.8 319.8 315.9 312.0 312.0 - - - - - - - - - - - - - Other Assets - - - - - - - - - - - - - Goodwill - - - - - - - - - - - - - Other Assets 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 Total Other Assets 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 49.4 - - - - - - - - - - - - - Total Assets 834.0 879.0 1,071.8 987.1 1,033.7 1,086.0 1,143.1 1,198.0 1,247.4 1,301.3 1,359.0 1,416.7 1,416.7 - - - - - - - - - - - - - - - - - - - - - - - - - - Current Operating Liabilities - - - - - - - - - - - - - Accounts payable 203.1 291.4 450.2 318.9 318.9 318.9 321.1 321.1 321.1 323.1 323.1 323.1 323.1 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - Accrued PTO 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 60.1 InterCompany Balance - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - Total Current Liabilities 263.2 351.5 510.2 378.9 378.9 378.9 381.2 381.2 381.2 383.2 383.2 383.2 383.2 - - - - - - - - - - - - - Other Long Term Liabilities - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - New Term Loan - - - - - - - - - - - - - Capital Lease - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - - - - - - - - Total Liabilities 263.2 351.5 510.2 378.9 378.9 378.9 381.2 381.2 381.2 383.2 383.2 383.2 383.2 - - - - - - - - - - - - - Common Equity 570.8 527.5 561.6 608.2 654.8 707.0 761.9 816.9 866.3 918.1 975.8 1,033.5 1,033.5 Total Equity 570.8 527.5 561.6 608.2 654.8 707.0 761.9 816.9 866.3 918.1 975.8 1,033.5 1,033.5 - - - - - - - - - - - - - Check - (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) (.0) Financials by Division A3823 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 36 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 PA PA PA PA PA PA PA PA PA PA PA PA PA 0 Net Income - (43.4) 34.1 46.6 46.6 52.3 54.9 54.9 49.4 51.8 57.7 57.7 462.6 Total Adjustments - - - - - - - - - - - - - Adjustment to reconcile to net income - - - - - - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - Provision for doubtful accounts - 7.9 32.8 33.0 33.0 33.0 33.5 33.5 33.5 34.0 34.0 34.0 342.3 Depreciation and amortization - 2.5 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 3.9 41.8 Deferred rent - - - - - - - - - - - - - Total Adj to reconcile to net income - (32.9) 70.8 83.6 83.6 89.2 92.4 92.4 86.9 89.7 95.6 95.6 846.7 Operating Adjustments - - - - - - - - - - - - - (Increase) Decrease in Assets - - - - - - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - Accounts Receivable (NewCo) - - (59.5) (39.4) (24.1) (14.7) (13.9) (8.5) (5.2) (7.7) (4.7) (2.9) (180.4) Inventory - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - Total (Increase) Decrease in Assets - - (59.5) (39.4) (24.1) (14.7) (13.9) (8.5) (5.2) (7.7) (4.7) (2.9) (180.4) Increase (Decrease) In Liabilities - - - - - - - - - - - - - A/P and Accrued Expenses - 88.3 158.7 (131.3) - - 2.2 - - 2.1 - - 120.0 Accrued Management Fees - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities - 88.3 158.7 (131.3) - - 2.2 - - 2.1 - - 120.0 Total Operating Adjustments - 55.4 170.0 (87.1) 59.5 74.5 80.7 83.9 81.7 84.1 90.9 92.7 786.3 - - - - - - - - - - - - - Investing Adjustments - - - - - - - - - - - - - Capital Expenditures - (300.0) - - - - - - - - - - (300.0) Total Investing Adjustments - (300.0) - - - - - - - - - - (300.0) - - - - - - - - - - - - - Financing Adjustments - - - - - - - - - - - - - Accrued Interest - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - Total Cash Flow - (244.6) 170.0 (87.1) 59.5 74.5 80.7 83.9 81.7 84.1 90.9 92.7 486.3 Financials by Division A3824 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 37 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL Hudson Valley OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 % of Sales HV HV HV HV HV HV HV HV HV HV HV HV HV Patient Revenue Ambulance Revenue - 232.3 962.4 998.8 998.8 998.8 1,014.1 1,014.1 1,014.1 1,029.7 1,029.7 1,029.7 10,322.5 100.0% Transit Services - - - - - - - - - - - - - 0.0% Service Revenue - 232.3 962.4 998.8 998.8 998.8 1,014.1 1,014.1 1,014.1 1,029.7 1,029.7 1,029.7 10,322.5 100.0% Premium Revenue - - - - - - - - - - - - - Other Revenues - - - - - - - - - - - - - Total Operating Revenue - 232.3 962.4 998.8 998.8 998.8 1,014.1 1,014.1 1,014.1 1,029.7 1,029.7 1,029.7 10,322.5 100.0% - - - - - - - - - - - - - COST OF SERVICE Driver Compensation & Related - 91.7 380.0 388.5 388.5 378.5 386.1 386.1 375.7 383.2 383.2 383.2 3,924.7 38.0% Benefits - 18.3 76.0 77.7 77.7 75.7 77.2 77.2 75.1 76.6 76.6 76.6 784.9 7.6% Workers Comp - 6.1 25.3 25.3 25.3 25.3 25.3 25.3 25.3 25.3 25.3 25.3 259.4 2.5% COPY/DISPATCH'S Compensation - - - - - - - - - - - - - 0.0% Fleet Maint Compensation - 20.5 53.3 44.9 44.9 44.9 45.6 45.6 45.6 46.3 46.3 46.3 484.5 4.7% Repairs & Maintenance - 4.6 19.2 20.0 20.0 20.0 20.3 20.3 20.3 20.6 20.6 20.6 206.5 2.0% Accident Costs - 7.0 28.9 30.0 30.0 30.0 30.4 30.4 30.4 30.9 30.9 30.9 309.7 3.0% Fuel, Tolls & Parking Costs - 5.3 22.1 23.0 23.0 23.0 23.3 23.3 23.3 23.7 23.7 23.7 237.4 2.3% Medical Supplies, Rentals & Repairs - 4.2 17.3 18.0 18.0 18.0 18.3 18.3 18.3 18.5 18.5 18.5 185.8 1.8% Communications - 1.2 5.2 5.4 5.4 5.4 5.4 5.4 5.4 5.5 5.5 5.5 55.4 0.5% Uniforms - .4 1.7 1.8 1.8 1.8 1.8 1.8 1.8 1.9 1.9 1.9 18.6 0.2% Equipment - 1.3 5.4 5.6 5.6 5.6 5.7 5.7 5.7 5.8 5.8 5.8 57.8 0.6% Health & Safety - .1 .3 .3 .3 .3 .3 .3 .3 .3 .3 .3 3.1 0.0% Licenses & Permits - .2 .7 .7 .7 .7 .7 .7 .7 .7 .7 .7 7.4 0.1% SUB TOTAL - COST OF SERVICE - 161.0 635.5 641.1 641.1 629.2 640.6 640.6 628.0 639.4 639.4 639.4 6,535.2 63.3% - - - - - - - - - - - - - Gross Profit - 71.3 327.0 357.7 357.7 369.6 373.5 373.5 386.1 390.3 390.3 390.3 3,787.3 GP % 0.0% 30.7% 34.0% 35.8% 35.8% 37.0% 36.8% 36.8% 38.1% 37.9% 37.9% 37.9% 398.8% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% OPERATING EXPENSES - - - - - - - - - - - - - Management/Administrative Staffing - 17.1 70.7 70.7 70.7 70.7 70.7 70.7 70.7 70.7 70.7 70.7 724.4 7.0% Facility Costs - 4.8 19.7 19.7 19.7 19.7 19.7 19.7 19.7 19.7 19.7 19.7 202.1 2.0% Insurance Auto/Liability/D&O - 8.0 33.3 33.3 33.3 33.3 33.3 33.3 33.3 33.3 33.3 33.3 340.8 3.3% Professional Fees - .6 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 2.5 25.1 0.2% All Other SG&A - 2.4 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 102.4 1.0% Transition Services - Payment to OldCo - 2.1 8.5 8.5 8.5 8.5 8.5 8.5 8.5 8.5 8.5 8.5 87.0 0.8% Transition Services - Payment from OldCo (Gain) - - - - - - - - - - - - - 0.0% Bad Debt - 13.9 57.7 59.9 59.9 59.9 60.8 60.8 60.8 61.8 61.8 61.8 619.4 6.0% TOTAL OPERATING EXPENSES - 48.9 202.4 204.6 204.6 204.6 205.5 205.5 205.5 206.5 206.5 206.5 2,101.3 20.4% 0 0 0 0 0 0 0 0 0 0 0 0 0 EBITDA - 22.5 124.5 153.1 153.1 165.0 168.0 168.0 180.5 183.8 183.8 183.8 1,686.0 16.3% 0.0% 9.7% 12.9% 15.3% 15.3% 16.5% 16.6% 16.6% 17.8% 17.9% 17.9% 17.9% 16.3% 0.0% Other Expense - - - - - - - - - - - - - 0.0% Interest Expense - - - - - - - - - - - - - 0.0% Capital Leases - - - - - - - - - - - - - 0.0% Depreciation - 3.0 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 125.6 1.2% Management Fees (PPAS) - - - - - - - - - - - - - 0.0% Agency Fee (PPAS) - - - - - - - - - - - - - 0.0% All Other - - - - - - - - - - - - - 0.0% Income Tax - - - - - - - - - - - - - 0.0% Subtotal Other - 3.0 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 125.6 1.2% - - - - - - - - - - - - - 0.0% Net Income - 19.5 112.2 140.8 140.8 152.7 155.7 155.7 168.3 171.6 171.6 171.6 1,560.4 15.1% Financials by Division A3825 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 38 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 HV HV HV HV HV HV HV HV HV HV HV HV HV Current Assets Cash and cash equivalents - 76.6 229.9 237.8 347.9 504.2 680.3 871.8 1,088.3 1,310.2 1,537.9 1,771.5 1,771.5 Patient Account Receivables (OldCo) - - - - - - - - - - - - - Patient Account Receivables (NewCo) 1,339.3 1,339.3 1,534.5 1,688.9 1,791.8 1,860.4 1,916.3 1,953.6 1,978.5 2,005.4 2,023.4 2,035.4 2,035.4 Provision for Bad Debt (80.4) (94.3) (152.0) (212.0) (271.9) (331.8) (392.7) (453.5) (514.4) (576.1) (637.9) (699.7) (699.7) Inventory 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 170.4 Prepaid and Other Current Assets - - - - - - - - - - - - - Total Current Assets 1,429.4 1,492.0 1,782.8 1,885.1 2,038.2 2,203.2 2,374.4 2,542.4 2,722.9 2,910.0 3,093.8 3,277.6 3,277.6 - - - - - - - - - - - - - Property, Plant and Equipment - - - - - - - - - - - - - Property, Plant and Equipment 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 3,151.8 Accumulated Depreciation (2,848.8) (2,852.6) (2,864.8) (2,877.1) (2,889.3) (2,901.6) (2,913.9) (2,926.1) (2,938.4) (2,950.7) (2,962.9) (2,975.2) (2,975.2) Property and equipment, net 303.1 299.3 287.0 274.8 262.5 250.2 238.0 225.7 213.4 201.2 188.9 176.7 176.7 - - - - - - - - - - - - - Other Assets - - - - - - - - - - - - - Goodwill - - - - - - - - - - - - - Other Assets 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 Total Other Assets 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 975.0 - - - - - - - - - - - - - Total Assets 2,707.4 2,766.3 3,044.8 3,134.9 3,275.7 3,428.4 3,587.3 3,743.1 3,911.3 4,086.1 4,257.7 4,429.2 4,429.2 - - - - - - - - - - - - - - - - - - - - - - - - - - Current Operating Liabilities - - - - - - - - - - - - - Accounts payable 184.5 224.7 391.0 340.3 340.3 340.3 343.5 343.5 343.5 346.7 346.7 346.7 346.7 Accrued PPAS (Mgmt/Agency) - - - - - - - - - - - - - Accrued PTO 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 126.0 InterCompany Balance - - - - - - - - - - - - - Payable To Wells - - - - - - - - - - - - - Total Current Liabilities 310.6 350.7 517.1 466.3 466.3 466.3 469.5 469.5 469.5 472.8 472.8 472.8 472.8 - - - - - - - - - - - - - Other Long Term Liabilities - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Accrued Interest on Term Debt - - - - - - - - - - - - - New Term Loan - - - - - - - - - - - - - Capital Lease - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - - - - - - - - - - - - - - Non Current Liabilitites - - - - - - - - - - - - - - - - - - - - - - - - - - Total Liabilities 310.6 350.7 517.1 466.3 466.3 466.3 469.5 469.5 469.5 472.8 472.8 472.8 472.8 - - - - - - - - - - - - - Common Equity 2,396.9 2,416.4 2,528.6 2,669.4 2,810.2 2,962.9 3,118.7 3,274.4 3,442.7 3,614.2 3,785.8 3,957.3 3,957.3 Total Equity 2,396.9 2,416.4 2,528.6 2,669.4 2,810.2 2,962.9 3,118.7 3,274.4 3,442.7 3,614.2 3,785.8 3,957.3 3,957.3 - - - - - - - - - - - - - Check - (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) (.8) Financials by Division A3826 TRANSCARE NEWCO MODEL - FINANCIALS BY DIVISION Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 39 of 62 STRI CTLY PRI VATE & CON FI DEN TI AL OPENING Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 FY 2016 HV HV HV HV HV HV HV HV HV HV HV HV HV 0 Net Income - 19.5 112.2 140.8 140.8 152.7 155.7 155.7 168.3 171.6 171.6 171.6 1,560.4 Total Adjustments - - - - - - - - - - - - - Adjustment to reconcile to net income - - - - - - - - - - - - - Non Cash Article 9 Impact - - - - - - - - - - - - - Recognition to Wells Fargo Liability - - - - - - - - - - - - - Provision for doubtful accounts - 13.9 57.7 59.9 59.9 59.9 60.8 60.8 60.8 61.8 61.8 61.8 619.4 Depreciation and amortization - 3.0 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 12.3 125.6 Deferred rent - - - - - - - - - - - - - Total Adj to reconcile to net income - 36.4 182.3 213.0 213.0 224.9 228.8 228.8 241.4 245.6 245.6 245.6 2,305.4 Operating Adjustments - - - - - - - - - - - - - (Increase) Decrease in Assets - - - - - - - - - - - - - Accounts Receivable (OldCo) - - - - - - - - - - - - - Accounts Receivable (NewCo) - - (195.2) (154.4) (102.9) (68.6) (55.9) (37.3) (24.9) (27.0) (18.0) (12.0) (696.1) Inventory - - - - - - - - - - - - - Prepaid Expenses and Other - - - - - - - - - - - - - Other Long-Term Assets - - - - - - - - - - - - - Total (Increase) Decrease in Assets - - (195.2) (154.4) (102.9) (68.6) (55.9) (37.3) (24.9) (27.0) (18.0) (12.0) (696.1) Increase (Decrease) In Liabilities - - - - - - - - - - - - - A/P and Accrued Expenses - 40.1 166.3 (50.7) - - 3.2 - - 3.3 - - 162.2 Accrued Management Fees - - - - - - - - - - - - - Other Accrued Liabilities - - - - - - - - - - - - - Capital Lease Obligations - - - - - - - - - - - - - InterCompany Payable - - - - - - - - - - - - - Deferred Tax Liability - - - - - - - - - - - - - Total Increase (Decrease) In Liabilities - 40.1 166.3 (50.7) - - 3.2 - - 3.3 - - 162.2 Total Operating Adjustments - 76.6 153.4 7.9 110.1 156.3 176.1 191.6 216.5 221.9 227.6 233.6 1,771.5 - - - - - - - - - - - - - Investing Adjustments - - - - - - - - - - - - - Capital Expenditures - - - - - - - - - - - - - Total Investing Adjustments - - - - - - - - - - - - - - - - - - - - - - - - - - Financing Adjustments - - - - - - - - - - - - - Accrued Interest - - - - - - - - - - - - - Payable to Wells Fargo of Old AR - - - - - - - - - - - - - Term Loan - - - - - - - - - - - - - Deferred Rent Payable - - - - - - - - - - - - - - - - - - - - - - - - - - Asset Based Loan - - - - - - - - - - - - - Total Financing Adjustments - - - - - - - - - - - - - Total Cash Flow - 76.6 153.4 7.9 110.1 156.3 176.1 191.6 216.5 221.9 227.6 233.6 1,771.5 WP/Westchester TC Amb - Bronx/Lebanon & Montefiore Corporate Financials by Division A3827 Assumptions Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 40 of 62 - Trip counts based on historical information ramping up to Q2 2015 levels.",
"- Employee wages are on an hourly basis. - Ambulances staffed with 1 paramedic and 1 EMT. - Bad debt is assumed at 6% of revenue. - All existing leases with total lease payments of $48k are assumed by OldCo with a charge to NewCo. - Unit hour cost based on historical information. Benefit cost added on top of unit hour cost. - Insurance (auto/liability) and workers comp. allocated to the divisional level. - Ambulette has 1 driver on the vehichle at $10.00 - $18.00 an hour depending on the market. - Ambulance has either 2 EMTs ($18.62 each) or 1 EMT and 1 paramedic ($31.92) on a vehicle. - Facility costs based on current rent schedule. Westchester EMS (25%) and Bronx 911 (75%) will share the Mount Vernon turnout facility ($22k per month). - Paratransit administrative staffing includes the addition of a project manager ($100k) and controller ($75k) in that division. - Discuss Sez Foster (MTA past due amount).",
"- PTO policy (only assumes 5 days) - Includes leases of 2 vehicles Bronx Lebanon, 4 non-emergency vehicles (Pittsburgh), 4 wheelchair vans (Pittsburgh) - Insurance: Auto - $15,000 per unit (100 units) = $1.5MM, MTA = $135k, Excess = $400k, G/L,P/L $1MM. Workers comp. = PA workers comp. = $250k, NY workers comp. assumes 60% of current amount. General: 1 Open A/R is as follows Note that in the model, the Paratransit A/R formula is different than the other divisions due to payment cycle. Please note that $1.8mm is used for recent A/R. 2 PTO a Total PTO accrued for 5 days calculated as 1/4th of April 2016 Compensation (est.",
"$730.4k); no cash payouts of PTO b Assuming no cash payouts of PTO c However, per John P., we would need to accrue based on existing plan; calculations per Gerry: PA $ 120 MD $ - HV $ 241 Transit $ 426 Mont/BL TBD WP/Wstch TBD $ 787 3 Go-forward PPAS Management Fees of $50k/month; February pro-rated for 9 days 4 Go-forward PPAS Agency Fees of $75k/year; February pro-rated for 9 days 5 Newco does not assume any existing capital leases; fees related to relevant equipment vehicles will be incorporated into transition agreement; expensed at the Divisional level a Might want to consider assuming Ventilator leases; only 3 months left + 2 months past due - total cost of $9k for 25 ventilators (including 1 for MD) 6 Corporate compensation estimated at $100k/month 7 Bank Fees are estimated at $350k/year annualized and are being 8 Newco assumes Transit Facility and Garage Leases; past due rent balances included in opening AP 9 Removed all Prepaid Insurance balances; assumes new insurance policies or payments to OldCo 10 Depreciation based on the variance between October 2015 and September 2015 accumulated depreciation per the Trial balance; HV and Mont/BL allocated from NY balance Decreases in the month that a specific category of PP&E is fully depreciated Transit: 1 Opening inventory represents 31.5% of total NY Inventory as of 10.31.15; no new inventory purchases 2 No PP&E; all vehicles owned by MTA 3 Other Assets represents 1 New York Operating License with a value of $150k, per 2013 financial statements (intangible asset; does not amortize) 4 Transit Opening AP of $1,449k based off of - will need to be refined a Includes facilities-related; parts/vehicles-related/legal only; amount Derived from Company provided Critical Payment schedule -> \"Vendors for Payment Schedule v2\" A3828 Assumptions b Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 41 of 62 Amount includes almost everything for NY - most of HV, Mont/BL, and WP/Wstch c Excludes past due CADI payment ($1.2m) d Includes past due rent related to Transit's Facility and Garage leases Maryland 1 Opening inventory represents total MD Inventory as of 10.31.15; assumes new inventory purchases of $25k in February 2016 and August 2016 2 Opening PP&E calculated from 10.31.15 balance with a monthly increase in accumulated depreciation; assumes a purchase of 1 vehicle in February 2016 for $120k 3 Other Assets represents a Security Deposit of $20.7k per 10.31.15 trial balance 4 Opening Accounts Payable estimated at $50k; to be further refined with additional detail Pennsylvania 1 Opening inventory represents total PA Inventory as of 10.31.15; assumes new inventory purchases of $25k in March 2016 and Sept. 2016 2 Opening PP&E calculated from 10.31.15 balance with a monthly increase in accumulated depreciation 3 Other Assets represents a Security Deposit of $49.4k per 10.31.15 trial balance 4 Opening Accounts Payable of $145k Includes facilities-related; parts/vehicles-related/legal only from Company provided Critical Payment schedule -> \"Vendors for Payment Schedule v2\" 5 Includes purchase of 5 ambulances ($300k) in February Hudson Valley 1 Opening inventory represents 12.24% of total NY Inventory as of 10.31.15; no new inventory purchases 2 Opening PP&E represents 12.24% of total NY Inventory as of 10.31.15; with a monthly increase in accumulated depreciation 3 Other Assets represents 1 Hudson Valley Operating License with a value of $975k, per 2013 financial statements (intangible asset; does not amortize) 4 Opening Accounts Payable of $126k Includes facilities-related; parts/vehicles-related/legal only from Company provided Critical Payment schedule -> \"Vendors for Payment Schedule v2\" Additional HV payables are likely included in the Transit opening balance above Montefiore/Bronx Lebanon (TC Amb) 1 Opening inventory represents 24% of total NY Inventory as of 10.31.15; no new inventory purchases 2 No opening PP&E; all assets owned by Transcare NY 3 Includes Bronx/Lebanon.",
"4 No opening Accounts Payable broken out; amount included in Transit opening balance above 5 Assumes that 2 ambulances (Type III) for $300k for Bronx Lebanon White Plains/Westchester 1 No opening inventory 2 No opening PP&E 3 Other Assets represents 1 Westchester Operating License with a value of $100k, per 2013 financial statements (intangible asset; does not amortize) 4 No opening Accounts Payable broken out; amount included in Transit opening balance above A3829 Assumptions Questions and Open Items Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 42 of 62 1 PTO a Align on calculation methodology b Currently assuming no cash payout of PTO - is this correct? c OPEN - PTO estimates for: Montefiore/BL, White Plains/Westchester, Corporate 2 Transition Services Related a Finalized allocation of NewCo resources to be used by OldCo b Windown assumptions related to vehicles owned by NewCo to be used by OldCo c Finalized allocaiton of OldCo resources to be used by NewCo d Estimated facilities charge for: Mont/BL, White Plans/Wstchstr, and Corporate employees (not sure where they are sitting) e Transit faciltity - is NewCo taking Transit Lease - past due Transit balance is included in opening AP f Insurance g What will happen when/if equipment and vehicles' lease terminates; $1 buyout option?",
"How to model? h Need to finalize final Equipment/Vehicle payments i Billing costs ? (Currently being estimated at $50k/month) 3 Need to validate a Actual Hudson Valley and Montefiore/BL PP&E / Assets b Actual Hudson Valley and Montefiore Inventory c Opening Accounts Payable for Transit, as well as split between Transit, HV, Mont/BL, and WP/Wstchstr d Any WP/Wstchstr Inventory 4 Corporate - Need to finalize a Actual future Corporate employees and related PTO b Facilties assumpions - where they will be located and related transition costs c. Insurance - Corporate or Divisional level (modeling purposes) 5 Do we want to assume Ventilator Capital leases; only 3 months left + 2 months past due - total cost of $9k for 25 ventilators (including 1 for MD) a Only 24 month lease, so shouldn't be too old unless we are leasing used equipment A3830 Questions Questions Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 43 of 62 STR ICTLY P R IVATE & CONFIDENTIAL - How do UMD Lance & lette contracts change for trips and APC? grow quarterly?",
"- February is a stub month so only 9 of 29 days, other months don’t include stub formula - Trips grow quarterly - APC grows monthly - What are enhancement units? Bronx Lebanon - Paratransit has extra $65k plugged in other SG&A - Need to confirm monthly surge (Row 15 in paratransit) - Unit Hour Utilization = # of Trips per Hour - Need to add trips for each division - Need to add calendar at top for each division - Need to relook at transit- why is there 100% and 120%?",
"Why is vikram’s formulas not working? - Should bad debt expense be on total revenues or just lance and lett? - Bad debt expense is % of total revenues (6% of total) - PA- random $50k hardcoded in repairs and Maintenance in Feb. HV has $10k for Feb and March - Bronx Lebanon. Feb lance trips don’t match… their numbers are hard coded - Removed Bronx Lebanon from Montefiore/BL, and included Mount Vernon EMS and Montefiore (Non-Emergency/Core) A3831 VA Questions Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 44 of 62 A3832 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 45 of 62 DX 171 LaMonica v. Tilton, et al. 18-01021-smb A3833 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 46 of 62 A3834 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 47 of 62 DX 174 LaMonica v. Tilton, et al. 18-01021-smb A3835 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 48 of 62 A3836 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 49 of 62 A3837 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 50 of 62 A3838 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 51 of 62 A3839 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 52 of 62 DX 195 LaMonica v. Tilton, et al. 18-01021-smb A3840 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 53 of 62 A3841 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 54 of 62 A3842 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 55 of 62 A3843 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 56 of 62 PX 003 LaMonica v. Tilton, et al., 18-1021-smb A3844 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 57 of 62 A3845 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 58 of 62 A3846 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 59 of 62 A3847 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 60 of 62 PX 132 A3848 LaMonica v. Tilton, et al., 18-1021-smb Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 61 of 62 A3849 Case 1:20-cv-06274-LAK Document 11-32 Filed 09/30/20 Page 62 of 62 A3850"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/147336564/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The opinion of the court was delivered by Smith, J.: This is an action for divorce and child custody. Judgment was for the plaintiff. Defendant appeals. *170The statement of some uncontroverted background will be made at the outset. Defendant is a citizen of Australia, She and plaintiff were married at Sidney, Australia, during the war. They have one child, Leon Charles Marshall. He was born in Australia. There was an earlier divorce proceeding in the Shawnee county district court in July, 1948. Mrs. Marshall had asked for separate maintenance and Mr. Marshall had asked for a divorce. During the trial or shortly thereafter she dismissed her petition and the husband’s cross petition was denied. By some proceedings, about which we cannot be clear, the custody of Leon Charles was given to plaintiff in this case, the father, and the child is now with plaintiff’s parents in Wichita. The petition in this case alleged that defendant had disregarded her marriage vows and had been guilty of adultery, habitual drunkenness and gross neglect of duty and extreme cruelty; that the plaintiff then had the custody of the minor child and defendant was not a fit person to have his custody. The prayer was for a divorce and custody of the child. To this petition defendant filed a motion for a bill of particulars pursuant to G. S. 1935, 60-1519. The court sustained this motion on November 12,1948. In purported compliance with this order sustaining this motion, the plaintiff filed a document, as follows: “plaintiff’s bill of particulars” “Comes now the plaintiff and for his Bill of Particulars, states and alleges to the court that: “1. The defendant did not take proper care of the parties’ minor child, and is not a fit and proper person to have custody thereof. “2. Defendant is guilty of adultery and has improper relations with other men. “3. Defendant frequents beer parlors and is under the influence of liquor at frequent intervals. “4. Defendant has constantly refused to make a proper home for this plaintiff and plaintiff’s minor child.” On January 19, the defendant filed a motion to dismiss the petition and alleged that the court had ordered the bill of particulars to be filed, attached a copy of the bill of particulars, stated that it was in no sence a compliance with G. S. 1935, 60-1519, and that defendant was entitled to an order dismissing the petition under the provisions of G. S. 1935, 60-3105, paragraph 5. This motion to dismiss the petition was denied January 19, 1949. January 19, 1949, defendant *171filed her answer and cross petition. This was first a general denial, then an admission of the marriage and the birth of the child, then a specific denial that defendant was not a fit person to have custody of the child. Her prayer was that the divorce be denied the plaintiff and she be given custody of the child. In her cross petition she alleged that defendant had abandoned her November 1, 1947; that this abandonment had continued without interruption; that he was earning in excess of $250 a month; that they had no property and that she was a fit and proper person to have the custody of the child and her husband had no home and was not in a position to give the child proper care and attention. The prayer of the petition was for a divorce and custody of the child and that she be awarded the household goods. Trial was held on the 20th of January, 1949. The journal entry discloses that the defendant requested a continuance at that time and that this was denied. On the 21st of January the court found the plaintiff was entitled to a divorce on the ground of adultery and that he was entitled to the care and custody of the minor child. The motion for a new trial was upon some six grounds, as follows: “1. Because of abuse of discretion, of the Court. “2. Because of erroneous rulings of the Court in limiting defendant’s cross-examination of the plaintiff’s witnesses and in holding legally sufficient the Bill of Particulars served by the plaintiff; and for erroneous rulings generally. “3. Because the Court erred in admitting evidence in support of plaintiff’s petition over defendant’s objection that a proper Bill of Particulars had not been served. “4. Because the Court erred in refusing to grant defendant a divorce on her cross-petition on the ground of abandonment for more than one year. “5. Because the Court erred in refusing to award custody of the minor child of said parties to the defendant. “6. Because the decision and judgment of the Court was contrary to the evidence.” At the hearing of the new trial an affidavit of counsel was furnished which disclosed that he was employed a few days prior to November, 1948; that he presented the motion to dissolve a restraining order as to child custody, which was denied; that defendant had not returned to counsel’s office until January 17, 1949, at which time he prepared and served the motion to dismiss the,petition on the ground of disobedience of the order requiring plaintiff to serve a bill of particulars. The affidavit then recited that the motion was denied on January 19,' at which time-.the court stated the bill of particulars served was legally sufficient and the court *172ordered the case set for trial the following day, January 20; that on the 19th defendant’s answer and cross petition were filed; that counsel made an oral request for continuance on January 19 and at the beginning of the trial January 20. Counsel in his affidavit stated that on account of the above facts he had been unable to make a proper investigation and present the defense of the case. This motion for a new trial was overruled. Proper notice of intention to appeal and notice of appeal were filed. The appeal was from the judgment dated the 21st of January, divorcing plaintiff from defendant, and awarding custody of the minor child to the plaintiff, the order denying defendant’s motion to dismiss for failure to furnish a bill of particulars and from the orders overruling the defendant’s objection to the admission of any evidence and from the order overruling defendant’s motion for a new trial. When the case came on to be heard at 9 o’clock on the 20th the defendant was not present. However, the case proceeded to trial. She was there at 9:45. There was some colloquy about the motion of plaintiff to dismiss the cross petition of defendant on the ground that the abandonment with which the cross petition charged plaintiff was res judicata. This motion was denied. There was some evidence on the part of the plaintiff as to gross neglect of duty on the part of the defendant. However, the divorce was allowed on the ground of adultery and the gross neglect of duty does not seem to have been pressed during the trial. The plaintiff introduced witnesses who testified to circumstances tending to prove defendant had committed adultery. Defendant denied any act of adultery. The trial court entered the judgment, which has heretofore been set out in this opinion. The serious question with which we are concerned is the effect of denial by the trial court of defendant’s motion to dismiss plaintiff’s petition on account of the failure of plaintiff to file' a bill of particulars in compliance with the court’s order of November 12, 1948. As to adultery, the petition simply alleged “Defendant . . . had been guilty of adultery.” The bill of particulars merely alleged “Defendant is guilty of adultery and has improper relations with other men.” The divorce was granted on the ground of adultery, hence the allegation “and has improper relations with other men” may be disregarded by us. We have then a petition which alleges defendant “has been guilty of adultery,” and a bill of *173particulars which says “Defendant is guilty of adultery.” It is clear that the bill of particulars told the defendant nothing more than the petition as to the evidence upon which plaintiff expected to rely in proving his charge of adultery. The real question then is “What was the intention of the legislature in the enactment of G. S. 1935, 60-1519?” That section is supplemental to G. S. 1935, 60-1501. That is the section which sets out the different grounds upon which a divorce may be obtained. The third ground is stated simply “Adultery.” G. S. 1935, 60-1519, provides, as follows: “That in all actions for divorce, or for alimony, or for both divorce and alimony, the petition or cross petition shall allege the causes relied upon as nearly as possible in the language of the statute (R. S. 60-1501), and without detailed statement of facts. If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross-petitioner in a bill of particulars. A copy of this bill of particulars shall be furnished to the court and shall constitute the specific facts upon which the action is tried. The statements therein shall be regarded as being denied by the adverse party, except as they may be admitted. The bill of particulars shall not be filed with the clerk of the district court, nor become a part of the records of such court, but if the action be appealed, and the question sought to be reviewed relate to the facts set forth in the bill of particulars, it shall be embodied in the abstract for the supreme court.” This section was enacted, in 1935. (See Laws of 1935, chapter 219.) Until its enactment there had been no similar law on our statute books. We are all familiar with the eagerness with which the lurid details of a divorce action are pursued by at least part of the public. Published in the press they do not make very uplifting reading. Every one seems to have a morbid interest in the things the members of a once happy couple say about one another. Realizing all this, the legislature sought to lessen the evil a little by providing that in a divorce action the parties need not state the details upon which they relied but should state their cause of action as nearly as possible in the words of the statute. Thus the words “guilty of adultery” might be pleaded and relied upon. That was the purpose of the first sentence of this section. It was realized, however, that pleadings are for the purpose of advising the opposing party of what charge he must be prepared to meet. Hence the next provision “If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross petitioner in a bill of particulars.” What did the legislature intend by the words “facts relied upon”? Clearly it meant more than the bare allegations in the *174language of the statute, such as we have in this case. The facts relied on must be a concise statement of what the party expects to prove to sustain his charge of adultery. Otherwise the provision of the statute just quoted would be meaningless. Of all the eleven grounds for divorce in this state, adultery is the one where the defendant should be most clearly advised as to what the plaintiff expects to be able to prove. It is a charge that in its effect on the party charged reaches far beyond the mere severance of the marital relationship. Many parties resist this charge even when they are satisfied to have the marriage bonds dissolved. This is accentuated by the fact that adultery may be proved by presumptive evidence. The evidence need not show an admission of or an eyewitness to the actual carnal act. (See Burke v. Burke, 44 Kan. 307, 24 Pac. 466.) Hence the party charged with adultery should if he or she requests it be advised of the circumstances upon which the other party relies, the incidents, the place, the person, the time. All these are important so that she may be able to explain suspicious or damaging evidence. In this connection attention is called to the provisions in the statute, that the facts disclosed in the bill of particulars shall be the specific facts upon which the action is tried; that they shall be regarded as denied unless specifically admitted and to the significant provision that the bill shall not be filed with the clerk or become part of the records of the court but if the action is appealed and the appeal relates to the facts set out in the bill of particulars it shall be embodied in the abstract. Clearly the legislature intended that the facts contained in the bill of particulars should be more in detail than in the petition and there might very probably be facts alleged which it would not be necesary or proper for the public to have access to. Examination of this bill of particulars discloses that it contained no facts at all that were not contained in the petition. The conclusion is inescapable that it was the same as though no bill of particulars at all had been filed. This takes us to a consideration of the question “What was the effect of not complying with the court’s order in this respect?” In due time the defendant asked that the petition be dismissed on account of this failure of the plaintiff. He did this pursant to G. S. 1935, 60-3105. That section has to do with reasons for the dismissal of action. It provides, in part, as follows: *175“An action may be dismissed without prejudice to a future action; . . . Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.” The court had ordered the plaintiff here to furnish a bill of particulars. We have demonstrated that he filed a paper which in no sense was a compliance of that statute — hence he disobeyed the order of the court. The request for a bill of particulars in a divorce case is somewhat analogous to a motion to make more definite and certain in an ordinary case. In Anderson v. Denison Clay Co., 104 Kan. 766, 180 Pac. 797, the plaintiff refused to comply with an order directing him to make his petition more definite and certain. The trial court dismissed the action. Pursuant to the statute we are discussing we held: “If a proper order to make a petition more definite and certain is not complied with the action may be dismissed.” (Syl. ¶ 3.) (See, also, Burdick v. Investment Co., 71 Kan. 121, 80 Pac. 40.) That was an order to require the plaintiff to separately state and number three causes of action. He refused to comply with the order and the court dismissed the action. We held: “The court sustained a motion to require these three causes of action to be separately stated and numbered, and upon the refusal of the plainitff to comply with this order dismissed the action. Held, not error.” (Syl. fl 4.) (See, also, Drake v. National Bank, 33 Kan. 634, 7 Pac. 219; also Investment Co. v. Fuller, 105 Kan. 395, 184 Pac. 727.) Plaintiff cites and relies on what we said in Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413. He argues that opinion overruled the cases that have just been referred to in this opinion. The opinion does not go that far. It merely holds that the rule announced in those cases did not require a dismissal in that case on account of the peculiar facts in that case. It would add nothing to this opinion to set out the facts in the case of Hicks v. Parker, supra. Moreover, there was no outright disobedience of an order as essential to the preparation of the defense as was the order in this case. G. S. 1935, 60-1519, was considered in Stegmeir v. Stegmeir, 158 Kan. 511, 140 P. 2d 755. There the court had ordered bills of particulars furnished; the parties had not complied and the original answers and cross petition had been ordered stricken from the files. Later amended bills of particulars were filed. On appeal the appellant argued that it was error for the court to strike the original *176pleadings from the files. We held that this was of no importance since amended pleadings had been filed. However, it is worthy of note that we quoted from the Judicial Council Bulletin, Part 1, Ninth Annual Report, April, 1935, at page 5, where the Judicial Council said: “Early in our work we recognized the advisability in an action for divorce or for alimony that a statute should require the cause of action to be stated in the language of the statute only. We mentioned this in our 1928 report, page 14, and a draft of the bill was set out in our 1929 report, page 23. It has been presented to each regular session of the legislature since that time. On two occasions it passed the house of representatives but failed to receive final favorable action in the senate. Its purpose is to avoid having scandalous matter relating to a party to the action appear upon the permanent record or in the files of the court, unless that should be actually necessary. This is especially important when there are minor children of the man'iage. Sometimes such charges were made or threatened when there was little or no foundation for them, with a purpose of forcing a settlement or compromise. This provokes notoriety, to the shame or disgrace of one or both of the parties to the action, or to their children. It is seldom necessary to make such charges even if good grounds for them exist. This year the bill was introduced by the house judiciary committee, H. B. No. 97, and passed both houses without difficulty. It becomes effective when published in the statute book.” We then stated: “It will thus be seen that in the case at bar the trial court quite properly ordered stricken whatever pleadings filed by either party did not conform to the intent and purpose of the statute governing pleadings in divorce cases.” This statute was again considered in Irwin v. Irwin, 162 Kan. 185, 174 P. 2d 1021. There a bill of particulars had been furnished pursuant to an order of the court. The defendant demurred to it and the demurrer was overruled. On appeal he argued this was error. We said the bill was good against a demurrer. However, in that bill of particulars many details were furnished. It was not a case where there were no details at all as in this one. Thus, it appears that while we have not up to the present time passed on the question before us we have uniformly taken the position that the purpose of G. S. 1935, 60-1519, was, as has been heretofore stated. That purpose would not be served by failure of the party to set out the specific facts upon which he relied. The statute was not intended to relieve- persons from stating the grounds upon which they relied. It was only intended to save parties from having scandalous matter alleged against them unless they made it necessary. Plaintiff argues that it is discretionary with the trial court whether *177a petition should be dismissed pursuant to G. S. 1935, 60-3105. In this connection it should be observed that defendant objected to the introduction of any evidence as to acts of adultery because no real bill of particulars had been filed. These objections were overruled. They should have been sustained. Actually the evidence introduced as to adultery was not competent. Apparently the trial court deemed the bill sufficient. We have demonstrated that it was not. The judgment of the trial court is reversed with directions to dismiss the petition without prejudice. | 09-08-2022 | [
"The opinion of the court was delivered by Smith, J.: This is an action for divorce and child custody. Judgment was for the plaintiff. Defendant appeals. *170The statement of some uncontroverted background will be made at the outset. Defendant is a citizen of Australia, She and plaintiff were married at Sidney, Australia, during the war. They have one child, Leon Charles Marshall. He was born in Australia. There was an earlier divorce proceeding in the Shawnee county district court in July, 1948. Mrs. Marshall had asked for separate maintenance and Mr. Marshall had asked for a divorce. During the trial or shortly thereafter she dismissed her petition and the husband’s cross petition was denied. By some proceedings, about which we cannot be clear, the custody of Leon Charles was given to plaintiff in this case, the father, and the child is now with plaintiff’s parents in Wichita. The petition in this case alleged that defendant had disregarded her marriage vows and had been guilty of adultery, habitual drunkenness and gross neglect of duty and extreme cruelty; that the plaintiff then had the custody of the minor child and defendant was not a fit person to have his custody.",
"The prayer was for a divorce and custody of the child. To this petition defendant filed a motion for a bill of particulars pursuant to G. S. 1935, 60-1519. The court sustained this motion on November 12,1948. In purported compliance with this order sustaining this motion, the plaintiff filed a document, as follows: “plaintiff’s bill of particulars” “Comes now the plaintiff and for his Bill of Particulars, states and alleges to the court that: “1. The defendant did not take proper care of the parties’ minor child, and is not a fit and proper person to have custody thereof. “2. Defendant is guilty of adultery and has improper relations with other men. “3. Defendant frequents beer parlors and is under the influence of liquor at frequent intervals.",
"“4. Defendant has constantly refused to make a proper home for this plaintiff and plaintiff’s minor child.” On January 19, the defendant filed a motion to dismiss the petition and alleged that the court had ordered the bill of particulars to be filed, attached a copy of the bill of particulars, stated that it was in no sence a compliance with G. S. 1935, 60-1519, and that defendant was entitled to an order dismissing the petition under the provisions of G. S. 1935, 60-3105, paragraph 5. This motion to dismiss the petition was denied January 19, 1949. January 19, 1949, defendant *171filed her answer and cross petition. This was first a general denial, then an admission of the marriage and the birth of the child, then a specific denial that defendant was not a fit person to have custody of the child. Her prayer was that the divorce be denied the plaintiff and she be given custody of the child.",
"In her cross petition she alleged that defendant had abandoned her November 1, 1947; that this abandonment had continued without interruption; that he was earning in excess of $250 a month; that they had no property and that she was a fit and proper person to have the custody of the child and her husband had no home and was not in a position to give the child proper care and attention. The prayer of the petition was for a divorce and custody of the child and that she be awarded the household goods. Trial was held on the 20th of January, 1949. The journal entry discloses that the defendant requested a continuance at that time and that this was denied.",
"On the 21st of January the court found the plaintiff was entitled to a divorce on the ground of adultery and that he was entitled to the care and custody of the minor child. The motion for a new trial was upon some six grounds, as follows: “1. Because of abuse of discretion, of the Court. “2. Because of erroneous rulings of the Court in limiting defendant’s cross-examination of the plaintiff’s witnesses and in holding legally sufficient the Bill of Particulars served by the plaintiff; and for erroneous rulings generally. “3. Because the Court erred in admitting evidence in support of plaintiff’s petition over defendant’s objection that a proper Bill of Particulars had not been served.",
"“4. Because the Court erred in refusing to grant defendant a divorce on her cross-petition on the ground of abandonment for more than one year. “5. Because the Court erred in refusing to award custody of the minor child of said parties to the defendant. “6. Because the decision and judgment of the Court was contrary to the evidence.” At the hearing of the new trial an affidavit of counsel was furnished which disclosed that he was employed a few days prior to November, 1948; that he presented the motion to dissolve a restraining order as to child custody, which was denied; that defendant had not returned to counsel’s office until January 17, 1949, at which time he prepared and served the motion to dismiss the,petition on the ground of disobedience of the order requiring plaintiff to serve a bill of particulars. The affidavit then recited that the motion was denied on January 19,' at which time-.the court stated the bill of particulars served was legally sufficient and the court *172ordered the case set for trial the following day, January 20; that on the 19th defendant’s answer and cross petition were filed; that counsel made an oral request for continuance on January 19 and at the beginning of the trial January 20.",
"Counsel in his affidavit stated that on account of the above facts he had been unable to make a proper investigation and present the defense of the case. This motion for a new trial was overruled. Proper notice of intention to appeal and notice of appeal were filed. The appeal was from the judgment dated the 21st of January, divorcing plaintiff from defendant, and awarding custody of the minor child to the plaintiff, the order denying defendant’s motion to dismiss for failure to furnish a bill of particulars and from the orders overruling the defendant’s objection to the admission of any evidence and from the order overruling defendant’s motion for a new trial. When the case came on to be heard at 9 o’clock on the 20th the defendant was not present. However, the case proceeded to trial. She was there at 9:45. There was some colloquy about the motion of plaintiff to dismiss the cross petition of defendant on the ground that the abandonment with which the cross petition charged plaintiff was res judicata. This motion was denied. There was some evidence on the part of the plaintiff as to gross neglect of duty on the part of the defendant.",
"However, the divorce was allowed on the ground of adultery and the gross neglect of duty does not seem to have been pressed during the trial. The plaintiff introduced witnesses who testified to circumstances tending to prove defendant had committed adultery. Defendant denied any act of adultery. The trial court entered the judgment, which has heretofore been set out in this opinion. The serious question with which we are concerned is the effect of denial by the trial court of defendant’s motion to dismiss plaintiff’s petition on account of the failure of plaintiff to file' a bill of particulars in compliance with the court’s order of November 12, 1948. As to adultery, the petition simply alleged “Defendant .",
". . had been guilty of adultery.” The bill of particulars merely alleged “Defendant is guilty of adultery and has improper relations with other men.” The divorce was granted on the ground of adultery, hence the allegation “and has improper relations with other men” may be disregarded by us. We have then a petition which alleges defendant “has been guilty of adultery,” and a bill of *173particulars which says “Defendant is guilty of adultery.” It is clear that the bill of particulars told the defendant nothing more than the petition as to the evidence upon which plaintiff expected to rely in proving his charge of adultery. The real question then is “What was the intention of the legislature in the enactment of G. S. 1935, 60-1519?” That section is supplemental to G. S. 1935, 60-1501. That is the section which sets out the different grounds upon which a divorce may be obtained. The third ground is stated simply “Adultery.” G. S. 1935, 60-1519, provides, as follows: “That in all actions for divorce, or for alimony, or for both divorce and alimony, the petition or cross petition shall allege the causes relied upon as nearly as possible in the language of the statute (R. S. 60-1501), and without detailed statement of facts.",
"If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross-petitioner in a bill of particulars. A copy of this bill of particulars shall be furnished to the court and shall constitute the specific facts upon which the action is tried. The statements therein shall be regarded as being denied by the adverse party, except as they may be admitted. The bill of particulars shall not be filed with the clerk of the district court, nor become a part of the records of such court, but if the action be appealed, and the question sought to be reviewed relate to the facts set forth in the bill of particulars, it shall be embodied in the abstract for the supreme court.” This section was enacted, in 1935. (See Laws of 1935, chapter 219.) Until its enactment there had been no similar law on our statute books. We are all familiar with the eagerness with which the lurid details of a divorce action are pursued by at least part of the public.",
"Published in the press they do not make very uplifting reading. Every one seems to have a morbid interest in the things the members of a once happy couple say about one another. Realizing all this, the legislature sought to lessen the evil a little by providing that in a divorce action the parties need not state the details upon which they relied but should state their cause of action as nearly as possible in the words of the statute. Thus the words “guilty of adultery” might be pleaded and relied upon.",
"That was the purpose of the first sentence of this section. It was realized, however, that pleadings are for the purpose of advising the opposing party of what charge he must be prepared to meet. Hence the next provision “If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross petitioner in a bill of particulars.” What did the legislature intend by the words “facts relied upon”? Clearly it meant more than the bare allegations in the *174language of the statute, such as we have in this case. The facts relied on must be a concise statement of what the party expects to prove to sustain his charge of adultery. Otherwise the provision of the statute just quoted would be meaningless. Of all the eleven grounds for divorce in this state, adultery is the one where the defendant should be most clearly advised as to what the plaintiff expects to be able to prove. It is a charge that in its effect on the party charged reaches far beyond the mere severance of the marital relationship. Many parties resist this charge even when they are satisfied to have the marriage bonds dissolved.",
"This is accentuated by the fact that adultery may be proved by presumptive evidence. The evidence need not show an admission of or an eyewitness to the actual carnal act. (See Burke v. Burke, 44 Kan. 307, 24 Pac. 466.) Hence the party charged with adultery should if he or she requests it be advised of the circumstances upon which the other party relies, the incidents, the place, the person, the time. All these are important so that she may be able to explain suspicious or damaging evidence. In this connection attention is called to the provisions in the statute, that the facts disclosed in the bill of particulars shall be the specific facts upon which the action is tried; that they shall be regarded as denied unless specifically admitted and to the significant provision that the bill shall not be filed with the clerk or become part of the records of the court but if the action is appealed and the appeal relates to the facts set out in the bill of particulars it shall be embodied in the abstract. Clearly the legislature intended that the facts contained in the bill of particulars should be more in detail than in the petition and there might very probably be facts alleged which it would not be necesary or proper for the public to have access to.",
"Examination of this bill of particulars discloses that it contained no facts at all that were not contained in the petition. The conclusion is inescapable that it was the same as though no bill of particulars at all had been filed. This takes us to a consideration of the question “What was the effect of not complying with the court’s order in this respect?” In due time the defendant asked that the petition be dismissed on account of this failure of the plaintiff. He did this pursant to G. S. 1935, 60-3105.",
"That section has to do with reasons for the dismissal of action. It provides, in part, as follows: *175“An action may be dismissed without prejudice to a future action; . . . Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.” The court had ordered the plaintiff here to furnish a bill of particulars. We have demonstrated that he filed a paper which in no sense was a compliance of that statute — hence he disobeyed the order of the court. The request for a bill of particulars in a divorce case is somewhat analogous to a motion to make more definite and certain in an ordinary case. In Anderson v. Denison Clay Co., 104 Kan. 766, 180 Pac. 797, the plaintiff refused to comply with an order directing him to make his petition more definite and certain. The trial court dismissed the action.",
"Pursuant to the statute we are discussing we held: “If a proper order to make a petition more definite and certain is not complied with the action may be dismissed.” (Syl. ¶ 3.) (See, also, Burdick v. Investment Co., 71 Kan. 121, 80 Pac. 40.) That was an order to require the plaintiff to separately state and number three causes of action. He refused to comply with the order and the court dismissed the action. We held: “The court sustained a motion to require these three causes of action to be separately stated and numbered, and upon the refusal of the plainitff to comply with this order dismissed the action. Held, not error.” (Syl. fl 4.) (See, also, Drake v. National Bank, 33 Kan. 634, 7 Pac. 219; also Investment Co. v. Fuller, 105 Kan. 395, 184 Pac. 727.) Plaintiff cites and relies on what we said in Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413. He argues that opinion overruled the cases that have just been referred to in this opinion.",
"The opinion does not go that far. It merely holds that the rule announced in those cases did not require a dismissal in that case on account of the peculiar facts in that case. It would add nothing to this opinion to set out the facts in the case of Hicks v. Parker, supra. Moreover, there was no outright disobedience of an order as essential to the preparation of the defense as was the order in this case. G. S. 1935, 60-1519, was considered in Stegmeir v. Stegmeir, 158 Kan. 511, 140 P. 2d 755. There the court had ordered bills of particulars furnished; the parties had not complied and the original answers and cross petition had been ordered stricken from the files. Later amended bills of particulars were filed.",
"On appeal the appellant argued that it was error for the court to strike the original *176pleadings from the files. We held that this was of no importance since amended pleadings had been filed. However, it is worthy of note that we quoted from the Judicial Council Bulletin, Part 1, Ninth Annual Report, April, 1935, at page 5, where the Judicial Council said: “Early in our work we recognized the advisability in an action for divorce or for alimony that a statute should require the cause of action to be stated in the language of the statute only.",
"We mentioned this in our 1928 report, page 14, and a draft of the bill was set out in our 1929 report, page 23. It has been presented to each regular session of the legislature since that time. On two occasions it passed the house of representatives but failed to receive final favorable action in the senate. Its purpose is to avoid having scandalous matter relating to a party to the action appear upon the permanent record or in the files of the court, unless that should be actually necessary. This is especially important when there are minor children of the man'iage. Sometimes such charges were made or threatened when there was little or no foundation for them, with a purpose of forcing a settlement or compromise. This provokes notoriety, to the shame or disgrace of one or both of the parties to the action, or to their children.",
"It is seldom necessary to make such charges even if good grounds for them exist. This year the bill was introduced by the house judiciary committee, H. B. No. 97, and passed both houses without difficulty. It becomes effective when published in the statute book.” We then stated: “It will thus be seen that in the case at bar the trial court quite properly ordered stricken whatever pleadings filed by either party did not conform to the intent and purpose of the statute governing pleadings in divorce cases.” This statute was again considered in Irwin v. Irwin, 162 Kan. 185, 174 P. 2d 1021. There a bill of particulars had been furnished pursuant to an order of the court. The defendant demurred to it and the demurrer was overruled. On appeal he argued this was error. We said the bill was good against a demurrer.",
"However, in that bill of particulars many details were furnished. It was not a case where there were no details at all as in this one. Thus, it appears that while we have not up to the present time passed on the question before us we have uniformly taken the position that the purpose of G. S. 1935, 60-1519, was, as has been heretofore stated.",
"That purpose would not be served by failure of the party to set out the specific facts upon which he relied. The statute was not intended to relieve- persons from stating the grounds upon which they relied. It was only intended to save parties from having scandalous matter alleged against them unless they made it necessary. Plaintiff argues that it is discretionary with the trial court whether *177a petition should be dismissed pursuant to G. S. 1935, 60-3105. In this connection it should be observed that defendant objected to the introduction of any evidence as to acts of adultery because no real bill of particulars had been filed. These objections were overruled. They should have been sustained. Actually the evidence introduced as to adultery was not competent. Apparently the trial court deemed the bill sufficient. We have demonstrated that it was not. The judgment of the trial court is reversed with directions to dismiss the petition without prejudice."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7917275/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: (CO) My next door neighbor's apartment caught fire. Mine is safe, but smells of smoke. What can I do? Question:Hi everyone. I'm new to this renting BS so I do apologize if this is a silly question. My next door neighbor's apartment caught fire today apparently. The entire building smells of smoke, and since I neighbor his unit, mine is pretty nasty smelling. My furniture does not appear to smell like smoke luckily - just the air.
I spoke to the leasing office and they told me that there was no damage done to my unit. I walked around my place and couldn't find any signs of fire damage, so that much may be true. Unfortunately, the smell will not go away. They told me to turn on my vents, light a candle, open my windows, and that they'll be putting a air vent in the hallway outside of my unit to try to clear the smoke. It's been a couple of hours since I came home today and I presume it's been even longer since the fire, but the smell is most definitely still lingering.
I'm avoiding spending too much time in my apartment, but, I mean, I have to sleep here. What options do I have moving forward? Can I bitch and decrease rent next month? Should I file a claim on my renter's insurance or my neighbor's to figure out how to get this stench out?
God renting fucking sucks. Thanks for any advice guys - I appreciate it!! Answer #1: Do you have renter's insurance? This is what that is for. | 09-27-2016 | [
"Title: (CO) My next door neighbor's apartment caught fire. Mine is safe, but smells of smoke. What can I do? Question:Hi everyone. I'm new to this renting BS so I do apologize if this is a silly question. My next door neighbor's apartment caught fire today apparently. The entire building smells of smoke, and since I neighbor his unit, mine is pretty nasty smelling. My furniture does not appear to smell like smoke luckily - just the air.",
"I spoke to the leasing office and they told me that there was no damage done to my unit. I walked around my place and couldn't find any signs of fire damage, so that much may be true. Unfortunately, the smell will not go away. They told me to turn on my vents, light a candle, open my windows, and that they'll be putting a air vent in the hallway outside of my unit to try to clear the smoke. It's been a couple of hours since I came home today and I presume it's been even longer since the fire, but the smell is most definitely still lingering.",
"I'm avoiding spending too much time in my apartment, but, I mean, I have to sleep here. What options do I have moving forward? Can I bitch and decrease rent next month? Should I file a claim on my renter's insurance or my neighbor's to figure out how to get this stench out? God renting fucking sucks. Thanks for any advice guys - I appreciate it!! Answer #1: Do you have renter's insurance? This is what that is for."
]
| https://www.reddit.com/r/legaladvice/comments/54t8s6/co_my_next_door_neighbors_apartment_caught_fire/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Glen Cove Hospital, doing business as North Shore University Hospital at Glen Cove, appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered August 16, 2012, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. On July 22, 2005, the plaintiffs husband, Henry Fink (hereinafter Fink), underwent knee surgery at the defendant Glen Cove Hospital, doing business as North Shore University Hospital at Glen Cove (hereafter the Hospital). The surgery was performed by Fink’s private attending physician, the defendant J. Simoncic. Following surgery, Simoncic placed Fink on antibiotics upon suspicion of infection based on his observations of the knee during surgery. During Fink’s stay at the Hospital, tests performed on him were negative for infection, and his antibiotic regimen was discontinued. However, upon discharging Fink from the Hospital to a rehabilitation facility, Simoncic ordered Hospital staff to give him a prescription for the antibiotic Levaquin, which Fink was to begin taking the following day. Eventually, Fink allegedly suffered severe complications consistent with taking Levaquin, which ultimately resulted in intestinal damage. Fink was transferred to the Extended Care Center of North Shore University Hospital, where he resided until his death. Insofar as is pertinent to this appeal, Fink commenced this medical malpractice action prior to his death, seeking to hold the Hospital vicariously liable for Simoncic’s alleged malpractice in discharging him with an unnecessary prescription to take Levaquin, which ultimately resulted in his alleged intestinal injuries. The Supreme Court denied the Hospital’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. We affirm. “ ‘In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiffs *896injuries’ ” (DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012], quoting Stukas v Streiter, 83 AD3d 18, 23 [2011]). Accordingly, “[a] physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiffs injuries” (Gillespie v New York Hosp. Queens, 96 AD3d 901, 902 [2012]). “Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden” (id. at 902; see Stukas v Streiter, 83 AD3d at 30). “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v Feit, 23 AD3d 517, 519 [2005]). “Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury” (DiGeronimo v Fuchs, 101 AD3d at 936). With regard to the Hospital’s potential liability, a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits “independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” (Cerny v Williams, 32 AD3d 881, 883 [2006]; see Cham v St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004 [2010]). Here, the Hospital established, prima facie, that Simoncic was a private attending physician, and that its employees did not commit independent acts of negligence and that Simoncic’s discharge order that Fink be given a prescription for Levaquin was not contraindicated by normal practice. However, in opposition, the plaintiff, through her opposing medical expert’s affirmation, raised a triable issue of fact as to whether the prescribing of Levaquin was contraindicated by normal practice (see Aronov v Soukkary, 104 AD3d 623, 625 [2013]). Accordingly, the Supreme Court correctly denied the Hospital’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Chambers, J.E, Austin, Maltese and Duffy, JJ., concur. | 01-13-2022 | [
"In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Glen Cove Hospital, doing business as North Shore University Hospital at Glen Cove, appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J. ), entered August 16, 2012, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. On July 22, 2005, the plaintiffs husband, Henry Fink (hereinafter Fink), underwent knee surgery at the defendant Glen Cove Hospital, doing business as North Shore University Hospital at Glen Cove (hereafter the Hospital). The surgery was performed by Fink’s private attending physician, the defendant J. Simoncic. Following surgery, Simoncic placed Fink on antibiotics upon suspicion of infection based on his observations of the knee during surgery. During Fink’s stay at the Hospital, tests performed on him were negative for infection, and his antibiotic regimen was discontinued. However, upon discharging Fink from the Hospital to a rehabilitation facility, Simoncic ordered Hospital staff to give him a prescription for the antibiotic Levaquin, which Fink was to begin taking the following day. Eventually, Fink allegedly suffered severe complications consistent with taking Levaquin, which ultimately resulted in intestinal damage.",
"Fink was transferred to the Extended Care Center of North Shore University Hospital, where he resided until his death. Insofar as is pertinent to this appeal, Fink commenced this medical malpractice action prior to his death, seeking to hold the Hospital vicariously liable for Simoncic’s alleged malpractice in discharging him with an unnecessary prescription to take Levaquin, which ultimately resulted in his alleged intestinal injuries. The Supreme Court denied the Hospital’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. We affirm. “ ‘In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiffs *896injuries’ ” (DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012], quoting Stukas v Streiter, 83 AD3d 18, 23 [2011]). Accordingly, “[a] physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiffs injuries” (Gillespie v New York Hosp. Queens, 96 AD3d 901, 902 [2012]).",
"“Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden” (id. at 902; see Stukas v Streiter, 83 AD3d at 30). “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v Feit, 23 AD3d 517, 519 [2005]). “Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury” (DiGeronimo v Fuchs, 101 AD3d at 936). With regard to the Hospital’s potential liability, a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits “independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” (Cerny v Williams, 32 AD3d 881, 883 [2006]; see Cham v St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004 [2010]).",
"Here, the Hospital established, prima facie, that Simoncic was a private attending physician, and that its employees did not commit independent acts of negligence and that Simoncic’s discharge order that Fink be given a prescription for Levaquin was not contraindicated by normal practice. However, in opposition, the plaintiff, through her opposing medical expert’s affirmation, raised a triable issue of fact as to whether the prescribing of Levaquin was contraindicated by normal practice (see Aronov v Soukkary, 104 AD3d 623, 625 [2013]). Accordingly, the Supreme Court correctly denied the Hospital’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Chambers, J.E, Austin, Maltese and Duffy, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5985431/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
March 29, 1916. The opinion of the Court was delivered by The testimony in this case is full of conflicting statements, but there are some facts not disputed. It is not disputed that Mr. S.R. Smith owned several engines and boilers and gave to the plaintiff a note secured by a bill of sale of these engines and boilers; that the bill of sale was duly recorded; that subsequent to the execution and *Page 165 recording of the bill of sale Mr. Smith sold an engine and boiler to the defendant. The plaintiff brought suit in claim and delivery for the engine and boiler sold to the defendant. The defendant by his answer made: (a) A general denial; (b) alleged that, if the bill of sale was ever executed, there was only a small balance due; (c) a plea of estoppel; (d) asked for an application of the two-fund doctrine, i. e., to require the plaintiff first to seize and apply the unsold machinery to his debt before taking the property that had been sold, to wit, the property in dispute. There are fifteen exceptions, but appellant states that they raise four questions. 1. Estoppel. The theory upon which the defendant based estoppel was that the plaintiff was present when he got the engine and helped to load it on his wagon, and said nothing about his bill of sale. The presiding Judge charged the jury that, if the plaintiff was present and saw the delivery, and did not warn the defendant, he is estopped. That statement is misleading here, under the testimony. The person to be estopped must know the facts, and the person who pleads estoppel must have been misled to his injury. There was evidence here that Mr. Smith sold the engine to the defendant under an agreement that the purchase money was to be paid to the plaintiff, as the plaintiff had a mortgage on it. If the plaintiff was present and helped with the loading of the engine (denied), yet if he thought that the defendant had notice and was to pay the purchase money to the plaintiff, and agreed to it, he would not be estopped. The plaintiff denied that he was present and the defendant denied the actual notice, and that he agreed to pay the plaintiff. This charge eliminated the knowledge of the plaintiff and was error. 2. Did the two-fund doctrine apply? It did not. Claim and delivery is a possessory action, and, if anything is due under the mortgage, the plaintiff is entitled to recover the *Page 166 possession. Machinery Co. v. Rivers, 94 S.C. 345,78 S.E. 21. What rights the defendant may have against the plaintiff are not now before the Court. If the plaintiff was not estopped to set up his mortgage, and there was anything due, then the plaintiff was entitled to a judgment for the possession. 3. Did his Honor charge on the facts when he charged: "You can dismiss the testimony of any witness if you see fit or you can believe the testimony of any witness. It is within your province to eliminate that which you think you are justified in eliminating." That was certainly not an invasion of the province of the jury. 4. Did his Honor err when he refused to charge without modification, the following request: "If the jury find that it was understood between the defendant and Smith that defendant would pay plaintiff the purchase price of these two pieces of machinery on the Rish mortgage, and they find that he has not done that, their verdict should be for the plaintiff." This was error. Of course, if the defendant agreed to pay the plaintiff's (Rish's) mortgage, then he knew of its existence, and there was no necessity for Rish to notify the defendant of the existence of a mortgage he had agreed to pay, and there was no ground for estoppel, and this was the only defense applicable here. The judgment is reversed. *Page 167 | 07-06-2016 | [
"March 29, 1916. The opinion of the Court was delivered by The testimony in this case is full of conflicting statements, but there are some facts not disputed. It is not disputed that Mr. S.R. Smith owned several engines and boilers and gave to the plaintiff a note secured by a bill of sale of these engines and boilers; that the bill of sale was duly recorded; that subsequent to the execution and *Page 165 recording of the bill of sale Mr. Smith sold an engine and boiler to the defendant. The plaintiff brought suit in claim and delivery for the engine and boiler sold to the defendant. The defendant by his answer made: (a) A general denial; (b) alleged that, if the bill of sale was ever executed, there was only a small balance due; (c) a plea of estoppel; (d) asked for an application of the two-fund doctrine, i. e., to require the plaintiff first to seize and apply the unsold machinery to his debt before taking the property that had been sold, to wit, the property in dispute. There are fifteen exceptions, but appellant states that they raise four questions. 1.",
"Estoppel. The theory upon which the defendant based estoppel was that the plaintiff was present when he got the engine and helped to load it on his wagon, and said nothing about his bill of sale. The presiding Judge charged the jury that, if the plaintiff was present and saw the delivery, and did not warn the defendant, he is estopped. That statement is misleading here, under the testimony.",
"The person to be estopped must know the facts, and the person who pleads estoppel must have been misled to his injury. There was evidence here that Mr. Smith sold the engine to the defendant under an agreement that the purchase money was to be paid to the plaintiff, as the plaintiff had a mortgage on it. If the plaintiff was present and helped with the loading of the engine (denied), yet if he thought that the defendant had notice and was to pay the purchase money to the plaintiff, and agreed to it, he would not be estopped. The plaintiff denied that he was present and the defendant denied the actual notice, and that he agreed to pay the plaintiff.",
"This charge eliminated the knowledge of the plaintiff and was error. 2. Did the two-fund doctrine apply? It did not. Claim and delivery is a possessory action, and, if anything is due under the mortgage, the plaintiff is entitled to recover the *Page 166 possession. Machinery Co. v. Rivers, 94 S.C. 345,78 S.E. 21. What rights the defendant may have against the plaintiff are not now before the Court. If the plaintiff was not estopped to set up his mortgage, and there was anything due, then the plaintiff was entitled to a judgment for the possession. 3. Did his Honor charge on the facts when he charged: \"You can dismiss the testimony of any witness if you see fit or you can believe the testimony of any witness. It is within your province to eliminate that which you think you are justified in eliminating.\" That was certainly not an invasion of the province of the jury.",
"4. Did his Honor err when he refused to charge without modification, the following request: \"If the jury find that it was understood between the defendant and Smith that defendant would pay plaintiff the purchase price of these two pieces of machinery on the Rish mortgage, and they find that he has not done that, their verdict should be for the plaintiff.\" This was error. Of course, if the defendant agreed to pay the plaintiff's (Rish's) mortgage, then he knew of its existence, and there was no necessity for Rish to notify the defendant of the existence of a mortgage he had agreed to pay, and there was no ground for estoppel, and this was the only defense applicable here. The judgment is reversed. *Page 167"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3883352/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
JiCOOKS, Judge. Attorney Leonard Radlauer appeals a trial court judgment ordering him to pay the medical expenses of a former client. These medical expenses were the subject of a health care provider’s privilege. For the following reasons, we affirm. FACTS Ronald Robicheaux was injured in an automobile accident in October 1984. He initially retained Frederic Seeman to represent him in his subsequent personal injury suit. Robi-cheaux later dismissed Seeman, and Leonard Radlauer was retained to continue with the suit for a 40% contingency fee. Seeman, Radlauer and Robicheaux executed a lien in favor of Erwin Bixenman, the chiropractor who treated Robicheaux from June 1985 to June 1989. The outstanding balance for Bix-enman’s treatment is $4,664.48. On July 10, 1989, judgment was rendered in Robicheaux’s favor for $17,999.50 plus legal interest and court costs. When Bixen-man demanded payment for the balance of Robicheaux’s medical expenses, Radlauer replied that $28,879.36 was received but the expenses totaled $25,408.12, excluding expert fees still payable. Bixenman filed this suit on September 18, 1990 seeking enforcement of his lien. Relying on LSA-R.S. 9:4752, the trial court held Radlauer’s attorney’s fee privilege did not extendjjto expenses related to trial preparation; and, accordingly, rendered judgment in favor of Bixenman for $4,664.48. Radlauer appeals. *567DISCUSSION LSA-R.S. 9:4752 grants health care providers a privilege for reasonable charges or fees on the net amount payable to injured persons, their heirs, or legal representatives out of the total amount recovered by judgment, settlement or compromise. However, this statute also states an attorney’s privilege for fees primes the privilege of health care providers. LSA-R.S. 9:5001(A) grants attorneys a special privilege that ranks first for the amount of their professional fees on all judgments obtained by them and property recovered. LSA-R.S. 9:5001(B) defines professional fees as “the agreed upon fee, whether fixed- or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.”1 Rule 1.8(e) of the Rules of Professional Conduct governs advances by an attorney to or on behalf of the client: A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. Therefore, Radlauer’s superior privilege extends to all court costs and litigation expenses he advanced on Robieheaux’s behalf. Radlauer claims the expenses associated with litigation, his attorney’s fees and Seeman’s attorney’s fees exceeded the total amount received from the judgment. Although we acknowledge Radlauer’s and See-man’s privilege, which includes advanced expenses, primes Bixenman’s lien, we do not believe the legislature in granting this privilege vested lawyers with sole authority to categorize as expenses all funds they desire to spend and charge to a client’s account. An attorney asserting the privilege has an evidentiary responsibility to establish the nature and association of the charged expenditure with the pending litigation. Radlauer testified First National Bank of Opelousas was paid $4,498.64 as part of |3“his” agreement with Seeman. However, he could not explain what the loan was for because it was made before he became Robi-cheaux’s attorney. There are also three unexplained American Express charges for $639.00, $334.46 and $369.37 as well as one charge at Andrea’s Restaurant for $449.30, which without explanation is patently excessive. The court costs of $2,145.50 also were reimbursed by the Clerk of Court. However, Radlauer’s records do not reflect a credit to the client’s account for this amount. Bix-enman was awarded an expert witness fee of $125.00. Radlauer did not forward this fee to him although it was included in the amount paid in satisfaction of the judgment. Moreover, Radlauer paid $3,000 to a physician who helped him prepare for Robi-cheaux’s trial more than one year after judgment was rendered and two months after Bixenman filed a petition to recover his fee. DECREE Radlauer failed to present sufficient evidence to legally establish that the expenditures thus noted are protected by the attorney’s privilege. Accordingly, the trial court’s judgment in favor of Bixenman for $4,664.48 is affirmed. AFFIRMED.
. LSA-R.S. 9:5001 was amended effective June 16, 1989. The amendment added subsection B, which defines "professional fees.” Section 5001 as amended is applicable because Radlauer’s right to enforce his privilege for his professional fees did not arise until Robicheaux's judgment became final. See Pullen v. Ziegler, 595 So.2d 1267 (La.App. 4th Cir.1992). | 07-30-2022 | [
"JiCOOKS, Judge. Attorney Leonard Radlauer appeals a trial court judgment ordering him to pay the medical expenses of a former client. These medical expenses were the subject of a health care provider’s privilege. For the following reasons, we affirm. FACTS Ronald Robicheaux was injured in an automobile accident in October 1984. He initially retained Frederic Seeman to represent him in his subsequent personal injury suit. Robi-cheaux later dismissed Seeman, and Leonard Radlauer was retained to continue with the suit for a 40% contingency fee. Seeman, Radlauer and Robicheaux executed a lien in favor of Erwin Bixenman, the chiropractor who treated Robicheaux from June 1985 to June 1989. The outstanding balance for Bix-enman’s treatment is $4,664.48.",
"On July 10, 1989, judgment was rendered in Robicheaux’s favor for $17,999.50 plus legal interest and court costs. When Bixen-man demanded payment for the balance of Robicheaux’s medical expenses, Radlauer replied that $28,879.36 was received but the expenses totaled $25,408.12, excluding expert fees still payable. Bixenman filed this suit on September 18, 1990 seeking enforcement of his lien. Relying on LSA-R.S. 9:4752, the trial court held Radlauer’s attorney’s fee privilege did not extendjjto expenses related to trial preparation; and, accordingly, rendered judgment in favor of Bixenman for $4,664.48. Radlauer appeals.",
"*567DISCUSSION LSA-R.S. 9:4752 grants health care providers a privilege for reasonable charges or fees on the net amount payable to injured persons, their heirs, or legal representatives out of the total amount recovered by judgment, settlement or compromise. However, this statute also states an attorney’s privilege for fees primes the privilege of health care providers. LSA-R.S. 9:5001(A) grants attorneys a special privilege that ranks first for the amount of their professional fees on all judgments obtained by them and property recovered. LSA-R.S. 9:5001(B) defines professional fees as “the agreed upon fee, whether fixed- or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.”1 Rule 1.8(e) of the Rules of Professional Conduct governs advances by an attorney to or on behalf of the client: A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.",
"Therefore, Radlauer’s superior privilege extends to all court costs and litigation expenses he advanced on Robieheaux’s behalf. Radlauer claims the expenses associated with litigation, his attorney’s fees and Seeman’s attorney’s fees exceeded the total amount received from the judgment. Although we acknowledge Radlauer’s and See-man’s privilege, which includes advanced expenses, primes Bixenman’s lien, we do not believe the legislature in granting this privilege vested lawyers with sole authority to categorize as expenses all funds they desire to spend and charge to a client’s account. An attorney asserting the privilege has an evidentiary responsibility to establish the nature and association of the charged expenditure with the pending litigation. Radlauer testified First National Bank of Opelousas was paid $4,498.64 as part of |3“his” agreement with Seeman. However, he could not explain what the loan was for because it was made before he became Robi-cheaux’s attorney. There are also three unexplained American Express charges for $639.00, $334.46 and $369.37 as well as one charge at Andrea’s Restaurant for $449.30, which without explanation is patently excessive.",
"The court costs of $2,145.50 also were reimbursed by the Clerk of Court. However, Radlauer’s records do not reflect a credit to the client’s account for this amount. Bix-enman was awarded an expert witness fee of $125.00. Radlauer did not forward this fee to him although it was included in the amount paid in satisfaction of the judgment. Moreover, Radlauer paid $3,000 to a physician who helped him prepare for Robi-cheaux’s trial more than one year after judgment was rendered and two months after Bixenman filed a petition to recover his fee. DECREE Radlauer failed to present sufficient evidence to legally establish that the expenditures thus noted are protected by the attorney’s privilege.",
"Accordingly, the trial court’s judgment in favor of Bixenman for $4,664.48 is affirmed. AFFIRMED. . LSA-R.S. 9:5001 was amended effective June 16, 1989. The amendment added subsection B, which defines \"professional fees.” Section 5001 as amended is applicable because Radlauer’s right to enforce his privilege for his professional fees did not arise until Robicheaux's judgment became final. See Pullen v. Ziegler, 595 So.2d 1267 (La.App. 4th Cir.1992)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7684947/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Electronically Filed Intermediate Court of Appeals CAAP-13-0004230 27-MAR-2014 10:13 AM | 03-28-2014 | [
"Electronically Filed Intermediate Court of Appeals CAAP-13-0004230 27-MAR-2014 10:13 AM"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2658410/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 1 of 11
Allen G. Kadish Hearing Date: September 18, 2019 at 10:00 a.m. Lance A. Schildkraut ARCHER & GREINER, P.C. 630 Third Avenue New York, New York 10017 Tel: (212) 682-4940 Email: akadish@archerlaw.com lschildkraut@archerlaw.com
and
Kenneth M. Florey M. Neal Smith ROBBINS, SCHWARTZ, NICHOLAS, LIFTON & TAYLOR, LTD. 631 E. Boughton Road, Suite 200 Bolingbrook, Illinois 60440 Tel: (630) 929-3639 Email: kflorey@robbins-schwartz.com nsmith@robbins-schwartz.com
and
Matthew T. Gensburg GENSBURG CALANDRIELLO & KANTER, P.C. 200 West Adams Street, Suite 2425 Chicago, Illinois 60606 Tel: (312) 263-2200 Email: mgensburg@gcklegal.com
Attorneys for Community Unit School District 300
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) In re: ) Chapter 11 ) SEARS HOLDINGS CORPORATION, et al., ) Case No. 18-23538 (RDD) ) (Jointly Administered) Debtors. ) __________________________________________)
SUPPLEMENTAL OBJECTION OF COMMUNITY UNIT SCHOOL DISTRICT 300 TO CONFIRMATION OF THE MODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF SEARS HOLDINGS CORPORATION AND ITS AFFILIATED DEBTORS
COMMUNITY UNIT SCHOOL DISTRICT 300, an Illinois school district existing and
operating pursuant to the Illinois School Code, 150 Illinois Compiled Statutes (“ILCS”) 5/1-1, et 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 2 of 11
seq. (the “School District”), and a creditor in the cases of Sears Holdings Corporation (0798),
Sears, Roebuck and Co. (0680), and Sears Holdings Management Corporation (2148), by and
through its undersigned counsel, hereby supplements its objection to [Doc. No. 4713] confirmation
of the Modified Second Amended Joint Chapter 11 Plan of Sears Holdings Corporation and its
Affiliated Debtors, as further modified on August 2, 2019 [Doc. No. 4705]. The School District
continues to reserve its right to object to confirmation on additional grounds. The basis for these
supplemental objections is as follows:
BACKGROUND 1. On April 17, 2019, the Debtors filed their Joint Chapter 11 Plan and Disclosure
Statement of Sears Holdings Corporation and its Affiliated Debtors [Doc. Nos. 3275 and 3276].
2. On May 16, 2019, the Debtors filed their Amended Joint Chapter 11 Plan of Sears
Holdings Corporation and its Affiliated Debtors [Doc. No. 3894]. On the same day, the Debtors
also filed their Disclosure Statement for Amended Joint Chapter 11 Plan of Sears Holdings
Corporation and its Affiliated Debtors [Doc. No. 3895].
3. On June 28, 2019, the Debtors filed their Second Amended Joint Chapter 11 Plan
and Disclosure Statement of Sears Holdings Corporation and its Affiliated Debtors [Doc. Nos.
4389 and 4390].
4. On June 28, 2019, the Court entered the Order (I) Approving Disclosure Statement,
(II) Establishing Notice and Objection Procedures for Confirmation of the Plan ,(III) Approving
Solicitation Packages and Procedures for Distribution Thereof, (IV) Approving the Form of
Ballots and Establishing Procedures for Voting on the Plan, and (V) Granting Related Relief (the
“Disclosure Statement Order”) [Doc. No. 4392]. Pursuant to this Order, parties-in-interest were
given until August 2, 2019 to file objections to confirmation of the plan.
2 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 3 of 11
5. On July 9, 2019, the Debtors filed their Modified Second Amended Joint Chapter
11 Plan and Disclosure Statement of Sears Holdings Corporation and its Affiliated Debtors (the
“July Plan”) [Doc Nos. 4476 and 4478].
6. On August 2, 2019, the School District filed its Objection of Community Unit
School District 300 to Confirmation of the Second Amended Joint Chapter 11 Plan of Sears
Holdings Corporation and its Affiliated Debtors (the “School District Objection”) [Doc. No.
4713].
7. On August 2, 2019, the Debtors filed the Modified Second Amended Joint Chapter
11 Plan of Sears Holdings Corporation and its Affiliated Debtors [Doc. No. 4705], which modified
the July Plan (the “Modified Plan”). This supplemental objection addresses portions of the
Modified Plan which the School District finds objectionable, and incorporates by reference the
School District Objection.
8. As noted above, the School District has asserted claims against Sears Holdings
Corporation, Sears, Roebuck and Co. and Sears Holdings Management Corporation pursuant to
the Illinois Economic Development Area and Tax Increment Allocation Act, 20 ILCS 620/1, et
seq. (the “Illinois EDA Act”), and that certain Economic Development Agreement entered into by
and between the Village of Hoffman Estates, Illinois and the Debtors (the “1990 Agreement”), all
as amended by the Illinois legislature in 2012. The School District has asserted that the Debtors
failed to maintain the requisite number of full-time equivalent jobs at its corporate headquarters in
the Village of Hoffman Estates for the tax years 2015 thru 2018, as required by the Illinois EDA
Act and the 1990 Agreement. Further, given the Debtors’ erroneous interpretation of how full-
time equivalent jobs are determined under the Illinois EDA Act and 1990 Agreement, the School
District believes it is likely that the Debtors have never been in compliance with the Illinois EDA
3 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 4 of 11
Act since its amendment in 2012.
9. Section 200/21-75 of Chapter 35 of the Illinois Compiled Statutes, 35 ILCS
§200/21-75 (the “Illinois Property Tax Code”) provides:
[t]he taxes upon property, together with all penalties, interests and costs that may accrue thereon, shall be a prior and first lien on the property, superior to all other liens and encumbrances, from and including the first day of January in the year in which the taxes are levied until the taxes are paid or until the property is sold under this Code.
Based on Debtors’ alleged misstatements of fact and violations of the Illinois EDA Act and 1990
Agreement, the School District believes that the Debtors were improperly rebated property taxes
to which they were not entitled under the Illinois EDA Act. The School District has asserted that
outstanding property taxes, along with all penalties, interests and costs that have and will accrue
thereon, represent a prior and first lien on the assessed property, superior to all other liens and
encumbrances and is now due the Cook County Collector and the School District. Further, any
proceeds arising from a sale of the Debtors’ corporate headquarters will be encumbered by the tax
lien and should be used to satisfy the claims of the Cook County Collector and the School District.
SUPPLEMENTAL OBJECTIONS
I. The Modified Plan Improperly Vests Assets in the Liquidating Trust Free and Clear of Liens Without Priority for Secured Claims.
10. Section 10.3 of the Modified Plan now provides, in pertinent part, as follows
(underlined text represents insertions made on August 2, 2019):
10.3 Liquidating Trust Assets. On the Effective Date, and in accordance with sections 1123 and 1141 of the Bankruptcy Code, all title and interest in all of the Liquidating Trust Assets, which constitute all assets of the Debtors that have not been distributed on or prior to the Effective Date, including without limitation all General Assets, Specified Causes of Action (including, but not limited to, all claims previously asserted in the adversary proceeding captioned Sears Holdings Corp. v.
4 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 5 of 11
Lampert, Adv. Proc. No. 19-08250 (RDD) (Bankr. S.D.N.Y.)), and the Credit Bid Release Consideration, as well as the rights and powers of each Debtor in such Liquidating Trust Assets, including, without limitation, all of the Debtors’ rights under the Asset Purchase Agreement, shall irrevocably and automatically vest in the Liquidating Trust, free and clear of all liens, Claims, encumbrances and Interests (legal, beneficial or otherwise) for the benefit of the Liquidating Trust Beneficiaries. Upon the transfer of the Liquidating Trust Assets to the Liquidating Trust, the Debtors shall have no interest in or with respect to the Liquidating Trust Assets or the Liquidating Trust.
11. Section 8.2 of the Plan provides for the following treatment of Class 2 Secured
Claims:
Secured Claims (Class 2). Treatment: Except to the extent that a holder of an Allowed Secured Claim agrees with the Debtors (subject to the Creditors’ Committee Notice Procedures) prior to the Effective Date, or the Liquidating Trust after the Effective Date, to different treatment, on the latest of (x) the Effective Date, (y) the date that is ten (10) Business Days after the date such Secured Claim becomes an Allowed Claim, or (z) the next Distribution Date after such Secured Claim becomes an Allowed Secured Claim, each holder of an Allowed Secured Claim will receive from the Debtor against which its Secured Claim is Allowed, on account and in full satisfaction of such Allowed Claim, at the option of the Debtors (subject to the Creditors’ Committee Notice Procedures) or Liquidating Trustee, as applicable: (i) Cash in an amount equal to the Allowed amount of such Secured Claim; (ii) transfer of the collateral securing such Secured Claim or the proceeds thereof in satisfaction of the Allowed amount of such Secured Claim; or (iii) such other treatment sufficient to render such holder’s Allowed Secured Claim Unimpaired.
12. Sections 1129(b)(2)(A)(i) and (iii) of the Bankruptcy Code state that a plan is fair
and equitable with respect to a class of secured claims, if the plan provides either: “(i) (I) that the
holder of such claim retains the liens securing such claims, whether the property subject to such
liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount
5 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 6 of 11
of such claim; and (II) each holder of a claim of such class receive on account of such claim
deferred cash payments totaling at least the allowed of such claim, of a value, as of the effective
date of the plan, of at least the value of such holder’s interest in the estate’s interest in such
property; * * * or (iii) for the realization by such holders of the indubitable equivalent of such
claims.”1
13. Under the Modified Plan, secured claims, including that of the School District, will
be subject to possible deferment to the later of ten days after the claim becomes an Allowed Claim,
or the next Distribution Date after such Secured Claim becomes an Allowed Secured Claim. As a
result, absent consent and to the extent their secured claims are allowed, such creditors are entitled
to the protection of section 1129(b)(2)(A)(i) or (iii).
14. Pursuant to Section 10.3 of the Modified Plan, as now modified, secured creditors,
including the School District, will not retain their security interests after Plan confirmation. In that
scenario, the Debtors must provide these secured creditors with the indubitable equivalent of their
claims.
15. In re DBSD North America, Inc., 419 B.R. 179 (Bankr. S.D.N.Y. 2009), states that
for “cramdown” purposes, in determining whether a plan provides a dissenting secured creditor
with the “indubitable equivalent” of its claim, the court should consider whether the plan both
protects the creditor’s principal, based on the value of the collateral relative to the secured claim,
and provides for the present value of the creditor’s claim, based on an appropriate interest rate.
See also In re Bate Land & Timber LLC, 877 F.3d 188 (4th Cir. 2017), and In re Wiersma, 227
1 Section 1129(b)(2)(A)(ii) of the Bankruptcy Code which states, as an alternative, that the plan may provide for sale, subject to Section 363(k) of the Bankruptcy Code, of any property that is subject to the liens securing such claims, free and clear of such liens, with such liens to attach to the proceeds of such sale, and the treatment of such liens on proceeds under clause (i) or (iii) of this subparagraph. In the context of the Plan, this Section is not relevant.
6 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 7 of 11
Fed.Appx. 603 (9th Cir. 2007) (indubitable equivalence has two components: (1) it must
compensate for present value, and (2) insure the safety of the principal).
16. The Modified Plan fails to comply with Sections 1129(b)(2)(A)(i) and (iii) by
improperly stripping the School District of its secured claim without providing the School District
with the indubitable equivalent of that secured claim.
II. The Modified Plan Fails to Provide a Proper Reserve for Disputed Claims.
17. Section 11.4(a) of the Modified Plan now provides as follows (underlined text
represents insertions made on August 2, 2019):
11.4(a) Reserve on Account of Disputed Claims. (a) From and after the Effective Date, and until such time as each Disputed Claim has been compromised and settled, estimated by the Bankruptcy Court in an amount constituting the Allowed amount, or Allowed or disallowed by Final Order, the Liquidating Trust shall establish, for the benefit of each holder of a Disputed Claim, the Disputed Claims Reserve consisting of Cash or Liquidating Trust Interests, as applicable, and any dividends, gains or income attributable thereto, in an amount equal to the Pro Rata share of distributions that would have been made to the holder of such Disputed Claim if it were an Allowed Claim in an amount equal to the lesser of (i) the liquidated amount set forth in the filed Proof of Claim relating to such Disputed Claim, (ii) the amount in which the Disputed Claim has been estimated by the Bankruptcy Court pursuant to section 502 of the Bankruptcy Code as constituting and representing the maximum amount in which such Claim may ultimately become an Allowed Claim or (iii) such other amount as may be agreed upon by the holder of such Disputed Claim and the Debtors (with the consent of the Creditors’ Committee) or the Liquidating Trust, as applicable. For the avoidance of doubt, any Cash and Liquidating Trust Interests retained and held for the benefit of a holder of a Disputed Claim as part of the Disputed Claims Reserve shall be treated as a payment and reduction on account of such Dispute d Claim for purposes of computing any additional amounts to be paid in Cash or distributed in Liquidating Trust Interests in the event the Disputed Claim ultimately becomes an Allowed Claim. Cash and Liquidating Trust Interests held in the Disputed Claims Reserve (including, with respect to Cash, any earnings that have accrued on such Cash, net of any expenses,
7 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 8 of 11
including any taxes, relating thereto) shall be retained by the Liquidating Trust for the benefit of holders of Disputed Claims pending determination of their entitlement thereto under the terms of the Plan. Any Cash and proceeds of the Liquidating Trust Interests shall be either (x) held by the Liquidating Trust in an interest-bearing account or (y) invested in interest bearing obligations issued by the United States government and guaranteed by the United States government, and having (in either case) a maturity of not more than 30 days. No payments or distributions shall be made with respect to all or any portion of any Disputed Claim pending the entire resolution thereof by Final Order. For the avoidance of doubt, Cash held in the Disputed Claims Reserve will (i) be deposited in an interest-bearing account and held in trust, pending distribution by the Liquidating Trust, for the benefit of holders of Allowed Claims, (ii) be accounted for separately and (iii) not constitute property of the Liquidating Trust. Liquidating Trust Interests held in the Disputed Claims Reserve will (a) be held in trust, pending distribution by the Liquidating Trust, for the benefit of holders of Allowed Claims, (b) be accounted for separately and (iii) not constitute property of the Liquidating Trust.
18. Under Section 11.4(a) of the Plan, as now modified, the Liquidating Trust must
establish for the benefit of each holder of a Disputed Claim, a Disputed Claim Reserve consisting
of either (i) Cash, or (ii) Liquidating Trust Interests. Section 1.107 defines “Liquidating Trust
Interests” to means, as relevant here, “the General Unsecured Liquidating Trust Interest.” Section
1.76 defines “General Unsecured Liquidating Trust Interest” to mean “a non-certificated beneficial
interest in the Liquidating Trust granted to holders of (a) Allowed General Unsecured Claims, (b)
the Allowed PBGC Unsecured Claim, and (c) Allowed ESL Unsecured Claim (if any), which shall
entitled such holder to share in the General Unsecured Trust Recovery in accordance with the
Plan.”
19. The purpose of a disputed claim reserve is to protect the interests of holders of
Disputed Claims when plan disbursements are made to other creditors prior to the resolution of
the dispute. It insures that should the Disputed Claim be allowed, there will be sufficient funds
available to match prior disbursements made to other allowed claimants. Disputed claim reserves
8 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 9 of 11
should be true “reserves,” defined as a fund of money set aside by a bank or an insurance company
to cover future liabilities. As a verb, “reserve” means “something retained or stored for use.”
BLACK’S LAW DICTIONARY 1564 (11th ed. 2019). In this way, a disputed claim reserve allows a
plan to comply with Section 1123(a)(4) of the Bankruptcy Code, which requires all plans to
“provide the same treatment of each claim or interest of a particular class, unless the holder of a
particular claim or interest agrees to a less favorable treatment of such particular claim or interest.”
20. A disputed claim reserve comprised of cash equal to percentage disbursed to other
claimants, in fact, protects holders of disputed claims. And Section 11.4(a) of the Modified Plan
specifically provides that “Cash held in the Disputed Claims Reserve will (i) be deposited in an
interest-bearing account and held in trust, pending distribution by the Liquidating Trust, for the
benefit of holders of Allowed Claims, (ii) be accounted for separately and (iii) not constitute
property of the Liquidating Trust.” However, Section 11.4(a) also allows, as an alternative, the
creation of a disputed claim reserve comprised of Liquidating Trust Interests. A reserve comprised
of Liquidating Trust Interests, in lieu of cash, provides limited, if any, protection to holders of
disputed claims, unless those liquidating trust interests themselves are supported by segregated
cash equal to the percent paid in prior disbursements, a proposition not provided under the
Modified Plan. Without more, funding the Disputed Claims Reserve with Liquidating Trust
Interests improperly provides no or at best, limited, protection to holders of disputed claims which
are subsequently allowed, in violation of Section 1123 of the Bankruptcy Code.
21. Finally, Section 11.4(c) of the Plan provides that “[i]f a Disputed Claim is
disallowed, in whole or in part, the Liquidating Trustee shall cancel the reserve Liquidating Trust
Interest, if applicable, and distribute the Cash held in the Disputed Claim Reserve with respect to
such Claim to the holder of Allowed Claims.” While the School District suspects that it is not the
9 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 10 of 11
intent of the Debtors to eliminate the entire Disputed Claim Reserve for a Disputed Claim if only
part of the claim is disallowed, for purposes of clarity the aforementioned sentence should be
modified to provide that the reserve shall be cancelled only in proportion to the amount in which
a Disputed Claim is disallowed.
10 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 11 of 11
CONCLUSION
WHEREFORE, Community United School District 300 asks that this Court deny
confirmation of the Plan and grant such other and further relief as is just and proper.
Dated: New York, New York ARCHER & GREINER, P.C. August 28, 2019
By: /s/ Allen G. Kadish Allen G. Kadish Lance A. Schildkraut 630 Third Avenue New York, New York 10017 Tel: (212) 682-4940 Email: akadish@archerlaw.com lschildkraut@archerlaw.com
and
Kenneth M. Florey M. Neal Smith Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. 631 E. Boughton Road, Suite 200 Bolingbrook, Illinois 60440 Tel: (630) 929-3639 Email: kflorey@robbins-schwartz.com nsmith@robbins-schwartz.com
and
Matthew T. Gensburg Gensburg Calandriello & Kanter, P.C. 200 West Adams Street, Suite 2425 Chicago, Illinois 60606 Tel: (312) 263-2200 Email: mgensburg@gcklegal.com
Attorneys for Community Unit School District 300
217013797v1
11 | 2019-08-28 | [
"18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 1 of 11 Allen G. Kadish Hearing Date: September 18, 2019 at 10:00 a.m. Lance A. Schildkraut ARCHER & GREINER, P.C. 630 Third Avenue New York, New York 10017 Tel: (212) 682-4940 Email: akadish@archerlaw.com lschildkraut@archerlaw.com and Kenneth M. Florey M. Neal Smith ROBBINS, SCHWARTZ, NICHOLAS, LIFTON & TAYLOR, LTD. 631 E. Boughton Road, Suite 200 Bolingbrook, Illinois 60440 Tel: (630) 929-3639 Email: kflorey@robbins-schwartz.com nsmith@robbins-schwartz.com and Matthew T. Gensburg GENSBURG CALANDRIELLO & KANTER, P.C. 200 West Adams Street, Suite 2425 Chicago, Illinois 60606 Tel: (312) 263-2200 Email: mgensburg@gcklegal.com Attorneys for Community Unit School District 300 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) In re: ) Chapter 11 ) SEARS HOLDINGS CORPORATION, et al., ) Case No.",
"18-23538 (RDD) ) (Jointly Administered) Debtors. ) __________________________________________) SUPPLEMENTAL OBJECTION OF COMMUNITY UNIT SCHOOL DISTRICT 300 TO CONFIRMATION OF THE MODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF SEARS HOLDINGS CORPORATION AND ITS AFFILIATED DEBTORS COMMUNITY UNIT SCHOOL DISTRICT 300, an Illinois school district existing and operating pursuant to the Illinois School Code, 150 Illinois Compiled Statutes (“ILCS”) 5/1-1, et 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 2 of 11 seq. (the “School District”), and a creditor in the cases of Sears Holdings Corporation (0798), Sears, Roebuck and Co. (0680), and Sears Holdings Management Corporation (2148), by and through its undersigned counsel, hereby supplements its objection to [Doc. No. 4713] confirmation of the Modified Second Amended Joint Chapter 11 Plan of Sears Holdings Corporation and its Affiliated Debtors, as further modified on August 2, 2019 [Doc. No. 4705]. The School District continues to reserve its right to object to confirmation on additional grounds. The basis for these supplemental objections is as follows: BACKGROUND 1.",
"On April 17, 2019, the Debtors filed their Joint Chapter 11 Plan and Disclosure Statement of Sears Holdings Corporation and its Affiliated Debtors [Doc. Nos. 3275 and 3276]. 2. On May 16, 2019, the Debtors filed their Amended Joint Chapter 11 Plan of Sears Holdings Corporation and its Affiliated Debtors [Doc. No. 3894]. On the same day, the Debtors also filed their Disclosure Statement for Amended Joint Chapter 11 Plan of Sears Holdings Corporation and its Affiliated Debtors [Doc. No. 3895]. 3. On June 28, 2019, the Debtors filed their Second Amended Joint Chapter 11 Plan and Disclosure Statement of Sears Holdings Corporation and its Affiliated Debtors [Doc. Nos. 4389 and 4390]. 4.",
"On June 28, 2019, the Court entered the Order (I) Approving Disclosure Statement, (II) Establishing Notice and Objection Procedures for Confirmation of the Plan ,(III) Approving Solicitation Packages and Procedures for Distribution Thereof, (IV) Approving the Form of Ballots and Establishing Procedures for Voting on the Plan, and (V) Granting Related Relief (the “Disclosure Statement Order”) [Doc. No. 4392]. Pursuant to this Order, parties-in-interest were given until August 2, 2019 to file objections to confirmation of the plan. 2 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 3 of 11 5. On July 9, 2019, the Debtors filed their Modified Second Amended Joint Chapter 11 Plan and Disclosure Statement of Sears Holdings Corporation and its Affiliated Debtors (the “July Plan”) [Doc Nos.",
"4476 and 4478]. 6. On August 2, 2019, the School District filed its Objection of Community Unit School District 300 to Confirmation of the Second Amended Joint Chapter 11 Plan of Sears Holdings Corporation and its Affiliated Debtors (the “School District Objection”) [Doc. No. 4713]. 7. On August 2, 2019, the Debtors filed the Modified Second Amended Joint Chapter 11 Plan of Sears Holdings Corporation and its Affiliated Debtors [Doc. No. 4705], which modified the July Plan (the “Modified Plan”). This supplemental objection addresses portions of the Modified Plan which the School District finds objectionable, and incorporates by reference the School District Objection. 8. As noted above, the School District has asserted claims against Sears Holdings Corporation, Sears, Roebuck and Co. and Sears Holdings Management Corporation pursuant to the Illinois Economic Development Area and Tax Increment Allocation Act, 20 ILCS 620/1, et seq.",
"(the “Illinois EDA Act”), and that certain Economic Development Agreement entered into by and between the Village of Hoffman Estates, Illinois and the Debtors (the “1990 Agreement”), all as amended by the Illinois legislature in 2012. The School District has asserted that the Debtors failed to maintain the requisite number of full-time equivalent jobs at its corporate headquarters in the Village of Hoffman Estates for the tax years 2015 thru 2018, as required by the Illinois EDA Act and the 1990 Agreement. Further, given the Debtors’ erroneous interpretation of how full- time equivalent jobs are determined under the Illinois EDA Act and 1990 Agreement, the School District believes it is likely that the Debtors have never been in compliance with the Illinois EDA 3 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 4 of 11 Act since its amendment in 2012. 9. Section 200/21-75 of Chapter 35 of the Illinois Compiled Statutes, 35 ILCS §200/21-75 (the “Illinois Property Tax Code”) provides: [t]he taxes upon property, together with all penalties, interests and costs that may accrue thereon, shall be a prior and first lien on the property, superior to all other liens and encumbrances, from and including the first day of January in the year in which the taxes are levied until the taxes are paid or until the property is sold under this Code.",
"Based on Debtors’ alleged misstatements of fact and violations of the Illinois EDA Act and 1990 Agreement, the School District believes that the Debtors were improperly rebated property taxes to which they were not entitled under the Illinois EDA Act. The School District has asserted that outstanding property taxes, along with all penalties, interests and costs that have and will accrue thereon, represent a prior and first lien on the assessed property, superior to all other liens and encumbrances and is now due the Cook County Collector and the School District. Further, any proceeds arising from a sale of the Debtors’ corporate headquarters will be encumbered by the tax lien and should be used to satisfy the claims of the Cook County Collector and the School District. SUPPLEMENTAL OBJECTIONS I.",
"The Modified Plan Improperly Vests Assets in the Liquidating Trust Free and Clear of Liens Without Priority for Secured Claims. 10. Section 10.3 of the Modified Plan now provides, in pertinent part, as follows (underlined text represents insertions made on August 2, 2019): 10.3 Liquidating Trust Assets. On the Effective Date, and in accordance with sections 1123 and 1141 of the Bankruptcy Code, all title and interest in all of the Liquidating Trust Assets, which constitute all assets of the Debtors that have not been distributed on or prior to the Effective Date, including without limitation all General Assets, Specified Causes of Action (including, but not limited to, all claims previously asserted in the adversary proceeding captioned Sears Holdings Corp. v. 4 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 5 of 11 Lampert, Adv.",
"Proc. No. 19-08250 (RDD) (Bankr. S.D.N.Y. )), and the Credit Bid Release Consideration, as well as the rights and powers of each Debtor in such Liquidating Trust Assets, including, without limitation, all of the Debtors’ rights under the Asset Purchase Agreement, shall irrevocably and automatically vest in the Liquidating Trust, free and clear of all liens, Claims, encumbrances and Interests (legal, beneficial or otherwise) for the benefit of the Liquidating Trust Beneficiaries. Upon the transfer of the Liquidating Trust Assets to the Liquidating Trust, the Debtors shall have no interest in or with respect to the Liquidating Trust Assets or the Liquidating Trust. 11. Section 8.2 of the Plan provides for the following treatment of Class 2 Secured Claims: Secured Claims (Class 2). Treatment: Except to the extent that a holder of an Allowed Secured Claim agrees with the Debtors (subject to the Creditors’ Committee Notice Procedures) prior to the Effective Date, or the Liquidating Trust after the Effective Date, to different treatment, on the latest of (x) the Effective Date, (y) the date that is ten (10) Business Days after the date such Secured Claim becomes an Allowed Claim, or (z) the next Distribution Date after such Secured Claim becomes an Allowed Secured Claim, each holder of an Allowed Secured Claim will receive from the Debtor against which its Secured Claim is Allowed, on account and in full satisfaction of such Allowed Claim, at the option of the Debtors (subject to the Creditors’ Committee Notice Procedures) or Liquidating Trustee, as applicable: (i) Cash in an amount equal to the Allowed amount of such Secured Claim; (ii) transfer of the collateral securing such Secured Claim or the proceeds thereof in satisfaction of the Allowed amount of such Secured Claim; or (iii) such other treatment sufficient to render such holder’s Allowed Secured Claim Unimpaired.",
"12. Sections 1129(b)(2)(A)(i) and (iii) of the Bankruptcy Code state that a plan is fair and equitable with respect to a class of secured claims, if the plan provides either: “(i) (I) that the holder of such claim retains the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount 5 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 6 of 11 of such claim; and (II) each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate’s interest in such property; * * * or (iii) for the realization by such holders of the indubitable equivalent of such claims.”1 13. Under the Modified Plan, secured claims, including that of the School District, will be subject to possible deferment to the later of ten days after the claim becomes an Allowed Claim, or the next Distribution Date after such Secured Claim becomes an Allowed Secured Claim.",
"As a result, absent consent and to the extent their secured claims are allowed, such creditors are entitled to the protection of section 1129(b)(2)(A)(i) or (iii). 14. Pursuant to Section 10.3 of the Modified Plan, as now modified, secured creditors, including the School District, will not retain their security interests after Plan confirmation. In that scenario, the Debtors must provide these secured creditors with the indubitable equivalent of their claims. 15. In re DBSD North America, Inc., 419 B.R. 179 (Bankr. S.D.N.Y. 2009), states that for “cramdown” purposes, in determining whether a plan provides a dissenting secured creditor with the “indubitable equivalent” of its claim, the court should consider whether the plan both protects the creditor’s principal, based on the value of the collateral relative to the secured claim, and provides for the present value of the creditor’s claim, based on an appropriate interest rate.",
"See also In re Bate Land & Timber LLC, 877 F.3d 188 (4th Cir. 2017), and In re Wiersma, 227 1 Section 1129(b)(2)(A)(ii) of the Bankruptcy Code which states, as an alternative, that the plan may provide for sale, subject to Section 363(k) of the Bankruptcy Code, of any property that is subject to the liens securing such claims, free and clear of such liens, with such liens to attach to the proceeds of such sale, and the treatment of such liens on proceeds under clause (i) or (iii) of this subparagraph. In the context of the Plan, this Section is not relevant.",
"6 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 7 of 11 Fed.Appx. 603 (9th Cir. 2007) (indubitable equivalence has two components: (1) it must compensate for present value, and (2) insure the safety of the principal). 16. The Modified Plan fails to comply with Sections 1129(b)(2)(A)(i) and (iii) by improperly stripping the School District of its secured claim without providing the School District with the indubitable equivalent of that secured claim. II. The Modified Plan Fails to Provide a Proper Reserve for Disputed Claims. 17. Section 11.4(a) of the Modified Plan now provides as follows (underlined text represents insertions made on August 2, 2019): 11.4(a) Reserve on Account of Disputed Claims. (a) From and after the Effective Date, and until such time as each Disputed Claim has been compromised and settled, estimated by the Bankruptcy Court in an amount constituting the Allowed amount, or Allowed or disallowed by Final Order, the Liquidating Trust shall establish, for the benefit of each holder of a Disputed Claim, the Disputed Claims Reserve consisting of Cash or Liquidating Trust Interests, as applicable, and any dividends, gains or income attributable thereto, in an amount equal to the Pro Rata share of distributions that would have been made to the holder of such Disputed Claim if it were an Allowed Claim in an amount equal to the lesser of (i) the liquidated amount set forth in the filed Proof of Claim relating to such Disputed Claim, (ii) the amount in which the Disputed Claim has been estimated by the Bankruptcy Court pursuant to section 502 of the Bankruptcy Code as constituting and representing the maximum amount in which such Claim may ultimately become an Allowed Claim or (iii) such other amount as may be agreed upon by the holder of such Disputed Claim and the Debtors (with the consent of the Creditors’ Committee) or the Liquidating Trust, as applicable.",
"For the avoidance of doubt, any Cash and Liquidating Trust Interests retained and held for the benefit of a holder of a Disputed Claim as part of the Disputed Claims Reserve shall be treated as a payment and reduction on account of such Dispute d Claim for purposes of computing any additional amounts to be paid in Cash or distributed in Liquidating Trust Interests in the event the Disputed Claim ultimately becomes an Allowed Claim. Cash and Liquidating Trust Interests held in the Disputed Claims Reserve (including, with respect to Cash, any earnings that have accrued on such Cash, net of any expenses, 7 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 8 of 11 including any taxes, relating thereto) shall be retained by the Liquidating Trust for the benefit of holders of Disputed Claims pending determination of their entitlement thereto under the terms of the Plan.",
"Any Cash and proceeds of the Liquidating Trust Interests shall be either (x) held by the Liquidating Trust in an interest-bearing account or (y) invested in interest bearing obligations issued by the United States government and guaranteed by the United States government, and having (in either case) a maturity of not more than 30 days. No payments or distributions shall be made with respect to all or any portion of any Disputed Claim pending the entire resolution thereof by Final Order. For the avoidance of doubt, Cash held in the Disputed Claims Reserve will (i) be deposited in an interest-bearing account and held in trust, pending distribution by the Liquidating Trust, for the benefit of holders of Allowed Claims, (ii) be accounted for separately and (iii) not constitute property of the Liquidating Trust.",
"Liquidating Trust Interests held in the Disputed Claims Reserve will (a) be held in trust, pending distribution by the Liquidating Trust, for the benefit of holders of Allowed Claims, (b) be accounted for separately and (iii) not constitute property of the Liquidating Trust. 18. Under Section 11.4(a) of the Plan, as now modified, the Liquidating Trust must establish for the benefit of each holder of a Disputed Claim, a Disputed Claim Reserve consisting of either (i) Cash, or (ii) Liquidating Trust Interests. Section 1.107 defines “Liquidating Trust Interests” to means, as relevant here, “the General Unsecured Liquidating Trust Interest.” Section 1.76 defines “General Unsecured Liquidating Trust Interest” to mean “a non-certificated beneficial interest in the Liquidating Trust granted to holders of (a) Allowed General Unsecured Claims, (b) the Allowed PBGC Unsecured Claim, and (c) Allowed ESL Unsecured Claim (if any), which shall entitled such holder to share in the General Unsecured Trust Recovery in accordance with the Plan.” 19. The purpose of a disputed claim reserve is to protect the interests of holders of Disputed Claims when plan disbursements are made to other creditors prior to the resolution of the dispute.",
"It insures that should the Disputed Claim be allowed, there will be sufficient funds available to match prior disbursements made to other allowed claimants. Disputed claim reserves 8 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 9 of 11 should be true “reserves,” defined as a fund of money set aside by a bank or an insurance company to cover future liabilities. As a verb, “reserve” means “something retained or stored for use.” BLACK’S LAW DICTIONARY 1564 (11th ed. 2019).",
"In this way, a disputed claim reserve allows a plan to comply with Section 1123(a)(4) of the Bankruptcy Code, which requires all plans to “provide the same treatment of each claim or interest of a particular class, unless the holder of a particular claim or interest agrees to a less favorable treatment of such particular claim or interest.” 20. A disputed claim reserve comprised of cash equal to percentage disbursed to other claimants, in fact, protects holders of disputed claims. And Section 11.4(a) of the Modified Plan specifically provides that “Cash held in the Disputed Claims Reserve will (i) be deposited in an interest-bearing account and held in trust, pending distribution by the Liquidating Trust, for the benefit of holders of Allowed Claims, (ii) be accounted for separately and (iii) not constitute property of the Liquidating Trust.” However, Section 11.4(a) also allows, as an alternative, the creation of a disputed claim reserve comprised of Liquidating Trust Interests.",
"A reserve comprised of Liquidating Trust Interests, in lieu of cash, provides limited, if any, protection to holders of disputed claims, unless those liquidating trust interests themselves are supported by segregated cash equal to the percent paid in prior disbursements, a proposition not provided under the Modified Plan. Without more, funding the Disputed Claims Reserve with Liquidating Trust Interests improperly provides no or at best, limited, protection to holders of disputed claims which are subsequently allowed, in violation of Section 1123 of the Bankruptcy Code. 21.",
"Finally, Section 11.4(c) of the Plan provides that “[i]f a Disputed Claim is disallowed, in whole or in part, the Liquidating Trustee shall cancel the reserve Liquidating Trust Interest, if applicable, and distribute the Cash held in the Disputed Claim Reserve with respect to such Claim to the holder of Allowed Claims.” While the School District suspects that it is not the 9 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 10 of 11 intent of the Debtors to eliminate the entire Disputed Claim Reserve for a Disputed Claim if only part of the claim is disallowed, for purposes of clarity the aforementioned sentence should be modified to provide that the reserve shall be cancelled only in proportion to the amount in which a Disputed Claim is disallowed. 10 18-23538-rdd Doc 5005 Filed 08/28/19 Entered 08/28/19 11:48:47 Main Document Pg 11 of 11 CONCLUSION WHEREFORE, Community United School District 300 asks that this Court deny confirmation of the Plan and grant such other and further relief as is just and proper.",
"Dated: New York, New York ARCHER & GREINER, P.C. August 28, 2019 By: /s/ Allen G. Kadish Allen G. Kadish Lance A. Schildkraut 630 Third Avenue New York, New York 10017 Tel: (212) 682-4940 Email: akadish@archerlaw.com lschildkraut@archerlaw.com and Kenneth M. Florey M. Neal Smith Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. 631 E. Boughton Road, Suite 200 Bolingbrook, Illinois 60440 Tel: (630) 929-3639 Email: kflorey@robbins-schwartz.com nsmith@robbins-schwartz.com and Matthew T. Gensburg Gensburg Calandriello & Kanter, P.C. 200 West Adams Street, Suite 2425 Chicago, Illinois 60606 Tel: (312) 263-2200 Email: mgensburg@gcklegal.com Attorneys for Community Unit School District 300 217013797v1 11"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/104529338/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2018.03.26 13:51:39 -05'00'
Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931
Appellate Court ESSAM A. AMMAR, Plaintiff-Appellant, v. SCHILLER, Caption DUCANTO & FLECK, LLP; CHARLES J. FLECK; RINELLA & RINELLA, LTD.; JOSEPH PHELPS; GRUND & LEAVITT, P.C.; DAVID I. GRUND; JACQUELINE I. AMMAR; LEVIN & BREND, P.C.; JEFFREY W. BREND; TD AMERITRADE, INC.; J. THOMAS BRADLEY, JR.; REED, CENTRACCHIO & ASSOCIATES, LLC; BRYAN V. REED; MANDAS LAW OFFICES, LLC; AND LEAH MANDAS; Defendants (Jacqueline I. Ammar; TD Ameritrade, Inc.; and J. Thomas Bradley, Jr., Defendants-Appellees).
District & No. First District, Fifth Division Docket No. 1-16-2931
Filed December 22, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-272; the Review Hon. Larry G. Axelrood, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Essam A. Ammar, of Chicago, appellant pro se. Appeal Michael G. DiDomenico and Sean M. Hamann, of Lake Toback DiDomenico, of Chicago, for appellee Jacqueline I. Ammar. Brian A. Sher and Lauren J. Caisman, of Bryan Cave LLP, of Chicago, for other appellees.
Panel JUSTICE HALL delivered the opinion of the court, with opinion. Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Essam A. Ammar, pro se, appeals from the dismissal with prejudice of his fourth amended complaint against defendants, Jacqueline I. Ammar (Jacqueline), TD Ameritrade, Inc., and J. Thomas Bradley, Jr., president of Ameritrade, Inc. (collectively Ameritrade).1 On appeal, the plaintiff contends that the dismissal with prejudice was error, raising 10 issues in support of his contention. For reasons set forth below, we dismiss the appeal.
¶2 BACKGROUND ¶3 On May 17, 2016, the plaintiff, pro se, filed a verified fourth amended seven-count complaint against Jacqueline, Ameritrade, and the law firms and attorneys that had represented the plaintiff or Jacqueline during the proceedings to dissolve their marriage. 2 The instant appeal concerns counts IV and V directed against Jacqueline and count VII directed against Ameritrade. ¶4 In count IV, the plaintiff alleged that Jacqueline committed a fraud on the court in the dissolution proceedings by making misrepresentations to induce the court to award her the plaintiff’s nonmarital property. In count V, the plaintiff alleged that Jacqueline breached the terms of the marital settlement agreement by obtaining an award of attorney fees against the plaintiff and that her seizure of funds from the plaintiff’s retirement accounts to satisfy her judgments against him violated section 12-1006 of the Code of Civil Procedure (Code) (735 ILCS 5/12-1006 (West 2012)). ¶5 In count VII, the plaintiff alleged multiple claims against Ameritrade including fraudulent entrustment and concealment of material facts, violations of trust and confidence, breach of the agreement between the plaintiff and Ameritrade, and the seizing of exempt funds. The plaintiff alleged that Ameritrade violated its duty to protect the plaintiff’s retirement accounts when it concealed from the plaintiff the existence of an injunction placed on his retirement accounts,
1 Jacqueline and Ameritrade are the only party-defendants in this appeal. 2 The circuit court dismissed the claims raised in the third amended complaint against the law firm of Schiller, DuCanto & Fleck, LLP, and Charles J. Fleck, and the law firm of Levin & Brend, P.C., and Jeffrey W. Brend, with prejudice. This court affirmed the dismissal. See Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 161456-U.
-2- misled the plaintiff in his effort to lift the injunction, and transferred the funds in the plaintiff’s retirement accounts to satisfy judgments owed to Jacqueline. ¶6 Jacqueline and Ameritrade each filed a combined motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)). Jacqueline maintained that counts IV and V of the fourth amended complaint did not state causes of action. See 735 ILCS 5/2-615 (West 2014). She further maintained that counts IV and V should be dismissed on res judicata grounds. See 735 ILCS 5/2-619(a)(4) (West 2014). Ameritrade maintained that count VII failed to state a cause of action for any of the claims the plaintiff asserted against it (735 ILCS 5/2-615 (West 2014)) and its actions were taken pursuant to court orders. See 735 ILCS 5/2-619(a)(9) (West 2014) (claim barred by other affirmative matter avoiding the legal effect or defeating the claim). ¶7 On October 13, 2016, the circuit court dismissed counts IV, V, and VII of the verified fourth amended complaint with prejudice for failure to state causes of action. The court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no reason to delay enforcement or appeal of the dismissal with prejudice order. ¶8 The plaintiff appeals from the October 13, 2016, order of the circuit court.
¶9 ANALYSIS ¶ 10 Jacqueline and Ameritrade maintain that the plaintiff’s appeal should be dismissed because his opening brief violates Illinois Supreme Court Rules 341 (eff. July 1, 2017) and 342 (eff. July 1, 2017). We agree. ¶ 11 The purpose of the appellate rules of procedure is to require the parties before the reviewing court to present clear and orderly arguments so that the court can properly ascertain and dispose of the issues presented. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7. The procedural rules governing the content and format of appellate briefs are mandatory. Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8. Only where the violations preclude or interfere with our review is dismissal of the appeal appropriate. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005). Nonetheless, we have the discretion to strike a brief and dismiss an appeal for failure to comply with the applicable rules of appellate procedure. McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. With these principles in mind, we turn to the plaintiff’s opening brief. ¶ 12 Pursuant to Rule 341(h)(6), the appellant is to provide the reviewing court with the facts necessary for an understanding of the case. The facts must be stated accurately and fairly and devoid of argument or comment. The appellant must provide a citation to the page in the record on appeal where that fact is set forth. In many instances, the plaintiff failed to supply any citation to the record in support of the facts he set forth in the statement of facts. Throughout his opening brief, the plaintiff cites to the 21 volumes of record from his prior two appeals that are not part of the record on this appeal. Overall, the statement of facts is no more than a restatement of the allegations of the plaintiff’s verified fourth amended complaint, which he incorporates by reference. ¶ 13 Pursuant to Rule 341(h)(7), the appellant’s opening brief must set forth his contentions, which he is required to support with argument, citations to the record on appeal, and citations to authority. Several of the 10 issues the plaintiff raised on appeal are not supported by citations to authority or cite only to general propositions of law. See Roe v. Jewish Children’s
-3- Bureau of Chicago, 339 Ill. App. 3d 119, 127 (2003) (argument forfeited on appeal where the party cited only general authority and provided no authority addressing the specific issue raised). The plaintiff failed in many instances to provide argument based on the authority he cited. Many of the record citations are to volumes of record that are not part of the record on appeal. ¶ 14 Pursuant to Rule 341(h)(9), the plaintiff’s opening brief must contain an appendix as required by Rule 342 (Ill. S. Ct. R. 342(a) (eff. July 1, 2017)). The appendix to the plaintiff’s opening brief does not comply with Rule 342(a) in that it does not contain the notice of appeal or a table of contents to the appendix. The lengthy table of contents sets forth the 21 volumes of record that are not part of the record on appeal. The two volumes of record that the plaintiff did file are designated as part of volumes 20 and 21, volumes in an earlier appeal. In short, the appendix in this appeal is confusing and provides little or no assistance to this court in attempting to substantiate the plaintiff’s claims. ¶ 15 The dismissal of an appeal is such a severe sanction that we hesitate to impose it. In this case, the plaintiff’s multiple violations of the rules preclude our ability to review the issues he raises on appeal. Moreover, this is the third appeal brought by the plaintiff, and he continues to violate the same rules of appellate procedure. See Ammar, 2017 IL App (1st) 161456-U, ¶ 34 (failed to cite authority in support of his contention of error in violation of Rule 341(h)(7)); In re Marriage of Ammar, 2015 IL App (1st) 133722-U, ¶ 14 (statement of facts failed to contain citations for all facts stated and contained improper argument and comments in violation of Rule 341(h)(6) and failed to comply with Rules 341(h)(9) and 342(a) by failing to provide an index to the 17 volumes of record on appeal and by numbering only a portion of the pages in the record). ¶ 16 The plaintiff’s pro se status does not allow him to claim ignorance of our supreme court rules or excuse his noncompliance. Where a party has chosen to represent himself, he is held to the same standard as a licensed attorney and must comply with the same rules. Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 78. This court called this standard to the plaintiff’s attention in his second appeal. Ammar, 2017 IL App (1st) 161456-U, ¶ 34. In his third appeal, the plaintiff ignored our warning, not only violating the same rules but relying on his layman status to avoid the consequences of his violations of appellate procedural rules. ¶ 17 Both Jacqueline and Ameritrade raised the plaintiff’s violations of the appellate procedural rules in their appellees’ briefs, but the plaintiff took no steps to rectify the violations. Instead, in his reply brief, the plaintiff maintained his compliance, ignoring the obvious and glaring violations of the rules. Cf. Voris, 2011 IL App (1st) 103814, ¶ 9 (where the appellee provided enough materials and the appellant made an attempt to correct some of the deficiencies in his reply brief, the reviewing court addressed the merits of appellant’s three issues). ¶ 18 In the plaintiff’s two prior appeals, this court considered the merits of the issues raised despite the violations. In view of the plaintiff’s continued violations of our appellate procedural rules, we exercise our discretion and dismiss the plaintiff’s appeal. We decline to award any sanctions pursuant to Rule 375(b) (Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994)) as requested by Jacqueline.
-4- ¶ 19 CONCLUSION
¶ 20 Appeal dismissed.
-5- | 03-28-2018 | [
"Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2018.03.26 13:51:39 -05'00' Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931 Appellate Court ESSAM A. AMMAR, Plaintiff-Appellant, v. SCHILLER, Caption DUCANTO & FLECK, LLP; CHARLES J. FLECK; RINELLA & RINELLA, LTD.; JOSEPH PHELPS; GRUND & LEAVITT, P.C. ; DAVID I. GRUND; JACQUELINE I. AMMAR; LEVIN & BREND, P.C. ; JEFFREY W. BREND; TD AMERITRADE, INC.; J. THOMAS BRADLEY, JR.; REED, CENTRACCHIO & ASSOCIATES, LLC; BRYAN V. REED; MANDAS LAW OFFICES, LLC; AND LEAH MANDAS; Defendants (Jacqueline I. Ammar; TD Ameritrade, Inc.; and J. Thomas Bradley, Jr., Defendants-Appellees).",
"District & No. First District, Fifth Division Docket No. 1-16-2931 Filed December 22, 2017 Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-272; the Review Hon. Larry G. Axelrood, Judge, presiding. Judgment Appeal dismissed. Counsel on Essam A. Ammar, of Chicago, appellant pro se. Appeal Michael G. DiDomenico and Sean M. Hamann, of Lake Toback DiDomenico, of Chicago, for appellee Jacqueline I. Ammar. Brian A. Sher and Lauren J. Caisman, of Bryan Cave LLP, of Chicago, for other appellees. Panel JUSTICE HALL delivered the opinion of the court, with opinion. Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion. OPINION ¶1 The plaintiff, Essam A. Ammar, pro se, appeals from the dismissal with prejudice of his fourth amended complaint against defendants, Jacqueline I. Ammar (Jacqueline), TD Ameritrade, Inc., and J. Thomas Bradley, Jr., president of Ameritrade, Inc. (collectively Ameritrade).1 On appeal, the plaintiff contends that the dismissal with prejudice was error, raising 10 issues in support of his contention. For reasons set forth below, we dismiss the appeal. ¶2 BACKGROUND ¶3 On May 17, 2016, the plaintiff, pro se, filed a verified fourth amended seven-count complaint against Jacqueline, Ameritrade, and the law firms and attorneys that had represented the plaintiff or Jacqueline during the proceedings to dissolve their marriage. 2 The instant appeal concerns counts IV and V directed against Jacqueline and count VII directed against Ameritrade.",
"¶4 In count IV, the plaintiff alleged that Jacqueline committed a fraud on the court in the dissolution proceedings by making misrepresentations to induce the court to award her the plaintiff’s nonmarital property. In count V, the plaintiff alleged that Jacqueline breached the terms of the marital settlement agreement by obtaining an award of attorney fees against the plaintiff and that her seizure of funds from the plaintiff’s retirement accounts to satisfy her judgments against him violated section 12-1006 of the Code of Civil Procedure (Code) (735 ILCS 5/12-1006 (West 2012)). ¶5 In count VII, the plaintiff alleged multiple claims against Ameritrade including fraudulent entrustment and concealment of material facts, violations of trust and confidence, breach of the agreement between the plaintiff and Ameritrade, and the seizing of exempt funds.",
"The plaintiff alleged that Ameritrade violated its duty to protect the plaintiff’s retirement accounts when it concealed from the plaintiff the existence of an injunction placed on his retirement accounts, 1 Jacqueline and Ameritrade are the only party-defendants in this appeal. 2 The circuit court dismissed the claims raised in the third amended complaint against the law firm of Schiller, DuCanto & Fleck, LLP, and Charles J. Fleck, and the law firm of Levin & Brend, P.C., and Jeffrey W. Brend, with prejudice. This court affirmed the dismissal. See Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 161456-U. -2- misled the plaintiff in his effort to lift the injunction, and transferred the funds in the plaintiff’s retirement accounts to satisfy judgments owed to Jacqueline. ¶6 Jacqueline and Ameritrade each filed a combined motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)).",
"Jacqueline maintained that counts IV and V of the fourth amended complaint did not state causes of action. See 735 ILCS 5/2-615 (West 2014). She further maintained that counts IV and V should be dismissed on res judicata grounds. See 735 ILCS 5/2-619(a)(4) (West 2014). Ameritrade maintained that count VII failed to state a cause of action for any of the claims the plaintiff asserted against it (735 ILCS 5/2-615 (West 2014)) and its actions were taken pursuant to court orders. See 735 ILCS 5/2-619(a)(9) (West 2014) (claim barred by other affirmative matter avoiding the legal effect or defeating the claim).",
"¶7 On October 13, 2016, the circuit court dismissed counts IV, V, and VII of the verified fourth amended complaint with prejudice for failure to state causes of action. The court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no reason to delay enforcement or appeal of the dismissal with prejudice order. ¶8 The plaintiff appeals from the October 13, 2016, order of the circuit court.",
"¶9 ANALYSIS ¶ 10 Jacqueline and Ameritrade maintain that the plaintiff’s appeal should be dismissed because his opening brief violates Illinois Supreme Court Rules 341 (eff. July 1, 2017) and 342 (eff. July 1, 2017). We agree. ¶ 11 The purpose of the appellate rules of procedure is to require the parties before the reviewing court to present clear and orderly arguments so that the court can properly ascertain and dispose of the issues presented. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7. The procedural rules governing the content and format of appellate briefs are mandatory. Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8. Only where the violations preclude or interfere with our review is dismissal of the appeal appropriate. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005). Nonetheless, we have the discretion to strike a brief and dismiss an appeal for failure to comply with the applicable rules of appellate procedure.",
"McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. With these principles in mind, we turn to the plaintiff’s opening brief. ¶ 12 Pursuant to Rule 341(h)(6), the appellant is to provide the reviewing court with the facts necessary for an understanding of the case. The facts must be stated accurately and fairly and devoid of argument or comment. The appellant must provide a citation to the page in the record on appeal where that fact is set forth. In many instances, the plaintiff failed to supply any citation to the record in support of the facts he set forth in the statement of facts. Throughout his opening brief, the plaintiff cites to the 21 volumes of record from his prior two appeals that are not part of the record on this appeal. Overall, the statement of facts is no more than a restatement of the allegations of the plaintiff’s verified fourth amended complaint, which he incorporates by reference. ¶ 13 Pursuant to Rule 341(h)(7), the appellant’s opening brief must set forth his contentions, which he is required to support with argument, citations to the record on appeal, and citations to authority.",
"Several of the 10 issues the plaintiff raised on appeal are not supported by citations to authority or cite only to general propositions of law. See Roe v. Jewish Children’s -3- Bureau of Chicago, 339 Ill. App. 3d 119, 127 (2003) (argument forfeited on appeal where the party cited only general authority and provided no authority addressing the specific issue raised). The plaintiff failed in many instances to provide argument based on the authority he cited. Many of the record citations are to volumes of record that are not part of the record on appeal. ¶ 14 Pursuant to Rule 341(h)(9), the plaintiff’s opening brief must contain an appendix as required by Rule 342 (Ill. S. Ct. R. 342(a) (eff. July 1, 2017)). The appendix to the plaintiff’s opening brief does not comply with Rule 342(a) in that it does not contain the notice of appeal or a table of contents to the appendix.",
"The lengthy table of contents sets forth the 21 volumes of record that are not part of the record on appeal. The two volumes of record that the plaintiff did file are designated as part of volumes 20 and 21, volumes in an earlier appeal. In short, the appendix in this appeal is confusing and provides little or no assistance to this court in attempting to substantiate the plaintiff’s claims. ¶ 15 The dismissal of an appeal is such a severe sanction that we hesitate to impose it. In this case, the plaintiff’s multiple violations of the rules preclude our ability to review the issues he raises on appeal. Moreover, this is the third appeal brought by the plaintiff, and he continues to violate the same rules of appellate procedure.",
"See Ammar, 2017 IL App (1st) 161456-U, ¶ 34 (failed to cite authority in support of his contention of error in violation of Rule 341(h)(7)); In re Marriage of Ammar, 2015 IL App (1st) 133722-U, ¶ 14 (statement of facts failed to contain citations for all facts stated and contained improper argument and comments in violation of Rule 341(h)(6) and failed to comply with Rules 341(h)(9) and 342(a) by failing to provide an index to the 17 volumes of record on appeal and by numbering only a portion of the pages in the record). ¶ 16 The plaintiff’s pro se status does not allow him to claim ignorance of our supreme court rules or excuse his noncompliance. Where a party has chosen to represent himself, he is held to the same standard as a licensed attorney and must comply with the same rules. Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 78.",
"This court called this standard to the plaintiff’s attention in his second appeal. Ammar, 2017 IL App (1st) 161456-U, ¶ 34. In his third appeal, the plaintiff ignored our warning, not only violating the same rules but relying on his layman status to avoid the consequences of his violations of appellate procedural rules. ¶ 17 Both Jacqueline and Ameritrade raised the plaintiff’s violations of the appellate procedural rules in their appellees’ briefs, but the plaintiff took no steps to rectify the violations. Instead, in his reply brief, the plaintiff maintained his compliance, ignoring the obvious and glaring violations of the rules. Cf.",
"Voris, 2011 IL App (1st) 103814, ¶ 9 (where the appellee provided enough materials and the appellant made an attempt to correct some of the deficiencies in his reply brief, the reviewing court addressed the merits of appellant’s three issues). ¶ 18 In the plaintiff’s two prior appeals, this court considered the merits of the issues raised despite the violations. In view of the plaintiff’s continued violations of our appellate procedural rules, we exercise our discretion and dismiss the plaintiff’s appeal. We decline to award any sanctions pursuant to Rule 375(b) (Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994)) as requested by Jacqueline. -4- ¶ 19 CONCLUSION ¶ 20 Appeal dismissed. -5-"
]
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Citation Nr: 1143531
Decision Date: 11/29/11 Archive Date: 12/06/11
DOCKET NO. 08-05 228 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Whether new and material evidence has been received to reopen a claim of whether the appellant's character of discharge is a bar to receipt of Department of Veterans Affairs benefits.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Wishard, Associate Counsel
INTRODUCTION
The Veteran had military service from October 1967 to September 1969.
This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 determination letter of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
When the Veteran filed a VA Form 9 in January 2008, he stated that he wanted a Board hearing in Washington DC. Prior to the scheduling of such a hearing, the Veteran, in correspondence dated in June 2011, stated that wished to have a videoconference Board hearing at the RO in Detroit. Thus, the Veteran should be scheduled for a videoconference hearing.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a videoconference hearing at the Detroit, Michigan RO before a Veterans Law Judge of the Board, unless otherwise notified by the appellant or his representative.
2. After the hearing is conducted, or if the appellant withdraws his hearing request, or fails to report for the hearing, then in accordance with appellate procedures the claims file should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
_________________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010). | 11-29-2011 | [
"Citation Nr: 1143531 Decision Date: 11/29/11 Archive Date: 12/06/11 DOCKET NO. 08-05 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of whether the appellant's character of discharge is a bar to receipt of Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had military service from October 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 determination letter of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND When the Veteran filed a VA Form 9 in January 2008, he stated that he wanted a Board hearing in Washington DC.",
"Prior to the scheduling of such a hearing, the Veteran, in correspondence dated in June 2011, stated that wished to have a videoconference Board hearing at the RO in Detroit. Thus, the Veteran should be scheduled for a videoconference hearing. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a videoconference hearing at the Detroit, Michigan RO before a Veterans Law Judge of the Board, unless otherwise notified by the appellant or his representative. 2. After the hearing is conducted, or if the appellant withdraws his hearing request, or fails to report for the hearing, then in accordance with appellate procedures the claims file should be returned to the Board for appellate review.",
"The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.",
"This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) ENCOMPASS ENERGY SERVICES, INC. (Name of Issuer) Common Stock, Par Value $0.01 Per Share (Title of Class of Securities) 64881L103 (CUSIP Number) Kristian B. Kos P.O. Box 1097 Oklahoma City, OK 73101 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 17, 2013 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13D-1(e), 240.13D-1(f) or 240.13D-1(g), check the following box.o CUSIP No. 64881L103 1. Names of Reporting Persons: Kristian B. Kos 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) 3. SEC Use Only 4. Source of Funds WC 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) o 6. Citizenship or Place of Organization:Ireland Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 8. Shared Voting Power 0 9. Sole Dispositive Power Shared Dispositive Power 0 Aggregate Amount Beneficially Owned by Each Reporting Person: 1,311,316 Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions)o Percent of Class Represented by Amount in Row 11: 63.7% Type of Reporting Person (See Instructions):IN Schedule 13D Page 2 of 6 Pages CUSIP No. 64881L103 1. Names of Reporting Persons: Deylau, LLC I.R.S. Identification Nos. of Above Persons (entities only):27-2712521 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) 3. SEC Use Only 4. Source of Funds WC 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) o 6. Citizenship or Place of Organization: Ireland Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 8. Shared Voting Power 0 9. Sole Dispositive Power 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,311,316 12. Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions) o 13. Percent of Class Represented by Amount in Row 11: 63.7% 14. Type of Reporting Person (See Instructions): OO Schedule 13D Page3 of 6 Pages This Amendment No. 1 (this “First Amendment”) to Schedule 13D is filed by Kristian B. Kos and Deylau, LLC (the “Reporting Persons”) with respect to the Reporting Persons’ beneficial ownership of shares of common stock, par value $0.01 per share (the “Common Stock”), of Encompass Energy Services, Inc., a Delaware corporation (the “Issuer”), formerly known as Ametrine Capital, Inc.This First Amendment amends the initial statement on Schedule 13D filed by the Reporting Person on December 3, 2010 (the “Prior 13D”).Unless otherwise indicated, all capitalized terms used but not defined herein shall have the same meaning ascribed to them in the Prior 13D.Except as indicated herein, the information set forth in the Prior 13D remains unchanged. Item 1. Security and Issuer. This statement relates to the common stock, $0.01 par value, of Encompass Energy Services, Inc., formerly known as Ametrine Capital Inc.The Issuer’s principal executive office is currently located at 914 N. Broadway Ave., Suite 220, P.O. Box 1218, Oklahoma City, OK 73101. Item 2. Identity and Background. The information set forth in the Prior 13D with respect to this Item has not changed as of the date of this First Amendment, except as follows: (c)Mr. Kos’ principal occupation is as a director and chief executive officer of New Source Energy Corporation, a privately held oil and gas exploration and production company. Item 3. Source and Amount of Funds or Other Consideration. The information set forth in the Prior 13D with respect to this Item has not changed as of the date of this First Amendment. Item 4. Purpose of Transaction. The information set forth in the Prior 13D with respect to this Item is hereby amended and restated as follows.As of the date of this First Amendment, the Reporting Persons have no plans or proposals which relate to or would result in any of the following actions, other than any such plans or proposals that may be considered from time to time by Mr. Kos in his capacity as a member of the Issuer’s board of directors: (a)The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b)An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c)a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; Schedule 13D Page4 of 6 Pages (d)any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e)any material change in the present capitalization or dividend policy of the Issuer; (f)any other material change in the Issuer’s business or corporate structure; (g)changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h)causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i)a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j)any action similar to any of those enumerated above. Item 5. Interest in Securities of the Issuer. (a)As of the date of this First Amendment, the Reporting Persons are the beneficial owners of 1,311,316 shares of Common Stock, which constitutes 63.7% of the Issuer’s outstanding shares of Common Stock.The beneficial ownership percentage of the Reporting Persons is calculated based on 2,056,985 shares of Common Stock outstanding as of September 30, 2012, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 13, 2012.Deylau, LLC holds all such shares of Common Stock directly.Mr. Kos beneficially owns all such shares of Common Stock through his status as a control person of Deylau, LLC. (b)The Reporting Persons have sole voting and dispositive power with respect to all of the 1,311,316 shares of Common Stock beneficially owned by them. (c)In a private sale transaction on January 17, 2013, Deylau, LLC sold a total of 416,667 shares of Common Stock at a price of $0.60 per share, for a total purchase price of $250,000.20, to Antranik Armoudian, the Issuer’s chief executive officer, president, chief financial officer, secretary and treasurer and a member of the Issuer’s board of directors. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The information set forth in the Prior 13D with respect to this Item has not changed as of the date of this First Amendment. Item 7. Material to Be Filed as Exhibits. None. Schedule 13D Page5 of 6 Pages Signature. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date:January 25, 2013 /s/ Kristian B. Kos Kristian B. Kos Date:January 25, 2013 DEYLAU, LLC /s/ Kristian B. Kos Kristian Kos, Manager Schedule 13D Page6 of 6 Pages | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) ENCOMPASS ENERGY SERVICES, INC. (Name of Issuer) Common Stock, Par Value $0.01 Per Share (Title of Class of Securities) 64881L103 (CUSIP Number) Kristian B. Kos P.O. Box 1097 Oklahoma City, OK 73101 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 17, 2013 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13D-1(e), 240.13D-1(f) or 240.13D-1(g), check the following box.o CUSIP No.",
"64881L103 1. Names of Reporting Persons: Kristian B. Kos 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) 3. SEC Use Only 4. Source of Funds WC 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) o 6. Citizenship or Place of Organization:Ireland Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 8. Shared Voting Power 0 9. Sole Dispositive Power Shared Dispositive Power 0 Aggregate Amount Beneficially Owned by Each Reporting Person: 1,311,316 Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions)o Percent of Class Represented by Amount in Row 11: 63.7% Type of Reporting Person (See Instructions):IN Schedule 13D Page 2 of 6 Pages CUSIP No. 64881L103 1.",
"Names of Reporting Persons: Deylau, LLC I.R.S. Identification Nos. of Above Persons (entities only):27-2712521 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) 3. SEC Use Only 4. Source of Funds WC 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) o 6. Citizenship or Place of Organization: Ireland Number of Shares Beneficially Owned by Each Reporting Person With 7. Sole Voting Power 8. Shared Voting Power 0 9. Sole Dispositive Power 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,311,316 12. Check if the Aggregate Amount in Row 11 Excludes Certain Shares (See Instructions) o 13.",
"Percent of Class Represented by Amount in Row 11: 63.7% 14. Type of Reporting Person (See Instructions): OO Schedule 13D Page3 of 6 Pages This Amendment No. 1 (this “First Amendment”) to Schedule 13D is filed by Kristian B. Kos and Deylau, LLC (the “Reporting Persons”) with respect to the Reporting Persons’ beneficial ownership of shares of common stock, par value $0.01 per share (the “Common Stock”), of Encompass Energy Services, Inc., a Delaware corporation (the “Issuer”), formerly known as Ametrine Capital, Inc.This First Amendment amends the initial statement on Schedule 13D filed by the Reporting Person on December 3, 2010 (the “Prior 13D”).Unless otherwise indicated, all capitalized terms used but not defined herein shall have the same meaning ascribed to them in the Prior 13D.Except as indicated herein, the information set forth in the Prior 13D remains unchanged.",
"Item 1. Security and Issuer. This statement relates to the common stock, $0.01 par value, of Encompass Energy Services, Inc., formerly known as Ametrine Capital Inc.The Issuer’s principal executive office is currently located at 914 N. Broadway Ave., Suite 220, P.O. Box 1218, Oklahoma City, OK 73101. Item 2. Identity and Background. The information set forth in the Prior 13D with respect to this Item has not changed as of the date of this First Amendment, except as follows: (c)Mr. Kos’ principal occupation is as a director and chief executive officer of New Source Energy Corporation, a privately held oil and gas exploration and production company. Item 3. Source and Amount of Funds or Other Consideration. The information set forth in the Prior 13D with respect to this Item has not changed as of the date of this First Amendment. Item 4. Purpose of Transaction.",
"The information set forth in the Prior 13D with respect to this Item is hereby amended and restated as follows.As of the date of this First Amendment, the Reporting Persons have no plans or proposals which relate to or would result in any of the following actions, other than any such plans or proposals that may be considered from time to time by Mr. Kos in his capacity as a member of the Issuer’s board of directors: (a)The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b)An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c)a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; Schedule 13D Page4 of 6 Pages (d)any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e)any material change in the present capitalization or dividend policy of the Issuer; (f)any other material change in the Issuer’s business or corporate structure; (g)changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h)causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i)a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j)any action similar to any of those enumerated above. Item 5.",
"Interest in Securities of the Issuer. (a)As of the date of this First Amendment, the Reporting Persons are the beneficial owners of 1,311,316 shares of Common Stock, which constitutes 63.7% of the Issuer’s outstanding shares of Common Stock.The beneficial ownership percentage of the Reporting Persons is calculated based on 2,056,985 shares of Common Stock outstanding as of September 30, 2012, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 13, 2012.Deylau, LLC holds all such shares of Common Stock directly.Mr. Kos beneficially owns all such shares of Common Stock through his status as a control person of Deylau, LLC. (b)The Reporting Persons have sole voting and dispositive power with respect to all of the 1,311,316 shares of Common Stock beneficially owned by them.",
"(c)In a private sale transaction on January 17, 2013, Deylau, LLC sold a total of 416,667 shares of Common Stock at a price of $0.60 per share, for a total purchase price of $250,000.20, to Antranik Armoudian, the Issuer’s chief executive officer, president, chief financial officer, secretary and treasurer and a member of the Issuer’s board of directors. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The information set forth in the Prior 13D with respect to this Item has not changed as of the date of this First Amendment. Item 7. Material to Be Filed as Exhibits. None. Schedule 13D Page5 of 6 Pages Signature.",
"After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date:January 25, 2013 /s/ Kristian B. Kos Kristian B. Kos Date:January 25, 2013 DEYLAU, LLC /s/ Kristian B. Kos Kristian Kos, Manager Schedule 13D Page6 of 6 Pages"
]
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HOFFMAN, Judge. Appellant-petitioner James H. Higgason appeals the denial of his petition for post-conviction relief. Higgason presents one issue for review: whether the post-conviction court erred in denying Higgason's petition based upon the doctrine of laches. The evidence relevant to the appeal discloses that in November 1972, Higgason pleaded guilty to a felony charge of theft in an incident regarding a snowmobile and trailer. Also, in November 1972, Higgason was sentenced to an indeterminate term of imprisonment of not less than one year nor more than five years. The prison term was suspended, and Higgason was placed on probation for three years. The probationary period was to begin after Higgason finished serving a one-year sentence in another case. In October 1975, Higgason's probation was revoked because he was convicted of second-degree murder in another case. Higgason first learned of the right to file post-conviction petitions in 1979 or 1980 when he hired an attorney to file a post-conviction petition in another case. Higga-son filed a post-conviction petition in yet another case in 1984. Higgason admitted that he had access to the law library at the Indiana State Prison when he arrived there in 1985. Other inmates assisted Higgason with post-conviction petitions. In 1986, Higgason petitioned the court for transcripts in order to file a petition in the present cause. Higgason was motivated to file post-conviction proceedings in the present case when this conviction was placed at issue by an habitual offender allegation filed in a 1985 case. Higgason then waited until 1988 to file the petition in the present case. At the post-conviction hearing, a former police officer testified that he had a vague recollection of a case involving a snowmobile, and he remembered that the incident happened at night. He could not remember anything else. The former officer did not recall Higgason and could not identify him at the hearing. Also, the former officer could not remember who his partner was but thought it was an officer who died in 1978. Based upon the evidence adduced at the hearing, the post-conviction court denied Higgason's petition for relief on March 25, 1993. This appeal ensued. Although post-conviction relief is available at any time, the right to such relief may be waived directly or through implication. Laches may act as a legitimate waiver of the right to challenge a judgment. Perry v. State (1987), Ind., 512 N.E.2d 841, 843. The State must prove by a preponderance of the evidence that the petitioner unreasonably delayed in seeking relief and that the State has been prejudiced by the *541delay in order for laches to bar relief. Id. Implicit is the requirement that the petitioner had knowledge of existing conditions and acquiesced in them. Id. Many factors can demonstrate petitioner's knowledge of post-conviction proceedings such as, "repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities." Id. at 845. Further, the mere passage of time is not sufficient to constitute laches but may be a factor to consider. Stewart v. State (1990), Ind.App., 548 N.E.2d 1171, 1175. Prejudice as to the State's ability to retry a petitioner does not require a showing of the impossibility to present any case at all. Id. at 1176. If a reasonable likelihood exists that a successful prosecution is materially diminished by the passage of time attributable to the petitioner's neglect, such may be deemed a sufficient demonstration of prejudice. Id. Here, the evidence demonstrates that Hig-gason had frequent contact with the criminal justice system; he consulted with attorneys regarding post-conviction proceedings as early as 1979 or 1980; and he had access to legal facilities while incarcerated. Also, the former police officer who arrested Higgason, as he was driving a car pulling the trailer upon which the snowmobile was secured, could not remember or identify Higgason. The other officer who may have assisted in the investigation was deceased. In short, because of Higgason's lengthy delay in instituting post-conviction proceedings after he was aware of such relief, the reasonable possibility of a successful prosecution of the cause was greatly reduced, notwithstanding the possibility raised by Higga-son that some other witness may have seen him in possession of the snowmobile. The State adequately met its burden of demonstrating an unreasonable delay and resulting prejudice. Accordingly, the post-con-viection court properly determined that the petition should be denied based upon laches. Affirmed. FRIEDLANDER and NAJAM, JJ., concur. | 07-24-2022 | [
"HOFFMAN, Judge. Appellant-petitioner James H. Higgason appeals the denial of his petition for post-conviction relief. Higgason presents one issue for review: whether the post-conviction court erred in denying Higgason's petition based upon the doctrine of laches. The evidence relevant to the appeal discloses that in November 1972, Higgason pleaded guilty to a felony charge of theft in an incident regarding a snowmobile and trailer. Also, in November 1972, Higgason was sentenced to an indeterminate term of imprisonment of not less than one year nor more than five years. The prison term was suspended, and Higgason was placed on probation for three years. The probationary period was to begin after Higgason finished serving a one-year sentence in another case. In October 1975, Higgason's probation was revoked because he was convicted of second-degree murder in another case. Higgason first learned of the right to file post-conviction petitions in 1979 or 1980 when he hired an attorney to file a post-conviction petition in another case. Higga-son filed a post-conviction petition in yet another case in 1984. Higgason admitted that he had access to the law library at the Indiana State Prison when he arrived there in 1985. Other inmates assisted Higgason with post-conviction petitions.",
"In 1986, Higgason petitioned the court for transcripts in order to file a petition in the present cause. Higgason was motivated to file post-conviction proceedings in the present case when this conviction was placed at issue by an habitual offender allegation filed in a 1985 case. Higgason then waited until 1988 to file the petition in the present case. At the post-conviction hearing, a former police officer testified that he had a vague recollection of a case involving a snowmobile, and he remembered that the incident happened at night.",
"He could not remember anything else. The former officer did not recall Higgason and could not identify him at the hearing. Also, the former officer could not remember who his partner was but thought it was an officer who died in 1978. Based upon the evidence adduced at the hearing, the post-conviction court denied Higgason's petition for relief on March 25, 1993. This appeal ensued. Although post-conviction relief is available at any time, the right to such relief may be waived directly or through implication. Laches may act as a legitimate waiver of the right to challenge a judgment. Perry v. State (1987), Ind., 512 N.E.2d 841, 843. The State must prove by a preponderance of the evidence that the petitioner unreasonably delayed in seeking relief and that the State has been prejudiced by the *541delay in order for laches to bar relief. Id.",
"Implicit is the requirement that the petitioner had knowledge of existing conditions and acquiesced in them. Id. Many factors can demonstrate petitioner's knowledge of post-conviction proceedings such as, \"repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities.\" Id. at 845. Further, the mere passage of time is not sufficient to constitute laches but may be a factor to consider. Stewart v. State (1990), Ind.App., 548 N.E.2d 1171, 1175. Prejudice as to the State's ability to retry a petitioner does not require a showing of the impossibility to present any case at all. Id. at 1176. If a reasonable likelihood exists that a successful prosecution is materially diminished by the passage of time attributable to the petitioner's neglect, such may be deemed a sufficient demonstration of prejudice. Id. Here, the evidence demonstrates that Hig-gason had frequent contact with the criminal justice system; he consulted with attorneys regarding post-conviction proceedings as early as 1979 or 1980; and he had access to legal facilities while incarcerated.",
"Also, the former police officer who arrested Higgason, as he was driving a car pulling the trailer upon which the snowmobile was secured, could not remember or identify Higgason. The other officer who may have assisted in the investigation was deceased. In short, because of Higgason's lengthy delay in instituting post-conviction proceedings after he was aware of such relief, the reasonable possibility of a successful prosecution of the cause was greatly reduced, notwithstanding the possibility raised by Higga-son that some other witness may have seen him in possession of the snowmobile. The State adequately met its burden of demonstrating an unreasonable delay and resulting prejudice. Accordingly, the post-con-viection court properly determined that the petition should be denied based upon laches. Affirmed.",
"FRIEDLANDER and NAJAM, JJ., concur."
]
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JjPHILIP C. CIACCIO, J. Pro Tem. Plaintiff, Susan Saia Romig, appeals the trial court’s judgment, in favor of the plaintiffs former husband, Thomas C. Romig. We affirm. This appeal arises out the plaintiffs Rule for Increase in Child Support and For Reimbursement of Separate Funds Used to Pay a Community Debt. The defendant excepted to the reimbursement claim as prescribed. On February 28, 2000, the hearing officer rendered an interim order that inter alia, increased the defendant’s monthly child support obligation for the two minor children from $600.00 to $1218.00, and set the matter for an evidentiary hearing before the domestic commissioner. After a hearing, the domestic commissioner raised the defendant’s child support obligation to $1250.00 per month, ordered him to provide health insurance on the children, and to pay 77% of the uncovered extraordinary medical expenses. The commissioner rejected the plaintiffs demand to include the children’s private *658school tuition as part of the defendant’s child support obligation. The commissioner signed this judgment on May 15, 2000, and the trial judge signed it on May 17, 2000. The plaintiff objected to the commissioner’s judgment and sought a hearing before the district court judge. | ¡.On May 25, 2000, the judge heard argument from counsel on the issue of the tuition, and also on the issue of the reimbursement claim, as well as each party’s mutual exception of prescription. On July 11, 2000, the district judge rendered a judgment that granted the exceptions of prescription and that adopted the commissioner’s ruling regarding the tuition. Plaintiff took her appeal on August 2, 2000. ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In the plaintiffs first two assignments of error, she complains that the domestic commissioner and the trial judge erred by not including private school tuition as part of the defendant’s child support obligation. The defendant filed an answer in this Court, asserting that the appeal of the tuition issue is untimely because the plaintiff did not appeal the May 17, 2000 judgment within the delays provided by LSA-C.C.P. arts. 3942 and 3943. Defendant points out that since the parties consented to have the domestic commissioner adjudicate the child support issue as provided by LSA-R.S. 13:717(G), the plaintiff should have appealed this judgment, rather than seeking a hearing before the district judge. We agree. The hearing before the domestic commissioner was only on the contested issue of child support, and specifically the plaintiffs request that private school tuition be included in the child support. This hearing was pursuant to LSA-R.S. 13:717, which permits the Criminal and Domestic Commissioners for the Twenty-Fourth Judicial District Court to hear certain matters upon the consent of the parties. Subsection G of the statute provides as follows: G. Except as provided in this Subsection, the domestic commissioners shall not have the power to adjudicate cases in a contested matter of divorce, custody, permanent spousal support, paternity, or partition of community property, unless the parties consent in writing to the jurisdiction of the commissioner. Each time an action is filed with the clerk of court for the Twenty Fourth Judicial District Court, the clerk shall notify the parties to that action of their right to consent to jurisdiction by the commissioners. In each case in which all the parties provide a written waiver of their right to have their case heard by a district court judge, and provide written consent to the matter being heard and adjudicated by a commissioner, the commissioners may conduct any |sand all proceedings on any matter pending before the court and may order the entry of judgment in the case. Each judgment so recommended by a commissioner shall be signed by a judge of the Twenty-Fourth Judicial District Court. Any party who is aggrieved by a judgment entered by a commissioner may appeal that judgment in the same manner as any other judgment entered by a district court. Thus, after the judgment was signed by the district court judge on May 17, 2000, plaintiffs remedy was by way of appeal to this Court, not another hearing by the district court judge. Accordingly, the appeal of the domestic commissioner’s ruling on the tuition issue is untimely. Even if we were to find the appeal timely, there was no abuse of discretion in excluding private school tuition from child support. At the hearing before the domestic commissioner, the plaintiff testified *659that although the eldest child was attending Kehoe France at the time of the parties’ divorce, private school tuition had never been part of the defendant’s child support obligation. Further, plaintiff acknowledged that as sole custodian of the children, she alone chose which schools the children would attend. Plaintiff stated that she had an annual salary of approximately $22,000.00, and that it was due to “loans and gifts” from her father that she was able to send her children to private schools with annual tuition of nearly $8,000.00 for her daughter at Sacred Heart and annual tuition of $5,000.00 for her son at Kehoe France. Plaintiff said that her father assisted her financially whenever she asked, but that “he is getting tired of paying for everything.” Finally, plaintiff stated that the children had no particular educational needs that required them to attend private school. LSA-R.S. 9:315.6 provides for additional expenses, such as private school tuition, to be added to the basic child support obligation under certain circumstances. 9:315.6 Other extraordinary expenses; addition to basic obligation By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation: (1) Any expenses for attending a special or private elementary 14or secondary school to meet the particular educational needs of the child. [[Image here]] Under these circumstances, even if the appeal had been timely, there is no abuse in discretion in excluding private school tuition from the defendant’s child support obligation. ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR In the last two assignments of error, the plaintiff contends that the district court judge improperly granted the defendant’s exception of prescription to her claim for reimbursement. In the event this ruling is reversed, the defendant requests that we likewise reverse the trial judge’s granting of the plaintiffs exception of prescription to his lesion claim. We affirm the trial judge’s granting of both exceptions of prescription. On June 18, 1992, the parties voluntarily partitioned their community property, including the family home located at 10 Wilcox Boulevard in Harahan. At that time, only Ms. Romig was represented by an attorney. When she attempted to sell the home in 1996, the plaintiff discovered that the property was encumbered by a.tax lien, which apparently resulted from the defendant’s default of his personal guarantee to pay $45,000.00 in delinquent sales taxes to the State of Louisiana. On October 27, 1999, the plaintiff then filed a motion seeking reimbursement from the defendant because she paid a community debt with her separate funds. The defendant filed an exception of prescription on the basis that five-year prescriptive period to rescind the partition had expired. The plaintiff amended her rule to include actions for fraud, unjust enrichment and omission, to which the defendant responded with an affirmative defense of lesion and also a petition to rescind the partition, since a condominium co-owned by the parties had apparently not been included in the partition. In her answer, plaintiff contended lBthe voluntary partition could not be attacked as lesionary, since it was a transaction and compromise, *660and excepted to the petition for recission as prescribed. Plaintiff concedes that an action for re-cission of a partition prescribes in five years. However, she urges that in the case of fraud, prescription runs from the date of discovery. According to the plaintiff, Mr. Romig committed fraud because he knew of the tax lien at the time of the voluntary partition, but failed to disclose its existence. After hearing arguments from counsel, the district court judge found no evidence of fraud on the defendant’s part, and granted both exceptions of prescription. We have reviewed the record and find no error in this ruling. There is no evidence that the defendant defrauded the plaintiff. In fact, the plaintiffs counsel admitted at the hearing that “both parties probably were in good faith.” We point out that if the property was encumbered by the tax lien at the time of the voluntary partition, plaintiff could easily have discovered its existence with a title examination, which plaintiff apparently elected not to have performed. Finally, although the plaintiff claims in assignment of error number four that the trial judge failed to consider her alternative theories of recovery against the defendant’s exception of prescription, the record does not so reflect. Plaintiffs counsel urged these theories to the district court judge at the May 25, 2000 hearing. Nothing in the record reflects that the judge did not consider these theories advanced by plaintiff when he granted the defendant’s exception of prescription. For the foregoing reasons, we dismiss the plaintiffs appeal as to the private school tuition, but otherwise affirm the judgment below. Costs of this appeal are to be shared equally between the plaintiff and defendant.
APPEAL PARTIALLY DISMISSED; OTHERWISE AFFIRMED. | 07-30-2022 | [
"JjPHILIP C. CIACCIO, J. Pro Tem. Plaintiff, Susan Saia Romig, appeals the trial court’s judgment, in favor of the plaintiffs former husband, Thomas C. Romig. We affirm. This appeal arises out the plaintiffs Rule for Increase in Child Support and For Reimbursement of Separate Funds Used to Pay a Community Debt. The defendant excepted to the reimbursement claim as prescribed. On February 28, 2000, the hearing officer rendered an interim order that inter alia, increased the defendant’s monthly child support obligation for the two minor children from $600.00 to $1218.00, and set the matter for an evidentiary hearing before the domestic commissioner. After a hearing, the domestic commissioner raised the defendant’s child support obligation to $1250.00 per month, ordered him to provide health insurance on the children, and to pay 77% of the uncovered extraordinary medical expenses. The commissioner rejected the plaintiffs demand to include the children’s private *658school tuition as part of the defendant’s child support obligation. The commissioner signed this judgment on May 15, 2000, and the trial judge signed it on May 17, 2000. The plaintiff objected to the commissioner’s judgment and sought a hearing before the district court judge.",
"| ¡.On May 25, 2000, the judge heard argument from counsel on the issue of the tuition, and also on the issue of the reimbursement claim, as well as each party’s mutual exception of prescription. On July 11, 2000, the district judge rendered a judgment that granted the exceptions of prescription and that adopted the commissioner’s ruling regarding the tuition. Plaintiff took her appeal on August 2, 2000. ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In the plaintiffs first two assignments of error, she complains that the domestic commissioner and the trial judge erred by not including private school tuition as part of the defendant’s child support obligation.",
"The defendant filed an answer in this Court, asserting that the appeal of the tuition issue is untimely because the plaintiff did not appeal the May 17, 2000 judgment within the delays provided by LSA-C.C.P. arts. 3942 and 3943. Defendant points out that since the parties consented to have the domestic commissioner adjudicate the child support issue as provided by LSA-R.S. 13:717(G), the plaintiff should have appealed this judgment, rather than seeking a hearing before the district judge. We agree. The hearing before the domestic commissioner was only on the contested issue of child support, and specifically the plaintiffs request that private school tuition be included in the child support.",
"This hearing was pursuant to LSA-R.S. 13:717, which permits the Criminal and Domestic Commissioners for the Twenty-Fourth Judicial District Court to hear certain matters upon the consent of the parties. Subsection G of the statute provides as follows: G. Except as provided in this Subsection, the domestic commissioners shall not have the power to adjudicate cases in a contested matter of divorce, custody, permanent spousal support, paternity, or partition of community property, unless the parties consent in writing to the jurisdiction of the commissioner. Each time an action is filed with the clerk of court for the Twenty Fourth Judicial District Court, the clerk shall notify the parties to that action of their right to consent to jurisdiction by the commissioners. In each case in which all the parties provide a written waiver of their right to have their case heard by a district court judge, and provide written consent to the matter being heard and adjudicated by a commissioner, the commissioners may conduct any |sand all proceedings on any matter pending before the court and may order the entry of judgment in the case.",
"Each judgment so recommended by a commissioner shall be signed by a judge of the Twenty-Fourth Judicial District Court. Any party who is aggrieved by a judgment entered by a commissioner may appeal that judgment in the same manner as any other judgment entered by a district court. Thus, after the judgment was signed by the district court judge on May 17, 2000, plaintiffs remedy was by way of appeal to this Court, not another hearing by the district court judge. Accordingly, the appeal of the domestic commissioner’s ruling on the tuition issue is untimely. Even if we were to find the appeal timely, there was no abuse of discretion in excluding private school tuition from child support. At the hearing before the domestic commissioner, the plaintiff testified *659that although the eldest child was attending Kehoe France at the time of the parties’ divorce, private school tuition had never been part of the defendant’s child support obligation. Further, plaintiff acknowledged that as sole custodian of the children, she alone chose which schools the children would attend. Plaintiff stated that she had an annual salary of approximately $22,000.00, and that it was due to “loans and gifts” from her father that she was able to send her children to private schools with annual tuition of nearly $8,000.00 for her daughter at Sacred Heart and annual tuition of $5,000.00 for her son at Kehoe France. Plaintiff said that her father assisted her financially whenever she asked, but that “he is getting tired of paying for everything.” Finally, plaintiff stated that the children had no particular educational needs that required them to attend private school.",
"LSA-R.S. 9:315.6 provides for additional expenses, such as private school tuition, to be added to the basic child support obligation under certain circumstances. 9:315.6 Other extraordinary expenses; addition to basic obligation By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation: (1) Any expenses for attending a special or private elementary 14or secondary school to meet the particular educational needs of the child. [[Image here]] Under these circumstances, even if the appeal had been timely, there is no abuse in discretion in excluding private school tuition from the defendant’s child support obligation. ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR In the last two assignments of error, the plaintiff contends that the district court judge improperly granted the defendant’s exception of prescription to her claim for reimbursement.",
"In the event this ruling is reversed, the defendant requests that we likewise reverse the trial judge’s granting of the plaintiffs exception of prescription to his lesion claim. We affirm the trial judge’s granting of both exceptions of prescription. On June 18, 1992, the parties voluntarily partitioned their community property, including the family home located at 10 Wilcox Boulevard in Harahan. At that time, only Ms. Romig was represented by an attorney. When she attempted to sell the home in 1996, the plaintiff discovered that the property was encumbered by a.tax lien, which apparently resulted from the defendant’s default of his personal guarantee to pay $45,000.00 in delinquent sales taxes to the State of Louisiana. On October 27, 1999, the plaintiff then filed a motion seeking reimbursement from the defendant because she paid a community debt with her separate funds. The defendant filed an exception of prescription on the basis that five-year prescriptive period to rescind the partition had expired. The plaintiff amended her rule to include actions for fraud, unjust enrichment and omission, to which the defendant responded with an affirmative defense of lesion and also a petition to rescind the partition, since a condominium co-owned by the parties had apparently not been included in the partition.",
"In her answer, plaintiff contended lBthe voluntary partition could not be attacked as lesionary, since it was a transaction and compromise, *660and excepted to the petition for recission as prescribed. Plaintiff concedes that an action for re-cission of a partition prescribes in five years. However, she urges that in the case of fraud, prescription runs from the date of discovery. According to the plaintiff, Mr. Romig committed fraud because he knew of the tax lien at the time of the voluntary partition, but failed to disclose its existence. After hearing arguments from counsel, the district court judge found no evidence of fraud on the defendant’s part, and granted both exceptions of prescription. We have reviewed the record and find no error in this ruling. There is no evidence that the defendant defrauded the plaintiff. In fact, the plaintiffs counsel admitted at the hearing that “both parties probably were in good faith.” We point out that if the property was encumbered by the tax lien at the time of the voluntary partition, plaintiff could easily have discovered its existence with a title examination, which plaintiff apparently elected not to have performed. Finally, although the plaintiff claims in assignment of error number four that the trial judge failed to consider her alternative theories of recovery against the defendant’s exception of prescription, the record does not so reflect.",
"Plaintiffs counsel urged these theories to the district court judge at the May 25, 2000 hearing. Nothing in the record reflects that the judge did not consider these theories advanced by plaintiff when he granted the defendant’s exception of prescription. For the foregoing reasons, we dismiss the plaintiffs appeal as to the private school tuition, but otherwise affirm the judgment below. Costs of this appeal are to be shared equally between the plaintiff and defendant. APPEAL PARTIALLY DISMISSED; OTHERWISE AFFIRMED."
]
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[Not for Publication]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1930
JAIME LOYOLA-CINTRON, ET AL.,
Plaintiffs, Appellants,
v.
BENJAMIN BETANCOURT-AQUINO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Astrid Coln-Lede for appellants.
Carlos A. Ortiz-Morales, with whom Alfonso Miranda Cardenas and
Miranda Cardenas & Cordova were on brief for appellee Garcia Rinaldi.
Jose Luis Gonzalez-Castaner, with whom Law Offices of Jose Luis
Gonzalez-Castaner and Jose R. Ortiz-Velez were on brief for appellees
Betancourt Aquino and Simed.
Rafael Mayoral Morales, with whom Latimer, Biaggi, Rachid &
Godreau was on brief for appellee Hosital Pavia.
April 3, 1998
Per Curiam. Plaintiffs challenge various rulings
underlying the dismissal of their wrongful death action against Dr.
Raul Garcia Rinaldi, Dr. Benjamin Betancourt Aquino, and Hospital
Pavia, for providing negligent post-operative care and supervision
to their father. We summarily affirm the district court judgment
based on a thorough review of the entire record.
On May 11, 1993, plaintiffs' father was admitted to
Hospital Pavia and treated by defendant Betancourt for chest pain.
The next day defendant Garcia performed emergency coronary by-pass
surgery, followed by a second surgery to correct temporary
bleeding. During the post-operative recovery period the patient
was successfully treated for several episodes of cardiac
arrhythmia, the latest having occurred three days prior to his
discharge in stable condition. On May 23, three days after
discharge, he suffered a cardiac arrest and died despite defendant
Betancourt's efforts to resuscitate.
The district court correctly granted summary judgment to
Dr. Garcia on the ground that plaintiffs failed to present any
evidence which, if believed, could have rebutted the presumption
under Puerto Rico law that the decedent received reasonable medical
care from Dr. Garcia. See Fernandez v. Corporacion Insular de
Seguros, 79 F.3d 207, 211 (1st Cir. 1996). Instead, plaintiffs
relied exclusively upon the unsupported, conclusory allegations in
their complaint. Absent affidavits generating a trialworthy issue,
summary judgment was inevitable. See Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Fed. R. Civ.
P. 56(e).
Plaintiffs further contend that they should have been
granted a new trial because the district court refused to allow
their expert witnesses, an internist and a pathologist, to testify
that defendants Betancourt and Hospital Pavia provided negligent
post-operative care. The district court committed no error, let
alone manifest error. See United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993).
First, one of the witnesses, neither a surgeon nor a
cardiologist, acknowledged having nothing "to do with open-heart
surgery. It's not my expertise. I have not been trained for it .
. . ." The other, likewise not a cardiologist, had never treated
either a cardiac patient or a post-operative condition; nor did he
examine the decedent, either before or after death. Nor was an
autopsy ever performed on the decedent.
AFFIRMED. | 02-07-2011 | [
"[Not for Publication] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 97-1930 JAIME LOYOLA-CINTRON, ET AL., Plaintiffs, Appellants, v. BENJAMIN BETANCOURT-AQUINO, ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] Before Lynch, Circuit Judge, Coffin and Cyr, Senior Circuit Judges. Astrid Coln-Lede for appellants. Carlos A. Ortiz-Morales, with whom Alfonso Miranda Cardenas and Miranda Cardenas & Cordova were on brief for appellee Garcia Rinaldi. Jose Luis Gonzalez-Castaner, with whom Law Offices of Jose Luis Gonzalez-Castaner and Jose R. Ortiz-Velez were on brief for appellees Betancourt Aquino and Simed. Rafael Mayoral Morales, with whom Latimer, Biaggi, Rachid & Godreau was on brief for appellee Hosital Pavia. April 3, 1998 Per Curiam. Plaintiffs challenge various rulings underlying the dismissal of their wrongful death action against Dr. Raul Garcia Rinaldi, Dr. Benjamin Betancourt Aquino, and Hospital Pavia, for providing negligent post-operative care and supervision to their father.",
"We summarily affirm the district court judgment based on a thorough review of the entire record. On May 11, 1993, plaintiffs' father was admitted to Hospital Pavia and treated by defendant Betancourt for chest pain. The next day defendant Garcia performed emergency coronary by-pass surgery, followed by a second surgery to correct temporary bleeding. During the post-operative recovery period the patient was successfully treated for several episodes of cardiac arrhythmia, the latest having occurred three days prior to his discharge in stable condition. On May 23, three days after discharge, he suffered a cardiac arrest and died despite defendant Betancourt's efforts to resuscitate. The district court correctly granted summary judgment to Dr. Garcia on the ground that plaintiffs failed to present any evidence which, if believed, could have rebutted the presumption under Puerto Rico law that the decedent received reasonable medical care from Dr. Garcia.",
"See Fernandez v. Corporacion Insular de Seguros, 79 F.3d 207, 211 (1st Cir. 1996). Instead, plaintiffs relied exclusively upon the unsupported, conclusory allegations in their complaint. Absent affidavits generating a trialworthy issue, summary judgment was inevitable. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Fed. R. Civ. P. 56(e). Plaintiffs further contend that they should have been granted a new trial because the district court refused to allow their expert witnesses, an internist and a pathologist, to testify that defendants Betancourt and Hospital Pavia provided negligent post-operative care. The district court committed no error, let alone manifest error. See United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993). First, one of the witnesses, neither a surgeon nor a cardiologist, acknowledged having nothing \"to do with open-heart surgery.",
"It's not my expertise. I have not been trained for it . . . .\" The other, likewise not a cardiologist, had never treated either a cardiac patient or a post-operative condition; nor did he examine the decedent, either before or after death. Nor was an autopsy ever performed on the decedent. AFFIRMED."
]
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283 F.3d 429 Sidney OLMSTED and Johanna Olmsted, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants,v.PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY and the Prudential Insurance Company of America, Defendants-Appellees. Docket No. 00-9511. United States Court of Appeals, Second Circuit. Argued September 4, 2001. Decided March 7, 2002.
Jeffrey H. Squire, Kirby McInerney & Squire, LLP, New York, NY (Paul D. Wexler, Bragar, Wexler, Eagel & Morgenstern, LLP, New York, NY, on the brief), for Plaintiffs-Appellants. Mark Holland, Clifford Chance Rogers & Wells LLP, New York, NY (James N. Benedict, Mary K. Dulka, C. Neil Gray, on the brief; Leonard P. Novello, Stephen Parker, The Prudential, Newark, NJ, of counsel), for Defendants-Appellees. David M. Becker, General Counsel, Meyer Eisenberg, Deputy General Counsel, Jacob H. Stillman, Solicitor, Mark Pennington, Assistant General Counsel, Christopher Paik, Special Counsel, Washington, DC, the Securities and Exchange Commission, Amicus Curiae. Before: NEWMAN, CALABRESI, and SACK, Circuit Judges. SACK, Circuit Judge.
1 Plaintiffs Sidney and Johanna Olmsted appeal from a judgment of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) granting the defendants' Fed. R.Civ.P. 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The plaintiffs allege that the defendants violated §§ 26(f) and 27(i) of the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. (Supp. 2001) (the "ICA"), by imposing upon the plaintiffs, who are holders of certain variable annuity contracts, fees, charges, and expenses that are excessive and unreasonable in relation to the services provided, the expenses to be incurred, and the risks assumed. We affirm the judgment of the district court because we agree with its conclusion that Congress did not intend to create a private right of action for violations of §§ 26(f) and 27(i).
BACKGROUND
2 The plaintiffs are holders of "variable annuity" insurance contracts issued by the defendants. Compl. ¶ 2. Such contracts combine features of a mutual fund and a life insurance policy. A contract holder makes periodic payments into an account maintained by the issuer and consisting of various investments, such as mutual funds, selected by the holder. Compl. ¶ 14. The holder continues to make payments until a pre-selected maturity date, at which time he or she receives a payout in the form of either a lump-sum payment or a lifetime annuity. The contracts are "variable" because payouts depend on the market performance of the investments in the holder's account, as contrasted with the "fixed" payout of a traditional insurance policy.
3 The plaintiffs' contracts also include a feature called a "death benefit." Compl. ¶ 16. Under it, a holder who dies before the maturity date receives from the issuer a payment equal to the greater of (a) the value of the assets in the holder's investment account, and (b) the sum of the amounts of the holder's periodic payments before his or her death. Id.
4 The defendants identify three risks they assume in issuing the contracts. First, they assert that they assume a risk under the "death benefit" that they might be required to cover for a decline in the value of the contract holder's investments. Second, they aver that they assume a mortality risk, in that a contract holder might select the lifetime annuity payout option and then live longer than expected. Third, they allege that they assume an "expense risk," in that the expenses associated with administering the contracts might exceed the fixed annual expense charge. For these asserted risks assumed and other services provided, the defendants' total annual compensation under the contracts is 1.4% of the assets in each contract holder's account.1
5 On March 8, 2000, the plaintiffs brought a class action in the United States District Court for the Eastern District of New York on behalf of all persons who purchased variable annuity contracts from the defendants on or after March 1, 1997. Compl. ¶ 7. The complaint alleges that the defendants have violated §§ 26(f) and 27(i) of the ICA because the fees they charge on their variable annuity contracts are "excessive and unreasonable in relation to the services provided, the expenses to be incurred and risks assumed...." Id. ¶ 21.2 On October 30, 2000, the district court granted the defendants' motion under Fed. R.Civ.P. 12(b)(6) to dismiss the plaintiffs' complaint. Olmsted v. Pruco Life Ins. Co. of New Jersey, 134 F.Supp.2d 508, 517 (E.D.N.Y.2000). In a thorough and well-reasoned opinion, Judge Garaufis concluded that the ICA does not provide a private right of action for violations of §§ 26(f) and 27(i) and that the plaintiffs' complaint must be dismissed for failure to state a claim upon which relief can be granted. Id.
6 The plaintiffs appealed, asserting that the district court erred in concluding that the ICA does not provide a private right of action for violations of §§ 26(f) and 27(i). The defendants argue that the district court was correct and that the plaintiffs' complaint also should be dismissed (i) as time-barred, (ii) for failure to allege sufficient facts, and (iii) as barred by the filed-rate doctrine.
DISCUSSION I. Standard of Review
7 We review de novo a district court's dismissal of a complaint under Fed R. Civ. P. 12(b)(6), accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiffs' favor. Kalnit v. Eichler, 264 F.3d 131, 137-38 (2d Cir.2001).
II. Congressional Intent
8 The Supreme Court has established that courts must look to the intent of Congress in determining whether a federal private right of action exists for violations of a federal statute. "Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Without congressional intent, "a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute." Id. at 286-87, 121 S.Ct. 1511.
9 Determining congressional intent to create a right of action is therefore a matter of statutory interpretation. Id. at 286, 121 S.Ct. 1511 ("Statutory intent ... is determinative."). A court must "begin [its] search for Congress's intent with the text and structure" of the statute, id. at 288, 121 S.Ct. 1511, and cannot ordinarily conclude that Congress intended to create a right of action when none was explicitly provided. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) ("[I]mplying a private right of action on the basis of congressional silence is a hazardous enterprise, at best."); West Allis Mem'l Hosp. v. Bowen, 852 F.2d 251, 254 (7th Cir.1988) ("A strong presumption exists against the creation of... implied rights of action.").
10 No provision of the ICA explicitly provides for a private right of action for violations of either § 26(f) or § 27(i), and so we must presume that Congress did not intend one. This presumption is strengthened by three additional features of the statute.
11 First, §§ 26(f) and 27(i) do not contain rights-creating language. Section 26(f) provides:
12 It shall be unlawful for any ... account funding variable insurance contracts, or for the sponsoring insurance company of such account, to sell any such contract —
13 (A) unless the fees and charges deducted under the contract, in the aggregate, are reasonable....
14 15 U.S.C. § 80a-26(f). And § 27(i)(2) provides:
15 It shall be unlawful for any ... account funding variable insurance contracts, or for the sponsoring insurance company of such account, to sell any such contract unless —
16 ....
17 (B) the insurance company complies with section 80a-26[f] of this title and any rules or regulations issued by the Commission under section 80a-26[f] of this title. 15 U.S.C. 80a-27(i)(2). The language of these sections only describes actions by insurance companies that are prohibited; it does not mention investors such as the plaintiffs. "Statutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'" Sandoval, 532 U.S. at 289, 121 S.Ct. 1511 (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)).
18 Second, § 42 of the ICA (15 U.S.C. § 80a 41) explicitly provides for enforcement of all ICA provisions, including §§ 26(f) and 27(i), by the Securities and Exchange Commission ("SEC") through investigations and civil suits for injunctions and penalties. See 15 U.S.C. § 80a-41. In Sandoval, the Supreme Court observed that:
19 The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.... Sometimes the suggestion is so strong that it precludes a finding of congressional intent to create a private right of action, even though other aspects of the statute ... suggest the contrary.
20 532 U.S. at 290, 121 S.Ct. 1511 (internal citations omitted).
21 Third, Congress explicitly provided in § 36(b) of the ICA for a private right of derivative action for investors in regulated investment companies alleging that investment advisors breached certain fiduciary duties. 15 U.S.C. § 80a-35(b). Congress's explicit provision of a private right of action to enforce one section of a statute suggests that omission of an explicit private right to enforce other sections was intentional. "Obviously ... when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly." Touche Ross, 442 U.S. at 572, 99 S.Ct. 2479.3
22 We therefore conclude that the ICA's text creates a strong presumption that Congress did not intend to create private rights of action for violations of §§ 26(f) and 27(i).
III. Other Factors in the Analysis
23 A strong presumption that Congress did not intend a private right of action places a heavy burden on the plaintiffs to demonstrate otherwise. See Victorian v. Miller, 813 F.2d 718, 721 (5th Cir.1987) ("To establish an implied private right of action under a federal statute, a plaintiff bears the relatively heavy burden of demonstrating that Congress affirmatively contemplated private enforcement when it passed the relevant statute."). The plaintiffs raise a series of arguments in an attempt to rebut the presumption.
24 They argue that a failure by this Court to recognize a private right of action to enforce §§ 26(f) and 27(i) would constitute an ill-advised break with a long line of decisions recognizing implied private rights of action as a way of promoting the policies served by the ICA. The plaintiffs correctly note that an overwhelming majority of courts interpreting the ICA have recognized implied private rights of action to enforce many of its sections.4 When those cases were decided, however, courts had more latitude to weigh statutory policy and other considerations than they do now. Before 1975, courts generally recognized an implied private right of action in any federal statute "enacted for the benefit of a special class." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 374, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982). Although the Supreme Court adopted a more structured approach in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), it nonetheless held that legislative intent was only one of several factors that courts could consider in the analysis. Id. at 78, 95 S.Ct. 2080 (in determining existence of a federal private right of action, courts may consider (1) whether the plaintiff is "one of the class for whose especial benefit the statute was enacted," (2) whether there is "any indication of legislative intent, explicit or implicit," to create or deny such a remedy, (3) whether the private cause of action would be "consistent with the underlying purposes of the legislative scheme," and (4) whether the cause of action is "one traditionally relegated to state law" (emphasis in original; internal quotation marks omitted)). In a series of recent decisions, however, the Supreme Court has reduced the importance of the Cort factors other than legislative intent, first by characterizing them as mere tools for determining legislative intent, see Touche Ross, 442 U.S. at 575-76, 99 S.Ct. 2479, and then by subordinating them to statutory text as interpretive sources, see, e.g., Northwest Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 91, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). Past decisions reflecting judicial willingness to "make effective [statutory] purpose" in the context of implied rights of action belong to an "ancien regime." Sandoval, 532 U.S. at 287, 121 S.Ct. 1511 (internal quotation marks omitted).
25 We also reject the plaintiffs' argument that when Congress added §§ 26(f) and 27(i) to the ICA in 1996 it expected courts to recognize implied rights of action to enforce them because courts had recognized other implied rights under the ICA in the past.
26 [W]e [do not] agree ... that our cases interpreting statutes enacted prior to Cort v. Ash have given dispositive weight to the expectations that the enacting Congress had formed in light of the contemporary legal context.... We have never accorded dispositive weight to context shorn of text. In determining whether statutes create private rights of action, as in interpreting statutes generally,... legal context matters only to the extent it clarifies text.
27 Id. (internal citations and quotation marks omitted). A statutory provision that does not use rights-creating language, in a statute that provides for other remedies and contains explicit private rights of action to enforce other sections, creates no ambiguity on the question of an implied private right of action that legal context might clarify. Where a statute is unambiguous as we use that term here, the context in which it was passed does not matter.
28 The plaintiffs next argue that two pieces of legislative history suggest that Congress intended courts to recognize implied private rights of action to enforce §§ 26(f) and 27(i). First, the plaintiffs point to a House of Representatives committee report accompanying the 1980 amendments to the ICA (which did not contain §§ 26(f) and 27(i)) stating that the committee "expects the courts to imply private rights of action under this legislation." H.R.Rep. No. 96-1341, at 29 (1980), reprinted in 1980 U.S.C.C.A.N. 4800, 4811. Second, the plaintiffs cite to a House committee report accompanying the 1996 ICA amendments (which did add §§ 26(f) and 27(i)) that states that the new provisions subject variable insurance contracts to "more general prohibitions against excessive fees, similar to the way mutual funds are treated under the Act." H.R.Rep. No. 104-622, at 45 (1996), reprinted in 1996 U.S.C.C.A.N. 3877, 3908. This report is relevant, the plaintiffs argue, because mutual funds are regulated under § 36(b), which, as we have indicated, explicitly provides for private remedies. The plaintiffs read this report to signify that Congress intended that its prohibitions on excessive fees on variable insurance contracts be enforced through the same means used to punish excessive mutual fund fees.
29 The plaintiffs' appeal to legislative history suffers from the same shortage of statutory ambiguity that mars their "legal context" argument. Where the text of a statute is unambiguous, "judicial inquiry is complete[] except in rare and exceptional circumstances," and legislative history instructive only upon "the most extraordinary showing of contrary intentions." Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 83 L.Ed.2d 472 (1985) (internal quotation marks omitted). A report prepared by a House committee on one piece of legislation cannot constitute an "extraordinary showing" of congressional intent for different legislation passed sixteen years later, and so the legislative history of the 1980 amendments does not disturb the presumption that arises from the text of sections added in 1996. And the analogy drawn in the 1996 legislative history between the "treatment" of variable insurance contracts and mutual funds under the ICA demonstrates no contradictory intent regarding remedies, especially where the language itself indicates that the analogy refers to that which is prohibited rather than how that prohibition will be enforced.
30 Finally, we reject the plaintiffs' argument that Congress must have intended §§ 26(f) and 27(i) to be enforceable through private rights of action because Congress did not allocate enough money to the SEC to do the job by itself. Even were we able to assess the adequacy of the SEC's funding relative to its mandate, a method of determining statutory intent based on fluctuating annual budget allocations would resemble divination more than analysis. There is no basis whatever upon which to conclude that Congress wished us to determine statutory meaning based on the magnitude of its appropriations to the agency charged with the statute's enforcement.5
31 Because we hold that the ICA does not provide for a private right of action for violations of §§ 26(f) and 27(i), we do not reach the defendants' alternative arguments for dismissing the complaint.
CONCLUSION
32 For the foregoing reasons, the judgment of the district court is affirmed.
Notes:
1 The plaintiffs allege that the defendants also charge a $30 annual administrative fee. Compl. ¶ 15
2 The plaintiffs' complaint and the district court's decision both identify the ICA sections that the plaintiffs allege were violated as 26(e) and 27(i). In late 1999, however, Congress amended the ICA, with the result that the former § 26(e) is now § 26(f)See Gramm-Leach-Bliley Act, Pub.L. No. 106-102, Title II, § 211(b), 113 Stat. 1338, 1396 (1999). We refer to the relevant sections under their current statutory designations.
3 The plaintiffs argue that drawing this inference from § 36(b) is precluded by our holding inFogel v. Chestnutt, 668 F.2d 100 (2d Cir.1981), cert. denied, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). However, in Fogel we merely assumed that when Congress added § 36(b) to the ICA in 1970 it did not intend to overrule previous decisions recognizing implied rights of action in the statute. Id. at 111. The instant case is distinguishable because no court of which we are aware has recognized a private right of action to enforce §§ 26(f) and 27(i). Certainly no court could have done so before 1970 because these sections were not added to the ICA until 1996. See National Securities Markets Improvement Act of 1996, Pub.L. No. 104-290, §§ 205(a),(b), 110 Stat. 3416, 3429. We express no opinion on the current validity of our assumption in Fogel because in this case we interpret sections added after Congress created the private right of action in § 36(b).
4 See, e.g., Bancroft Convertible Fund, Inc. v. Zico Inv. Holdings, Inc., 825 F.2d 731, 736 (3d Cir.1987) (recognizing implied private right of action for violations of § 12(d)(1)(A)); Meyer v. Oppenheimer Mgmt. Corp., 764 F.2d 76, 88 (2d Cir.1985) (§ 15(f)); McLachlan v. Simon, 31 F.Supp.2d 731, 737 (N.D.Ca.1998) (§ 36(a)); Young v. Nationwide Life Ins. Co., 2 F.Supp.2d 914, 926 (S.D.Texas 1998) (same); Strougo v. Scudder, Stevens, & Clark, Inc., 964 F.Supp. 783, 798 (S.D.N.Y.1997) (same); In re Nuveen Fund Litig., No. 94-C-360, 1996 WL 328006, at *6, 1996 U.S. Dist. LEXIS 8071, at *17 (N.D.Ill. June 11, 1996) (§§ 34(b), 36(a)); Blatt v. Merrill Lynch, Pierce, Fenner & Smith Inc., 916 F.Supp. 1343, 1349, 1357 (D.N.J.1996) (§§ 7(d), 13(a)(3)); Langner v. Brown, 913 F.Supp. 260, 267 (S.D.N.Y.1996) (§ 10(a)); Carr v. Equistar Offshore, Ltd., No. 94-Civ.-5567, 1995 WL 562178, at *15, 1995 U.S. Dist. LEXIS 13703, at *44-*45 (S.D.N.Y. Sept.21, 1995) (§ 7(d)); Seidel v. Lee, No. Civ A. 93-494, 1994 WL 913930, at *2, 1994 U.S. Dist. LEXIS 21534, at *8-*9 (D.Del. Oct. 14, 1994) (§§ 17(j), 36(a), 56(a), 57(a), 57(d)); In re ML-Lee Acquisition Fund II, L.P., 848 F.Supp. 527, 539-45 (D.Del.1994) (§§ 17(j), 36(a), 48, 57); Krome v. Merrill Lynch & Co., 637 F.Supp. 910, 917-20, vacated in part, 110 F.R.D. 693 (S.D.N.Y. 1986) (§§ 7(a), 10(b), 15, 17(a), 22, 34(a), 36). Against this impressive lineup stand only the decision of the district court in this case and two others: Potomac Capital Mkts. Corp. v. Prudential-Bache Corp. Dividend Fund, Inc., 726 F.Supp. 87, 91-94 (S.D.N.Y.1989) (denying rights of action under §§ 13(a)(4), 25(a), although recognizing private right to enforce § 13(a)(3)); M.J. Whitman & Co. v. Am. Fin. Enter., Inc., 552 F.Supp. 17, 22 (S.D.Ohio 1982), aff'd, 725 F.2d 394 (6th Cir.1984) (no general private right of action against companies failing to register under ICA).
5 This Court asked the SEC for anamicus curiae brief on the private right of action issue presented by this appeal. The SEC declined to respond to our inquiry regarding §§ 26(f) and 27(i) of the ICA on the grounds that the SEC considers § 47(b) of the ICA (15 U.S.C. § 80a-46(b)) to provide a basis for the plaintiffs' claims. Because the plaintiffs make no claim under § 47(b), and because an issue raised only by an amicus curiae is normally not considered on appeal, Bano v. Union Carbide Corp., 273 F.3d 120, 127 n. 5 (2d Cir.2001), we decline to consider the relevance of § 47(b). | 04-18-2012 | [
"283 F.3d 429 Sidney OLMSTED and Johanna Olmsted, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants,v.PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY and the Prudential Insurance Company of America, Defendants-Appellees. Docket No. 00-9511. United States Court of Appeals, Second Circuit. Argued September 4, 2001. Decided March 7, 2002. Jeffrey H. Squire, Kirby McInerney & Squire, LLP, New York, NY (Paul D. Wexler, Bragar, Wexler, Eagel & Morgenstern, LLP, New York, NY, on the brief), for Plaintiffs-Appellants. Mark Holland, Clifford Chance Rogers & Wells LLP, New York, NY (James N. Benedict, Mary K. Dulka, C. Neil Gray, on the brief; Leonard P. Novello, Stephen Parker, The Prudential, Newark, NJ, of counsel), for Defendants-Appellees. David M. Becker, General Counsel, Meyer Eisenberg, Deputy General Counsel, Jacob H. Stillman, Solicitor, Mark Pennington, Assistant General Counsel, Christopher Paik, Special Counsel, Washington, DC, the Securities and Exchange Commission, Amicus Curiae.",
"Before: NEWMAN, CALABRESI, and SACK, Circuit Judges. SACK, Circuit Judge. 1 Plaintiffs Sidney and Johanna Olmsted appeal from a judgment of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge) granting the defendants' Fed. R.Civ.P. 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The plaintiffs allege that the defendants violated §§ 26(f) and 27(i) of the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. (Supp. 2001) (the \"ICA\"), by imposing upon the plaintiffs, who are holders of certain variable annuity contracts, fees, charges, and expenses that are excessive and unreasonable in relation to the services provided, the expenses to be incurred, and the risks assumed. We affirm the judgment of the district court because we agree with its conclusion that Congress did not intend to create a private right of action for violations of §§ 26(f) and 27(i). BACKGROUND 2 The plaintiffs are holders of \"variable annuity\" insurance contracts issued by the defendants.",
"Compl. ¶ 2. Such contracts combine features of a mutual fund and a life insurance policy. A contract holder makes periodic payments into an account maintained by the issuer and consisting of various investments, such as mutual funds, selected by the holder. Compl. ¶ 14. The holder continues to make payments until a pre-selected maturity date, at which time he or she receives a payout in the form of either a lump-sum payment or a lifetime annuity. The contracts are \"variable\" because payouts depend on the market performance of the investments in the holder's account, as contrasted with the \"fixed\" payout of a traditional insurance policy. 3 The plaintiffs' contracts also include a feature called a \"death benefit.\" Compl.",
"¶ 16. Under it, a holder who dies before the maturity date receives from the issuer a payment equal to the greater of (a) the value of the assets in the holder's investment account, and (b) the sum of the amounts of the holder's periodic payments before his or her death. Id. 4 The defendants identify three risks they assume in issuing the contracts. First, they assert that they assume a risk under the \"death benefit\" that they might be required to cover for a decline in the value of the contract holder's investments. Second, they aver that they assume a mortality risk, in that a contract holder might select the lifetime annuity payout option and then live longer than expected. Third, they allege that they assume an \"expense risk,\" in that the expenses associated with administering the contracts might exceed the fixed annual expense charge. For these asserted risks assumed and other services provided, the defendants' total annual compensation under the contracts is 1.4% of the assets in each contract holder's account.1 5 On March 8, 2000, the plaintiffs brought a class action in the United States District Court for the Eastern District of New York on behalf of all persons who purchased variable annuity contracts from the defendants on or after March 1, 1997.",
"Compl. ¶ 7. The complaint alleges that the defendants have violated §§ 26(f) and 27(i) of the ICA because the fees they charge on their variable annuity contracts are \"excessive and unreasonable in relation to the services provided, the expenses to be incurred and risks assumed....\" Id. ¶ 21.2 On October 30, 2000, the district court granted the defendants' motion under Fed. R.Civ.P.",
"12(b)(6) to dismiss the plaintiffs' complaint. Olmsted v. Pruco Life Ins. Co. of New Jersey, 134 F.Supp.2d 508, 517 (E.D.N.Y.2000). In a thorough and well-reasoned opinion, Judge Garaufis concluded that the ICA does not provide a private right of action for violations of §§ 26(f) and 27(i) and that the plaintiffs' complaint must be dismissed for failure to state a claim upon which relief can be granted. Id. 6 The plaintiffs appealed, asserting that the district court erred in concluding that the ICA does not provide a private right of action for violations of §§ 26(f) and 27(i). The defendants argue that the district court was correct and that the plaintiffs' complaint also should be dismissed (i) as time-barred, (ii) for failure to allege sufficient facts, and (iii) as barred by the filed-rate doctrine. DISCUSSION I.",
"Standard of Review 7 We review de novo a district court's dismissal of a complaint under Fed R. Civ. P. 12(b)(6), accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiffs' favor. Kalnit v. Eichler, 264 F.3d 131, 137-38 (2d Cir.2001). II. Congressional Intent 8 The Supreme Court has established that courts must look to the intent of Congress in determining whether a federal private right of action exists for violations of a federal statute. \"Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.\" Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Without congressional intent, \"a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.\" Id. at 286-87, 121 S.Ct. 1511. 9 Determining congressional intent to create a right of action is therefore a matter of statutory interpretation. Id.",
"at 286, 121 S.Ct. 1511 (\"Statutory intent ... is determinative.\"). A court must \"begin [its] search for Congress's intent with the text and structure\" of the statute, id. at 288, 121 S.Ct. 1511, and cannot ordinarily conclude that Congress intended to create a right of action when none was explicitly provided. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (\"[I]mplying a private right of action on the basis of congressional silence is a hazardous enterprise, at best. \"); West Allis Mem'l Hosp. v. Bowen, 852 F.2d 251, 254 (7th Cir.1988) (\"A strong presumption exists against the creation of... implied rights of action.\"). 10 No provision of the ICA explicitly provides for a private right of action for violations of either § 26(f) or § 27(i), and so we must presume that Congress did not intend one.",
"This presumption is strengthened by three additional features of the statute. 11 First, §§ 26(f) and 27(i) do not contain rights-creating language. Section 26(f) provides: 12 It shall be unlawful for any ... account funding variable insurance contracts, or for the sponsoring insurance company of such account, to sell any such contract — 13 (A) unless the fees and charges deducted under the contract, in the aggregate, are reasonable.... 14 15 U.S.C. § 80a-26(f). And § 27(i)(2) provides: 15 It shall be unlawful for any ... account funding variable insurance contracts, or for the sponsoring insurance company of such account, to sell any such contract unless — 16 .... 17 (B) the insurance company complies with section 80a-26[f] of this title and any rules or regulations issued by the Commission under section 80a-26[f] of this title. 15 U.S.C. 80a-27(i)(2). The language of these sections only describes actions by insurance companies that are prohibited; it does not mention investors such as the plaintiffs.",
"\"Statutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'\" Sandoval, 532 U.S. at 289, 121 S.Ct. 1511 (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). 18 Second, § 42 of the ICA (15 U.S.C. § 80a 41) explicitly provides for enforcement of all ICA provisions, including §§ 26(f) and 27(i), by the Securities and Exchange Commission (\"SEC\") through investigations and civil suits for injunctions and penalties. See 15 U.S.C.",
"§ 80a-41. In Sandoval, the Supreme Court observed that: 19 The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.... Sometimes the suggestion is so strong that it precludes a finding of congressional intent to create a private right of action, even though other aspects of the statute ... suggest the contrary. 20 532 U.S. at 290, 121 S.Ct. 1511 (internal citations omitted). 21 Third, Congress explicitly provided in § 36(b) of the ICA for a private right of derivative action for investors in regulated investment companies alleging that investment advisors breached certain fiduciary duties. 15 U.S.C. § 80a-35(b). Congress's explicit provision of a private right of action to enforce one section of a statute suggests that omission of an explicit private right to enforce other sections was intentional.",
"\"Obviously ... when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly.\" Touche Ross, 442 U.S. at 572, 99 S.Ct. 2479.3 22 We therefore conclude that the ICA's text creates a strong presumption that Congress did not intend to create private rights of action for violations of §§ 26(f) and 27(i). III. Other Factors in the Analysis 23 A strong presumption that Congress did not intend a private right of action places a heavy burden on the plaintiffs to demonstrate otherwise.",
"See Victorian v. Miller, 813 F.2d 718, 721 (5th Cir.1987) (\"To establish an implied private right of action under a federal statute, a plaintiff bears the relatively heavy burden of demonstrating that Congress affirmatively contemplated private enforcement when it passed the relevant statute.\"). The plaintiffs raise a series of arguments in an attempt to rebut the presumption. 24 They argue that a failure by this Court to recognize a private right of action to enforce §§ 26(f) and 27(i) would constitute an ill-advised break with a long line of decisions recognizing implied private rights of action as a way of promoting the policies served by the ICA. The plaintiffs correctly note that an overwhelming majority of courts interpreting the ICA have recognized implied private rights of action to enforce many of its sections.4 When those cases were decided, however, courts had more latitude to weigh statutory policy and other considerations than they do now.",
"Before 1975, courts generally recognized an implied private right of action in any federal statute \"enacted for the benefit of a special class.\" Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 374, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982). Although the Supreme Court adopted a more structured approach in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), it nonetheless held that legislative intent was only one of several factors that courts could consider in the analysis. Id. at 78, 95 S.Ct. 2080 (in determining existence of a federal private right of action, courts may consider (1) whether the plaintiff is \"one of the class for whose especial benefit the statute was enacted,\" (2) whether there is \"any indication of legislative intent, explicit or implicit,\" to create or deny such a remedy, (3) whether the private cause of action would be \"consistent with the underlying purposes of the legislative scheme,\" and (4) whether the cause of action is \"one traditionally relegated to state law\" (emphasis in original; internal quotation marks omitted)).",
"In a series of recent decisions, however, the Supreme Court has reduced the importance of the Cort factors other than legislative intent, first by characterizing them as mere tools for determining legislative intent, see Touche Ross, 442 U.S. at 575-76, 99 S.Ct. 2479, and then by subordinating them to statutory text as interpretive sources, see, e.g., Northwest Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 91, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). Past decisions reflecting judicial willingness to \"make effective [statutory] purpose\" in the context of implied rights of action belong to an \"ancien regime.\" Sandoval, 532 U.S. at 287, 121 S.Ct. 1511 (internal quotation marks omitted). 25 We also reject the plaintiffs' argument that when Congress added §§ 26(f) and 27(i) to the ICA in 1996 it expected courts to recognize implied rights of action to enforce them because courts had recognized other implied rights under the ICA in the past. 26 [W]e [do not] agree ... that our cases interpreting statutes enacted prior to Cort v. Ash have given dispositive weight to the expectations that the enacting Congress had formed in light of the contemporary legal context.... We have never accorded dispositive weight to context shorn of text. In determining whether statutes create private rights of action, as in interpreting statutes generally,... legal context matters only to the extent it clarifies text. 27 Id. (internal citations and quotation marks omitted).",
"A statutory provision that does not use rights-creating language, in a statute that provides for other remedies and contains explicit private rights of action to enforce other sections, creates no ambiguity on the question of an implied private right of action that legal context might clarify. Where a statute is unambiguous as we use that term here, the context in which it was passed does not matter. 28 The plaintiffs next argue that two pieces of legislative history suggest that Congress intended courts to recognize implied private rights of action to enforce §§ 26(f) and 27(i). First, the plaintiffs point to a House of Representatives committee report accompanying the 1980 amendments to the ICA (which did not contain §§ 26(f) and 27(i)) stating that the committee \"expects the courts to imply private rights of action under this legislation.\" H.R.Rep. No.",
"96-1341, at 29 (1980), reprinted in 1980 U.S.C.C.A.N. 4800, 4811. Second, the plaintiffs cite to a House committee report accompanying the 1996 ICA amendments (which did add §§ 26(f) and 27(i)) that states that the new provisions subject variable insurance contracts to \"more general prohibitions against excessive fees, similar to the way mutual funds are treated under the Act.\" H.R.Rep. No. 104-622, at 45 (1996), reprinted in 1996 U.S.C.C.A.N. 3877, 3908. This report is relevant, the plaintiffs argue, because mutual funds are regulated under § 36(b), which, as we have indicated, explicitly provides for private remedies. The plaintiffs read this report to signify that Congress intended that its prohibitions on excessive fees on variable insurance contracts be enforced through the same means used to punish excessive mutual fund fees.",
"29 The plaintiffs' appeal to legislative history suffers from the same shortage of statutory ambiguity that mars their \"legal context\" argument. Where the text of a statute is unambiguous, \"judicial inquiry is complete[] except in rare and exceptional circumstances,\" and legislative history instructive only upon \"the most extraordinary showing of contrary intentions.\" Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 83 L.Ed.2d 472 (1985) (internal quotation marks omitted). A report prepared by a House committee on one piece of legislation cannot constitute an \"extraordinary showing\" of congressional intent for different legislation passed sixteen years later, and so the legislative history of the 1980 amendments does not disturb the presumption that arises from the text of sections added in 1996.",
"And the analogy drawn in the 1996 legislative history between the \"treatment\" of variable insurance contracts and mutual funds under the ICA demonstrates no contradictory intent regarding remedies, especially where the language itself indicates that the analogy refers to that which is prohibited rather than how that prohibition will be enforced. 30 Finally, we reject the plaintiffs' argument that Congress must have intended §§ 26(f) and 27(i) to be enforceable through private rights of action because Congress did not allocate enough money to the SEC to do the job by itself. Even were we able to assess the adequacy of the SEC's funding relative to its mandate, a method of determining statutory intent based on fluctuating annual budget allocations would resemble divination more than analysis.",
"There is no basis whatever upon which to conclude that Congress wished us to determine statutory meaning based on the magnitude of its appropriations to the agency charged with the statute's enforcement.5 31 Because we hold that the ICA does not provide for a private right of action for violations of §§ 26(f) and 27(i), we do not reach the defendants' alternative arguments for dismissing the complaint. CONCLUSION 32 For the foregoing reasons, the judgment of the district court is affirmed. Notes: 1 The plaintiffs allege that the defendants also charge a $30 annual administrative fee.",
"Compl. ¶ 15 2 The plaintiffs' complaint and the district court's decision both identify the ICA sections that the plaintiffs allege were violated as 26(e) and 27(i). In late 1999, however, Congress amended the ICA, with the result that the former § 26(e) is now § 26(f)See Gramm-Leach-Bliley Act, Pub.L. No. 106-102, Title II, § 211(b), 113 Stat. 1338, 1396 (1999). We refer to the relevant sections under their current statutory designations. 3 The plaintiffs argue that drawing this inference from § 36(b) is precluded by our holding inFogel v. Chestnutt, 668 F.2d 100 (2d Cir.1981), cert. denied, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). However, in Fogel we merely assumed that when Congress added § 36(b) to the ICA in 1970 it did not intend to overrule previous decisions recognizing implied rights of action in the statute.",
"Id. at 111. The instant case is distinguishable because no court of which we are aware has recognized a private right of action to enforce §§ 26(f) and 27(i). Certainly no court could have done so before 1970 because these sections were not added to the ICA until 1996. See National Securities Markets Improvement Act of 1996, Pub.L. No. 104-290, §§ 205(a),(b), 110 Stat. 3416, 3429. We express no opinion on the current validity of our assumption in Fogel because in this case we interpret sections added after Congress created the private right of action in § 36(b). 4 See, e.g., Bancroft Convertible Fund, Inc. v. Zico Inv. Holdings, Inc., 825 F.2d 731, 736 (3d Cir.1987) (recognizing implied private right of action for violations of § 12(d)(1)(A)); Meyer v. Oppenheimer Mgmt. Corp., 764 F.2d 76, 88 (2d Cir.1985) (§ 15(f)); McLachlan v. Simon, 31 F.Supp.2d 731, 737 (N.D.Ca.1998) (§ 36(a)); Young v. Nationwide Life Ins.",
"Co., 2 F.Supp.2d 914, 926 (S.D.Texas 1998) (same); Strougo v. Scudder, Stevens, & Clark, Inc., 964 F.Supp. 783, 798 (S.D.N.Y.1997) (same); In re Nuveen Fund Litig., No. 94-C-360, 1996 WL 328006, at *6, 1996 U.S. Dist. LEXIS 8071, at *17 (N.D.Ill. June 11, 1996) (§§ 34(b), 36(a)); Blatt v. Merrill Lynch, Pierce, Fenner & Smith Inc., 916 F.Supp. 1343, 1349, 1357 (D.N.J.1996) (§§ 7(d), 13(a)(3)); Langner v. Brown, 913 F.Supp.",
"260, 267 (S.D.N.Y.1996) (§ 10(a)); Carr v. Equistar Offshore, Ltd., No. 94-Civ.-5567, 1995 WL 562178, at *15, 1995 U.S. Dist. LEXIS 13703, at *44-*45 (S.D.N.Y. Sept.21, 1995) (§ 7(d)); Seidel v. Lee, No. Civ A. 93-494, 1994 WL 913930, at *2, 1994 U.S. Dist. LEXIS 21534, at *8-*9 (D.Del. Oct. 14, 1994) (§§ 17(j), 36(a), 56(a), 57(a), 57(d)); In re ML-Lee Acquisition Fund II, L.P., 848 F.Supp. 527, 539-45 (D.Del.1994) (§§ 17(j), 36(a), 48, 57); Krome v. Merrill Lynch & Co., 637 F.Supp. 910, 917-20, vacated in part, 110 F.R.D. 693 (S.D.N.Y. 1986) (§§ 7(a), 10(b), 15, 17(a), 22, 34(a), 36). Against this impressive lineup stand only the decision of the district court in this case and two others: Potomac Capital Mkts. Corp. v. Prudential-Bache Corp. Dividend Fund, Inc., 726 F.Supp.",
"87, 91-94 (S.D.N.Y.1989) (denying rights of action under §§ 13(a)(4), 25(a), although recognizing private right to enforce § 13(a)(3)); M.J. Whitman & Co. v. Am. Fin. Enter., Inc., 552 F.Supp. 17, 22 (S.D.Ohio 1982), aff'd, 725 F.2d 394 (6th Cir.1984) (no general private right of action against companies failing to register under ICA). 5 This Court asked the SEC for anamicus curiae brief on the private right of action issue presented by this appeal. The SEC declined to respond to our inquiry regarding §§ 26(f) and 27(i) of the ICA on the grounds that the SEC considers § 47(b) of the ICA (15 U.S.C. § 80a-46(b)) to provide a basis for the plaintiffs' claims. Because the plaintiffs make no claim under § 47(b), and because an issue raised only by an amicus curiae is normally not considered on appeal, Bano v. Union Carbide Corp., 273 F.3d 120, 127 n. 5 (2d Cir.2001), we decline to consider the relevance of § 47(b)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/776899/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal dismissed, unless appellant shall file and serve printed records and briefs by December fifteenth. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ. | 01-08-2022 | [
"Appeal dismissed, unless appellant shall file and serve printed records and briefs by December fifteenth. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5315857/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0921373
Decision Date: 06/08/09 Archive Date: 06/16/09
DOCKET NO. 07-37 905 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to a compensable initial rating for bilateral
hearing loss.
3. Entitlement to specially adapted housing or a special
home adaptation grant.
REPRESENTATION
Appellant represented by: Kentucky Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to May
1971 and April 1973 to February 1977.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action y the
Department of Veterans Affairs (hereinafter VA) Regional
Office in Louisville, Kentucky, (hereinafter RO).
FINDINGS OF FACT
1. Tinnitus was not shown during service and there is no
competent evidence linking tinnitus to service.
2. Hearing acuity is at Level I in each ear.
3. Service connection is in effect for residuals of a left
wrist fracture rated as 60 percent disabling; causalgia of
the left upper extremity, rated as 40 percent disabling and
bilateral hearing loss, rated noncompensable; the service-
connected disabilities combine to a rating of 80 percent, and
the Veteran is in receipt of a total disability rating for
compensation based on individual unemployability.
4. Service connected disability does not result in the loss
of use of a lower extremity (foot) which so affects the
functions of balance or propulsion as to preclude locomotion
without the aid of braces, crutches, canes, or a wheelchair.
5. Neither ankylosis of a knee or hip is demonstrated due to
service connected disability, nor is a lower extremity shown
to be shortened 3 1/2 inches or more due to a service
connected disability.
6. Complete paralysis of the external popliteal nerve due to
a service connected disability causing foot drop is not
shown.
7. It has not been shown that due to a service connected
disability, the Veteran has the anatomical loss or loss of
use of a foot, nor is functioning of a foot shown to be so
limited due to a service connected disability that the
Veteran would be equally well-served by an amputation below
the knee with use of a suitable prosthetic appliance.
8. The Veteran is not service connected for blindness in
both eyes with 5/200 visual acuity or less and is not
entitled to compensation for the anatomical loss or loss of
use of both hands.
CONCLUSIONS OF LAW
1. Tinnitus was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002);
38 C.F.R. § 3.303 (2008).
2. The criteria for a compensable initial rating for
bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155,
5013A, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code
(DC) 6100 (2008).
3. The criteria for entitlement to a certificate of
eligibility for assistance in acquiring specially adapted
housing are not met. 38 U.S.C.A. §§ 2101(a), 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.809, 4.63 (2008).
4. The criteria for entitlement to a certificate of
eligibility for assistance in acquiring a special home
adaptation grant are not met. 38 U.S.C.A. §§ 2101(b), 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.809a, 4.63 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist claimants. First with regard to the duty
to notify, in a letter dated in August 2007, the RO advised
the claimant of the information necessary to substantiate the
claim for service connection for tinnitus and a May 2008
letter informed the Veteran of the information necessary to
substantiate the claim for an increased initial rating for
bilateral hearing loss. The May 2008 letter was also fully
compliant with Vazquez-Flores v. Peake, 22 Vet. App. 37
(2008), although such notice was not required, as the Federal
Circuit has held that 38 U.S.C. § 5103(a) does not require VA
to provide such notice upon, as in the instant case with
respect to the grant of service connection for bilateral
hearing loss by the October 2007 rating decision, receipt of
a notice of disagreement with the rating and effective date
assigned by a RO for an award of service connection. See
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). He was
also informed of his and VA's respective obligations for
obtaining specified different types of evidence in the August
2007 and May 2008 letters. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). Finally, these letters provided the
Veteran with information regarding ratings and effective
dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The requirement of requesting that the claimant provide any
evidence in his possession that pertains to the claim was
eliminated by the Secretary during the course of this
appeal. See 73 Fed. Reg. 23353 (final rule eliminating
fourth element notice as required under Pelegrini II,
effective May 30, 2008). Any error related to this element
is harmless.
In a March 2006 letter, the Veteran was provided information
necessary to substantiate the claim for specially adapted
housing or a special home adaptation grant. In a December
2006 rating decision, the Veteran was again informed of the
criteria necessary for a grant of these benefits. This
rating action was followed by readjudication and the issuance
of statement of the case in November 2007 and supplemental
statement of the case in December 2008. See Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect). The actions of the RO have served to provide
the Veteran with notice of the information needed to prevail
in his claim for specially adapted housing or a special home
adaptation grant and the RO has not committed any
notification error that has affected the essential fairness
of the adjudication. See Sanders v. Nicholson, 487 F.3d 881
(Fed. Cir. 2007). Therefore, the Board finds that there was
no prejudicial error; notification errors did not affect the
essential fairness of the adjudication. See Dunlap v.
Nicholson, 21 Vet. App. 112 (2007). As such, the Board finds
that the duty to notify has been satisfied.
VA also has a duty to assist the Veteran in the development
of the claim. This duty includes assisting the Veteran in
the procurement of service treatment records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has
obtained the service treatment records and made reasonable
efforts to obtain relevant post-service records adequately
identified by the Veteran. Specifically, the information and
evidence that have been associated with the claims file
includes VA and private treatment records, and the Veteran's
own statements he presented. He has also been afforded VA
audiometric and musculoskeletal examinations that contain
sufficient clinical information to equitably adjudicate the
claims on appeal. Thus, the Board finds that all necessary
development has been accomplished, and therefore appellate
review may proceed without prejudice to the appellant. See
Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly,
neither the appellant nor his representative has identified,
and the record does not otherwise indicate, any additional
existing evidence that is necessary for a fair adjudication
of the claims that has not been obtained. Hence, no further
notice or assistance to the appellant is required to fulfill
VA's duty to assist the appellant in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
II. Legal Criteria/Analysis
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2008). In
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of
Appeals for Veterans Claims held that an appellant need only
demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
A. Service Connection for Tinnitus
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303(a), 3.304.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b). When a condition noted during service is not shown
to be chronic, or the fact of chronicity in service is not
adequately supported, then a showing of continuity of
symptomatology after discharge is required to support the
claim. Id. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of: (1) a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App.
247, 253 (1999).
Review of the service treatment records, to include reports
from an audiometric examination in April 1969 and reports
from separation examinations and medical histories provided
in February 1971 and February 1977 do not reflect any
evidence of tinnitus. The Veteran served as a military
policeman in the United States Air Force, and exposure to a
high level of noise during service was conceded by a VA
examiner in September 2007 and the RO in its October 2007
rating decision granting service connection for bilateral
hearing loss. However, the examiner indicated at this
examination that "[b]ecause the patient reports onset of
tinnitus only 3-4 years ago, it would be less than likely
that the tinnitus was directly related to his military noise
exposure." There is otherwise no evidence of record that
includes a competent medical opinion linking tinnitus to
service.
As for the Veteran's question as to how VA could determine
that hearing loss is related to in-service noise exposure but
that tinnitus is not, such assertions cannot be used to
establish a claim as a layperson is not qualified to render a
medical opinion regarding the etiology of disorders and
disabilities. See Cromley v. Brown, 7 Vet. App. 376, 379
(1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992)
(finding that competent medical evidence means evidence
provided by a person who is qualified through education,
training, or experience to offer medical diagnoses,
statements, or opinions). As such, and given the silent
service treatment records and lack of any competent evidence
linking tinnitus to service, the claim for service connection
for this condition must be denied. Hickson, supra.
Finally, in reaching this decision, the Board considered the
doctrine of reasonable doubt; however, as the preponderance
of the evidence is against the veteran's claim for service
connection for tinnitus, the doctrine is not for application.
Gilbert, supra.
B. Increased Rating for Bilateral Hearing Loss
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Separate diagnostic codes identify the various disabilities.
Where an increase in the disability rating is at issue, the
present level of the Veteran's disability is the primary
concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, the Board notes that the claim for an increased
rating for bilateral hearing loss, as discussed previously,
is based on the assignment of the initial rating for this
condition following the initial award of service connection
for hearing loss by the October 2007 rating decision. The
United States Court of Appeals for Veterans Claims (Court)
held that the rule articulated in Francisco did not apply to
the assignment of an initial rating for a disability
following an initial award of service connection for that
disability. Fenderson v. West, 12 Vet. App. 119 (1999); See
Hart v. Mansfield, 21 Vet App 505 (2007); Francisco, 7 Vet.
App. at 58.
In evaluating service-connected hearing loss, disability
ratings are derived by a mechanical application of the Rating
Schedule to the numeric designations assigned after
audiometric evaluations are performed. See Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992). Hearing loss
disability evaluations range from noncompensable to 100
percent based on organic impairment of hearing acuity, as
measured by controlled speech discrimination tests in
conjunction with the average hearing threshold, as measured
by puretone audiometric tests in the frequencies 1,000,
2,000, 3,000 and 4,000 cycles per second. The Rating
Schedule establishes 11 auditory acuity levels designated
from Level I for essentially normal hearing acuity, through
Level XI for profound deafness. VA audiometric examinations
are conducted using a controlled speech discrimination test
together with the results of a puretone audiometry test. The
vertical lines in Table VI in 38 C.F.R. § 4.85 represent nine
categories of the percentage of discrimination based on the
controlled speech discrimination test. The horizontal
columns in Table VI represent nine categories of decibel loss
based on the pure tone audiometry test. The numeric
designation of impaired hearing, Levels I through XI, is
determined for each ear by intersecting the vertical row
appropriate for the percentage of discrimination and the
horizontal column appropriate to the puretone decibel loss.
The percentage evaluation is found from Table VII by
intersecting the vertical column appropriate for the numeric
designation for the ear having the better hearing acuity and
the horizontal row appropriate to the numeric designation
level for the ear having the poorer hearing acuity. See 38
C.F.R. § 4.85.
On the authorized audiological evaluation in September 2007,
pure tone thresholds, in decibels, were as follows:
HERTZ
Avg.
1000
2000
3000
4000
RIGHT
33
15
30
45
40
LEFT
38
15
40
50
45
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and of 96 percent in the left ear.
Using Table VI in 38 C.F.R. § 4.85, hearing at this
examination was at Level I in each ear. Under Table VII,
Level I and Level I hearing intersect to warrant a
noncompensable rating.
Notwithstanding the above findings, the regulations have two
provisions for evaluating Veterans with certain patterns of
hearing impairment that cannot always be accurately assessed
under 38 C.F.R. § 4.85 because the speech discrimination test
may not reflect the severity of communicative functioning
that these Veterans experience. See 64 Fed. Reg. 25203 (May
11, 1999). 38 C.F.R. § 4.86(a) indicates that if puretone
thresholds in each of the specified frequencies of 1000,
2000, 3000, and 4000 Hertz are 55 decibels or more, an
evaluation can be based either on Table VI or Table VIa,
whichever results in a higher evaluation. This provision
corrects the fact that with a 55 decibel threshold level the
high level of amplification needed to attempt to conduct a
speech discrimination test would be painful to most people,
and speech discrimination tests may therefore not be possible
or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). 38
C.F.R. § 4.86(b) indicates that when the puretone threshold
is 30 decibels or less at 1000 Hertz and 70 decibels or more
at 2000 Hertz, the Roman numeral designation for hearing
impairment will be chosen from either Table VI or Table VIa,
whichever results in the higher numeral, and that numeral
will then be elevated to the next higher Roman numeral. This
provision compensates for a pattern of hearing impairment
that is an extreme handicap in the presence of any
environmental noise, and a speech discrimination test
conducted in a quiet room with amplification of sound does
not always reflect the extent of impairment experienced in
the ordinary environment. Id. However, in this case, the
audiometric results from the VA examination do not meet these
criteria and therefore, 38 C.F.R. § 4.86 is not applicable to
the Veteran's claim.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco, supra. However, the Board
notes that the Veteran is appealing the initial assignment of
the disability rating assigned for his hearing loss. As
such, the severity of the disability is considered during the
entire period from the initial assignment of the evaluation
to the present time. Fenderson, supra. The record contains
no evidence showing the Veteran to be entitled to a
compensable rating at any point since the effective date of
service connection; therefore, no staged ratings are
appropriate.
In determining whether a higher rating is warranted for a
disease or disability, VA must determine whether the evidence
supports the Veteran's claim or is in relative equipoise,
with the Veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert,
supra. However, the assignment of disability ratings for
hearing impairment are derived at by a mechanical application
of the numeric designations assigned after audiological
evaluations are rendered. Lendenmann, supra. Thus, the
doctrine of reasonable doubt is not for application with
respect to the claim for an increased initial rating for
bilateral hearing loss. The assigned noncompensable (zero
percent) disability rating is appropriate based on the VA
audiometric results in this case. Thus, his request for a
compensable evaluation is denied.
C. Certificate of Eligibility for Assistance in Acquiring
Specially Adapted Housing
A certificate of eligibility for assistance in acquiring
specially adapted housing may be provided if, among other
things, the Veteran is entitled to service connected
compensation for permanent and total disability due to: (1)
The loss, or loss of use, of both lower extremities such as
to preclude locomotion without the aid of braces, crutches,
canes, or a wheelchair, or (2) Blindness in both eyes, having
only light perception, plus the anatomical loss or loss of
use of one lower extremity, or (3) The loss or loss of use of
one lower extremity together with residuals of organic
disease or injury which so affect the functions of balance or
propulsion as to preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair, or (4) The loss or
loss of use of one lower extremity together with the loss or
loss of use of one upper extremity which so affect the
functions of balance or propulsion as to preclude locomotion
without the aid of braces, crutches, canes, or a wheelchair.
38 U.S.C.A. § 2101(a)(1)(2)(3); 38 C.F.R. §
3.809(b)(1)(2)(3)(4).
The term "loss of use" of a hand or foot is defined by
38 C.F.R. § 3.350(a)(2) as that condition where no effective
function remains other than that which would be equally well
served by an amputation stump at the site of election below
elbow or knee with use of a suitable prosthetic appliance.
The determination will be made on the basis of the actual
remaining function, whether the acts of grasping,
manipulation, etc. in the case of the hand, or balance,
propulsion, etc., in the case of a foot, could be
accomplished equally well by an amputation stump with
prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63
which constitute loss of use of a foot or hand are extremely
unfavorable ankylosis of the knee, or complete ankylosis of
two major joints of an extremity, or shortening of the lower
extremity of 3 1/2 inches or more. Also considered as loss
of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete
paralysis of the external popliteal (common peroneal) nerve
and consequent foot drop, accompanied by characteristic
organic changes, including trophic and circulatory
disturbances and other concomitants confirmatory of complete
paralysis of this nerve. Under 38 C.F.R. § 4.124a, DC 8521,
complete paralysis also encompasses foot drop and slight
droop of the first phalanges of all toes, an inability to
dorsiflex the foot, loss of extension (dorsal flexion) of the
proximal phalanges of the toes, loss of abduction of the
foot, weakened adduction of the foot, and anesthesia covering
the entire dorsum of the foot and toes.
Turning to a summary of the relevant facts, service
connection is in effect for residuals of a left wrist
fracture rated as 60 percent disabling; causalgia of the left
upper extremity, rated as 40 percent disabling and bilateral
hearing loss, rated noncompensable; the service-connected
disabilities combine to a rating of 80 percent, and the
Veteran is in receipt of a total disability rating for
compensation based on individual unemployability. The Board
emphasizes that the benefits sought can only be based on
service-connected disability.
Applying the pertinent legal criteria to the facts summarized
above, as service connection is not in effect for a
disability of the lower extremity, and loss of use of at
least one extremity is required for a grant of the benefits
sought, the record simply does not reflect that there is due
to service-connected disability ankylosis, or foot drop as
would be required to warrant a finding of "loss of use" of
a lower extremity under 38 C.F.R. § 4.63, nor is there
evidence that service-connected disability includes
shortening of a lower extremity to 3 1/2 inches or more so as
to meet the criteria for "loss of use" as defined by
regulation. In short, as the criteria of 38 U.S.C.A. §
2101(a) and 38 C.F.R. § 3.809(b) are controlling, entitlement
to a certificate of eligibility for assistance in acquiring
specially adapted housing cannot be granted. 38 U.S.C.A. §
7104(c).
D. Certificate of Eligibility for Assistance in Acquiring a
Special Home Adaptation Grant
In order for a Veteran to be entitled to a certificate of
eligibility for assistance in acquiring special home
adaptation, he must be entitled to compensation for permanent
and total disability which (1) is due to blindness in both
eyes with 5/200 visual acuity or less, or (2) includes the
anatomical loss or loss of use of both hands.
38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a.
As noted above, the service connected disabilities do not
include blindness. While service connection is in effect for
the left wrist and left upper extremity disabilities, service
connection is not in effect for the right hand or right upper
extremity. As such, the service connected disability does
not include the "loss of use" of both hands. Thus, the
Board finds that entitlement to benefits under the provisions
of 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a cannot be
granted, as these provision are controlling on the Board.
38 U.S.C.A. § 7104(c).
ORDER
Entitlement to service connection for tinnitus is denied.
Entitlement to a compensable initial rating for bilateral
hearing loss is denied.
(CONTINUED ON NEXT PAGE)
Entitlement to specially adapted housing or a special home
adaptation grant is denied.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 06-08-2009 | [
"Citation Nr: 0921373 Decision Date: 06/08/09 Archive Date: 06/16/09 DOCKET NO. 07-37 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a compensable initial rating for bilateral hearing loss. 3. Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to May 1971 and April 1973 to February 1977. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action y the Department of Veterans Affairs (hereinafter VA) Regional Office in Louisville, Kentucky, (hereinafter RO). FINDINGS OF FACT 1. Tinnitus was not shown during service and there is no competent evidence linking tinnitus to service.",
"2. Hearing acuity is at Level I in each ear. 3. Service connection is in effect for residuals of a left wrist fracture rated as 60 percent disabling; causalgia of the left upper extremity, rated as 40 percent disabling and bilateral hearing loss, rated noncompensable; the service- connected disabilities combine to a rating of 80 percent, and the Veteran is in receipt of a total disability rating for compensation based on individual unemployability. 4. Service connected disability does not result in the loss of use of a lower extremity (foot) which so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.",
"5. Neither ankylosis of a knee or hip is demonstrated due to service connected disability, nor is a lower extremity shown to be shortened 3 1/2 inches or more due to a service connected disability. 6. Complete paralysis of the external popliteal nerve due to a service connected disability causing foot drop is not shown. 7. It has not been shown that due to a service connected disability, the Veteran has the anatomical loss or loss of use of a foot, nor is functioning of a foot shown to be so limited due to a service connected disability that the Veteran would be equally well-served by an amputation below the knee with use of a suitable prosthetic appliance.",
"8. The Veteran is not service connected for blindness in both eyes with 5/200 visual acuity or less and is not entitled to compensation for the anatomical loss or loss of use of both hands. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2008). 2. The criteria for a compensable initial rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5013A, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2008). 3. The criteria for entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing are not met.",
"38 U.S.C.A. §§ 2101(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.809, 4.63 (2008). 4. The criteria for entitlement to a certificate of eligibility for assistance in acquiring a special home adaptation grant are not met. 38 U.S.C.A. §§ 2101(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.809a, 4.63 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. First with regard to the duty to notify, in a letter dated in August 2007, the RO advised the claimant of the information necessary to substantiate the claim for service connection for tinnitus and a May 2008 letter informed the Veteran of the information necessary to substantiate the claim for an increased initial rating for bilateral hearing loss.",
"The May 2008 letter was also fully compliant with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), although such notice was not required, as the Federal Circuit has held that 38 U.S.C. § 5103(a) does not require VA to provide such notice upon, as in the instant case with respect to the grant of service connection for bilateral hearing loss by the October 2007 rating decision, receipt of a notice of disagreement with the rating and effective date assigned by a RO for an award of service connection.",
"See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). He was also informed of his and VA's respective obligations for obtaining specified different types of evidence in the August 2007 and May 2008 letters. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, these letters provided the Veteran with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.",
"See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. In a March 2006 letter, the Veteran was provided information necessary to substantiate the claim for specially adapted housing or a special home adaptation grant. In a December 2006 rating decision, the Veteran was again informed of the criteria necessary for a grant of these benefits. This rating action was followed by readjudication and the issuance of statement of the case in November 2007 and supplemental statement of the case in December 2008. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The actions of the RO have served to provide the Veteran with notice of the information needed to prevail in his claim for specially adapted housing or a special home adaptation grant and the RO has not committed any notification error that has affected the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed.",
"Cir. 2007). Therefore, the Board finds that there was no prejudicial error; notification errors did not affect the essential fairness of the adjudication. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As such, the Board finds that the duty to notify has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the service treatment records and made reasonable efforts to obtain relevant post-service records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes VA and private treatment records, and the Veteran's own statements he presented.",
"He has also been afforded VA audiometric and musculoskeletal examinations that contain sufficient clinical information to equitably adjudicate the claims on appeal. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet.",
"App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2008). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an \"approximate balance of positive and negative evidence\" in order to prevail. The Court has also stated, \"It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.\"",
"Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A. Service Connection for Tinnitus Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303(a), 3.304. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.",
"§ 3.303(d). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet.",
"App. 247, 253 (1999). Review of the service treatment records, to include reports from an audiometric examination in April 1969 and reports from separation examinations and medical histories provided in February 1971 and February 1977 do not reflect any evidence of tinnitus. The Veteran served as a military policeman in the United States Air Force, and exposure to a high level of noise during service was conceded by a VA examiner in September 2007 and the RO in its October 2007 rating decision granting service connection for bilateral hearing loss. However, the examiner indicated at this examination that \"[b]ecause the patient reports onset of tinnitus only 3-4 years ago, it would be less than likely that the tinnitus was directly related to his military noise exposure.\" There is otherwise no evidence of record that includes a competent medical opinion linking tinnitus to service. As for the Veteran's question as to how VA could determine that hearing loss is related to in-service noise exposure but that tinnitus is not, such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities.",
"See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) (finding that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, and given the silent service treatment records and lack of any competent evidence linking tinnitus to service, the claim for service connection for this condition must be denied. Hickson, supra. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim for service connection for tinnitus, the doctrine is not for application.",
"Gilbert, supra. B. Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the claim for an increased rating for bilateral hearing loss, as discussed previously, is based on the assignment of the initial rating for this condition following the initial award of service connection for hearing loss by the October 2007 rating decision. The United States Court of Appeals for Veterans Claims (Court) held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability.",
"Fenderson v. West, 12 Vet. App. 119 (1999); See Hart v. Mansfield, 21 Vet App 505 (2007); Francisco, 7 Vet. App. at 58. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.",
"The vertical lines in Table VI in 38 C.F.R. § 4.85 represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing, Levels I through XI, is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R.",
"§ 4.85. On the authorized audiological evaluation in September 2007, pure tone thresholds, in decibels, were as follows: HERTZ Avg. 1000 2000 3000 4000 RIGHT 33 15 30 45 40 LEFT 38 15 40 50 45 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, hearing at this examination was at Level I in each ear. Under Table VII, Level I and Level I hearing intersect to warrant a noncompensable rating. Notwithstanding the above findings, the regulations have two provisions for evaluating Veterans with certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these Veterans experience.",
"See 64 Fed. Reg. 25203 (May 11, 1999). 38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. This provision corrects the fact that with a 55 decibel threshold level the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). 38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.",
"This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. However, in this case, the audiometric results from the VA examination do not meet these criteria and therefore, 38 C.F.R. § 4.86 is not applicable to the Veteran's claim. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco, supra.",
"However, the Board notes that the Veteran is appealing the initial assignment of the disability rating assigned for his hearing loss. As such, the severity of the disability is considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson, supra. The record contains no evidence showing the Veteran to be entitled to a compensable rating at any point since the effective date of service connection; therefore, no staged ratings are appropriate. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.",
"38 U.S.C.A. § 5107(a); Gilbert, supra. However, the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann, supra. Thus, the doctrine of reasonable doubt is not for application with respect to the claim for an increased initial rating for bilateral hearing loss. The assigned noncompensable (zero percent) disability rating is appropriate based on the VA audiometric results in this case. Thus, his request for a compensable evaluation is denied. C. Certificate of Eligibility for Assistance in Acquiring Specially Adapted Housing A certificate of eligibility for assistance in acquiring specially adapted housing may be provided if, among other things, the Veteran is entitled to service connected compensation for permanent and total disability due to: (1) The loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, or (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.",
"38 U.S.C.A. § 2101(a)(1)(2)(3); 38 C.F.R. § 3.809(b)(1)(2)(3)(4). The term \"loss of use\" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 which constitute loss of use of a foot or hand are extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more.",
"Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a, DC 8521, complete paralysis also encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. Turning to a summary of the relevant facts, service connection is in effect for residuals of a left wrist fracture rated as 60 percent disabling; causalgia of the left upper extremity, rated as 40 percent disabling and bilateral hearing loss, rated noncompensable; the service-connected disabilities combine to a rating of 80 percent, and the Veteran is in receipt of a total disability rating for compensation based on individual unemployability.",
"The Board emphasizes that the benefits sought can only be based on service-connected disability. Applying the pertinent legal criteria to the facts summarized above, as service connection is not in effect for a disability of the lower extremity, and loss of use of at least one extremity is required for a grant of the benefits sought, the record simply does not reflect that there is due to service-connected disability ankylosis, or foot drop as would be required to warrant a finding of \"loss of use\" of a lower extremity under 38 C.F.R. § 4.63, nor is there evidence that service-connected disability includes shortening of a lower extremity to 3 1/2 inches or more so as to meet the criteria for \"loss of use\" as defined by regulation.",
"In short, as the criteria of 38 U.S.C.A. § 2101(a) and 38 C.F.R. § 3.809(b) are controlling, entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing cannot be granted. 38 U.S.C.A. § 7104(c). D. Certificate of Eligibility for Assistance in Acquiring a Special Home Adaptation Grant In order for a Veteran to be entitled to a certificate of eligibility for assistance in acquiring special home adaptation, he must be entitled to compensation for permanent and total disability which (1) is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands.",
"38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a. As noted above, the service connected disabilities do not include blindness. While service connection is in effect for the left wrist and left upper extremity disabilities, service connection is not in effect for the right hand or right upper extremity. As such, the service connected disability does not include the \"loss of use\" of both hands. Thus, the Board finds that entitlement to benefits under the provisions of 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a cannot be granted, as these provision are controlling on the Board. 38 U.S.C.A. § 7104(c). ORDER Entitlement to service connection for tinnitus is denied. Entitlement to a compensable initial rating for bilateral hearing loss is denied. (CONTINUED ON NEXT PAGE) Entitlement to specially adapted housing or a special home adaptation grant is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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27 F.2d 785 (1928) FRANC-STROHMENGER & COWAN, Inc., v. ARTHUR SIEGMAN, Inc. No. 353. Circuit Court of Appeals, Second Circuit. August 20, 1928. Kenyon & Kenyon, of New York City (Charles E. Hughes, Wm. Houston Kenyon and Douglas H. Kenyon, all of New York City, and Meier Steinbrink, of Brooklyn, N. Y., of counsel), for appellant. Clifford E. Dunn, of New York City (Frederick P. Fish and Charles Neave, both of Boston, Mass., of counsel), for appellee. Before MANTON, L. HAND, and SWAN, Circuit Judges. SWAN, Circuit Judge. Infringement is not disputed, if the patent is valid; but appellant challenges its validity. It is contended that the alleged improvement described in the patent is lacking in patentable invention over the prior art; that no inferences favorable to the validity of the patent are to be drawn from plaintiff's commercial success, because that success is to be credited to the noncreasing quality of the lining material used in the commercial product rather than to the teaching of the patent; and that the patent is insufficient as a disclosure. These points will be considered in inverse order. The claims of the patent are exceedingly broad and general. The four claims adjudicated read as follows: "1. A necktie, comprising a body portion including a knot-forming part and a woven fabric resilient lining connected thereto, said resilient lining extending into the knot-forming part of the tie. "2. A necktie, comprising a body portion, and a woven fabric resilient lining connected therewith by loose stitching. "3. A necktie provided with a lining attached thereto and consisting of woven fabric cut on the bias. "4. A necktie comprising a body having folds, a woven fabric elastic or resilient lining in the tie body, and loose stitching uniting the folds of the tie body and connecting the woven fabric elastic or resilient lining thereto." They must, of course, be read and interpreted in the light of the specifications. After stating that his invention relates to improvements in neckties, and particularly to those of the four-in-hand type, the inventor recites that ties are necessarily subjected in *786 ordinary use to pulling strains, which tend to distort the tie and break the stitching which unites the body material and the lining. The prior art, he says, has used inelastic linings stitched to the folded portions of tie, particularly throughout the neck portion, which passes between the folds of the collar, and has failed to overcome the stated objections. His object is: "* * * To so construct a necktie of the four-in-hand type that the lining shall be sufficiently elastic or resilient in character, and so stitched to the body material as not to cause breaking of the stitching or distortion of the tie, and, at the same time, so that the lining shall be capable of withstanding the pulling strain to which it may be subjected after having yielded lengthwise with the body material to a limited extent, and so that, when the pulling strain shall have been relieved, the body material and lining will assume their original shape and dimensions." He then describes his invention as consisting of novel features of construction: The body material, such as silk, will preferably be cut on the bias, so that it will be more or less elastic in character; the lining is loosely stitched to the folds of the body material and "* * * is made of woven fabric cut on the bias, so that it shall have limited elasticity or resiliency, and this constitutes a valuable feature of my invention. With the use of lining of woven material having limited elasticity, it will stretch with the stretching of the body material, and at the same time it will not be sufficiently more elastic than the elasticity of the body material as to cause breaking of the stitching, but said lining will suffice to relieve the body material from excessive stress or strain when the tie is subjected to great pulling force. It will be observed also that, when the tie is stretched, the loose stitching will slip, and this will assist in avoiding breaking of the thread." Finally, he describes the result attained: Distortion will be prevented, as the stitching will not be broken, and the body material and lining will return to normal positions when the pulling strain is discontinued. What the patentee has disclosed appears to us to be this: A tie having a suitable body material, preferably bias cut silk, with a woven fabric lining, bias cut and of limited resiliency, and a loose stitching uniting body and lining. The resilience of body and of lining must be so related that the stitching will not break when the tie is subjected to the strains of ordinary use, that the "lining will suffice to relieve the body material from excessive stress," and will return to its normal position, bringing the body material with it, when the pull ceases. The invention is in the combination of these things, not in any one of them. It is argued that this is too indefinite to teach necktie manufacturers how to use the patent; that the material and texture of the lining is crucial to the combination, and is not disclosed. It is true that it leaves to the manufacturer an undefined latitude of choice; he is to select a lining that has the required qualities, and the claims cover any lining which does have them. The question is whether, given this disclosure, the tie maker, of ordinary skill in the art, could make the patented tie without resort to independent invention. See Eibel Process Co. v. Minn. Process Co., 261 U.S. 45, 65, 43 S. Ct. 322, 67 L. Ed. 523. That he must exercise a choice in his selection is not fatal to the disclosure, provided it gives him an adequate guide. We think it does. First, he must select from among woven fabrics one which, cut on the bias, is resilient enough to return to normal after being stretched by service strains. Such fabrics were available. Next, he must select from among them one which has a relation to the body material. The relation is defined, on the one hand, as requiring the lining to give under ordinary strains. This give is disclosed as a means of preventing the breaking of the thread and the distortion of the tie, and it is clear that this refers to those cases in which, if the lining were too rigid, the silk under the ordinary grasp might pull over its surface, and not only break the thread, but, having only itself to resist the strain, become distorted. On the other hand, the lining must be stiff enough to reinforce the silk, so that together the two will not give so far as to break the thread, and fail to return to "their original shape and dimensions." All this appears to us fairly described in the disclosure, and, while it requires independent choice, we think it furnishes a sufficient guide to the skilful artisan. Silks vary in elasticity, and it may require some experimentation to determine in each case what lining will do and what degree of looseness in the stitching. But this is inherent in the subject, and we fail to see how the invention can be more definitely stated, unless the inventor is to be required to describe a specific application of his inventive thought, to which he will be limited. Langsdorf did not attempt to say that the woolen linings of his *787 commercial product would alone suffice; perhaps haircloth or other material of limited resiliency, properly related to the resiliency of the tie body, would do as well. The patent left undisclosed no more than was necessary, if the invention was to be claimed in general terms, and not so much as to forbid the possibility of practice. It is not fatal to a patent that the description is in terms of performance and result. That is a vice only when the ordinary artisan called upon to follow the disclosure has no means at hand to reach the result, or when the result may be reached by other means than that disclosed. It is urged that there is in the patent no definition of the degree of resilience of the lining, except that it must function perfectly; that if the thread breaks, or the tie becomes distorted, under the strains of ordinary use, it was not the lining called for by the patent, while, if the combination works successfully, it was; and that this attempted definition of the resilience of the lining by the result of the use of the tie is within the vice condemned in Holland Furniture Co. v. Perkins Glue Co., 48 S. Ct. 474, 72 L. Ed. ___, decided by the Supreme Court May 14, 1928. As we understand that case, it merely holds that the inventor of one substance a particular starch glue which will perform the function of animal glue may not claim all others which will reach the same result. To allow this, as Justice Stone says, would extend the patent monopoly beyond the discovery, and would discourage rather than promote invention. But, when the other examples of the product patented do not need independent invention, and must use what the patentee has disclosed, we see no objection to claiming the whole class. The question really comes down to whether the combination disclosed is as such a contribution to knowledge, and requires in its practice no more than the common knowledge of the art. Unless this were true, the law would deprive the inventor of his contribution, either by limiting him to the instance he gives, or, if he gives none, by holding that he had contributed nothing. Certainly Langsdorf gave to the necktie trade something new and immensely useful, which the trade at once seized upon and began to copy. The figures and facts which demonstrate the impressive success of his tie are set out in the opinion of the District Court and need not be here repeated. Franc-Strohmenger & Cowan v. Siegman, 25 F.(2d) 108. But it is urged by appellant that the trade learned from Langsdorf's commercial product, not from the disclosure of his patent, and that plaintiff's commercial success is attributable to the merits of a wiry, woolen fabric, known as "Resiline," which was used for a lining, rather than to the merits of the construction taught by the patent. Five judges have passed upon this disputed question of fact. In the Sixth Circuit litigation, Judge Westenhaver in the District Court, and Judge Denison of the Circuit Court of Appeals, decided it in favor of the patentee; while Judges Moorman and Donahue, constituting the majority of the appellate tribunal, invalidated the patent, chiefly, we think, because they deemed it not entitled to any favorable inferences from the success of Langsdorf's product, for the reason that that success was attributed "mainly, if not entirely," to the extraordinary qualities of Resiline. Forchheimer v. Franc, Strohmenger & Cowan (C. C. A.) 20 F.(2d) 553. Judge Thacher in the instant suit found that the plaintiff's commercial success was not to be ascribed to that material, but to the teachings of the patent. Resiline was not a newly discovered fabric, though its use as a necktie lining was new. Langsdorf did not even know of it until after his application had been filed. The ties submitted with his application were lined with a woolen fabric of English manufacture. Two of his original ties are in evidence, and do not appear to differ essentially from the ties lined with Resiline. He substituted Resiline for the English fabric, because it was made at home and was cheaper. Similar materials had long been available, had the trade known enough to use them in the way Langsdorf taught. The fact that they were not so used before, and that the trade immediately seized upon their use as soon as Langsdorf had shown how to combine them with the silk body material of a tie, is cogent evidence of the patentability of his construction. See Kurtz v. Belle, 280 F. 277 (C. C. A. 2); Van Heusen v. Earl & Wilson, 300 F. 922 (D. C. S. D. N. Y). We agree with Judge Denison's statement in his dissenting opinion in the Forchheimer Case, supra, at page 558: "When for many years the practical art has been trying to get a result by efforts in one direction, and, by abandoning those efforts and turning in the opposite direction, some one, though in a very simple way, gets a new thing, which the whole trade at once accepts as satisfactory, and which largely displaces all competition in its immediate *788 field, a court must be exceedingly sure of its ground in order to reverse the verdict of those long familiar with the subject in its practical aspect." So we come to the conclusion that the disclosure of the patent is sufficient, and is entitled to favorable inferences of inventive patentability. The question remaining is whether the invention was anticipated. The nearest patent of the prior art is Heath, No. 335,071. The specifications state that the interlining, because of its extended form, is longitudinally elastic, but is transversely inelastic, so that it will firmly hold and retain the outer facing. The tie made under this patent is of rigid construction, and shows a linen canvas lining cut straight. No purpose is disclosed in its slight longitudinal elasticity; it teaches no such practice as Langsdorf's. The evidence of the alleged anticipation by S. S. Loeb & Co. in 1920, in manufacturing ties with bias-cut, woven haircloth linings, was carefully analyzed and discussed by the District Court. It will suffice to say that we agree with his conclusion that it is too confused to stand for proof of a prior use. Loeb's own witnesses do not agree among themselves. If Loeb had made such ties, he certainly had not appreciated what was in the invention, and had abandoned them by October, 1921. The art gained nothing from him. The all-silk ties made from a single piece, with the excess material folded in, such as the Tremlett scarf, we do not consider a lined tie, within the meaning of the patent, which implies a lining of a different material, or at least of a different degree of resiliency from the body silk. For the same reason, not to mention others, the silk-lined ties of the prior art were not anticipations. The ties with bias-cut cotton or Canton flannel linings were properly disposed of by Judge Thacher, because not resilient in the sense of the patent. The supposed prior use of the Eisenstaedt tie, with its bias-cut cotton canvas lining, also lacks the stretch and return capacity required by the patent. In none of the ties cited as anticipations was any attention given, so far as appears, to the relative resiliency of body and lining which Langsdorf taught. In the view of the majority of the court, the patent was not anticipated and should be sustained. The decree is accordingly affirmed. MANTON, Circuit Judge, dissents. | 10-30-2013 | [
"27 F.2d 785 (1928) FRANC-STROHMENGER & COWAN, Inc., v. ARTHUR SIEGMAN, Inc. No. 353. Circuit Court of Appeals, Second Circuit. August 20, 1928. Kenyon & Kenyon, of New York City (Charles E. Hughes, Wm. Houston Kenyon and Douglas H. Kenyon, all of New York City, and Meier Steinbrink, of Brooklyn, N. Y., of counsel), for appellant. Clifford E. Dunn, of New York City (Frederick P. Fish and Charles Neave, both of Boston, Mass., of counsel), for appellee. Before MANTON, L. HAND, and SWAN, Circuit Judges. SWAN, Circuit Judge. Infringement is not disputed, if the patent is valid; but appellant challenges its validity. It is contended that the alleged improvement described in the patent is lacking in patentable invention over the prior art; that no inferences favorable to the validity of the patent are to be drawn from plaintiff's commercial success, because that success is to be credited to the noncreasing quality of the lining material used in the commercial product rather than to the teaching of the patent; and that the patent is insufficient as a disclosure. These points will be considered in inverse order.",
"The claims of the patent are exceedingly broad and general. The four claims adjudicated read as follows: \"1. A necktie, comprising a body portion including a knot-forming part and a woven fabric resilient lining connected thereto, said resilient lining extending into the knot-forming part of the tie. \"2. A necktie, comprising a body portion, and a woven fabric resilient lining connected therewith by loose stitching. \"3. A necktie provided with a lining attached thereto and consisting of woven fabric cut on the bias. \"4. A necktie comprising a body having folds, a woven fabric elastic or resilient lining in the tie body, and loose stitching uniting the folds of the tie body and connecting the woven fabric elastic or resilient lining thereto.\"",
"They must, of course, be read and interpreted in the light of the specifications. After stating that his invention relates to improvements in neckties, and particularly to those of the four-in-hand type, the inventor recites that ties are necessarily subjected in *786 ordinary use to pulling strains, which tend to distort the tie and break the stitching which unites the body material and the lining. The prior art, he says, has used inelastic linings stitched to the folded portions of tie, particularly throughout the neck portion, which passes between the folds of the collar, and has failed to overcome the stated objections. His object is: \"* * * To so construct a necktie of the four-in-hand type that the lining shall be sufficiently elastic or resilient in character, and so stitched to the body material as not to cause breaking of the stitching or distortion of the tie, and, at the same time, so that the lining shall be capable of withstanding the pulling strain to which it may be subjected after having yielded lengthwise with the body material to a limited extent, and so that, when the pulling strain shall have been relieved, the body material and lining will assume their original shape and dimensions.\" He then describes his invention as consisting of novel features of construction: The body material, such as silk, will preferably be cut on the bias, so that it will be more or less elastic in character; the lining is loosely stitched to the folds of the body material and \"* * * is made of woven fabric cut on the bias, so that it shall have limited elasticity or resiliency, and this constitutes a valuable feature of my invention.",
"With the use of lining of woven material having limited elasticity, it will stretch with the stretching of the body material, and at the same time it will not be sufficiently more elastic than the elasticity of the body material as to cause breaking of the stitching, but said lining will suffice to relieve the body material from excessive stress or strain when the tie is subjected to great pulling force. It will be observed also that, when the tie is stretched, the loose stitching will slip, and this will assist in avoiding breaking of the thread.\" Finally, he describes the result attained: Distortion will be prevented, as the stitching will not be broken, and the body material and lining will return to normal positions when the pulling strain is discontinued.",
"What the patentee has disclosed appears to us to be this: A tie having a suitable body material, preferably bias cut silk, with a woven fabric lining, bias cut and of limited resiliency, and a loose stitching uniting body and lining. The resilience of body and of lining must be so related that the stitching will not break when the tie is subjected to the strains of ordinary use, that the \"lining will suffice to relieve the body material from excessive stress,\" and will return to its normal position, bringing the body material with it, when the pull ceases. The invention is in the combination of these things, not in any one of them.",
"It is argued that this is too indefinite to teach necktie manufacturers how to use the patent; that the material and texture of the lining is crucial to the combination, and is not disclosed. It is true that it leaves to the manufacturer an undefined latitude of choice; he is to select a lining that has the required qualities, and the claims cover any lining which does have them. The question is whether, given this disclosure, the tie maker, of ordinary skill in the art, could make the patented tie without resort to independent invention. See Eibel Process Co. v. Minn. Process Co., 261 U.S. 45, 65, 43 S. Ct. 322, 67 L. Ed. 523. That he must exercise a choice in his selection is not fatal to the disclosure, provided it gives him an adequate guide.",
"We think it does. First, he must select from among woven fabrics one which, cut on the bias, is resilient enough to return to normal after being stretched by service strains. Such fabrics were available. Next, he must select from among them one which has a relation to the body material. The relation is defined, on the one hand, as requiring the lining to give under ordinary strains. This give is disclosed as a means of preventing the breaking of the thread and the distortion of the tie, and it is clear that this refers to those cases in which, if the lining were too rigid, the silk under the ordinary grasp might pull over its surface, and not only break the thread, but, having only itself to resist the strain, become distorted. On the other hand, the lining must be stiff enough to reinforce the silk, so that together the two will not give so far as to break the thread, and fail to return to \"their original shape and dimensions.\" All this appears to us fairly described in the disclosure, and, while it requires independent choice, we think it furnishes a sufficient guide to the skilful artisan. Silks vary in elasticity, and it may require some experimentation to determine in each case what lining will do and what degree of looseness in the stitching.",
"But this is inherent in the subject, and we fail to see how the invention can be more definitely stated, unless the inventor is to be required to describe a specific application of his inventive thought, to which he will be limited. Langsdorf did not attempt to say that the woolen linings of his *787 commercial product would alone suffice; perhaps haircloth or other material of limited resiliency, properly related to the resiliency of the tie body, would do as well. The patent left undisclosed no more than was necessary, if the invention was to be claimed in general terms, and not so much as to forbid the possibility of practice. It is not fatal to a patent that the description is in terms of performance and result. That is a vice only when the ordinary artisan called upon to follow the disclosure has no means at hand to reach the result, or when the result may be reached by other means than that disclosed.",
"It is urged that there is in the patent no definition of the degree of resilience of the lining, except that it must function perfectly; that if the thread breaks, or the tie becomes distorted, under the strains of ordinary use, it was not the lining called for by the patent, while, if the combination works successfully, it was; and that this attempted definition of the resilience of the lining by the result of the use of the tie is within the vice condemned in Holland Furniture Co. v. Perkins Glue Co., 48 S. Ct. 474, 72 L. Ed. ___, decided by the Supreme Court May 14, 1928.",
"As we understand that case, it merely holds that the inventor of one substance a particular starch glue which will perform the function of animal glue may not claim all others which will reach the same result. To allow this, as Justice Stone says, would extend the patent monopoly beyond the discovery, and would discourage rather than promote invention. But, when the other examples of the product patented do not need independent invention, and must use what the patentee has disclosed, we see no objection to claiming the whole class. The question really comes down to whether the combination disclosed is as such a contribution to knowledge, and requires in its practice no more than the common knowledge of the art. Unless this were true, the law would deprive the inventor of his contribution, either by limiting him to the instance he gives, or, if he gives none, by holding that he had contributed nothing. Certainly Langsdorf gave to the necktie trade something new and immensely useful, which the trade at once seized upon and began to copy. The figures and facts which demonstrate the impressive success of his tie are set out in the opinion of the District Court and need not be here repeated.",
"Franc-Strohmenger & Cowan v. Siegman, 25 F.(2d) 108. But it is urged by appellant that the trade learned from Langsdorf's commercial product, not from the disclosure of his patent, and that plaintiff's commercial success is attributable to the merits of a wiry, woolen fabric, known as \"Resiline,\" which was used for a lining, rather than to the merits of the construction taught by the patent. Five judges have passed upon this disputed question of fact. In the Sixth Circuit litigation, Judge Westenhaver in the District Court, and Judge Denison of the Circuit Court of Appeals, decided it in favor of the patentee; while Judges Moorman and Donahue, constituting the majority of the appellate tribunal, invalidated the patent, chiefly, we think, because they deemed it not entitled to any favorable inferences from the success of Langsdorf's product, for the reason that that success was attributed \"mainly, if not entirely,\" to the extraordinary qualities of Resiline.",
"Forchheimer v. Franc, Strohmenger & Cowan (C. C. A.) 20 F.(2d) 553. Judge Thacher in the instant suit found that the plaintiff's commercial success was not to be ascribed to that material, but to the teachings of the patent. Resiline was not a newly discovered fabric, though its use as a necktie lining was new. Langsdorf did not even know of it until after his application had been filed. The ties submitted with his application were lined with a woolen fabric of English manufacture. Two of his original ties are in evidence, and do not appear to differ essentially from the ties lined with Resiline. He substituted Resiline for the English fabric, because it was made at home and was cheaper. Similar materials had long been available, had the trade known enough to use them in the way Langsdorf taught. The fact that they were not so used before, and that the trade immediately seized upon their use as soon as Langsdorf had shown how to combine them with the silk body material of a tie, is cogent evidence of the patentability of his construction.",
"See Kurtz v. Belle, 280 F. 277 (C. C. A. 2); Van Heusen v. Earl & Wilson, 300 F. 922 (D. C. S. D. N. Y). We agree with Judge Denison's statement in his dissenting opinion in the Forchheimer Case, supra, at page 558: \"When for many years the practical art has been trying to get a result by efforts in one direction, and, by abandoning those efforts and turning in the opposite direction, some one, though in a very simple way, gets a new thing, which the whole trade at once accepts as satisfactory, and which largely displaces all competition in its immediate *788 field, a court must be exceedingly sure of its ground in order to reverse the verdict of those long familiar with the subject in its practical aspect.\" So we come to the conclusion that the disclosure of the patent is sufficient, and is entitled to favorable inferences of inventive patentability. The question remaining is whether the invention was anticipated. The nearest patent of the prior art is Heath, No.",
"335,071. The specifications state that the interlining, because of its extended form, is longitudinally elastic, but is transversely inelastic, so that it will firmly hold and retain the outer facing. The tie made under this patent is of rigid construction, and shows a linen canvas lining cut straight. No purpose is disclosed in its slight longitudinal elasticity; it teaches no such practice as Langsdorf's. The evidence of the alleged anticipation by S. S. Loeb & Co. in 1920, in manufacturing ties with bias-cut, woven haircloth linings, was carefully analyzed and discussed by the District Court. It will suffice to say that we agree with his conclusion that it is too confused to stand for proof of a prior use.",
"Loeb's own witnesses do not agree among themselves. If Loeb had made such ties, he certainly had not appreciated what was in the invention, and had abandoned them by October, 1921. The art gained nothing from him. The all-silk ties made from a single piece, with the excess material folded in, such as the Tremlett scarf, we do not consider a lined tie, within the meaning of the patent, which implies a lining of a different material, or at least of a different degree of resiliency from the body silk. For the same reason, not to mention others, the silk-lined ties of the prior art were not anticipations. The ties with bias-cut cotton or Canton flannel linings were properly disposed of by Judge Thacher, because not resilient in the sense of the patent.",
"The supposed prior use of the Eisenstaedt tie, with its bias-cut cotton canvas lining, also lacks the stretch and return capacity required by the patent. In none of the ties cited as anticipations was any attention given, so far as appears, to the relative resiliency of body and lining which Langsdorf taught. In the view of the majority of the court, the patent was not anticipated and should be sustained.",
"The decree is accordingly affirmed. MANTON, Circuit Judge, dissents."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1551029/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This Office Action is in response to applicant’s amendment filed on 3/15/22.
Drawings The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the device claimed in claim 11 blocking and allowing the sliding door to slide (see 112 2nd paragraph rejection below) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d).
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: 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.
Claims 11-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 11 now requires that the stop rod is attached to the stop bar. Then, the claim requires that the stop bar is configured to prevent movement of the sliding member when the stop rod is in the 2nd position and allows movement when in the 1st position. At the instant, the limitation is indefinite. First, as claimed, the 1st and 2nd positions can be anything. And, for this embodiment, the invention is required that the 2nd position is when the rod is raised and the 1st position when is not raised. Correction is required. Second, as claimed, the stop bar, by itself, is not capable of performing the allowing and preventing functions claimed.
PNG media_image1.png 790 998 media_image1.png Greyscale
As seen above, in order to allowing movement of the sliding member (door), the connection between the rod and the bar (by the end of the rod within the channel 136) is the one that allows the sliding member to move. And, in order to prevent movement of the sliding member, the bar 134 is moved upwardly to rest against the sliding member edge, so that when the sliding member is about to be slide, the bar will engage the frame, preventing the sliding member to slide. So as demonstrated, the stop bar by itself does not allow and prevent the sliding member to slide.
Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) The claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 11, 12 and 19 is/are rejected under 35 U.S.C. 102a1 as being anticipated by US Pat No 5,285,596 to Kinsey.
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The door stop mechanism comprises a stop rod (66) selectively attachable to the sliding member, a stop bar (69) configured to be positioned within the track (at least a portion), wherein the stop rod is attached to the stop bar. The stop bar is configured to prevents movement of the sliding member when the stop rod is in the second position and the stop bar is in the second position; and wherein the stop bar is configured to allow movement of the sliding member when the stop rod is in the first position and the stop bar is in the first position. A stop body (68) configured to house at least partially a portion of the stop rod.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 13-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Pat No 5,285,596 to Kinsey in view of US Pat No 1,302,409 to Murphy. Kinsey fails to positively disclose that the mechanism is oriented so as to be pulled upwardly to move the stop rod and allow movement of the sliding member and gravity will move the stop rod downwardly. Kinsey device is oriented so as to be pulled downwardly to release.
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Murphy teaches that it is well known in the art to provide a stop mechanism that comprises a stop rod (21) that is intended to stop movement of a sliding member (12). The mechanism is oriented so that the stop rod is pulled upwardly to release and allow movement of the sliding member and gravity will aid in moving downwardly the stop rod.
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It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide the stop mechanism described by Kinsey oriented so as to pull the stop member upwardly, as taught by Murphy, in order to provide gravity in play to aid in the movement of the stop rod and provide the device in any desired orientation.
Allowable Subject Matter Claims 1, 7-10, 20 and 21 are allowed.
Response to Arguments The current amendment overcomes the previous rejection to claims 1 and 20. Therefore, the claims are in condition for allowance. nd paragraph rejection has been made on the record. At the instant, correcting the 112 2nd paragraph issue will take care of the drawing objection. Also, in view of the amendment and the new interpretation of the prior art, the rejection in view of Kinsey is maintained. Prosecution has been closed.
However, in view of the applicant wanted to claim that embodiment, the examiner is proposing the following amendment to put claim 11 in allowance condition: Propose amendment to claim 11 (might require amendment to any depending claim): -A door stop mechanism for a sliding door, the sliding door having a frame, a sliding member, a stationary member and a track, the door stop mechanism comprising: a stop housing attachable to a side of the sliding member; a stop rod configured to be selectively movable within the stop housing; a stop bar comprising a connecting structure configured to be attached to the stop rod;
the stop rod movable from a first position to a second position, moving wherein is configured to move the stop bar away from the track, preventing movement of the sliding member by positioning the stop bar between the frame and the sliding member when the stop rod is in the second position and the stop bar is in the second position; and wherein the stop rod is configured to move the stop bar within the track, so that the connecting structure allows movement of the sliding member when the stop rod is in the first position and the stop bar is in the first position.-.
Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kristina Fulton can be reached on (571)272-7376. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Carlos Lugo/ Primary Examiner Art Unit 3675
March 21, 2022 | 2022-04-01T11:53:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This Office Action is in response to applicant’s amendment filed on 3/15/22. Drawings The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the device claimed in claim 11 blocking and allowing the sliding door to slide (see 112 2nd paragraph rejection below) must be shown or the feature(s) canceled from the claim(s).",
"No new matter should be entered. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C.",
"112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: 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. Claims 11-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C.",
"112, the applicant), regards as the invention. Claim 11 now requires that the stop rod is attached to the stop bar. Then, the claim requires that the stop bar is configured to prevent movement of the sliding member when the stop rod is in the 2nd position and allows movement when in the 1st position. At the instant, the limitation is indefinite. First, as claimed, the 1st and 2nd positions can be anything. And, for this embodiment, the invention is required that the 2nd position is when the rod is raised and the 1st position when is not raised. Correction is required.",
"Second, as claimed, the stop bar, by itself, is not capable of performing the allowing and preventing functions claimed. PNG media_image1.png 790 998 media_image1.png Greyscale As seen above, in order to allowing movement of the sliding member (door), the connection between the rod and the bar (by the end of the rod within the channel 136) is the one that allows the sliding member to move. And, in order to prevent movement of the sliding member, the bar 134 is moved upwardly to rest against the sliding member edge, so that when the sliding member is about to be slide, the bar will engage the frame, preventing the sliding member to slide. So as demonstrated, the stop bar by itself does not allow and prevent the sliding member to slide. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) The claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.",
"Claim(s) 11, 12 and 19 is/are rejected under 35 U.S.C. 102a1 as being anticipated by US Pat No 5,285,596 to Kinsey. PNG media_image2.png 760 1192 media_image2.png Greyscale The door stop mechanism comprises a stop rod (66) selectively attachable to the sliding member, a stop bar (69) configured to be positioned within the track (at least a portion), wherein the stop rod is attached to the stop bar. The stop bar is configured to prevents movement of the sliding member when the stop rod is in the second position and the stop bar is in the second position; and wherein the stop bar is configured to allow movement of the sliding member when the stop rod is in the first position and the stop bar is in the first position. A stop body (68) configured to house at least partially a portion of the stop rod. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 13-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Pat No 5,285,596 to Kinsey in view of US Pat No 1,302,409 to Murphy. Kinsey fails to positively disclose that the mechanism is oriented so as to be pulled upwardly to move the stop rod and allow movement of the sliding member and gravity will move the stop rod downwardly. Kinsey device is oriented so as to be pulled downwardly to release. PNG media_image3.png 645 700 media_image3.png Greyscale Murphy teaches that it is well known in the art to provide a stop mechanism that comprises a stop rod (21) that is intended to stop movement of a sliding member (12). The mechanism is oriented so that the stop rod is pulled upwardly to release and allow movement of the sliding member and gravity will aid in moving downwardly the stop rod. PNG media_image4.png 670 1026 media_image4.png Greyscale It would have been obvious to one having ordinary skill in the art at the time the invention was made to provide the stop mechanism described by Kinsey oriented so as to pull the stop member upwardly, as taught by Murphy, in order to provide gravity in play to aid in the movement of the stop rod and provide the device in any desired orientation.",
"Allowable Subject Matter Claims 1, 7-10, 20 and 21 are allowed. Response to Arguments The current amendment overcomes the previous rejection to claims 1 and 20. Therefore, the claims are in condition for allowance. nd paragraph rejection has been made on the record. At the instant, correcting the 112 2nd paragraph issue will take care of the drawing objection. Also, in view of the amendment and the new interpretation of the prior art, the rejection in view of Kinsey is maintained. Prosecution has been closed. However, in view of the applicant wanted to claim that embodiment, the examiner is proposing the following amendment to put claim 11 in allowance condition: Propose amendment to claim 11 (might require amendment to any depending claim): -A door stop mechanism for a sliding door, the sliding door having a frame, a sliding member, a stationary member and a track, the door stop mechanism comprising: a stop housing attachable to a side of the sliding member; a stop rod configured to be selectively movable within the stop housing; a stop bar comprising a connecting structure configured to be attached to the stop rod; the stop rod movable from a first position to a second position, moving wherein is configured to move the stop bar away from the track, preventing movement of the sliding member by positioning the stop bar between the frame and the sliding member when the stop rod is in the second position and the stop bar is in the second position; and wherein the stop rod is configured to move the stop bar within the track, so that the connecting structure allows movement of the sliding member when the stop rod is in the first position and the stop bar is in the first position.-.",
"Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kristina Fulton can be reached on (571)272-7376. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).",
"If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /Carlos Lugo/ Primary Examiner Art Unit 3675 March 21, 2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-27.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington,D.C. 20549 Form10-K (Mark One) þ ANNUAL REPORT PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December31, 2012 or o TRANSITION REPORT PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File Number000-22405 Information Analysis Incorporated (Exact name of registrant as specified in its charter) Virginia 54-1167364 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 11240 Waples Mill Road Suite 201 Fairfax, Virginia 22030 (703) 383-3000 (Address including zip code, and telephone number, including area code, of principal executive offices) Securities registered pursuant to Section12(b) of the Act: None Securities registered pursuant to Section12(g) of the Act: Common Stock, par value $0.01 per share (Title of class) Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule405 of the Securities Act.YesoNoþ Indicate by check mark if the registrant is not required to file reports pursuant to Section13 or Section15(d) of the Act.YesoNoþ Indicate by check mark whether the registrant (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) during the preceding 12months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90days.YesþNoo Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule405 of RegulationS-T(§232.405 of this chapter) during the preceding 12months (or for such shorter period that the registrant was required to submit and post such files).YesþNoo Indicate by check mark if disclosure of delinquent filers pursuant to Item405 ofRegulationS-K (§229.405 of this chapter)is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in PartIII of thisForm10-Kor any amendment to thisForm10-K.þ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” inRule12b-2of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filer o Smallerreportingcompany þ (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined inRule12b-2of the Act).YesoNoþ The aggregate market value of the common stock held by non-affiliates of the registrant based on the closing price of the registrant’s common stock on June29, 2012, was approximately $1,317,430. For purposes of this computation, all officers, directors and 10% beneficial owners of the registrant are deemed to be affiliates. Such determination should not be deemed to be an admission that such officers, directors or 10% beneficial owners are, in fact, affiliates of the registrant. As of March 27, 2013, there were 11,201,760 outstanding shares of the registrant’s common stock. Documents Incorporated by Reference Portions of the registrant’s definitive proxy statement for the 2013 Annual Meeting of Stockholders, to be filed within 120days after the end of the fiscal year covered by thisForm10-K,are incorporated by reference into PartIII of thisForm10-K. Information Analysis Incorporated 2012 Annual Report on Form 10-K TABLE OF CONTENTS PART I Item 1. | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington,D.C. 20549 Form10-K (Mark One) þ ANNUAL REPORT PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December31, 2012 or o TRANSITION REPORT PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File Number000-22405 Information Analysis Incorporated (Exact name of registrant as specified in its charter) Virginia 54-1167364 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 11240 Waples Mill Road Suite 201 Fairfax, Virginia 22030 (703) 383-3000 (Address including zip code, and telephone number, including area code, of principal executive offices) Securities registered pursuant to Section12(b) of the Act: None Securities registered pursuant to Section12(g) of the Act: Common Stock, par value $0.01 per share (Title of class) Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule405 of the Securities Act.YesoNoþ Indicate by check mark if the registrant is not required to file reports pursuant to Section13 or Section15(d) of the Act.YesoNoþ Indicate by check mark whether the registrant (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) during the preceding 12months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90days.YesþNoo Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule405 of RegulationS-T(§232.405 of this chapter) during the preceding 12months (or for such shorter period that the registrant was required to submit and post such files).YesþNoo Indicate by check mark if disclosure of delinquent filers pursuant to Item405 ofRegulationS-K (§229.405 of this chapter)is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in PartIII of thisForm10-Kor any amendment to thisForm10-K.þ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.",
"See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” inRule12b-2of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filer o Smallerreportingcompany þ (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined inRule12b-2of the Act).YesoNoþ The aggregate market value of the common stock held by non-affiliates of the registrant based on the closing price of the registrant’s common stock on June29, 2012, was approximately $1,317,430. For purposes of this computation, all officers, directors and 10% beneficial owners of the registrant are deemed to be affiliates. Such determination should not be deemed to be an admission that such officers, directors or 10% beneficial owners are, in fact, affiliates of the registrant. As of March 27, 2013, there were 11,201,760 outstanding shares of the registrant’s common stock. Documents Incorporated by Reference Portions of the registrant’s definitive proxy statement for the 2013 Annual Meeting of Stockholders, to be filed within 120days after the end of the fiscal year covered by thisForm10-K,are incorporated by reference into PartIII of thisForm10-K. Information Analysis Incorporated 2012 Annual Report on Form 10-K TABLE OF CONTENTS PART I Item 1."
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
PER CURIAM. The petitioner prays that he be permitted to prosecute his application in this court for a writ of habeas corpus in forma pauperis. This court cannot entertain an application for a writ of habeas corpus, in forma pauperis or otherwise, “except in aid of its appellate jurisdiction.” Thompson v. Smith, 9 Cir., 161 F.2d 728. There is no appellate jurisdiction, either actual or potential, involved in this case. The petition herein is not one on appeal, but is for an original writ. Nor could an appeal be taken in this case, since the time has long since expired. According to the petitioner’s own showing, the District Court dismissed without prejudice his petition for a writ of habeas corpus in December, 1945, nearly two years ago. The same court denied the petitioner’s motion to prosecute his appeal in forma pauperis on March 2, 1946, certifying that in its opinion “there is no merit in such appeal,” but adding that it did “not certify that the petitioner is not in good faith in seeking to prosecute such appeal.” In a case of this kind, “where the detention complained of is by virtue of process issued out of a State court,” no appeal to this court is allowed without a certificate of probable cause. 28 U.S.C.A. § 466. Furthermore, in the instant case the Supreme Court of the State of Washington denied the petitioner’s application for a writ of habeas corpus, on November 22, 1946. See Waley v. Johnston, 9 Cir., 163 F.2d 556, and the many cases there cited. For all the foregoing reasons, the motion for permission to proceed in forma pauperis and the petition for a writ of habeas corpus are denied. | 07-23-2022 | [
"PER CURIAM. The petitioner prays that he be permitted to prosecute his application in this court for a writ of habeas corpus in forma pauperis. This court cannot entertain an application for a writ of habeas corpus, in forma pauperis or otherwise, “except in aid of its appellate jurisdiction.” Thompson v. Smith, 9 Cir., 161 F.2d 728. There is no appellate jurisdiction, either actual or potential, involved in this case. The petition herein is not one on appeal, but is for an original writ.",
"Nor could an appeal be taken in this case, since the time has long since expired. According to the petitioner’s own showing, the District Court dismissed without prejudice his petition for a writ of habeas corpus in December, 1945, nearly two years ago. The same court denied the petitioner’s motion to prosecute his appeal in forma pauperis on March 2, 1946, certifying that in its opinion “there is no merit in such appeal,” but adding that it did “not certify that the petitioner is not in good faith in seeking to prosecute such appeal.” In a case of this kind, “where the detention complained of is by virtue of process issued out of a State court,” no appeal to this court is allowed without a certificate of probable cause. 28 U.S.C.A.",
"§ 466. Furthermore, in the instant case the Supreme Court of the State of Washington denied the petitioner’s application for a writ of habeas corpus, on November 22, 1946. See Waley v. Johnston, 9 Cir., 163 F.2d 556, and the many cases there cited. For all the foregoing reasons, the motion for permission to proceed in forma pauperis and the petition for a writ of habeas corpus are denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6897422/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
b'No. 19-438\n_______________\nIN THE SUPREME COURT OF THE UNITED STATES\n_______________\nClemente Avelino Pereida,\nPetitioner,\nv.\nWilliam P. Barr, Attorney General,\nRespondent.\n_______________\nCertificate of Service\n_______________\nI, Brian P. Goldman, do hereby certify that, on January 10, 2020, I caused a\ncopy of the foregoing Motion for Leave to Dispense with Preparation of a Joint\nAppendix in the foregoing case to be electronically filed. In addition, a copy was hand\ndelivered to the United States Supreme Court. One copy of the Motion was sent via\nU.S. mail, and via email, to:\nNoel J. Francisco, Esq.\nSolicitor General\nUnited States Department of Justice\n950 Pennsylvania Avenue, N.W., Room 5616\nWashington, DC 20530\nSupremeCtBriefs@usdoj.gov\nI further certify that all parties required to be served have been served.\n/s/ Brian P. Goldman\nBrian P. Goldman\nCounsel of Record\nORRICK, HERRINGTON &\nSUTCLIFFE LLP\n405 Howard Street\nSan Francisco, CA 94105\n(415) 773-5700\nbrian.goldman@orrick.com\n\n\x0c' | 01-10-2020 | [
"b'No. 19-438\\n_______________\\nIN THE SUPREME COURT OF THE UNITED STATES\\n_______________\\nClemente Avelino Pereida,\\nPetitioner,\\nv.\\nWilliam P. Barr, Attorney General,\\nRespondent.\\n_______________\\nCertificate of Service\\n_______________\\nI, Brian P. Goldman, do hereby certify that, on January 10, 2020, I caused a\\ncopy of the foregoing Motion for Leave to Dispense with Preparation of a Joint\\nAppendix in the foregoing case to be electronically filed. In addition, a copy was hand\\ndelivered to the United States Supreme Court. One copy of the Motion was sent via\\nU.S. mail, and via email, to:\\nNoel J. Francisco, Esq.\\nSolicitor General\\nUnited States Department of Justice\\n950 Pennsylvania Avenue, N.W., Room 5616\\nWashington, DC 20530\\nSupremeCtBriefs@usdoj.gov\\nI further certify that all parties required to be served have been served.\\n/s/ Brian P. Goldman\\nBrian P. Goldman\\nCounsel of Record\\nORRICK, HERRINGTON &\\nSUTCLIFFE LLP\\n405 Howard Street\\nSan Francisco, CA 94105\\n(415) 773-5700\\nbrian.goldman@orrick.com\\n\\n\\x0c'"
]
| http://www.supremecourt.gov/DocketPDF/19/19-438/128235/20200110145852848_Motion%20to%20Dispense%20JA%20-%20COS.pdf | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
144 Wis.2d 770 (1988) 424 N.W.2d 759 IN RE the MARRIAGE OF Rita M. ECKERT, Petitioner-Respondent, v. Dennis W. ECKERT, Appellant.[] No. 87-0804. Court of Appeals of Wisconsin. Submitted on briefs March 23, 1988. Decided April 28, 1988. *772 For the appellant the cause was submitted on the brief of Richard B. Jacobson, and Borns, Macaulay & Jacobson, of Madison. For the petitioner-respondent the cause was submitted on the brief of James E. Welker and David A. Schumann, and Brennan, Steil, Ryan, Basting & MacDougall, S.C., of Janesville. Before Dykman, Eich and Sundby, JJ. SUNDBY, J. Dennis Eckert appeals from an order extending the term of Rita's maintenance indefinitely. The family court entered the order on Rita's motion after Dennis obtained a discharge in bankruptcy of his property division obligations under the divorce judgment. Dennis claims that the family court abused its discretion in two respects. First, it "recreated" the property division in the guise of maintenance, contrary to the bankruptcy code and the *773 supremacy clause of the United States Constitution. Second, it found a change in Rita's financial circumstances because she failed to realize the gain anticipated from the sale of the homestead sufficient to pay her the amount ordered by the judgment to equalize the property division. We reject Dennis's claims and affirm.
I.
BACKGROUND OF THE CASE Dennis and Rita were divorced in December, 1985. The judgment awarded Rita maintenance of $150 per week for eighteen months. To equalize the property division, Dennis was to pay Rita over $6,000 by June 1, 1986, or upon sale of the homestead, whichever occurred first. He was also to assume a credit card indebtedness of the parties in excess of $2,000 and make a substantial contribution to Rita's attorney fees. These debts were discharged in bankruptcy. Rita became liable for the debt on the credit card. She moved the court to increase maintenance and to extend it indefinitely. The trial court did not increase Rita's maintenance but extended it to an indefinite term.
II.
RE-CREATION OF PROPERTY DIVISION The family court candidly acknowledged it exercised its discretion to extend Rita's maintenance because Dennis's discharge in bankruptcy had frustrated the objectives of the divorce judgment, which the court believed dealt equitably with both parties. *774 The court's action raises a state law question and a federal law question. The state law question is whether one party's discharge in bankruptcy of his or her property division obligation to the other spouse may constitute a change in financial circumstances of the parties which justifies the family court's exercise of its discretion under sec. 767.32(1), Stats., to modify the payee spouse's maintenance award. The federal law question is whether a state family court may, without major damage to the federal interests implicated, modify a maintenance award solely because the bankruptcy court has discharged the property division obligations of the payor spouse. (a) The State Law Question. [1-3] A revision of a divorce judgment to alter maintenance payments under sec. 767.32(1), Stats., can be made only upon a showing of a substantial change in the financial circumstances of the parties. Van Gorder v. Van Gorder, 110 Wis. 2d 188, 195, 327 N.W.2d 674, 677 (1983). The first step in a substantial change analysis is a factual inquiry. In re Marriage of Erath v. Erath, 141 Wis. 2d 948, 953, 417 N.W.2d 407, 409 (Ct. App. 1987). We will sustain a family court's factual determinations if they are not clearly erroneous. Sec. 805.17(2), Stats. The second step requires a conclusion of law: Are the changed circumstances substantial? Erath at 956, 417 N.W.2d at 410. See also In re Marriage of Harris v. Harris, 141 Wis. 2d 569, 574, 415 N.W.2d 586, 589 (Ct. App. 1987) (we will give weight to the family court's decision that the change is substantial, although that decision is not controlling). The family court found that Dennis's discharge in bankruptcy prevented Rita from receiving her share *775 of the marital estate as contemplated in the divorce judgment. Following the bankruptcy Dennis no longer had a legal obligation to pay the credit card debt, property division equalization payment, or the courtordered contribution to Rita's attorney fees. Rita did not have the property division equalization as a source of income, the credit card creditor was attempting to collect from her, and she had incurred additional attorney fees litigating issues in Dennis's bankruptcy. She testified that she had no funds to pay these debts and would be unable to live without a modification of the maintenance order. The family court's finding that changed circumstances existed is not clearly erroneous. It did not err in determining that the change in circumstances was substantial. [4] The court's finding of a substantial change of circumstances was premised on the consequences of Dennis's discharge. The fact that Dennis's finances had been earlier subject to the jurisdiction of the bankruptcy court did not prevent the court from considering the parties' present circumstances and modifying maintenance to meet changed circumstances. See In re Danley, 14 B.R. 493, 495 (Bankr. D. N.M. 1981); In re Marriage of Clements, 134 Cal. App. 3d 737, 745-46, 184 Cal. Rptr. 756, 760-61 (Ct. App. 1982); Kruse v. Kruse, 464 N.E.2d 934, 938 (Ind. Ct. App. 1984); Hopkins v. Hopkins, 487 A.2d 500, 504 (R.I. 1985). (b) The Federal Law Question. Dennis contends that because the maintenance modification order "re-creates" discharged debts, it frustrates the "fresh start" objective of the bankruptcy code and violates the supremacy clause of the *776 United States Constitution. See Perez v. Campbell, 402 U.S. 637, 649 (1971) (acts of the state legislatures which interfere with the laws of Congress are invalid under the supremacy clause). [5] State family law is not preempted by a federal statute unless it "conflicts with the express terms of federal law" and "sufficiently injure[s] the objectives of the federal program to require nonrecognition." In re Marriage of Jacobs v. Jacobs, 138 Wis. 2d 19, 26, 405 N.W.2d 668, 671 (Ct. App. 1987), quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 583 (1979). The United States Supreme Court has repeatedly recognized that the subject of domestic relations belongs to the laws of the states and not the federal government. Jacobs, 138 Wis. 2d at 26, 405 N.W.2d at 671. Before state action governing domestic relations will be overridden it "must do `major damage' to `clear and substantial' federal interests." Rose v. Rose, 481 U.S. ___, 95 L.Ed. 2d 599, 607 (1987) (citations omitted). Bankruptcy relief attempts to provide the debtor a "new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Perez, 402 U.S. at 648. But there are exceptions to which Congress has given priority over the debtor's "fresh start." One such exception is a debt due "to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child." 11 U.S.C. sec. 523(a)(5) (Supp. IV 1986). "The imposition of additional support obligations by a state court judge who has ... retained jurisdiction to do so should be properly understood as just one more exception of those kinds of debts Congress considered more important than the fresh start." Danley, 14 B.R. at 495. *777 In Danley the court recognized that a modification of support on the basis of changed circumstances caused by the payor spouse's discharge in bankruptcy could frustrate the federal policy of a fresh start. Id., 14 B.R. at 495. However, the court concluded the state family court could modify support and refused to reopen the debtor's bankruptcy to relieve him from the family court's subsequent order. [W]here, as here, it is abundantly clear from the decisions of the state trial court that payment by the debtor of the debts later discharged was a significant factor in the initial award, and jurisdiction was carefully reserved to deal with any changed circumstance, it must be conceded that a bankruptcy discharge is such a changed circumstance as to permit state court action. Id. Other courts have held that post-bankruptcy modifications of support and maintenance orders made by state courts do not run counter to the purposes of the federal bankruptcy code. In Kruse, 464 N.E.2d at 938, the husband's discharge in bankruptcy which resulted in foreclosure on the family dwelling warranted increase in child support. The trial court's modification of support was held to not interfere with the husband's discharge in bankruptcy because the effect of the order was not to require the husband to pay any pre-petition debts nor did it determine the dischargeability of those debts. Id. The trial court's decision was made regardless of the bankruptcy court's action regarding the pre-petition debts. Id. In Marriage of Clements, 134 Cal. App. 3d at 746, 184 Cal. Rptr. at 761, the wife's discharge in bankruptcy of debts which then became the obligation of the *778 husband justified reduction of the wife's support. The court relied on the fact that the trial court's reduction in support to the bankrupt spouse did not focus on payments to discharged creditors. Id. at 745, 184 Cal. Rptr. at 760. The court stated: As a matter of policy, domestic relations is considered a field particularly suited to state control, and federal courts have traditionally been inclined to respect the power of state courts to make, modify, and terminate provisions for spousal support. As Justice Holmes said in Ohio ex rel. Popovici v. Agler (1930) 280 U.S. 379, 383 ...; "It has been understood that, `the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States.'" Id. (citations omitted). See also Hopkins, 487 A.2d at 504-05 (change in financial relationship effected by discharge in bankruptcy entitled family court to modify decree). [6-8] The exercise of judicial power modifying spousal support post-bankruptcy is not antagonistic to the federal "fresh start" policy of bankruptcy relief. When modifying maintenance and its duration, the family court must consider the factors under sec. 767.26, Stats. In re Marriage of Poindexter, 142 Wis. 2d 517, 531, 419 N.W.2d 223, 229 (1988). The family court's determination of maintenance should be made according to the ability of the payor spouse to pay. Erath, 141 Wis. 2d at 956, 417 N.W.2d at 411. In modifying support a court can consider everything having a legitimate bearing on the present and prospective matters relating to the lives of divorcing parties. *779 Marriage of Clements, 134 Cal. App. 3d at 745, 184 Cal. Rptr. at 760. Consideration of these factors should prevent the frustration of the bankrupt's "fresh start." "The federal courts and the state courts are engaged in a cooperative enterprise, not a competitive one." Danley, 14 B.R. at 496. We conclude that a state family court may modify a payor spouse's support obligation under sec. 767.32(1), Stats., following the payor's discharge in bankruptcy without doing "major damage" to the "clear and substantial" federal interests, Rose v. Rose, 481 U.S. at ___, 95 L.Ed. 2d at 607, served by the bankruptcy code.
III.
EQUALIZATION OF PROPERTY DIVISION FROM SALE OF HOMESTEAD [10] Dennis contends that the family court could not find a change in Rita's financial circumstances from the failure to realize the anticipated gain on the sale of the homestead. The value of Rita's share of the marital estate was determined as of the date of the divorce. Merten v. National Manufacturers Bank, 26 Wis. 2d 181, 189, 131 N.W.2d 868, 872 (1965) (husband's property settlement obligation was fixed and determined and wife's right to payment vested on the day of judgment). Dennis's obligation to pay Rita an amount in excess of $6,000 to equalize the property division was not dependent upon realizing a gain on the sale of the homestead. Rita's financial circumstances were subsequently changed when she was *780 unable to realize a substantial portion of her share of the marital estate from the sale of the homestead or from Dennis's obligation to her. The family court did not abuse its discretion in considering those facts. By the Court.Order affirmed. NOTES [] Petition to review pending. This petition was not disposed of at the time the volume went to press. Its disposition will be reported in a later volume. | 10-30-2013 | [
"144 Wis.2d 770 (1988) 424 N.W.2d 759 IN RE the MARRIAGE OF Rita M. ECKERT, Petitioner-Respondent, v. Dennis W. ECKERT, Appellant. [] No. 87-0804. Court of Appeals of Wisconsin. Submitted on briefs March 23, 1988. Decided April 28, 1988. *772 For the appellant the cause was submitted on the brief of Richard B. Jacobson, and Borns, Macaulay & Jacobson, of Madison. For the petitioner-respondent the cause was submitted on the brief of James E. Welker and David A. Schumann, and Brennan, Steil, Ryan, Basting & MacDougall, S.C., of Janesville. Before Dykman, Eich and Sundby, JJ. SUNDBY, J. Dennis Eckert appeals from an order extending the term of Rita's maintenance indefinitely.",
"The family court entered the order on Rita's motion after Dennis obtained a discharge in bankruptcy of his property division obligations under the divorce judgment. Dennis claims that the family court abused its discretion in two respects. First, it \"recreated\" the property division in the guise of maintenance, contrary to the bankruptcy code and the *773 supremacy clause of the United States Constitution. Second, it found a change in Rita's financial circumstances because she failed to realize the gain anticipated from the sale of the homestead sufficient to pay her the amount ordered by the judgment to equalize the property division. We reject Dennis's claims and affirm. I. BACKGROUND OF THE CASE Dennis and Rita were divorced in December, 1985. The judgment awarded Rita maintenance of $150 per week for eighteen months. To equalize the property division, Dennis was to pay Rita over $6,000 by June 1, 1986, or upon sale of the homestead, whichever occurred first. He was also to assume a credit card indebtedness of the parties in excess of $2,000 and make a substantial contribution to Rita's attorney fees. These debts were discharged in bankruptcy.",
"Rita became liable for the debt on the credit card. She moved the court to increase maintenance and to extend it indefinitely. The trial court did not increase Rita's maintenance but extended it to an indefinite term. II. RE-CREATION OF PROPERTY DIVISION The family court candidly acknowledged it exercised its discretion to extend Rita's maintenance because Dennis's discharge in bankruptcy had frustrated the objectives of the divorce judgment, which the court believed dealt equitably with both parties. *774 The court's action raises a state law question and a federal law question. The state law question is whether one party's discharge in bankruptcy of his or her property division obligation to the other spouse may constitute a change in financial circumstances of the parties which justifies the family court's exercise of its discretion under sec. 767.32(1), Stats., to modify the payee spouse's maintenance award. The federal law question is whether a state family court may, without major damage to the federal interests implicated, modify a maintenance award solely because the bankruptcy court has discharged the property division obligations of the payor spouse.",
"(a) The State Law Question. [1-3] A revision of a divorce judgment to alter maintenance payments under sec. 767.32(1), Stats., can be made only upon a showing of a substantial change in the financial circumstances of the parties. Van Gorder v. Van Gorder, 110 Wis. 2d 188, 195, 327 N.W.2d 674, 677 (1983). The first step in a substantial change analysis is a factual inquiry. In re Marriage of Erath v. Erath, 141 Wis. 2d 948, 953, 417 N.W.2d 407, 409 (Ct. App. 1987). We will sustain a family court's factual determinations if they are not clearly erroneous. Sec. 805.17(2), Stats. The second step requires a conclusion of law: Are the changed circumstances substantial? Erath at 956, 417 N.W.2d at 410. See also In re Marriage of Harris v. Harris, 141 Wis. 2d 569, 574, 415 N.W.2d 586, 589 (Ct. App. 1987) (we will give weight to the family court's decision that the change is substantial, although that decision is not controlling). The family court found that Dennis's discharge in bankruptcy prevented Rita from receiving her share *775 of the marital estate as contemplated in the divorce judgment.",
"Following the bankruptcy Dennis no longer had a legal obligation to pay the credit card debt, property division equalization payment, or the courtordered contribution to Rita's attorney fees. Rita did not have the property division equalization as a source of income, the credit card creditor was attempting to collect from her, and she had incurred additional attorney fees litigating issues in Dennis's bankruptcy. She testified that she had no funds to pay these debts and would be unable to live without a modification of the maintenance order. The family court's finding that changed circumstances existed is not clearly erroneous. It did not err in determining that the change in circumstances was substantial. [4] The court's finding of a substantial change of circumstances was premised on the consequences of Dennis's discharge. The fact that Dennis's finances had been earlier subject to the jurisdiction of the bankruptcy court did not prevent the court from considering the parties' present circumstances and modifying maintenance to meet changed circumstances.",
"See In re Danley, 14 B.R. 493, 495 (Bankr. D. N.M. 1981); In re Marriage of Clements, 134 Cal. App. 3d 737, 745-46, 184 Cal. Rptr. 756, 760-61 (Ct. App. 1982); Kruse v. Kruse, 464 N.E.2d 934, 938 (Ind. Ct. App. 1984); Hopkins v. Hopkins, 487 A.2d 500, 504 (R.I. 1985). (b) The Federal Law Question. Dennis contends that because the maintenance modification order \"re-creates\" discharged debts, it frustrates the \"fresh start\" objective of the bankruptcy code and violates the supremacy clause of the *776 United States Constitution. See Perez v. Campbell, 402 U.S. 637, 649 (1971) (acts of the state legislatures which interfere with the laws of Congress are invalid under the supremacy clause). [5] State family law is not preempted by a federal statute unless it \"conflicts with the express terms of federal law\" and \"sufficiently injure[s] the objectives of the federal program to require nonrecognition.\"",
"In re Marriage of Jacobs v. Jacobs, 138 Wis. 2d 19, 26, 405 N.W.2d 668, 671 (Ct. App. 1987), quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 583 (1979). The United States Supreme Court has repeatedly recognized that the subject of domestic relations belongs to the laws of the states and not the federal government. Jacobs, 138 Wis. 2d at 26, 405 N.W.2d at 671. Before state action governing domestic relations will be overridden it \"must do `major damage' to `clear and substantial' federal interests.\" Rose v. Rose, 481 U.S. ___, 95 L.Ed. 2d 599, 607 (1987) (citations omitted). Bankruptcy relief attempts to provide the debtor a \"new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.\" Perez, 402 U.S. at 648. But there are exceptions to which Congress has given priority over the debtor's \"fresh start.\"",
"One such exception is a debt due \"to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child.\" 11 U.S.C. sec. 523(a)(5) (Supp. IV 1986). \"The imposition of additional support obligations by a state court judge who has ... retained jurisdiction to do so should be properly understood as just one more exception of those kinds of debts Congress considered more important than the fresh start.\" Danley, 14 B.R. at 495.",
"*777 In Danley the court recognized that a modification of support on the basis of changed circumstances caused by the payor spouse's discharge in bankruptcy could frustrate the federal policy of a fresh start. Id., 14 B.R. at 495. However, the court concluded the state family court could modify support and refused to reopen the debtor's bankruptcy to relieve him from the family court's subsequent order. [W]here, as here, it is abundantly clear from the decisions of the state trial court that payment by the debtor of the debts later discharged was a significant factor in the initial award, and jurisdiction was carefully reserved to deal with any changed circumstance, it must be conceded that a bankruptcy discharge is such a changed circumstance as to permit state court action. Id.",
"Other courts have held that post-bankruptcy modifications of support and maintenance orders made by state courts do not run counter to the purposes of the federal bankruptcy code. In Kruse, 464 N.E.2d at 938, the husband's discharge in bankruptcy which resulted in foreclosure on the family dwelling warranted increase in child support. The trial court's modification of support was held to not interfere with the husband's discharge in bankruptcy because the effect of the order was not to require the husband to pay any pre-petition debts nor did it determine the dischargeability of those debts. Id. The trial court's decision was made regardless of the bankruptcy court's action regarding the pre-petition debts.",
"Id. In Marriage of Clements, 134 Cal. App. 3d at 746, 184 Cal. Rptr. at 761, the wife's discharge in bankruptcy of debts which then became the obligation of the *778 husband justified reduction of the wife's support. The court relied on the fact that the trial court's reduction in support to the bankrupt spouse did not focus on payments to discharged creditors. Id. at 745, 184 Cal. Rptr. at 760. The court stated: As a matter of policy, domestic relations is considered a field particularly suited to state control, and federal courts have traditionally been inclined to respect the power of state courts to make, modify, and terminate provisions for spousal support.",
"As Justice Holmes said in Ohio ex rel. Popovici v. Agler (1930) 280 U.S. 379, 383 ...; \"It has been understood that, `the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States.'\" Id. (citations omitted). See also Hopkins, 487 A.2d at 504-05 (change in financial relationship effected by discharge in bankruptcy entitled family court to modify decree). [6-8] The exercise of judicial power modifying spousal support post-bankruptcy is not antagonistic to the federal \"fresh start\" policy of bankruptcy relief. When modifying maintenance and its duration, the family court must consider the factors under sec. 767.26, Stats.",
"In re Marriage of Poindexter, 142 Wis. 2d 517, 531, 419 N.W.2d 223, 229 (1988). The family court's determination of maintenance should be made according to the ability of the payor spouse to pay. Erath, 141 Wis. 2d at 956, 417 N.W.2d at 411. In modifying support a court can consider everything having a legitimate bearing on the present and prospective matters relating to the lives of divorcing parties.",
"*779 Marriage of Clements, 134 Cal. App. 3d at 745, 184 Cal. Rptr. at 760. Consideration of these factors should prevent the frustration of the bankrupt's \"fresh start.\" \"The federal courts and the state courts are engaged in a cooperative enterprise, not a competitive one.\" Danley, 14 B.R. at 496. We conclude that a state family court may modify a payor spouse's support obligation under sec. 767.32(1), Stats., following the payor's discharge in bankruptcy without doing \"major damage\" to the \"clear and substantial\" federal interests, Rose v. Rose, 481 U.S. at ___, 95 L.Ed.",
"2d at 607, served by the bankruptcy code. III. EQUALIZATION OF PROPERTY DIVISION FROM SALE OF HOMESTEAD [10] Dennis contends that the family court could not find a change in Rita's financial circumstances from the failure to realize the anticipated gain on the sale of the homestead. The value of Rita's share of the marital estate was determined as of the date of the divorce. Merten v. National Manufacturers Bank, 26 Wis. 2d 181, 189, 131 N.W.2d 868, 872 (1965) (husband's property settlement obligation was fixed and determined and wife's right to payment vested on the day of judgment). Dennis's obligation to pay Rita an amount in excess of $6,000 to equalize the property division was not dependent upon realizing a gain on the sale of the homestead.",
"Rita's financial circumstances were subsequently changed when she was *780 unable to realize a substantial portion of her share of the marital estate from the sale of the homestead or from Dennis's obligation to her. The family court did not abuse its discretion in considering those facts. By the Court.Order affirmed. NOTES [] Petition to review pending. This petition was not disposed of at the time the volume went to press. Its disposition will be reported in a later volume."
]
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BOUDREAU, J. I. FACTS AND PROCEDURAL BACKGROUND T1 Six separate complaints alleging that Judge Jerry Colclazier committed "oppression in office" were presented to the Trial Division of the Court on the Judiciary (Trial Division). The Trial Division filed its judgment on November 27, 2001, finding by clear and convincing evidence that four instances of conduct constituted "oppression in office" and warranted removal from office. The Trial Division also determined that Judge Col-clazier was disqualified to hold any future judicial office in Oklahoma. The instances of conduct were not disputed by the judge. The judge contended before the Trial Division, as he does on appeal, that these instances of conduct did not constitute "oppression in office" and did not warrant removal. T2 In 1994, Judge Colclazier was elected as a District Judge in Seminole County. He was in his second four year term as judge when the conduct complained of in this case occurred, and when he was removed from office by the Trial Division. 13 The first event listed by the Trial Division occurred when Judge Colelazier observed a locksmith changing the locks on the court clerk's satellite office in Seminole. The judge's office and court room were also in the same building in Seminole. When the judge asked the locksmith for a key to the clerk's office, the locksmith refused. The locksmith *140explained that the clerk had asked him to change the locks and give the only keys to one of the clerk's deputies. According to the locksmith, the judge responded that the court clerk was incompetent, schizophrenic, and unfit for her job. The judge threatened the locksmith and told him. that he could be jailed for contempt if he did not give the judge a key. The locksmith gave the judge a key. © 14 The second event listed by the Trial Division occurred when a woman appeared in front of the judge seeking an emergency protective order. The woman's face was visibly bruised and she contended that the battery was done four days before by the named defendant. The woman also contended that the defendant had not been arrested for the battery because some of the sheriffs deputies were his friends. The judge issued an emergency protective order. The judge then called the sheriff and expressed his concern that the sheriff's office was not following its mandatory arrest policy in this case. After the call from the judge, the sheriff ordered two of his deputies to serve the emergency protective order on the defendant and to arrest him. The two deputies located the defendant and served the emergency protective order on him. The defendant told the deputies that he did not batter the complainant. The deputies did not believe that they could arrest the defendant without a warrant, so they called Judge Colclazier. ' Judge Col-clazier orally ordered the deputies to arrest the defendant without a warrant and to hold him without bond. After spending about 40 hours in jail without bond, the defendant appeared "before Judge Colclazier. After hearing. the defendant's testimony, the judge ordered the defendant released on his own recognizance. Charges were never filed against the defendant and he was never prosecuted for the alleged battery. T5 The third event listed by the Trial Division occurred when Judge Colclazier terminated a criminal defendant from 'the drug court program and sentenced him to life in prison. The defendant, who had no prior felony convictions, had pled guilty to the charges of possession of marijuana with intent to distribute and unlawful possession of paraphernalia. The defendant appealed, Cosar v. State, No. F-99-1652. In an unpublished order, the Court of Criminal Appeals reversed and remanded with specific directions that the matter be heard by a different judge. The Court of Criminal Appeals found that the judge had not followed the proper procedure in terminating the defendant from the drug court program and that the judge improperly relied upon ex parte communications and inadmissible polygraph results (which indicated that the defendant might have committed a rape and murder 10 years before) in sentencing this defendant on the drug charges. The Court of Criminal Appeals opined that in sentencing the defendant, the judge had violated Canon 3(B)(6) of the Code of Judicial Conduct, 5 O0.S.Supp. 1999, ch. 1, app.4. T6 The fourth event listed by the Trial Division occurred when a father came to the judge seeking enforcement of a Cleveland County custody modification order. The order gave custody to the father with visitation to the mother. In this ex parte communication, the father explained that the mother, who was located in Seminole County with the children, refused to return the children at the end of an agreed upon visitation period. There was no allegation that the children were in any danger. Without the filing of a petition for writ of habeas corpus, or other written request for relief, the judge issued a written "general order," with no case number, directing all law enforcement agencies to assist the father to take physical custody of his minor children. The father presented this order to the local sheriff's deputies who assisted the father in the pick up of his children. When they appeared at the mother's house, she called her attorney who had previously mailed a motion to modify custody to Cleveland County. The attorney called the judge and requested a hearing before the children were removed. The judge refused and the children were removed. JI. THE STANDARD OF REVIEW T7 The standard of review in an appeal from a judgment of the Trial Division of the Court on the Judiciary is outlined in the Oklahoma Constitution: *141(c) The review in the Appellate Division shall be an equity appeal, as to both law and fact. The Appellate Division may affirm, modify or reverse the judgment of-the Trial Division, or enter a new judgment, as justice may require. (d) If justice requires, the Appellate Division may hear additional evidence upon the appeal, upon a showing to the satisfaction of the Division that the additional evidence is material and that there were good reasons for failure to present it to the Trial Division. Okla. Const., art. T7-A, § bic-(d). "In cases of equitable cognizance, a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or contrary to law or established principles of equity." Harrell v. Samson Resources Co., 1998 OK 69, 1 ¶ 1, 980 P.2d 99, 107. III,. THE DEFINITION OF OPPRESSION IN OFFICE 18 The Oklahoma Constitution, 7-A, § 1(b), lists the causes for the removal of a judge from office that can be considered by the Court on the Judiciary. These causes are gross neglect of duty, corruption in office, habitual drunkenness, commission while in office of any offense involving moral turpitude, gross partiality in office, "oppression in office", or other grounds as may be specified hereafter by the Legislature. < 19 Judge Colclazier correctly points out that "oppression in office" is not defined in the Oklahoma Constitution. The judge contends that "oppression in office" sufficient to justify removal requires proof of illegality, bad faith or improper motive and that there was no such proof in the present case. In the alternative, the judge contends that if "oppression in office" does not require such proof, then the constitutional provision permitting removal for "oppression in office" is void for vagueness. {10 "Oppression in office" has been defined as the excessive use of authority. United States v. Deaver, 14 F. 595, 597 (W.D.N.C.1882); Black's Law Dictionary. The Oklahoma Supreme Court has implicitly recognized that proof of illegality is not nee-essary in order for a judge to be removed from office for oppression. State ex rel. Oklahoma Bar Ass'n v. Sullivan, 1979 OK 1, 596 P.2d 864, and State ex rel. Bar Ass'n v. Haworth, 1979 OK 34, 593 P.2d 765. {11 Although the Oklahoma Court on the Judiciary has not addressed whether bad faith or improper motive is required to find judicial misconduct, other jurisdictions have. The state of Missouri has a constitutional provision 1 similar to Oklahoma's provision, which provides for removal of a judge for "oppression in office." The Supreme Court of Missouri has not required that bad faith or improper motive be shown, but has held that violations of the Code of Judicial Conduct may constitute "oppression in office." In re Elliston, 789 S.W.2d 469 (Mo.1990). In Mississippi, it is well settled that willful misconduct that will give rise to judicial discipline need not be the result of bad faith or malice. In Mississippi Commission on Judicial Performance v. Hartzog, 646 So.2d 1319 (Miss.1994), the court held that any knowing misuse of the judicial office, whatever the motive, is misconduct that is prejudicial to the administration of justice and brings disrepute to the judicial office. 112 We reject the notion that the term "oppression in office," as used, in the Okla. Const., art. 7-A, § 1(b), must include either bad faith or improper motive.2 In our view, a judge is guilty of "oppression, in office" when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the *142cireumstances and amount to an excessive use of judicial authority.3 The relevant inquiry is whether the judge formed a specific intent to commit acts with the requisite knowledge that they were obviously and seriously wrong under the circumstances and amounted to excessive use of judicial authority and not whether the judge committed the acts with ill will, evil intent or some other improper motive. 113 Having decided that illegality, bad faith or improper motive need not be shown to establish "oppression in office," we examine Judge Colclazier's argument that "oppression in office", as that term is used in Okla. Const., art. 7-A, § 1(b), is void for vagueness. ' / C ‘ T14 A vagueness challenge to a state law under the due process clause is overcome by a showing that a reasonable person would know that his or her conduct is at risk. Allen v. City of Oklahoma City, 1998 OK CR 42, 965 P.2d 387. The Oklahoma Code of Judicial Conduct; 5 0.$8.2001; ch. 1, app. 4,4 establishes standards against which judicial conduct is measured.5 Canon 3(B) offers guidance to judges in the exercise of their adjudicative responsibilities. The requirements of Canon 3(B) have been summarized as follows: A judge is required to administer justice through faithful and competent application of the law free of outside influences and by permitting all those interested in a proceeding full right to be heard. A judge violates these provisions if the judge administers justice capriciously or interferes with the rights of others before the court. Shaman, Lubet and Alfini, Judicial Conduct and Ethics, § 2.01 at p. 34 (8d ed.).6 1 15 In Missouri, violations of the Code of Judicial Conduct were found to constitute "misconduct" or "oppression in office." In re Elliston, swpra. Similarly, in California, where judges may be disciplined for "willful misconduct," a judge's conduct is measured with reference to the Code of Judicial Conduct. Dodds v. Commussion on Judicial Performance, 12 Cal.4th 163, 48 Cal.Rptr.2d 106, 906 P.2d 1260, 1266 (1995). {16 Chapter 2 of Shaman, Lubet and Alfini, Judicial Conduct and Ethics, §§ 2.01, et seq., discusses cases where judges have been disciplined for various abuses of power which also violate Canon 3 of the Code of Judicial Conduct. These abuses include misuse of contempt power, §§ 2.03-2.06; abuse of the adversary process, § 2.07 ("judges abuse the power of judicial office when they abbreviate or change critical aspects of the adversary process in ways that run counter to the scheme established by relevant constitutional and statutory law", at p. 50); and inappropriate criminal sanctions and dispositions, § 2.11. T17 Based on the above authorities, we reject Judge Colelazier's argument that the term "oppression in office" as used in Okla. Const., art. 7-A, § 1(b) is void for vagueness. The Code of Judicial Conduct sufficiently defines the conduct regulated and affords an individual fair warning of what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). 118 In summary, a judge is guilty of "oppression in office," as that term is used in Okla. Const., art. 7-A, § 1(b), when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong and amount to an excessive *143use of judicial authority. While conduct constituting "oppression in office" must be the result of a specific intent to commit the oppressive acts, they need not be criminal, fraudulent, dishonest, or motivated by personal gain. Ample precedents, including the Oklahoma Code of Judicial Conduct, provide sufficient notice of the types of actions which amount to an excessive use of judicial authority. The constitutional term "oppression in office" is not void for vagueness. Y19 Not every violation of the Code of Judicial Conduct will result in a finding of "oppression in office," nor will mere legal error or abuse of discretion result in discipline. We recognize that the fear of jeopardy of punishment has the potential of chilling judicial independence. The preservation of an independent judiciary requires that judges not be exposed to personal discipline on the basis of particular rulings. A balance must be struck between independence and accountability and a line must be drawn between mere legal error correctable by appeal and acts which are obviously and seriously wrong and amount to excessive use of judicial authority. 120 While the line may not always be clear, Shaman, Lubet and Alfini, Judicial Conduct and Ethics, § 2.02, has identified factors which may be considered in determining whether certain actions rise to the level of judicial misconduct. They include the availability of appeal, the nature of the judge's conduct, the extent of the court's jurisdiction, the mofive of the judge, the egregiousness of the error, and the frequency of the offending conduct. A pattern of misconduct is certainly more serious than an isolated incident. These factors mediate the sensitive line between judicial misconduct and mere error. IV. THE JUDGMENT OF THE TRIAL DIVISION IS NOT CLEARLY CONTRARY TO THE EVIDENCE AND NO ERRORS OF LAW OCCURRED. {21 Judge Colelazier contended before the Trial Division, and continues to contend on appeal, that he acted lawfully and within his proper authority in all four instances. We reject this contention. We find that in all four instances Judge Colclazier intentionally committed acts which he should have known were obviously and seriously wrong and amounted to an excessive use -of judicial authority. In the case of the locksmith, the judge improperly threatened a private citizen with the use of his contempt powers although the refusal to give the judge the key constituted neither direct nor indirect contempt. 21 0.98.2001, § 565. In the victim's protective order case, the judge improperly directed an unauthorized warrant-less arrest when the defendant had not violated the protective order, and the abuse had not occurred within 72 hours. 22 0.8.2001, § 40.3. In the drug court case, the judge ignored statutory guidelines for conducting a sentencing hearing by sentencing an individual to a life-term for a first time drug convietion on the basis of unsworn testimony and ex parte communications. 22 O0.8.2001, §§ 978-975. In the child custody case, the judge engaged in an ex parte communication with one party, and intervened without cause in a pending case in another county. 122 Judge Colelazier, in each instance, showed disregard for the law and the established rules of practice. In the course of his dealings, Judge Colclazier violated several provisions of the Oklahoma Code of Judicial Conduct. Canon 2(A) requires judges to comply with the law and conduct themselves in a manner that promotes public confidence in the judiciary. Cannon 8(B)(6) requires judges to accord to every person who has a legal interest in a proceeding the right to be heard according to law. It also prohibits judges from initiating or considering ex parte communications made outside the presence of the parties. 123 Judge Colclazier also argues that the listed instances of conduct should not be grounds for removal because his actions were not appealed, except in the one instance of the drug court sentencing, and any error he may have committed was mere reversible error. The main flaw in this argument is that three of the complainants had no right to appeal Judge Colclazier's actions, because the judge cireumvented proper procedure. The instances where he threatened the lock*144smith with contempt, ordered the warrant-less arrest of a man accused of domestic abuse where no charges were filed, and ordered the pick up of children under a general order with no case number, were not in connection with any case which would give rise to an appeal. See, Lowe v. Monard, 1997 OK 100, 942 P.2d 732. 124 In addition, while the availability of appeal mitigates against a finding of misconduct, it does not preclude it. A judge's misconduct may, be the subject of a disciplinary action even though it may be remedied on appeal because "an individual defendant's vindication of personal rights does not necessarily protect the public from a judge who repeatedly and grossly abuses his power." People ex rel. Harrod v. Illinois Courts Comm., 69 Ill.2d 445, 14 Ill.Dec. 248, 372 N.E.2d 53, 65 (1977), Shaman, Lubet and Alfini, Judicial Conduct and Ethics, at § 2.01. Thus, the Trial Division properly considered the instances of conduct in this case. 125 After applying the factors which may be considered in determining whether certain actions rise to the level of oppression, set forth in Part III above, to the facts of this case, we determine that the judgment of the Trial Division, finding Judge Colclazier committed "oppression in office" is not clearly contrary to the weight of the evidence or, legally erroneous. 126 Judge Colclazier requests that we modify the Trial Division's judgment of removal. Under the cireumstances, we find that the judgment is clearly supported by the evidence. The actions of Judge Colelazier in this case bear some similarity, in their excessive use of power, to the actions of. other judges in Oklahoma who have been removed from office. In Sullivan, supra, the Supreme Court reported that the actions which the Court on the Judiciary found to constitute oppression were (1) the arrest and citation of a bailiff for contempt, (2) the display of partiality in a felony case, in which the judge was abusive to counsel, (8) advice to criminal defendants that the charge carried a penalty in excess of the statutory maximum, and (4) verbal abuse of an attorney for no apparent reason other than personal dislike, 127 In Robberson v. Board of Commissioners of Noble County, 1924 OK 1172, 109 Okla. 249, 235 P. 525, the Supreme Court upheld a judge's removal from office for oppression. In Robberson, the judge (1) refused to let a traffic violator pay a fine, and instead, threw him in jail and refused to let him communicate with anyone, and (2) directed a lawyer to get out of his office and angrily shoved him out the door. {28 In conclusion, the Trial Division's judgment is not against the clear weight of the evidence nor is it contrary to law or established principles of equity. The Trlal Division's judgment is affirmed. 129 ELLIS, V.P.J., WINCHESTER, LUMPKIN, LANNING, LINDLEY, McBEE, and THOMPSON, JJ., coneur. 130 WINSLOW, P.J., recused.
. Missouri Const., art. 5, § 24.3.
. Judge Colclazier suggests that we adopt the California standards for judicial discipline. In Dodds v. Commission on Judicial Performance, 12 Cal.4th 163, 48 Cal.Rptr.2d 106, 906 P.2d 1260 (1995), the court held that to commit willful misconduct in office, a judge must engage in conduct that is unjudicial and committed in bad faith while acting in a judicial capacity. The California court defined "bad faith" as an intentional commission of acts by a judge which he knew, or should have known, were beyond his lawful power. Thus "bad faith," in this California judicial disciplinary case, could be excessive use of power without regard to evil intent or improper.motive.
. This definition evaluates the judicial conduct under a reasonably prudent judge standard.
. This opinion references the most recent codification unless a different version controls.
. Violations of the Code of Judicial Conduct may also constitute independent grounds for removal in Oklahoma. Art. 7-A, § 1(b) authorizes the Legislature to specify additional grounds for removal of a judicial officer from office. Additional grounds for removal from office are listed in 20 O.$.2001, § 1404, which includes, at § 1404(C), "(violation of the Code of Judicial Conduct as adopted by the Supreme Court of Oklahoma on July 15, 1974, or as may be thereafter amended, ... with or without disqualification to hold a judicial office in the future."
. Although Shaman, Lubet and Alfini refer to the 1990 Model Code, Canon 3(B) in the Model Code and in the Oklahoma Code of Judicial Conduct - are similar. | 01-02-2022 | [
"BOUDREAU, J. I. FACTS AND PROCEDURAL BACKGROUND T1 Six separate complaints alleging that Judge Jerry Colclazier committed \"oppression in office\" were presented to the Trial Division of the Court on the Judiciary (Trial Division). The Trial Division filed its judgment on November 27, 2001, finding by clear and convincing evidence that four instances of conduct constituted \"oppression in office\" and warranted removal from office. The Trial Division also determined that Judge Col-clazier was disqualified to hold any future judicial office in Oklahoma. The instances of conduct were not disputed by the judge. The judge contended before the Trial Division, as he does on appeal, that these instances of conduct did not constitute \"oppression in office\" and did not warrant removal. T2 In 1994, Judge Colclazier was elected as a District Judge in Seminole County. He was in his second four year term as judge when the conduct complained of in this case occurred, and when he was removed from office by the Trial Division.",
"13 The first event listed by the Trial Division occurred when Judge Colelazier observed a locksmith changing the locks on the court clerk's satellite office in Seminole. The judge's office and court room were also in the same building in Seminole. When the judge asked the locksmith for a key to the clerk's office, the locksmith refused. The locksmith *140explained that the clerk had asked him to change the locks and give the only keys to one of the clerk's deputies. According to the locksmith, the judge responded that the court clerk was incompetent, schizophrenic, and unfit for her job. The judge threatened the locksmith and told him. that he could be jailed for contempt if he did not give the judge a key.",
"The locksmith gave the judge a key. © 14 The second event listed by the Trial Division occurred when a woman appeared in front of the judge seeking an emergency protective order. The woman's face was visibly bruised and she contended that the battery was done four days before by the named defendant. The woman also contended that the defendant had not been arrested for the battery because some of the sheriffs deputies were his friends. The judge issued an emergency protective order. The judge then called the sheriff and expressed his concern that the sheriff's office was not following its mandatory arrest policy in this case.",
"After the call from the judge, the sheriff ordered two of his deputies to serve the emergency protective order on the defendant and to arrest him. The two deputies located the defendant and served the emergency protective order on him. The defendant told the deputies that he did not batter the complainant. The deputies did not believe that they could arrest the defendant without a warrant, so they called Judge Colclazier. ' Judge Col-clazier orally ordered the deputies to arrest the defendant without a warrant and to hold him without bond. After spending about 40 hours in jail without bond, the defendant appeared \"before Judge Colclazier.",
"After hearing. the defendant's testimony, the judge ordered the defendant released on his own recognizance. Charges were never filed against the defendant and he was never prosecuted for the alleged battery. T5 The third event listed by the Trial Division occurred when Judge Colclazier terminated a criminal defendant from 'the drug court program and sentenced him to life in prison. The defendant, who had no prior felony convictions, had pled guilty to the charges of possession of marijuana with intent to distribute and unlawful possession of paraphernalia. The defendant appealed, Cosar v. State, No.",
"F-99-1652. In an unpublished order, the Court of Criminal Appeals reversed and remanded with specific directions that the matter be heard by a different judge. The Court of Criminal Appeals found that the judge had not followed the proper procedure in terminating the defendant from the drug court program and that the judge improperly relied upon ex parte communications and inadmissible polygraph results (which indicated that the defendant might have committed a rape and murder 10 years before) in sentencing this defendant on the drug charges. The Court of Criminal Appeals opined that in sentencing the defendant, the judge had violated Canon 3(B)(6) of the Code of Judicial Conduct, 5 O0.S.Supp.",
"1999, ch. 1, app.4. T6 The fourth event listed by the Trial Division occurred when a father came to the judge seeking enforcement of a Cleveland County custody modification order. The order gave custody to the father with visitation to the mother. In this ex parte communication, the father explained that the mother, who was located in Seminole County with the children, refused to return the children at the end of an agreed upon visitation period. There was no allegation that the children were in any danger. Without the filing of a petition for writ of habeas corpus, or other written request for relief, the judge issued a written \"general order,\" with no case number, directing all law enforcement agencies to assist the father to take physical custody of his minor children. The father presented this order to the local sheriff's deputies who assisted the father in the pick up of his children. When they appeared at the mother's house, she called her attorney who had previously mailed a motion to modify custody to Cleveland County.",
"The attorney called the judge and requested a hearing before the children were removed. The judge refused and the children were removed. JI. THE STANDARD OF REVIEW T7 The standard of review in an appeal from a judgment of the Trial Division of the Court on the Judiciary is outlined in the Oklahoma Constitution: *141(c) The review in the Appellate Division shall be an equity appeal, as to both law and fact. The Appellate Division may affirm, modify or reverse the judgment of-the Trial Division, or enter a new judgment, as justice may require. (d) If justice requires, the Appellate Division may hear additional evidence upon the appeal, upon a showing to the satisfaction of the Division that the additional evidence is material and that there were good reasons for failure to present it to the Trial Division. Okla. Const., art. T7-A, § bic-(d). \"In cases of equitable cognizance, a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or contrary to law or established principles of equity.\" Harrell v. Samson Resources Co., 1998 OK 69, 1 ¶ 1, 980 P.2d 99, 107. III,.",
"THE DEFINITION OF OPPRESSION IN OFFICE 18 The Oklahoma Constitution, 7-A, § 1(b), lists the causes for the removal of a judge from office that can be considered by the Court on the Judiciary. These causes are gross neglect of duty, corruption in office, habitual drunkenness, commission while in office of any offense involving moral turpitude, gross partiality in office, \"oppression in office\", or other grounds as may be specified hereafter by the Legislature. < 19 Judge Colclazier correctly points out that \"oppression in office\" is not defined in the Oklahoma Constitution. The judge contends that \"oppression in office\" sufficient to justify removal requires proof of illegality, bad faith or improper motive and that there was no such proof in the present case. In the alternative, the judge contends that if \"oppression in office\" does not require such proof, then the constitutional provision permitting removal for \"oppression in office\" is void for vagueness. {10 \"Oppression in office\" has been defined as the excessive use of authority.",
"United States v. Deaver, 14 F. 595, 597 (W.D.N.C.1882); Black's Law Dictionary. The Oklahoma Supreme Court has implicitly recognized that proof of illegality is not nee-essary in order for a judge to be removed from office for oppression. State ex rel. Oklahoma Bar Ass'n v. Sullivan, 1979 OK 1, 596 P.2d 864, and State ex rel. Bar Ass'n v. Haworth, 1979 OK 34, 593 P.2d 765. {11 Although the Oklahoma Court on the Judiciary has not addressed whether bad faith or improper motive is required to find judicial misconduct, other jurisdictions have. The state of Missouri has a constitutional provision 1 similar to Oklahoma's provision, which provides for removal of a judge for \"oppression in office.\"",
"The Supreme Court of Missouri has not required that bad faith or improper motive be shown, but has held that violations of the Code of Judicial Conduct may constitute \"oppression in office.\" In re Elliston, 789 S.W.2d 469 (Mo.1990). In Mississippi, it is well settled that willful misconduct that will give rise to judicial discipline need not be the result of bad faith or malice. In Mississippi Commission on Judicial Performance v. Hartzog, 646 So.2d 1319 (Miss.1994), the court held that any knowing misuse of the judicial office, whatever the motive, is misconduct that is prejudicial to the administration of justice and brings disrepute to the judicial office. 112 We reject the notion that the term \"oppression in office,\" as used, in the Okla. Const., art.",
"7-A, § 1(b), must include either bad faith or improper motive.2 In our view, a judge is guilty of \"oppression, in office\" when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the *142cireumstances and amount to an excessive use of judicial authority.3 The relevant inquiry is whether the judge formed a specific intent to commit acts with the requisite knowledge that they were obviously and seriously wrong under the circumstances and amounted to excessive use of judicial authority and not whether the judge committed the acts with ill will, evil intent or some other improper motive. 113 Having decided that illegality, bad faith or improper motive need not be shown to establish \"oppression in office,\" we examine Judge Colclazier's argument that \"oppression in office\", as that term is used in Okla.",
"Const., art. 7-A, § 1(b), is void for vagueness. ' / C ‘ T14 A vagueness challenge to a state law under the due process clause is overcome by a showing that a reasonable person would know that his or her conduct is at risk. Allen v. City of Oklahoma City, 1998 OK CR 42, 965 P.2d 387. The Oklahoma Code of Judicial Conduct; 5 0.$8.2001; ch. 1, app. 4,4 establishes standards against which judicial conduct is measured.5 Canon 3(B) offers guidance to judges in the exercise of their adjudicative responsibilities. The requirements of Canon 3(B) have been summarized as follows: A judge is required to administer justice through faithful and competent application of the law free of outside influences and by permitting all those interested in a proceeding full right to be heard. A judge violates these provisions if the judge administers justice capriciously or interferes with the rights of others before the court. Shaman, Lubet and Alfini, Judicial Conduct and Ethics, § 2.01 at p. 34 (8d ed.",
").6 1 15 In Missouri, violations of the Code of Judicial Conduct were found to constitute \"misconduct\" or \"oppression in office.\" In re Elliston, swpra. Similarly, in California, where judges may be disciplined for \"willful misconduct,\" a judge's conduct is measured with reference to the Code of Judicial Conduct. Dodds v. Commussion on Judicial Performance, 12 Cal.4th 163, 48 Cal.Rptr.2d 106, 906 P.2d 1260, 1266 (1995). {16 Chapter 2 of Shaman, Lubet and Alfini, Judicial Conduct and Ethics, §§ 2.01, et seq., discusses cases where judges have been disciplined for various abuses of power which also violate Canon 3 of the Code of Judicial Conduct. These abuses include misuse of contempt power, §§ 2.03-2.06; abuse of the adversary process, § 2.07 (\"judges abuse the power of judicial office when they abbreviate or change critical aspects of the adversary process in ways that run counter to the scheme established by relevant constitutional and statutory law\", at p. 50); and inappropriate criminal sanctions and dispositions, § 2.11. T17 Based on the above authorities, we reject Judge Colelazier's argument that the term \"oppression in office\" as used in Okla.",
"Const., art. 7-A, § 1(b) is void for vagueness. The Code of Judicial Conduct sufficiently defines the conduct regulated and affords an individual fair warning of what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). 118 In summary, a judge is guilty of \"oppression in office,\" as that term is used in Okla. Const., art. 7-A, § 1(b), when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong and amount to an excessive *143use of judicial authority. While conduct constituting \"oppression in office\" must be the result of a specific intent to commit the oppressive acts, they need not be criminal, fraudulent, dishonest, or motivated by personal gain.",
"Ample precedents, including the Oklahoma Code of Judicial Conduct, provide sufficient notice of the types of actions which amount to an excessive use of judicial authority. The constitutional term \"oppression in office\" is not void for vagueness. Y19 Not every violation of the Code of Judicial Conduct will result in a finding of \"oppression in office,\" nor will mere legal error or abuse of discretion result in discipline. We recognize that the fear of jeopardy of punishment has the potential of chilling judicial independence.",
"The preservation of an independent judiciary requires that judges not be exposed to personal discipline on the basis of particular rulings. A balance must be struck between independence and accountability and a line must be drawn between mere legal error correctable by appeal and acts which are obviously and seriously wrong and amount to excessive use of judicial authority. 120 While the line may not always be clear, Shaman, Lubet and Alfini, Judicial Conduct and Ethics, § 2.02, has identified factors which may be considered in determining whether certain actions rise to the level of judicial misconduct. They include the availability of appeal, the nature of the judge's conduct, the extent of the court's jurisdiction, the mofive of the judge, the egregiousness of the error, and the frequency of the offending conduct. A pattern of misconduct is certainly more serious than an isolated incident.",
"These factors mediate the sensitive line between judicial misconduct and mere error. IV. THE JUDGMENT OF THE TRIAL DIVISION IS NOT CLEARLY CONTRARY TO THE EVIDENCE AND NO ERRORS OF LAW OCCURRED. {21 Judge Colelazier contended before the Trial Division, and continues to contend on appeal, that he acted lawfully and within his proper authority in all four instances. We reject this contention. We find that in all four instances Judge Colclazier intentionally committed acts which he should have known were obviously and seriously wrong and amounted to an excessive use -of judicial authority. In the case of the locksmith, the judge improperly threatened a private citizen with the use of his contempt powers although the refusal to give the judge the key constituted neither direct nor indirect contempt.",
"21 0.98.2001, § 565. In the victim's protective order case, the judge improperly directed an unauthorized warrant-less arrest when the defendant had not violated the protective order, and the abuse had not occurred within 72 hours. 22 0.8.2001, § 40.3. In the drug court case, the judge ignored statutory guidelines for conducting a sentencing hearing by sentencing an individual to a life-term for a first time drug convietion on the basis of unsworn testimony and ex parte communications. 22 O0.8.2001, §§ 978-975. In the child custody case, the judge engaged in an ex parte communication with one party, and intervened without cause in a pending case in another county. 122 Judge Colelazier, in each instance, showed disregard for the law and the established rules of practice. In the course of his dealings, Judge Colclazier violated several provisions of the Oklahoma Code of Judicial Conduct. Canon 2(A) requires judges to comply with the law and conduct themselves in a manner that promotes public confidence in the judiciary. Cannon 8(B)(6) requires judges to accord to every person who has a legal interest in a proceeding the right to be heard according to law.",
"It also prohibits judges from initiating or considering ex parte communications made outside the presence of the parties. 123 Judge Colclazier also argues that the listed instances of conduct should not be grounds for removal because his actions were not appealed, except in the one instance of the drug court sentencing, and any error he may have committed was mere reversible error. The main flaw in this argument is that three of the complainants had no right to appeal Judge Colclazier's actions, because the judge cireumvented proper procedure. The instances where he threatened the lock*144smith with contempt, ordered the warrant-less arrest of a man accused of domestic abuse where no charges were filed, and ordered the pick up of children under a general order with no case number, were not in connection with any case which would give rise to an appeal. See, Lowe v. Monard, 1997 OK 100, 942 P.2d 732.",
"124 In addition, while the availability of appeal mitigates against a finding of misconduct, it does not preclude it. A judge's misconduct may, be the subject of a disciplinary action even though it may be remedied on appeal because \"an individual defendant's vindication of personal rights does not necessarily protect the public from a judge who repeatedly and grossly abuses his power.\" People ex rel. Harrod v. Illinois Courts Comm., 69 Ill.2d 445, 14 Ill.Dec. 248, 372 N.E.2d 53, 65 (1977), Shaman, Lubet and Alfini, Judicial Conduct and Ethics, at § 2.01. Thus, the Trial Division properly considered the instances of conduct in this case. 125 After applying the factors which may be considered in determining whether certain actions rise to the level of oppression, set forth in Part III above, to the facts of this case, we determine that the judgment of the Trial Division, finding Judge Colclazier committed \"oppression in office\" is not clearly contrary to the weight of the evidence or, legally erroneous.",
"126 Judge Colclazier requests that we modify the Trial Division's judgment of removal. Under the cireumstances, we find that the judgment is clearly supported by the evidence. The actions of Judge Colelazier in this case bear some similarity, in their excessive use of power, to the actions of. other judges in Oklahoma who have been removed from office. In Sullivan, supra, the Supreme Court reported that the actions which the Court on the Judiciary found to constitute oppression were (1) the arrest and citation of a bailiff for contempt, (2) the display of partiality in a felony case, in which the judge was abusive to counsel, (8) advice to criminal defendants that the charge carried a penalty in excess of the statutory maximum, and (4) verbal abuse of an attorney for no apparent reason other than personal dislike, 127 In Robberson v. Board of Commissioners of Noble County, 1924 OK 1172, 109 Okla. 249, 235 P. 525, the Supreme Court upheld a judge's removal from office for oppression. In Robberson, the judge (1) refused to let a traffic violator pay a fine, and instead, threw him in jail and refused to let him communicate with anyone, and (2) directed a lawyer to get out of his office and angrily shoved him out the door.",
"{28 In conclusion, the Trial Division's judgment is not against the clear weight of the evidence nor is it contrary to law or established principles of equity. The Trlal Division's judgment is affirmed. 129 ELLIS, V.P.J., WINCHESTER, LUMPKIN, LANNING, LINDLEY, McBEE, and THOMPSON, JJ., coneur. 130 WINSLOW, P.J., recused. . Missouri Const., art. 5, § 24.3. . Judge Colclazier suggests that we adopt the California standards for judicial discipline. In Dodds v. Commission on Judicial Performance, 12 Cal.4th 163, 48 Cal.Rptr.2d 106, 906 P.2d 1260 (1995), the court held that to commit willful misconduct in office, a judge must engage in conduct that is unjudicial and committed in bad faith while acting in a judicial capacity. The California court defined \"bad faith\" as an intentional commission of acts by a judge which he knew, or should have known, were beyond his lawful power. Thus \"bad faith,\" in this California judicial disciplinary case, could be excessive use of power without regard to evil intent or improper.motive.",
". This definition evaluates the judicial conduct under a reasonably prudent judge standard. . This opinion references the most recent codification unless a different version controls. . Violations of the Code of Judicial Conduct may also constitute independent grounds for removal in Oklahoma. Art. 7-A, § 1(b) authorizes the Legislature to specify additional grounds for removal of a judicial officer from office. Additional grounds for removal from office are listed in 20 O.$.2001, § 1404, which includes, at § 1404(C), \"(violation of the Code of Judicial Conduct as adopted by the Supreme Court of Oklahoma on July 15, 1974, or as may be thereafter amended, ... with or without disqualification to hold a judicial office in the future.\" . Although Shaman, Lubet and Alfini refer to the 1990 Model Code, Canon 3(B) in the Model Code and in the Oklahoma Code of Judicial Conduct - are similar."
]
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The defendant in error instituted this action in the district court of Payne county against the plaintiff in error seeking to recover the sum of $320 by virtue of a contract whereby the plaintiff in error agreed to pay him that sum for procuring an oil and gas lease from one J.W. Sims. The parties hereafter will be referred to as they appeared in the trial court. The answer filed by the defendant was a general denial. The record discloses that, a short time prior to the 25th of July, 1913, one Boucher, claiming to be a partner of the defendant, Treese, employed the plaintiff to secure for the partnership an oil and gas lease upon a certain 160 acres of land in Payne county, agreeing to pay plaintiff $2 per acre for his services in the premises. After this agreement with Boucher, the plaintiff consulted J.W. Sims, the owner of the land, and was informed that he would execute a lease upon certain terms. Thereupon the plaintiff reported to Boucher and Treese, and the terms proposed by Sims being satisfactory to them, Treese and the plaintiff drove out to the home of Sims for the purpose of having the lease executed, but were informed by Sims that other parties in the meantime had been negotiating for a lease upon the 160 acres, and that he had given them an option. The plaintiff and Treese then returned to town. On the Wednesday following, Sims informed the plaintiff that the deal with the other parties had failed to go through, and that he was ready to close the deal with him on the terms proposed in their first conversation. *Page 236 This information was conveyed to Treese and Boucher. The plaintiff and Treese then went down to the bank where Sims was awaiting them. After some dickering between Treese and Sims, the lease was executed according to terms originally proposed. Plaintiff was not present in the room at the execution of the lease, but remained in the bank. Mr. Sims came out of the room with the lease and stated that he was going down to have his wife sign the same. The plaintiff volunteered to accompany him, but was informed that it was not necessary. Mrs. Sims signed the lease and the same was delivered to the defendant. The contention of the defendant is that he had never agreed to pay the commission of $2 per acre, and that the plaintiff was not entitled to any commission, for the reason that he had not procured the signature of Mrs. Sims to the lease; that the lease covered the homestead of Sims, and that the lease would have been of no validity unless the same had been signed by the wife of the lessor, and that the plaintiff, at no time, had talked with the wife concerning the lease, and that his efforts were not the efficient cause in securing the consent of the wife to the lease; that in order to have earned his commission it was incumbent upon him to prove that his efforts were the efficient cause in securing the lease from Sims, and, in addition thereto, he was required to establish that he had procured the consent of the wife to the lease. The jury returned a verdict in favor of the plaintiff for $160. The defendant further contends that plaintiff did not seek to recover on a quantum meruit, and that theory was not taken by either of the parties in the trial of the cause, and that the verdict should have been for $320 or nothing. From an examination of the record, we can understand upon what theory the verdict was returned for $160. The plaintiff was suing for $320, claiming that was the sum agreed upon between himself and Boucher. It appears, however, that when the defendant, Treese, and the plaintiff had gone to the bank to meet Sims, at the time the lease was executed, the defendant informed the plaintiff that he would take the lease, but that he would not agree to pay over $1 per acre. However, if the verdict had been for $320, there is sufficient evidence to sustain a verdict for that amount; if the jury lightened the burden of the defendant and gave half of the amount sued for, the defendant should not be heard to complain when the evidence was sufficient to sustain a verdict for $320. The plaintiff, answering the contention of the defendant as to the signature of Mrs. Sims, assumes the position that the title to the leased premises being in the husband, the wife had no vested interest in the property during the lifetime of the husband, and that the law forbidding the husband to sell or mortgage the homestead without the consent of the wife does not prevent the husband giving a valid oil lease without the wife joining therein. To this proposition we cannot agree. Section 1143, Rev. Laws 1910, provides as follows: "No deed, mortgage or other conveyance relating to real estate or any interest therein, other than for a lease for a period not to exceed one year, shall be valid until reduced to writing and subscribed by the grantors; and no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both husand and wife, where both are living and not divorced or legally separated, except to the extent hereinafter provided." In Carter Oil Co. v. Popp et ux., 70 Oklahoma, 174 P. 747, it was said: "An oil and gas lease covering a homestead which grants the right to enter upon the same and operate for oil and gas, together with the right to lay pipe lines, telephone and telegraph lines, and erect power houses, stations, fixtures necessary for the production of oil and gas, is such a grant of the use and occupancy of the homestead as requires the joint consent of both the husband and wife." To the same effect, see Rich v. Doneghey et al., 71 Oklahoma,177 P. 86. The decisive question, however, for us to consider and the one principally discussed and relied upon by the plaintiff in error is that the efforts of the plaintiff were not the efficient cause leading up to the execution of the lease. There is no denial on the part of the defendant that the plaintiff was instructed to secure this lease. While it is true that the conversation in the first instance was with Boucher and not with the defendant, Treese, plaintiff testified that the agreement with Boucher was approved by Treese. The fact is undisputed that Sims and the defendant were brought together by the efforts of the plaintiff; the lease was executed by Sims and wife upon the terms as reported by the plaintiff to the defendant; and, under this showing, plaintiff was clearly entitled to his commission. *Page 237 The rule is well stated in Goldsmith v. Coxe, 80 S.C. 341, 61 S.E. 555, as follows: "But the rule of reason, which seems to be supported by practically all the authorities on the subject, is that the broker is entitled to his commissions if during the continuance of his agency he is the efficient or procuring cause of the sale, though the actual agreement for the sale is made by the owner without the aid of the broker; and the broker will be regarded the procuring, cause if his intervention is the foundation upon which the negotiation resulting in the sale is begun." In Yarborough v. Richardson, 38 Okla. 11, 131 P. 680, the court said: "If, after the tract of land or realty is placed in the agent's hand for sale, a sale is brought about by his exertions, he will be entitled to his commission; or if the agent introduces or discloses the name of the purchaser to the vendor for such purpose, and through such introduction or disclosure negotiations for the sale of the property are begun and then effected by the vendor, the agent is entitled to his commission." To the same effect, see Eichoff v. Russell, 46 Okla. 512,149 P. 146; Roberts v. Markham et al., 26 Okla. 387,109 P. 127. The defendant insists that the court committed error in its instructions to the jury, and in refusing to give instructions requested by the defendant. We have carefully examined the instructions given by the court, as well as those refused, and are of the opinion that the court correctly instructed the jury and was not in error in refusing to give the instructions requested by defendant. We conclude that the judgment of the trial court should be affirmed, and it is so ordered. HARRISON, C. J., and JOHNSON, ELTING, and NICHOLSON, JJ., concur. | 07-06-2016 | [
"The defendant in error instituted this action in the district court of Payne county against the plaintiff in error seeking to recover the sum of $320 by virtue of a contract whereby the plaintiff in error agreed to pay him that sum for procuring an oil and gas lease from one J.W. Sims. The parties hereafter will be referred to as they appeared in the trial court. The answer filed by the defendant was a general denial. The record discloses that, a short time prior to the 25th of July, 1913, one Boucher, claiming to be a partner of the defendant, Treese, employed the plaintiff to secure for the partnership an oil and gas lease upon a certain 160 acres of land in Payne county, agreeing to pay plaintiff $2 per acre for his services in the premises. After this agreement with Boucher, the plaintiff consulted J.W.",
"Sims, the owner of the land, and was informed that he would execute a lease upon certain terms. Thereupon the plaintiff reported to Boucher and Treese, and the terms proposed by Sims being satisfactory to them, Treese and the plaintiff drove out to the home of Sims for the purpose of having the lease executed, but were informed by Sims that other parties in the meantime had been negotiating for a lease upon the 160 acres, and that he had given them an option. The plaintiff and Treese then returned to town. On the Wednesday following, Sims informed the plaintiff that the deal with the other parties had failed to go through, and that he was ready to close the deal with him on the terms proposed in their first conversation.",
"*Page 236 This information was conveyed to Treese and Boucher. The plaintiff and Treese then went down to the bank where Sims was awaiting them. After some dickering between Treese and Sims, the lease was executed according to terms originally proposed. Plaintiff was not present in the room at the execution of the lease, but remained in the bank. Mr. Sims came out of the room with the lease and stated that he was going down to have his wife sign the same. The plaintiff volunteered to accompany him, but was informed that it was not necessary. Mrs. Sims signed the lease and the same was delivered to the defendant. The contention of the defendant is that he had never agreed to pay the commission of $2 per acre, and that the plaintiff was not entitled to any commission, for the reason that he had not procured the signature of Mrs. Sims to the lease; that the lease covered the homestead of Sims, and that the lease would have been of no validity unless the same had been signed by the wife of the lessor, and that the plaintiff, at no time, had talked with the wife concerning the lease, and that his efforts were not the efficient cause in securing the consent of the wife to the lease; that in order to have earned his commission it was incumbent upon him to prove that his efforts were the efficient cause in securing the lease from Sims, and, in addition thereto, he was required to establish that he had procured the consent of the wife to the lease.",
"The jury returned a verdict in favor of the plaintiff for $160. The defendant further contends that plaintiff did not seek to recover on a quantum meruit, and that theory was not taken by either of the parties in the trial of the cause, and that the verdict should have been for $320 or nothing. From an examination of the record, we can understand upon what theory the verdict was returned for $160. The plaintiff was suing for $320, claiming that was the sum agreed upon between himself and Boucher. It appears, however, that when the defendant, Treese, and the plaintiff had gone to the bank to meet Sims, at the time the lease was executed, the defendant informed the plaintiff that he would take the lease, but that he would not agree to pay over $1 per acre. However, if the verdict had been for $320, there is sufficient evidence to sustain a verdict for that amount; if the jury lightened the burden of the defendant and gave half of the amount sued for, the defendant should not be heard to complain when the evidence was sufficient to sustain a verdict for $320. The plaintiff, answering the contention of the defendant as to the signature of Mrs. Sims, assumes the position that the title to the leased premises being in the husband, the wife had no vested interest in the property during the lifetime of the husband, and that the law forbidding the husband to sell or mortgage the homestead without the consent of the wife does not prevent the husband giving a valid oil lease without the wife joining therein.",
"To this proposition we cannot agree. Section 1143, Rev. Laws 1910, provides as follows: \"No deed, mortgage or other conveyance relating to real estate or any interest therein, other than for a lease for a period not to exceed one year, shall be valid until reduced to writing and subscribed by the grantors; and no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both husand and wife, where both are living and not divorced or legally separated, except to the extent hereinafter provided.\" In Carter Oil Co. v. Popp et ux., 70 Oklahoma, 174 P. 747, it was said: \"An oil and gas lease covering a homestead which grants the right to enter upon the same and operate for oil and gas, together with the right to lay pipe lines, telephone and telegraph lines, and erect power houses, stations, fixtures necessary for the production of oil and gas, is such a grant of the use and occupancy of the homestead as requires the joint consent of both the husband and wife.\" To the same effect, see Rich v. Doneghey et al., 71 Oklahoma,177 P. 86.",
"The decisive question, however, for us to consider and the one principally discussed and relied upon by the plaintiff in error is that the efforts of the plaintiff were not the efficient cause leading up to the execution of the lease. There is no denial on the part of the defendant that the plaintiff was instructed to secure this lease. While it is true that the conversation in the first instance was with Boucher and not with the defendant, Treese, plaintiff testified that the agreement with Boucher was approved by Treese. The fact is undisputed that Sims and the defendant were brought together by the efforts of the plaintiff; the lease was executed by Sims and wife upon the terms as reported by the plaintiff to the defendant; and, under this showing, plaintiff was clearly entitled to his commission. *Page 237 The rule is well stated in Goldsmith v. Coxe, 80 S.C. 341, 61 S.E. 555, as follows: \"But the rule of reason, which seems to be supported by practically all the authorities on the subject, is that the broker is entitled to his commissions if during the continuance of his agency he is the efficient or procuring cause of the sale, though the actual agreement for the sale is made by the owner without the aid of the broker; and the broker will be regarded the procuring, cause if his intervention is the foundation upon which the negotiation resulting in the sale is begun.\"",
"In Yarborough v. Richardson, 38 Okla. 11, 131 P. 680, the court said: \"If, after the tract of land or realty is placed in the agent's hand for sale, a sale is brought about by his exertions, he will be entitled to his commission; or if the agent introduces or discloses the name of the purchaser to the vendor for such purpose, and through such introduction or disclosure negotiations for the sale of the property are begun and then effected by the vendor, the agent is entitled to his commission.\" To the same effect, see Eichoff v. Russell, 46 Okla. 512,149 P. 146; Roberts v. Markham et al., 26 Okla. 387,109 P. 127. The defendant insists that the court committed error in its instructions to the jury, and in refusing to give instructions requested by the defendant.",
"We have carefully examined the instructions given by the court, as well as those refused, and are of the opinion that the court correctly instructed the jury and was not in error in refusing to give the instructions requested by defendant. We conclude that the judgment of the trial court should be affirmed, and it is so ordered. HARRISON, C. J., and JOHNSON, ELTING, and NICHOLSON, JJ., concur."
]
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DECISION ARROWOOD, Judge: During the sentencing portion of the trial the accused chose to make an unsworn statement in accordance with the Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 75c (2), which states: “This unsworn statement is not evidence, and the accused cannot be cross-examined upon it, but the prosecution may rebut statements of fact therein by evidence.” The unsworn statement of the accused included his civilian and military background, an explanation of previous punishment under Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815 and the circumstances surrounding the offense charged. In an attempt to rebut the unsworn statement, the government called the accused’s commander who testified that the accused had a bad reputation for truth and veracity. Appellate defense counsel assert that permitting the commander’s testimony was error. We agree. By making an unsworn statement the accused does not become a witness and his statement is not considered testimony. See Manual for Courts-Martial, supra, paragraph 149b. However, the military judge is urged to instruct the court to consider its probability and improbability and give to it whatever weight deemed appropriate under the circumstances of the case.1 United States v. Welch, 1 M.J. 1201 (A.F.C.M.R. 1976). When an accused elects to make a statement in this manner, rules which are provided to insure the truth of testimony do not apply; there is no oath, no cross-examination, and no impeachment, except to “rebut the statements of fact therein by evidence”. Manual for Courts-Martial, supra, paragraph 75e(2).2 If an accused does not testify in the sentencing portion of the trial, or relate specific facts as to his truth and veracity in an unsworn statement, then the government cannot offer evidence of his bad reputation for truth and veracity in rebuttal. See United States v. Stroud, 44 C.M.R. 480 (A.C.M.R.1971). By making an unsworn statement which did not include any specific facts as to his truth and veracity, the accused did not place that matter in issue. Therefore, the military judge committed error when he permitted the government to rebut the unsworn statement with evidence of the accused’s bad reputation for truth and veracity. We believe it is appropriate to reassess the sentence at this level to purge the error. Accordingly, the findings of guilty and only so much of the sentence as provides for a bad conduct discharge are AFFIRMED. EARLY, Chief Judge, and ORSER, Judge, concur.
. For appropriate instructions see Department of the Army Pamphlet No. 27-9, “Military Judges’ Guide,” May 1969, paragraph 8-7.
. See, United States v. Jones, 4 M.J. 545 (A.C.M.R.1977); United States v. Mandurano, 1 M.J. 728 (A.F.C.M.R.1975); United States v. James, 34 C.M.R. 503 (A.B.R.1963), for examples of appropriate rebuttal. | 11-24-2022 | [
"DECISION ARROWOOD, Judge: During the sentencing portion of the trial the accused chose to make an unsworn statement in accordance with the Manual for Courts-Martial, United States, 1969 (Rev. ), paragraph 75c (2), which states: “This unsworn statement is not evidence, and the accused cannot be cross-examined upon it, but the prosecution may rebut statements of fact therein by evidence.” The unsworn statement of the accused included his civilian and military background, an explanation of previous punishment under Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815 and the circumstances surrounding the offense charged. In an attempt to rebut the unsworn statement, the government called the accused’s commander who testified that the accused had a bad reputation for truth and veracity. Appellate defense counsel assert that permitting the commander’s testimony was error.",
"We agree. By making an unsworn statement the accused does not become a witness and his statement is not considered testimony. See Manual for Courts-Martial, supra, paragraph 149b. However, the military judge is urged to instruct the court to consider its probability and improbability and give to it whatever weight deemed appropriate under the circumstances of the case.1 United States v. Welch, 1 M.J. 1201 (A.F.C.M.R. 1976). When an accused elects to make a statement in this manner, rules which are provided to insure the truth of testimony do not apply; there is no oath, no cross-examination, and no impeachment, except to “rebut the statements of fact therein by evidence”. Manual for Courts-Martial, supra, paragraph 75e(2).2 If an accused does not testify in the sentencing portion of the trial, or relate specific facts as to his truth and veracity in an unsworn statement, then the government cannot offer evidence of his bad reputation for truth and veracity in rebuttal. See United States v. Stroud, 44 C.M.R.",
"480 (A.C.M.R.1971). By making an unsworn statement which did not include any specific facts as to his truth and veracity, the accused did not place that matter in issue. Therefore, the military judge committed error when he permitted the government to rebut the unsworn statement with evidence of the accused’s bad reputation for truth and veracity. We believe it is appropriate to reassess the sentence at this level to purge the error. Accordingly, the findings of guilty and only so much of the sentence as provides for a bad conduct discharge are AFFIRMED. EARLY, Chief Judge, and ORSER, Judge, concur. . For appropriate instructions see Department of the Army Pamphlet No. 27-9, “Military Judges’ Guide,” May 1969, paragraph 8-7. . See, United States v. Jones, 4 M.J. 545 (A.C.M.R.1977); United States v. Mandurano, 1 M.J. 728 (A.F.C.M.R.1975); United States v. James, 34 C.M.R.",
"503 (A.B.R.1963), for examples of appropriate rebuttal."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8642424/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 1 of 4 Page ID #:3882
Summary Judgment Ex. 42 Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 2 of 4 Page ID #:3883
1 DECLARATION OF JOSHUA MARTIN 2 3 I, Joshua Martin, pursuant to 28 U.S.C. § 1746, hereby declare and state 4 as follows: 5 1. I am over the age of eighteen and reside in Temecula, California. 6 2. I have personal knowledge of the following facts, which I could 7 and would testify to if I were called to testify as a witness. 8 3. In around December 2016, I received a letter in the mail from a 9 company that claimed it could consolidate my student loans. At the time, my 10 student loans were handled by two different student loan servicers, NelNet and 11 Great Lakes, and I had been looking to consolidate my student loans. I decided 12 to give the company that sent the letter a try. 13 4. In around late December 2016 I called the phone number on the 14 mailer and talked to a representative of Certified Doc Prep Services who asked 15 me a bunch of questions about my student loans. The representative told me 16 that by consolidating I could make a single payment each month, rather than 17 paying two different student loan servicers. The representative also said I could 18 get a better deal on my student loans by consolidating—specifically, the 19 representative said that his company could lower the interest rate on my student 20 loans. 21 5. At some point during the call, the representative transferred me to 22 his manager. Both the original representative and his manager told me that by 23 consolidating my student loans my credit score would improve. They told me 24 there would be a bump in my credit score because I would have fewer creditors. 25 They also told me that they would “freeze” my student loans so that I would not 26 have to make payments for three months. The manager explained that I would 27 pay their company a total fee of about $900 for the consolidation, which would 28 DECLARATION OF JOSHUA MARTIN 1 Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 3 of 4 Page ID #:3884
1 be split into three separate payments of $300. The manager also asked for my 2 banking information, which I provided. The manager then transferred me back 3 to the original representative, who emailed me a contract to sign electronically. 4 6. I signed the contract based on the company’s statements during the 5 call that my student loans would be consolidated and I would receive a lower 6 interest rate on my student loans and a better credit score. 7 7. Shortly after I enrolled, I received several documents over email 8 containing a letter, a payment schedule, and application forms to consolidate 9 my loans and put my loans into forbearance for three months. Attached as 10 Exhibit A is a true and correct copy of the letter, the payment schedule, and 11 forbearance request. 12 8. Immediately after receiving the documents, I signed the 13 application forms and returned them to Certified Doc Prep Services. 14 9. In around January 2017, my forbearance request was approved. I 15 then did not have to make payments on my student loans for about three 16 months. 17 10. While my loans were in forbearance, I made three payments of 18 $300 to Certified Doc Prep Services. My first payment did not go through 19 when it was initially charged, and a representative of the company called me to 20 ask for my banking information again. I confirmed my banking information 21 and then the payment went through. 22 11. At the end of my forbearance, my student loans had not yet been 23 consolidated, and Nelnet and Great Lakes resumed taking monthly payments 24 out of my bank account. In around April 2017, I called Certified Doc Prep 25 Services and asked why my student loans had had not been consolidated. The 26 representative told me that the company would look into the status of my 27 consolidation and take care of it. Thereafter, I called several times to try to 28 DECLARATION OF JOSHUA MARTIN 2 Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 4 of 4 Page ID #:3885 | 2021-05-15 | [
"Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 1 of 4 Page ID #:3882 Summary Judgment Ex. 42 Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 2 of 4 Page ID #:3883 1 DECLARATION OF JOSHUA MARTIN 2 3 I, Joshua Martin, pursuant to 28 U.S.C. § 1746, hereby declare and state 4 as follows: 5 1. I am over the age of eighteen and reside in Temecula, California. 6 2. I have personal knowledge of the following facts, which I could 7 and would testify to if I were called to testify as a witness. 8 3. In around December 2016, I received a letter in the mail from a 9 company that claimed it could consolidate my student loans. At the time, my 10 student loans were handled by two different student loan servicers, NelNet and 11 Great Lakes, and I had been looking to consolidate my student loans. I decided 12 to give the company that sent the letter a try. 13 4. In around late December 2016 I called the phone number on the 14 mailer and talked to a representative of Certified Doc Prep Services who asked 15 me a bunch of questions about my student loans. The representative told me 16 that by consolidating I could make a single payment each month, rather than 17 paying two different student loan servicers.",
"The representative also said I could 18 get a better deal on my student loans by consolidating—specifically, the 19 representative said that his company could lower the interest rate on my student 20 loans. 21 5. At some point during the call, the representative transferred me to 22 his manager. Both the original representative and his manager told me that by 23 consolidating my student loans my credit score would improve. They told me 24 there would be a bump in my credit score because I would have fewer creditors. 25 They also told me that they would “freeze” my student loans so that I would not 26 have to make payments for three months. The manager explained that I would 27 pay their company a total fee of about $900 for the consolidation, which would 28 DECLARATION OF JOSHUA MARTIN 1 Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 3 of 4 Page ID #:3884 1 be split into three separate payments of $300. The manager also asked for my 2 banking information, which I provided. The manager then transferred me back 3 to the original representative, who emailed me a contract to sign electronically. 4 6.",
"I signed the contract based on the company’s statements during the 5 call that my student loans would be consolidated and I would receive a lower 6 interest rate on my student loans and a better credit score. 7 7. Shortly after I enrolled, I received several documents over email 8 containing a letter, a payment schedule, and application forms to consolidate 9 my loans and put my loans into forbearance for three months. Attached as 10 Exhibit A is a true and correct copy of the letter, the payment schedule, and 11 forbearance request. 12 8. Immediately after receiving the documents, I signed the 13 application forms and returned them to Certified Doc Prep Services. 14 9. In around January 2017, my forbearance request was approved. I 15 then did not have to make payments on my student loans for about three 16 months. 17 10. While my loans were in forbearance, I made three payments of 18 $300 to Certified Doc Prep Services.",
"My first payment did not go through 19 when it was initially charged, and a representative of the company called me to 20 ask for my banking information again. I confirmed my banking information 21 and then the payment went through. 22 11. At the end of my forbearance, my student loans had not yet been 23 consolidated, and Nelnet and Great Lakes resumed taking monthly payments 24 out of my bank account. In around April 2017, I called Certified Doc Prep 25 Services and asked why my student loans had had not been consolidated. The 26 representative told me that the company would look into the status of my 27 consolidation and take care of it.",
"Thereafter, I called several times to try to 28 DECLARATION OF JOSHUA MARTIN 2 Case 8:20-cv-00043-SB-ADS Document 192-17 Filed 05/14/21 Page 4 of 4 Page ID #:3885"
]
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Plaintiff appealed. It appears from the record that the plaintiff brought an action against the defendants for a trespass committed on its land in cutting trees. At the conclusion of the testimony the court, on motion of the defendants, adjudged that a nonsuit be entered against the plaintiff under the statute (Revisal, sec. 539). The plaintiff appealed from this judgment, but the appeal, not having been duly prosecuted, was dismissed in this Court, under Rule 17. The plaintiff then brought this action, for the same trespass, within one year after the other action and the appeal therein had been dismissed. The action was also dismissed in the court below, and the injunction formerly issued was vacated, upon the ground that the nonsuit in the former action was a complete bar to the further prosecution of this action. The question, therefore, is whether a second suit for the same cause of action will lie under such circumstances. We decided in Hood v. Telegraph Co.,135 N.C. 622, where the same point was presented, that a (334) second action will lie, although a nonsuit had been entered against the plaintiff, on the merits, in a former suit for the same cause of action and upon the same state of facts. This ruling is sustained in the following cases: Meekins v. R. R., 131 N.C. 1; Prevatt v. Harrelson,132 N.C. 250; Evans v. Alridge, 133 N.C. 378; Nunnally v. R. R.,134 N.C. 755; Tussey v. Owen, 174 N.C. 335; Henderson v. Eller,147 N.C. 582. We will not discuss the suggestion in the plaintiff's brief that there *Page 248 is an additional cause of action stated in the complaint in this action, as it is not necessary to do so. If that be correct, the ruling of the court was clearly erroneous, no proof having been taken in this case. There was error in dismissing the action. Reversed. Cited: Starling v. Cotton Mill, 168 N.C. 232; Culbreth v. R. R.,169 N.C. 727. | 07-06-2016 | [
"Plaintiff appealed. It appears from the record that the plaintiff brought an action against the defendants for a trespass committed on its land in cutting trees. At the conclusion of the testimony the court, on motion of the defendants, adjudged that a nonsuit be entered against the plaintiff under the statute (Revisal, sec. 539). The plaintiff appealed from this judgment, but the appeal, not having been duly prosecuted, was dismissed in this Court, under Rule 17. The plaintiff then brought this action, for the same trespass, within one year after the other action and the appeal therein had been dismissed. The action was also dismissed in the court below, and the injunction formerly issued was vacated, upon the ground that the nonsuit in the former action was a complete bar to the further prosecution of this action. The question, therefore, is whether a second suit for the same cause of action will lie under such circumstances.",
"We decided in Hood v. Telegraph Co.,135 N.C. 622, where the same point was presented, that a (334) second action will lie, although a nonsuit had been entered against the plaintiff, on the merits, in a former suit for the same cause of action and upon the same state of facts. This ruling is sustained in the following cases: Meekins v. R. R., 131 N.C. 1; Prevatt v. Harrelson,132 N.C. 250; Evans v. Alridge, 133 N.C. 378; Nunnally v. R. R.,134 N.C. 755; Tussey v. Owen, 174 N.C. 335; Henderson v. Eller,147 N.C. 582. We will not discuss the suggestion in the plaintiff's brief that there *Page 248 is an additional cause of action stated in the complaint in this action, as it is not necessary to do so.",
"If that be correct, the ruling of the court was clearly erroneous, no proof having been taken in this case. There was error in dismissing the action. Reversed. Cited: Starling v. Cotton Mill, 168 N.C. 232; Culbreth v. R. R.,169 N.C. 727."
]
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JNL INVESTORS SERIES TRUST 1 Corporate Way, Lansing, Michigan 48951 (517) 381-5500 December 14, 2010 Securities and Exchange Commission treet, N.E. Washington, D.C.20549 Re: JNL Investors Series Trust File Nos: 333-43300 and 811-10041 Dear Sir/Madam: We are transmitting herewith for filing through EDGAR Post-Effective Amendment No. 14 to the Registration Statement under the Securities Act of 1933 and Amendment No. 15 under the Investment Company Act of 1940 for the above-referenced Registrant. This filing is being made pursuant to paragraph (a) of Rule 485. This Amendment is being filed to reflect the following changes: 1)To comply with N-1A amendments, adopted on March 31, 2009; 2)To reflect SEC Comments; and 3)To reflect other changes. If you have any questions, please contact me at 517-367-4336. Sincerely, /s/Susan S. Rhee Susan S. Rhee Vice President, Counsel & Secretary encs. JNL INVESTORS SERIES TRUST 1 Corporate Way, Lansing, Michigan 48951 (517) 381-5500 December 14, 2010 U.S. Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Attn:Edward Bartz Re: JNL Investors Series Trust File Nos: 333-43300 and 811-10041 Dear Commissioners: I am writing on behalf of the above referenced registrant.We acknowledge and agree that: should the Commission (or its staff acting pursuant to delegated authority) declare the above- referenced registration statements effective, it does not foreclose the Commission from taking any action with respect to the filings; the action of the Commission (or its staff acting pursuant to delegated authority) declaring the filings effective does not relieve us from full responsibility for the adequacy and accuracy of the disclosures in the filings; and we may not assert this action as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. Please call me at (517) 367-4336 if you have any questions. Respectfully, /s/ Susan S. Rhee Susan S. Rhee Vice President, Counsel & Secretary | [
"JNL INVESTORS SERIES TRUST 1 Corporate Way, Lansing, Michigan 48951 (517) 381-5500 December 14, 2010 Securities and Exchange Commission treet, N.E. Washington, D.C.20549 Re: JNL Investors Series Trust File Nos: 333-43300 and 811-10041 Dear Sir/Madam: We are transmitting herewith for filing through EDGAR Post-Effective Amendment No. 14 to the Registration Statement under the Securities Act of 1933 and Amendment No. 15 under the Investment Company Act of 1940 for the above-referenced Registrant. This filing is being made pursuant to paragraph (a) of Rule 485. This Amendment is being filed to reflect the following changes: 1)To comply with N-1A amendments, adopted on March 31, 2009; 2)To reflect SEC Comments; and 3)To reflect other changes. If you have any questions, please contact me at 517-367-4336. Sincerely, /s/Susan S. Rhee Susan S. Rhee Vice President, Counsel & Secretary encs. JNL INVESTORS SERIES TRUST 1 Corporate Way, Lansing, Michigan 48951 (517) 381-5500 December 14, 2010 U.S. Securities and Exchange Commission 450 Fifth Street, N.W.",
"Washington, D.C. 20549 Attn:Edward Bartz Re: JNL Investors Series Trust File Nos: 333-43300 and 811-10041 Dear Commissioners: I am writing on behalf of the above referenced registrant.We acknowledge and agree that: should the Commission (or its staff acting pursuant to delegated authority) declare the above- referenced registration statements effective, it does not foreclose the Commission from taking any action with respect to the filings; the action of the Commission (or its staff acting pursuant to delegated authority) declaring the filings effective does not relieve us from full responsibility for the adequacy and accuracy of the disclosures in the filings; and we may not assert this action as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.",
"Please call me at (517) 367-4336 if you have any questions. Respectfully, /s/ Susan S. Rhee Susan S. Rhee Vice President, Counsel & Secretary"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Quinton Malbrough v. The State of Texas
Appellate case number: 01-18-00941-CR
Trial court case number: 1524524
Trial court: 177th District Court of Harris County
Appellant Quinton Malbrough’s brief initially was due on February 19, 2019. After this Court granted two motions for an extension, appellant’s brief was due to be filed by May 21, 2019, with no further extensions. See TEX. R. APP. P. 38.6(a), (d). Appellant has filed a third motion requesting an extension to June 5, 2019 to file his brief. The motion is granted. Appellant’s brief is due to be filed no later than Wednesday, June 5, 2019. No further extensions will be granted.
It is so ORDERED.
Judge’s signature: /s/ Julie Countiss Acting individually Acting for the Court
Date: ___May 30, 2019___ | 05-31-2019 | [
"COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Quinton Malbrough v. The State of Texas Appellate case number: 01-18-00941-CR Trial court case number: 1524524 Trial court: 177th District Court of Harris County Appellant Quinton Malbrough’s brief initially was due on February 19, 2019. After this Court granted two motions for an extension, appellant’s brief was due to be filed by May 21, 2019, with no further extensions. See TEX. R. APP.",
"P. 38.6(a), (d). Appellant has filed a third motion requesting an extension to June 5, 2019 to file his brief. The motion is granted. Appellant’s brief is due to be filed no later than Wednesday, June 5, 2019. No further extensions will be granted. It is so ORDERED. Judge’s signature: /s/ Julie Countiss Acting individually Acting for the Court Date: ___May 30, 2019___"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4402239/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
United States Department of Labor Employees’ Compensation Appeals Board __________________________________________ J.M., Appellant and DEPARTMENT OF THE ARMY, CIVILIAN PERSONNEL OFFICE, Fort Jackson, SC, Employer __________________________________________
) ) ) ) ) ) ) ) )
Appearances: Appellant, pro se Office of Solicitor, for the Director
Docket No. 12-954 Issued: November 26, 2012
Case Submitted on the Record
DECISION AND ORDER Before: COLLEEN DUFFY KIKO, Judge MICHAEL E. GROOM, Alternate Judge JAMES A. HAYNES, Alternate Judge
JURISDICTION On March 26, 2012 appellant filed a timely appeal from an October 26, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of compensation and denying waiver of recovery. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision. ISSUES The issues are: (1) whether appellant received an overpayment of compensation in the amount of $42,864.92 because he received compensation from OWCP and benefits from the Social Security Administration (SSA) from June 1, 2004 through April 9, 2011 without an appropriate retirement benefit offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly determined that it would recover the overpayment by deducting $250.00 from appellant’s continuing compensation. 1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY On September 6, 1983 appellant, then a 44-year-old pipefitter, filed an occupational disease claim alleging that he sustained chronic obstructive pulmonary disease causally related to factors of his federal employment. OWCP accepted the claim for asbestosis, lung cancer, a pulmonary embolism and colon cancer. Appellant retired from the employing establishment on September 21, 1983 but returned to work on October 2, 1985. He retired again on January 31, 1996. A January 31, 1996 notification of personnel action (SF-50) advised that appellant retired effective that date with a retirement plan of Federal Insurance Contributions Act (FICA) and partial Civil Service Retirement System (CSRS).2 It listed his retirement plan as Code C, applicable to those under the CSRS offset retirement plan. By decision dated January 31, 2001, OWCP granted appellant a schedule award for a 45 percent permanent impairment of the lungs. The period of the award ran from October 25, 2000 to July 4, 2003. On July 21, 2003 OWCP granted him a schedule award for a 47 percent loss of use of the lower extremities. The period of the award ran from July 5, 2003 to February 6, 2006. At the conclusion of the schedule award, OWCP paid appellant compensation for total disability. By letter dated March 15, 2007, the employing establishment noted that appellant, now 68, was receiving retirement benefits from SSA. It related, “Since this claimant is a FERS employee, his compensation payments must be now offset by any part of his SSA benefit that was calculated by using his [f]ederal employment earnings.” On August 28, 2007 the employing establishment informed appellant that his compensation from OWCP must be offset for FERS’ portion of his retirement benefits from SSA.3 In an October 1, 2007 response, appellant stated that he was receiving SSA benefits calculated using his federal service earnings. By letter dated July 10, 2009, OWCP requested that SSA complete a form showing appellant’s SSA benefits with and without FERS and the effective date that his benefits began. In a memorandum of telephone call dated September 9, 2009, OWCP advised the employing establishment that appellant was under CSRS not FERS so his retirement was not subject to offset. On September 11, 2009 and March 2, 2011 OWCP again requested that SSA provide information to determine whether appellant’s compensation should be offset for FERS.
2
FICA is a payroll tax withheld from an employee’s pay to fund social security and Medicare.
3
On June 4, 2008 the employing establishment again asked OWCP to offset appellant’s compensation for his FERS retirement benefits from SSA. On April 3, 2009 the employing establishment telephoned OWCP to inquire whether his compensation was being offset.
2
In a worksheet completed March 24, 2011, SSA advised OWCP that appellant’s SSA rate with FERS was $558.00 beginning June 2004 and without FERS was $92.40. It further provided his applicable rates from June 2004 until December 2010 with and without FERS. On June 7, 2011 OWCP notified appellant that his compensation must be offset by a portion of SSA benefits attributable to FERS. By letter dated June 24, 2011, appellant related that he was not under FERS but instead under a CSRS offset retirement plan. He maintained that he never received SSA benefits as part of FERS. By letter dated September 15, 2011, OWCP notified appellant of its preliminary determination that he received a $42,864.92 overpayment of compensation because he received retirement benefits from SSA and FECA benefits without FERS’ offset. It calculated the overpayment by adding together the amount that it should have offset from his compensation payments for the period June 1, 2004 through April 9, 2011. OWCP further advised appellant of its preliminary determination that he was not at fault in the creation of the overpayment. It requested that he complete the enclosed overpayment recovery questionnaire and submit supporting financial documents in support of any request for waiver. Additionally, OWCP notified appellant that, within 30 days of the date of the letter, he could request a telephone conference, a final decision based on the written evidence or a prerecoupment hearing. On October 10, 2011 appellant requested a decision based on the written evidence. He asserted that the overpayment was not his fault and requested waiver of recovery of the overpayment. Appellant provided his monthly income as $5,252.00 and his monthly expenses as $5,138.31. By decision dated October 26, 2011, OWCP found that appellant received an overpayment of $42,864.92 because he received benefits from SSA and OWCP without FERS’ offset from June 1, 2004 through April 9, 2011. It further found that he was without fault in creating the overpayment but was not entitled to waiver of recovery of the overpayment as his income exceeded his expenses by $113.69 per month. OWCP determined that it would recover the overpayment by deducting $250.00 from appellant’s continuing compensation benefits. On appeal appellant contends that he was hired before FERS began and did not elect FERS. He did receive SSA. Appellant maintains that he was without fault. He relates that his expenses had changed and that repaying the overpayment constituted a hardship. LEGAL PRECEDENT -- ISSUE 1 Section 8102 of FECA4 provides that the United States shall pay compensation for the disability of an employee resulting from personal injury sustained while in the performance of duty.5 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been made to an individual under this subchapter because of an error of fact or law, adjustment shall
4
5 U.S.C. § 8101 et seq.
5
Id. at § 8102.
3
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to which an individual is entitled.6 Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of SSA benefits based on age or death that are attributable to federal service and that, if an employee received SSA benefits based on federal service, his or her compensation benefits shall be reduced by the amount of SSA benefits attributable to his or her federal service.7 OWCP procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by the SSA benefits paid on the basis of age and attributable to the employee’s federal service.8 Section 8116(d)(2) provides that the receipt of SSA benefits “does not affect the right of the employee to compensation for scheduled disabilities specified by section 8107(c) of this title.”9 ANALYSIS -- ISSUE 1 OWCP accepted that appellant sustained asbestosis, lung cancer, a pulmonary embolism and colon cancer due to factors of his federal employment. Appellant retired from work on September 21, 1983 but was rehired on October 2, 1985. He again retired on January 31, 1996. Appellant’s SF-50 indicated that his retirement plan was a combination of FICA and partial CSRS. The form designated appellant’s retirement as Code C, applicable to those under the CSRS offset retirement plan. OWCP determined that appellant received an overpayment of compensation from June 1, 2004 through April 9, 2011 because he received compensation from OWCP and SSA benefits without an appropriate offset. The offset provision of section 8116(d)(2) applies to SSA benefits that are attributable to federal service. Appellant paid social security and Medicare taxes (FICA) as a federal civilian employee under the CSRS Interim/Offset system, a precursor to FERS that required contributions to both CSRS and for social security. It generally applied to certain new hires or former CSRS-covered employees who had been separated from service for at least one year and rehired after December 31, 1983.10 Appellant received age-based SSA benefits after retirement as a result of his contributions to SSA under the CSRS interim system. As he received SSA benefits based in part of his federal service concurrently with disability compensation from OWCP without an appropriate offset, he received an overpayment of compensation. 6
Id. at § 8129(a).
7
Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).
8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997); Chapter 2.1000.11(a)(b) (February 1995). 9
5 U.S.C. § 8116(d)(2).
10
See A.P., Docket No. 12-122 (issued May 7, 2012).
4
The Board finds, however, that the case is not in posture for decision regarding the amount or period of the overpayment. SSA provided OWCP with information regarding appellant’s rate of SSA benefits beginning June 2004 both with and without FERS. As discussed, however, he was not covered by FERS but was instead under the CSRS offset retirement plan. It is not clear from the record whether the rates under the CSRS offset plan are the same as the rates in FERS’ plan. On remand, OWCP should obtain additional information from SSA and the Office of Personnel Management (OPM) regarding appellant’s retirement system and his SSA rate with and without any offset required based on his federal civilian service. Additionally, OWCP found that appellant received an overpayment of compensation from June 1, 2004 through April 9, 2011. However, it paid him schedule award compensation from July 5, 2003 to February 6, 2006. Section 8116(d)(2) of FECA provides that an employee can receive SSA benefits and a schedule award under section 8107(c). OWCP’s procedures also provide that SSA benefits can be paid concurrently with FECA benefits except that, in cases of disability, “FECA benefits will be reduced by the Social Security Act benefits paid on the basis of age and attributable to the employee’s federal service.”11 Appellant was receiving compensation for a schedule award rather than disability compensation until February 6, 2006, and thus OWCP erred in finding that he received an overpayment of compensation prior to that date. Accordingly, the Board will remand the case for OWCP to recalculate the period and amount of the overpayment.12 CONCLUSION The Board finds that appellant received an overpayment of compensation for which he was without fault but that the case is not in posture for decision regarding the period or amount of the overpayment.
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e (January 1997).
12
In view of the Board’s finding regarding the period and amount of the overpayment, it is premature to address the issues of waiver and recovery.
5
ORDER IT IS HEREBY ORDERED THAT the October 26, 2011 decision of the Office of Workers’ Compensation Programs is affirmed in part and set aside in part; the case is remanded for further proceedings consistent with this decision of the Board. Issued: November 26, 2012 Washington, DC
Colleen Duffy Kiko, Judge Employees’ Compensation Appeals Board
Michael E. Groom, Alternate Judge Employees’ Compensation Appeals Board
James A. Haynes, Alternate Judge Employees’ Compensation Appeals Board
6 | 11-26-2012 | [
"United States Department of Labor Employees’ Compensation Appeals Board __________________________________________ J.M., Appellant and DEPARTMENT OF THE ARMY, CIVILIAN PERSONNEL OFFICE, Fort Jackson, SC, Employer __________________________________________ ) ) ) ) ) ) ) ) ) Appearances: Appellant, pro se Office of Solicitor, for the Director Docket No. 12-954 Issued: November 26, 2012 Case Submitted on the Record DECISION AND ORDER Before: COLLEEN DUFFY KIKO, Judge MICHAEL E. GROOM, Alternate Judge JAMES A. HAYNES, Alternate Judge JURISDICTION On March 26, 2012 appellant filed a timely appeal from an October 26, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of compensation and denying waiver of recovery. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.",
"§§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision. ISSUES The issues are: (1) whether appellant received an overpayment of compensation in the amount of $42,864.92 because he received compensation from OWCP and benefits from the Social Security Administration (SSA) from June 1, 2004 through April 9, 2011 without an appropriate retirement benefit offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly determined that it would recover the overpayment by deducting $250.00 from appellant’s continuing compensation. 1 5 U.S.C. § 8101 et seq.",
"FACTUAL HISTORY On September 6, 1983 appellant, then a 44-year-old pipefitter, filed an occupational disease claim alleging that he sustained chronic obstructive pulmonary disease causally related to factors of his federal employment. OWCP accepted the claim for asbestosis, lung cancer, a pulmonary embolism and colon cancer. Appellant retired from the employing establishment on September 21, 1983 but returned to work on October 2, 1985. He retired again on January 31, 1996. A January 31, 1996 notification of personnel action (SF-50) advised that appellant retired effective that date with a retirement plan of Federal Insurance Contributions Act (FICA) and partial Civil Service Retirement System (CSRS).2 It listed his retirement plan as Code C, applicable to those under the CSRS offset retirement plan.",
"By decision dated January 31, 2001, OWCP granted appellant a schedule award for a 45 percent permanent impairment of the lungs. The period of the award ran from October 25, 2000 to July 4, 2003. On July 21, 2003 OWCP granted him a schedule award for a 47 percent loss of use of the lower extremities. The period of the award ran from July 5, 2003 to February 6, 2006. At the conclusion of the schedule award, OWCP paid appellant compensation for total disability. By letter dated March 15, 2007, the employing establishment noted that appellant, now 68, was receiving retirement benefits from SSA. It related, “Since this claimant is a FERS employee, his compensation payments must be now offset by any part of his SSA benefit that was calculated by using his [f]ederal employment earnings.” On August 28, 2007 the employing establishment informed appellant that his compensation from OWCP must be offset for FERS’ portion of his retirement benefits from SSA.3 In an October 1, 2007 response, appellant stated that he was receiving SSA benefits calculated using his federal service earnings. By letter dated July 10, 2009, OWCP requested that SSA complete a form showing appellant’s SSA benefits with and without FERS and the effective date that his benefits began. In a memorandum of telephone call dated September 9, 2009, OWCP advised the employing establishment that appellant was under CSRS not FERS so his retirement was not subject to offset.",
"On September 11, 2009 and March 2, 2011 OWCP again requested that SSA provide information to determine whether appellant’s compensation should be offset for FERS. 2 FICA is a payroll tax withheld from an employee’s pay to fund social security and Medicare. 3 On June 4, 2008 the employing establishment again asked OWCP to offset appellant’s compensation for his FERS retirement benefits from SSA. On April 3, 2009 the employing establishment telephoned OWCP to inquire whether his compensation was being offset. 2 In a worksheet completed March 24, 2011, SSA advised OWCP that appellant’s SSA rate with FERS was $558.00 beginning June 2004 and without FERS was $92.40.",
"It further provided his applicable rates from June 2004 until December 2010 with and without FERS. On June 7, 2011 OWCP notified appellant that his compensation must be offset by a portion of SSA benefits attributable to FERS. By letter dated June 24, 2011, appellant related that he was not under FERS but instead under a CSRS offset retirement plan. He maintained that he never received SSA benefits as part of FERS. By letter dated September 15, 2011, OWCP notified appellant of its preliminary determination that he received a $42,864.92 overpayment of compensation because he received retirement benefits from SSA and FECA benefits without FERS’ offset. It calculated the overpayment by adding together the amount that it should have offset from his compensation payments for the period June 1, 2004 through April 9, 2011. OWCP further advised appellant of its preliminary determination that he was not at fault in the creation of the overpayment. It requested that he complete the enclosed overpayment recovery questionnaire and submit supporting financial documents in support of any request for waiver.",
"Additionally, OWCP notified appellant that, within 30 days of the date of the letter, he could request a telephone conference, a final decision based on the written evidence or a prerecoupment hearing. On October 10, 2011 appellant requested a decision based on the written evidence. He asserted that the overpayment was not his fault and requested waiver of recovery of the overpayment. Appellant provided his monthly income as $5,252.00 and his monthly expenses as $5,138.31. By decision dated October 26, 2011, OWCP found that appellant received an overpayment of $42,864.92 because he received benefits from SSA and OWCP without FERS’ offset from June 1, 2004 through April 9, 2011. It further found that he was without fault in creating the overpayment but was not entitled to waiver of recovery of the overpayment as his income exceeded his expenses by $113.69 per month.",
"OWCP determined that it would recover the overpayment by deducting $250.00 from appellant’s continuing compensation benefits. On appeal appellant contends that he was hired before FERS began and did not elect FERS. He did receive SSA. Appellant maintains that he was without fault. He relates that his expenses had changed and that repaying the overpayment constituted a hardship. LEGAL PRECEDENT -- ISSUE 1 Section 8102 of FECA4 provides that the United States shall pay compensation for the disability of an employee resulting from personal injury sustained while in the performance of duty.5 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been made to an individual under this subchapter because of an error of fact or law, adjustment shall 4 5 U.S.C. § 8101 et seq. 5 Id.",
"at § 8102. 3 be made under regulations prescribed by the Secretary of Labor by decreasing later payments to which an individual is entitled.6 Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of SSA benefits based on age or death that are attributable to federal service and that, if an employee received SSA benefits based on federal service, his or her compensation benefits shall be reduced by the amount of SSA benefits attributable to his or her federal service.7 OWCP procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by the SSA benefits paid on the basis of age and attributable to the employee’s federal service.8 Section 8116(d)(2) provides that the receipt of SSA benefits “does not affect the right of the employee to compensation for scheduled disabilities specified by section 8107(c) of this title.”9 ANALYSIS -- ISSUE 1 OWCP accepted that appellant sustained asbestosis, lung cancer, a pulmonary embolism and colon cancer due to factors of his federal employment.",
"Appellant retired from work on September 21, 1983 but was rehired on October 2, 1985. He again retired on January 31, 1996. Appellant’s SF-50 indicated that his retirement plan was a combination of FICA and partial CSRS. The form designated appellant’s retirement as Code C, applicable to those under the CSRS offset retirement plan. OWCP determined that appellant received an overpayment of compensation from June 1, 2004 through April 9, 2011 because he received compensation from OWCP and SSA benefits without an appropriate offset. The offset provision of section 8116(d)(2) applies to SSA benefits that are attributable to federal service. Appellant paid social security and Medicare taxes (FICA) as a federal civilian employee under the CSRS Interim/Offset system, a precursor to FERS that required contributions to both CSRS and for social security. It generally applied to certain new hires or former CSRS-covered employees who had been separated from service for at least one year and rehired after December 31, 1983.10 Appellant received age-based SSA benefits after retirement as a result of his contributions to SSA under the CSRS interim system.",
"As he received SSA benefits based in part of his federal service concurrently with disability compensation from OWCP without an appropriate offset, he received an overpayment of compensation. 6 Id. at § 8129(a). 7 Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002). 8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997); Chapter 2.1000.11(a)(b) (February 1995). 9 5 U.S.C. § 8116(d)(2). 10 See A.P., Docket No. 12-122 (issued May 7, 2012). 4 The Board finds, however, that the case is not in posture for decision regarding the amount or period of the overpayment. SSA provided OWCP with information regarding appellant’s rate of SSA benefits beginning June 2004 both with and without FERS. As discussed, however, he was not covered by FERS but was instead under the CSRS offset retirement plan.",
"It is not clear from the record whether the rates under the CSRS offset plan are the same as the rates in FERS’ plan. On remand, OWCP should obtain additional information from SSA and the Office of Personnel Management (OPM) regarding appellant’s retirement system and his SSA rate with and without any offset required based on his federal civilian service. Additionally, OWCP found that appellant received an overpayment of compensation from June 1, 2004 through April 9, 2011. However, it paid him schedule award compensation from July 5, 2003 to February 6, 2006. Section 8116(d)(2) of FECA provides that an employee can receive SSA benefits and a schedule award under section 8107(c). OWCP’s procedures also provide that SSA benefits can be paid concurrently with FECA benefits except that, in cases of disability, “FECA benefits will be reduced by the Social Security Act benefits paid on the basis of age and attributable to the employee’s federal service.”11 Appellant was receiving compensation for a schedule award rather than disability compensation until February 6, 2006, and thus OWCP erred in finding that he received an overpayment of compensation prior to that date. Accordingly, the Board will remand the case for OWCP to recalculate the period and amount of the overpayment.12 CONCLUSION The Board finds that appellant received an overpayment of compensation for which he was without fault but that the case is not in posture for decision regarding the period or amount of the overpayment.",
"11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e (January 1997). 12 In view of the Board’s finding regarding the period and amount of the overpayment, it is premature to address the issues of waiver and recovery. 5 ORDER IT IS HEREBY ORDERED THAT the October 26, 2011 decision of the Office of Workers’ Compensation Programs is affirmed in part and set aside in part; the case is remanded for further proceedings consistent with this decision of the Board. Issued: November 26, 2012 Washington, DC Colleen Duffy Kiko, Judge Employees’ Compensation Appeals Board Michael E. Groom, Alternate Judge Employees’ Compensation Appeals Board James A. Haynes, Alternate Judge Employees’ Compensation Appeals Board 6"
]
| https://www.dol.gov/sites/dolgov/files/ecab/decisions/2012/Nov/12-0954.pdf | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
810 F.2d 178 UNITED STATES of America, Appellee,v.ONE 1982 CHEVROLET CREW-CAB TRUCK VIN 1GCHK33M9C143129, Appellant. No. 86-1257. United States Court of Appeals,Eighth Circuit. Submitted Oct. 2, 1986.Decided Jan. 28, 1987.
Fritz Vammen, Little Rock, Ark., for appellant. Mark W. Webb, Asst. U.S. Atty., Fort Smith, Ark., for appellee. Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges. BOWMAN, Circuit Judge.
1 Salvadore Oseguera appeals from a judgment of the District Court granting forfeiture of his 1982 Chevrolet Crew-Cab Truck to the United States. We affirm.
I.
2 Salvadore Oseguera owns and operates a tree planting business in Arkansas. On the evening of January 25, 1985, an officer of the Waldron, Arkansas police department stopped Oseguera's 1982 Chevrolet truck on suspicion that the driver, Benjamin Moreno-Murillo, was intoxicated. There were three other Hispanic males in the truck. Moreno-Murillo spoke only broken English and the other occupants could not speak any English. The officer took the four individuals to the police station and contacted the U.S. Border Patrol. After talking with the four individuals in Spanish over the phone, a Border Patrol agent requested that they be detained. The truck and the four occupants were removed to the Border Patrol station in North Little Rock. Later that same evening, three other Hispanic males were arrested by the Waldron police. Border Patrol agents subsequently interviewed each of the individuals.
3 All seven individuals admitted that they were citizens of Mexico and had illegally entered the United States within the last three years. The aliens all stated that Oseguera knew they were illegally in this country, that Oseguera employed them, and that he used the seized truck to transport them to and from a work site near Waldron. Moreno-Murillo stated further that Oseguera had given him permission to drive the truck on the day it was seized.1
4 Upon completing their interviews with the seven aliens, the Border Patrol agents determined that none of the aliens possessed evidence favorable to Oseguera in a criminal prosecution under 8 U.S.C. § 1324 (1982). See United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S. Ct. 3440, 3449, 73 L. Ed. 2d 1193 (1982). Based on that conclusion, the Border Patrol returned five of the aliens to Mexico on January 29, 1985. Two of the other aliens were released and granted until February 27, 1985 to depart the United States voluntarily.
5 Based on the aliens' statements, the Border Patrol decided to proceed with administrative forfeiture of the truck. The truck was seized pursuant to 8 U.S.C. § 1324(b), and was placed in storage.
6 On January 28, 1985, one day before five of the aliens departed for Mexico, Oseguera arrived at the Border Patrol office and inquired about his truck and equipment. Oseguera claimed that he did not know the workers were illegal aliens. He did not claim that the aliens had stolen the truck. At a Border Patrol agent's request, Oseguera went to the Arkansas Detention Facility and talked with Moreno-Murillo.
7 The United States filed its complaint for forfeiture on March 22, 1985. After filing an answer, Oseguera filed a motion to compel the government to produce the aliens as witnesses or else to have the forfeiture proceedings dismissed. The United States filed its response, and the District Court advised both parties that it intended to treat the filings as cross-motions for summary judgment. Both parties were invited to supplement their previous filings and were given time to do so. On December 7, 1985, the court issued its memorandum opinion and judgment denying Oseguera's motion and ordering forfeiture of the truck to the United States.
8 On appeal, Oseguera argues that summary judgment was improper because there are genuine disputes of material fact with respect to (1) the government's prima facie case for forfeiture under 8 U.S.C. § 1324(b)(5), and (2) Oseguera's defense that the truck was unlawfully in the possession of Moreno-Murillo. Oseguera further argues that as a matter of law he should have had summary judgment in his favor because, in his view, the government violated his Sixth Amendment right to confront witnesses by forcing the aliens to leave the United States before the forfeiture proceeding had commenced.
II.
9 When reviewing a district court's entry of summary judgment, we employ the same standard as that employed by the District Court. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986). Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). All evidence must be viewed in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences derived from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970).
A.
10 Forfeiture under § 1324(b) requires the government to demonstrate probable cause that the conveyance seized was being used in the commission of a violation of § 1324(a). 8 U.S.C. § 1324(b)(1), (b)(5). This means that the government must make a prima facie showing that:
11 (1) defendant transported an alien within the United States, (2) the alien was in the United States in violation of law, (3) this was known to the defendant, (4) defendant knew or had reasonable grounds to believe that the alien's last entry into the United States was within the last three years, and (5) defendant acted willfully in furtherance of the alien's violation of the law.
12 United States v. Shaddix, 693 F.2d 1135, 1137-38 (5th Cir.1982) (citing United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1976)). Once the government has made this prima facie showing of a § 1324(a) violation and has shown that the seized vehicle was used as the means of transporting the illegal alien, the burden then shifts to the claimant to rebut the government's prima facie case. 8 U.S.C. § 1324(b)(5).
13 The District Court, after reviewing the government's brief and affidavits, found that the United States had met its burden of establishing probable cause to believe that a violation of § 1324(a) involving the seized truck had occurred. In addition, the court ruled that Oseguera had produced no countervailing evidence presenting a genuine issue of material fact. For reversal, Oseguera argues that the government failed to meet its burden of proof with respect to two elements of its prima facie case: his knowledge of the aliens' illegal entry, and the transportation requirement.
14 As to Oseguera's knowledge of the aliens' illegal entry, each of the aliens, including the driver, Moreno-Murillo, stated in their affidavits that (1) they were illegal aliens; (2) they met Oseguera shortly after entry; and (3) they told Oseguera they were illegally in the United States. Oseguera's only rebuttal to these statements is found in his complaint, where he denies any knowledge of the aliens' illegal status. In addition to the statement of the aliens, government affidavits show that Oseguera previously had admitted to a border patrol agent that he had hired illegal aliens in the past, and had stated that he could recognize an illegal alien when he saw one. The government also has produced documentary evidence that over 150 illegal aliens employed by Oseguera have been apprehended since 1980. Moreover, three of the aliens apprehended in the truck could not speak any English. We believe that the government's evidence is ample to show conclusively that Oseguera had reasonable grounds to believe the aliens had entered the United States within the last three years. Significantly, Oseguera does not assert in his affidavit that he was unaware of his employees' illegal entry. In light of the government's evidence, Oseguera can " 'not rest upon the mere allegations ... of his pleading, but ... by affidavits ... must set forth specific facts showing there is a genuine issue for trial.' " Cassidy, Inc. v. Hantz, 717 F.2d 1233, 1236 (8th Cir.1983) (per curiam) (quoting Fed.R.Civ.P. 56(e)); see generally Celotex Corp. v. Catrett, --- U.S. ----, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Because of the weight of the government's evidence and Oseguera's failure to present specific factual evidence that might have raised a triable issue with respect to the knowledge element of the government's prima facie case, we find no bar here to the entry of summary judgment.
15 Oseguera attacks one other element of the government's prima facie case, contending that the government failed to show that the transportation of the aliens was in willful furtherance of a violation of the law. He argues that as a matter of law, a defendant's transportation of illegal aliens as an act merely incidental to his employment of them does not give rise to a violation of § 1324(a), and therefore should not give rise to forfeiture under § 1324(b). In support of this argument, Oseguera cites United States v. Moreno, 561 F.2d 1321 (9th Cir.1977), which dealt with the transportation of illegal aliens as part of a defendant's employment as a foreman. In that case, the Ninth Circuit held that the transportation "was only incidentally connected to the furtherance of the violation of law, if at all," and reversed that defendant's conviction under § 1324(a). Id. at 1322. While Moreno offers some support for Oseguera's argument, we believe that United States v. Shaddix is closer on its facts and supports a finding of probable cause here. In Shaddix, the Fifth Circuit held that an employer's offer of employment and his voluntary transportation of aliens known to have entered the United States illegally sufficiently "furthered [the aliens'] illegal presence in this country to constitute a violation of § 1324(a)(2)." 693 F.2d at 1139 (footnote omitted). Here, Oseguera is not a third party employee only incidentally connected to the violation; he is the employer and as such his provision of transportation for the aliens was clearly in furtherance of a violation of § 1324(a).
16 We agree with the District Court that Oseguera failed to raise any genuine issue of material fact with respect to the elements of the government's prima facie case. We further agree that the government's showing conclusively demonstrated the elements of a prima facie case and therefore, as a matter of law, established probable cause for forfeiture of the truck under § 1324(b).
B.
17 Oseguera contends that summary judgment nevertheless was improper, arguing that there is a genuine issue of material fact concerning his affirmative defense. Section 1324(b)(1)(B) provides that where the owner of a vehicle can establish that the vehicle was "unlawfully in the possession" of the user in violation of state or federal law, the owner can avoid forfeiture. 8 U.S.C. § 1324(b)(1)(B). In addition, 8 C.F.R. § 274.5(b)(3) provides that forfeiture may be avoided where the vehicle was "used in an act to which the owner was not privy; or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance." The law clearly places the burden of proof on Oseguera to establish that Moreno-Murillo was unlawfully in possession of the truck, or that the truck was used without Oseguera's consent after he had taken reasonable steps to prevent its use.
18 At no time has Oseguera claimed that Moreno-Murillo stole the seized vehicle, or that Moreno-Murillo was in possession of the truck in violation of any state or federal law. Oseguera alleges only that he did not give permission to Moreno-Murillo to drive the truck. Accordingly, Oseguera's sole recourse is to 8 C.F.R. § 274.5(b)(3), and under that regulation he must demonstrate that the truck was used without his consent and that he took reasonable steps to prevent the unlawful use. For this purpose, Oseguera rests solely on conclusory statements set out in his pleadings. He has presented no evidence of having taken reasonable steps to prevent the use of his truck to transport illegal aliens. Indeed, he admits to having permitted use of the truck by another illegal alien on the evening it was seized. Oseguera has not, by affidavits or otherwise, set forth specific facts tending to show that his truck was used by Moreno-Murillo without his consent or that he took reasonable steps to prevent the unlawful use of his vehicle. Accordingly, we agree with the District Court that there was no genuine dispute of material fact on this issue, and that summary judgment in favor of the government was appropriate.
C.
19 Oseguera's final argument is that the judgment below must be reversed and judgment entered in his favor because the government violated his Sixth Amendment right to confront witnesses by requiring the illegal aliens to leave the country before the forfeiture proceedings were begun. He contends that (1) forfeiture proceedings are criminal in nature; (2) he is therefore entitled to the protection of the Sixth Amendment; and (3) the District Court should have dismissed the forfeiture proceedings because the witnesses were placed beyond the court's subpoena power in violation of the Sixth Amendment.
20 Forfeiture actions are clearly civil actions against property, and not criminal actions against an individual defendant. See, e.g., United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir.1976). As noted by the Supreme Court in One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 236, 93 S. Ct. 489, 492, 34 L. Ed. 2d 438 (1972), Congress can prescribe both criminal and civil penalties for the same offense, and "[t]he fact that the sanctions [are] ... separate and distinct ... is relevant in determining the character of the forfeiture." In this case, § 1324 contains separate and distinct criminal and civil sanctions for its violation.
21 Although civil in form, forfeitures may in some circumstances warrant certain procedural protections usually reserved for criminal proceedings. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-02, 85 S. Ct. 1246, 1250-51, 14 L. Ed. 2d 170 (1965). However, civil forfeiture is permissible even if the owner is innocent of criminal wrongdoing, where the owner can show no evidence that he took steps to prevent the prohibited use of his property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90, 94 S. Ct. 2080, 2094-95, 40 L. Ed. 2d 452 (1974). It follows that the full panoply of constitutional protections afforded criminal defendants is not available in the context of such forfeiture proceedings. Cf. Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1040, 104 S. Ct. 3479, 3485, 82 L. Ed. 2d 778 (1984) (exclusionary rule not available in forfeiture proceedings).
22 In evaluating the merits of Oseguera's claim that the Sixth Amendment's Confrontation Clause should apply in this civil case, the Supreme Court's opinion in United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S. Ct. 3440, 3449, 73 L. Ed. 2d 1193 (1982), is instructive. Reviewing a similar challenge to a criminal conviction under § 1324, the Court held:
23 The mere fact that the Government deports ... witnesses [whom the Government in good faith determines possess no information favorable to the defendant in a § 1324 action] is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment.... [T]he criminal defendant [must] make ... a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.
24 The Court held further that "[a]s in other cases concerning the loss of material evidence, sanctions will be warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." Id. at 873-74, 102 S.Ct. at 3450. This test may not be appropriate to evaluate all Confrontation Clause claims, but we find its reasoning persuasive on the facts of this case.
25 In his affidavit, Oseguera merely asserts that the driver Moreno-Murillo's statements were untrue and that, on the stand, he would testify that Oseguera had not given him permission to use the truck. Nothing in the record suggests that any alien's testimony would rebut the government's prima facie case. At best, Moreno-Murillo's testimony would be that he was driving the truck without Oseguera's permission. Even if such testimony were available, it could not change the outcome of the District Court's decision, because, as we have noted earlier in this opinion, Oseguera failed to raise any issue of his having taken reasonable precautions to prevent the unlawful use of the truck by Moreno-Murillo or anyone else. Based on these facts, we find Oseguera's Sixth Amendment claim to be without merit.
26 The decision of the District Court is affirmed.
1 Oseguera denies that he gave such permission to Moreno-Murillo. However, he admits having given permission to drive the truck to Miguel Castillo-Valencia, one of the other illegal aliens who was arrested by the local police that same evening. According to the government's affidavits, Castillo-Valencia stated that he and the six other aliens had traveled to Waldron in the truck and that after their arrival in Waldron, he and two of the aliens had gotten out of the truck, leaving it with Moreno-Murillo and the other three occupants | 08-23-2011 | [
"810 F.2d 178 UNITED STATES of America, Appellee,v.ONE 1982 CHEVROLET CREW-CAB TRUCK VIN 1GCHK33M9C143129, Appellant. No. 86-1257. United States Court of Appeals,Eighth Circuit. Submitted Oct. 2, 1986.Decided Jan. 28, 1987. Fritz Vammen, Little Rock, Ark., for appellant. Mark W. Webb, Asst. U.S. Atty., Fort Smith, Ark., for appellee. Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges. BOWMAN, Circuit Judge. 1 Salvadore Oseguera appeals from a judgment of the District Court granting forfeiture of his 1982 Chevrolet Crew-Cab Truck to the United States. We affirm. I. 2 Salvadore Oseguera owns and operates a tree planting business in Arkansas. On the evening of January 25, 1985, an officer of the Waldron, Arkansas police department stopped Oseguera's 1982 Chevrolet truck on suspicion that the driver, Benjamin Moreno-Murillo, was intoxicated.",
"There were three other Hispanic males in the truck. Moreno-Murillo spoke only broken English and the other occupants could not speak any English. The officer took the four individuals to the police station and contacted the U.S. Border Patrol. After talking with the four individuals in Spanish over the phone, a Border Patrol agent requested that they be detained. The truck and the four occupants were removed to the Border Patrol station in North Little Rock. Later that same evening, three other Hispanic males were arrested by the Waldron police. Border Patrol agents subsequently interviewed each of the individuals.",
"3 All seven individuals admitted that they were citizens of Mexico and had illegally entered the United States within the last three years. The aliens all stated that Oseguera knew they were illegally in this country, that Oseguera employed them, and that he used the seized truck to transport them to and from a work site near Waldron. Moreno-Murillo stated further that Oseguera had given him permission to drive the truck on the day it was seized.1 4 Upon completing their interviews with the seven aliens, the Border Patrol agents determined that none of the aliens possessed evidence favorable to Oseguera in a criminal prosecution under 8 U.S.C. § 1324 (1982). See United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S. Ct. 3440, 3449, 73 L. Ed. 2d 1193 (1982). Based on that conclusion, the Border Patrol returned five of the aliens to Mexico on January 29, 1985. Two of the other aliens were released and granted until February 27, 1985 to depart the United States voluntarily.",
"5 Based on the aliens' statements, the Border Patrol decided to proceed with administrative forfeiture of the truck. The truck was seized pursuant to 8 U.S.C. § 1324(b), and was placed in storage. 6 On January 28, 1985, one day before five of the aliens departed for Mexico, Oseguera arrived at the Border Patrol office and inquired about his truck and equipment. Oseguera claimed that he did not know the workers were illegal aliens. He did not claim that the aliens had stolen the truck. At a Border Patrol agent's request, Oseguera went to the Arkansas Detention Facility and talked with Moreno-Murillo. 7 The United States filed its complaint for forfeiture on March 22, 1985. After filing an answer, Oseguera filed a motion to compel the government to produce the aliens as witnesses or else to have the forfeiture proceedings dismissed. The United States filed its response, and the District Court advised both parties that it intended to treat the filings as cross-motions for summary judgment. Both parties were invited to supplement their previous filings and were given time to do so.",
"On December 7, 1985, the court issued its memorandum opinion and judgment denying Oseguera's motion and ordering forfeiture of the truck to the United States. 8 On appeal, Oseguera argues that summary judgment was improper because there are genuine disputes of material fact with respect to (1) the government's prima facie case for forfeiture under 8 U.S.C. § 1324(b)(5), and (2) Oseguera's defense that the truck was unlawfully in the possession of Moreno-Murillo. Oseguera further argues that as a matter of law he should have had summary judgment in his favor because, in his view, the government violated his Sixth Amendment right to confront witnesses by forcing the aliens to leave the United States before the forfeiture proceeding had commenced. II. 9 When reviewing a district court's entry of summary judgment, we employ the same standard as that employed by the District Court. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986).",
"Summary judgment is appropriate only when \"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\" Fed.R.Civ.P. 56(c). All evidence must be viewed in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences derived from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970). A. 10 Forfeiture under § 1324(b) requires the government to demonstrate probable cause that the conveyance seized was being used in the commission of a violation of § 1324(a).",
"8 U.S.C. § 1324(b)(1), (b)(5). This means that the government must make a prima facie showing that: 11 (1) defendant transported an alien within the United States, (2) the alien was in the United States in violation of law, (3) this was known to the defendant, (4) defendant knew or had reasonable grounds to believe that the alien's last entry into the United States was within the last three years, and (5) defendant acted willfully in furtherance of the alien's violation of the law. 12 United States v. Shaddix, 693 F.2d 1135, 1137-38 (5th Cir.1982) (citing United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1976)). Once the government has made this prima facie showing of a § 1324(a) violation and has shown that the seized vehicle was used as the means of transporting the illegal alien, the burden then shifts to the claimant to rebut the government's prima facie case. 8 U.S.C.",
"§ 1324(b)(5). 13 The District Court, after reviewing the government's brief and affidavits, found that the United States had met its burden of establishing probable cause to believe that a violation of § 1324(a) involving the seized truck had occurred. In addition, the court ruled that Oseguera had produced no countervailing evidence presenting a genuine issue of material fact. For reversal, Oseguera argues that the government failed to meet its burden of proof with respect to two elements of its prima facie case: his knowledge of the aliens' illegal entry, and the transportation requirement.",
"14 As to Oseguera's knowledge of the aliens' illegal entry, each of the aliens, including the driver, Moreno-Murillo, stated in their affidavits that (1) they were illegal aliens; (2) they met Oseguera shortly after entry; and (3) they told Oseguera they were illegally in the United States. Oseguera's only rebuttal to these statements is found in his complaint, where he denies any knowledge of the aliens' illegal status. In addition to the statement of the aliens, government affidavits show that Oseguera previously had admitted to a border patrol agent that he had hired illegal aliens in the past, and had stated that he could recognize an illegal alien when he saw one.",
"The government also has produced documentary evidence that over 150 illegal aliens employed by Oseguera have been apprehended since 1980. Moreover, three of the aliens apprehended in the truck could not speak any English. We believe that the government's evidence is ample to show conclusively that Oseguera had reasonable grounds to believe the aliens had entered the United States within the last three years. Significantly, Oseguera does not assert in his affidavit that he was unaware of his employees' illegal entry. In light of the government's evidence, Oseguera can \" 'not rest upon the mere allegations ... of his pleading, but ... by affidavits ... must set forth specific facts showing there is a genuine issue for trial.'",
"\" Cassidy, Inc. v. Hantz, 717 F.2d 1233, 1236 (8th Cir.1983) (per curiam) (quoting Fed.R.Civ.P. 56(e)); see generally Celotex Corp. v. Catrett, --- U.S. ----, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Because of the weight of the government's evidence and Oseguera's failure to present specific factual evidence that might have raised a triable issue with respect to the knowledge element of the government's prima facie case, we find no bar here to the entry of summary judgment. 15 Oseguera attacks one other element of the government's prima facie case, contending that the government failed to show that the transportation of the aliens was in willful furtherance of a violation of the law. He argues that as a matter of law, a defendant's transportation of illegal aliens as an act merely incidental to his employment of them does not give rise to a violation of § 1324(a), and therefore should not give rise to forfeiture under § 1324(b).",
"In support of this argument, Oseguera cites United States v. Moreno, 561 F.2d 1321 (9th Cir.1977), which dealt with the transportation of illegal aliens as part of a defendant's employment as a foreman. In that case, the Ninth Circuit held that the transportation \"was only incidentally connected to the furtherance of the violation of law, if at all,\" and reversed that defendant's conviction under § 1324(a).",
"Id. at 1322. While Moreno offers some support for Oseguera's argument, we believe that United States v. Shaddix is closer on its facts and supports a finding of probable cause here. In Shaddix, the Fifth Circuit held that an employer's offer of employment and his voluntary transportation of aliens known to have entered the United States illegally sufficiently \"furthered [the aliens'] illegal presence in this country to constitute a violation of § 1324(a)(2).\" 693 F.2d at 1139 (footnote omitted). Here, Oseguera is not a third party employee only incidentally connected to the violation; he is the employer and as such his provision of transportation for the aliens was clearly in furtherance of a violation of § 1324(a). 16 We agree with the District Court that Oseguera failed to raise any genuine issue of material fact with respect to the elements of the government's prima facie case. We further agree that the government's showing conclusively demonstrated the elements of a prima facie case and therefore, as a matter of law, established probable cause for forfeiture of the truck under § 1324(b). B.",
"17 Oseguera contends that summary judgment nevertheless was improper, arguing that there is a genuine issue of material fact concerning his affirmative defense. Section 1324(b)(1)(B) provides that where the owner of a vehicle can establish that the vehicle was \"unlawfully in the possession\" of the user in violation of state or federal law, the owner can avoid forfeiture. 8 U.S.C. § 1324(b)(1)(B). In addition, 8 C.F.R. § 274.5(b)(3) provides that forfeiture may be avoided where the vehicle was \"used in an act to which the owner was not privy; or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance.\" The law clearly places the burden of proof on Oseguera to establish that Moreno-Murillo was unlawfully in possession of the truck, or that the truck was used without Oseguera's consent after he had taken reasonable steps to prevent its use. 18 At no time has Oseguera claimed that Moreno-Murillo stole the seized vehicle, or that Moreno-Murillo was in possession of the truck in violation of any state or federal law. Oseguera alleges only that he did not give permission to Moreno-Murillo to drive the truck.",
"Accordingly, Oseguera's sole recourse is to 8 C.F.R. § 274.5(b)(3), and under that regulation he must demonstrate that the truck was used without his consent and that he took reasonable steps to prevent the unlawful use. For this purpose, Oseguera rests solely on conclusory statements set out in his pleadings. He has presented no evidence of having taken reasonable steps to prevent the use of his truck to transport illegal aliens. Indeed, he admits to having permitted use of the truck by another illegal alien on the evening it was seized. Oseguera has not, by affidavits or otherwise, set forth specific facts tending to show that his truck was used by Moreno-Murillo without his consent or that he took reasonable steps to prevent the unlawful use of his vehicle. Accordingly, we agree with the District Court that there was no genuine dispute of material fact on this issue, and that summary judgment in favor of the government was appropriate.",
"C. 19 Oseguera's final argument is that the judgment below must be reversed and judgment entered in his favor because the government violated his Sixth Amendment right to confront witnesses by requiring the illegal aliens to leave the country before the forfeiture proceedings were begun. He contends that (1) forfeiture proceedings are criminal in nature; (2) he is therefore entitled to the protection of the Sixth Amendment; and (3) the District Court should have dismissed the forfeiture proceedings because the witnesses were placed beyond the court's subpoena power in violation of the Sixth Amendment. 20 Forfeiture actions are clearly civil actions against property, and not criminal actions against an individual defendant.",
"See, e.g., United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir.1976). As noted by the Supreme Court in One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 236, 93 S. Ct. 489, 492, 34 L. Ed. 2d 438 (1972), Congress can prescribe both criminal and civil penalties for the same offense, and \"[t]he fact that the sanctions [are] ... separate and distinct ... is relevant in determining the character of the forfeiture.\" In this case, § 1324 contains separate and distinct criminal and civil sanctions for its violation. 21 Although civil in form, forfeitures may in some circumstances warrant certain procedural protections usually reserved for criminal proceedings. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-02, 85 S. Ct. 1246, 1250-51, 14 L. Ed. 2d 170 (1965).",
"However, civil forfeiture is permissible even if the owner is innocent of criminal wrongdoing, where the owner can show no evidence that he took steps to prevent the prohibited use of his property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90, 94 S. Ct. 2080, 2094-95, 40 L. Ed. 2d 452 (1974). It follows that the full panoply of constitutional protections afforded criminal defendants is not available in the context of such forfeiture proceedings. Cf. Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1040, 104 S. Ct. 3479, 3485, 82 L. Ed. 2d 778 (1984) (exclusionary rule not available in forfeiture proceedings). 22 In evaluating the merits of Oseguera's claim that the Sixth Amendment's Confrontation Clause should apply in this civil case, the Supreme Court's opinion in United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S. Ct. 3440, 3449, 73 L. Ed. 2d 1193 (1982), is instructive. Reviewing a similar challenge to a criminal conviction under § 1324, the Court held: 23 The mere fact that the Government deports ... witnesses [whom the Government in good faith determines possess no information favorable to the defendant in a § 1324 action] is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment.... [T]he criminal defendant [must] make ... a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.",
"24 The Court held further that \"[a]s in other cases concerning the loss of material evidence, sanctions will be warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.\" Id. at 873-74, 102 S.Ct. at 3450. This test may not be appropriate to evaluate all Confrontation Clause claims, but we find its reasoning persuasive on the facts of this case. 25 In his affidavit, Oseguera merely asserts that the driver Moreno-Murillo's statements were untrue and that, on the stand, he would testify that Oseguera had not given him permission to use the truck. Nothing in the record suggests that any alien's testimony would rebut the government's prima facie case. At best, Moreno-Murillo's testimony would be that he was driving the truck without Oseguera's permission.",
"Even if such testimony were available, it could not change the outcome of the District Court's decision, because, as we have noted earlier in this opinion, Oseguera failed to raise any issue of his having taken reasonable precautions to prevent the unlawful use of the truck by Moreno-Murillo or anyone else. Based on these facts, we find Oseguera's Sixth Amendment claim to be without merit. 26 The decision of the District Court is affirmed. 1 Oseguera denies that he gave such permission to Moreno-Murillo. However, he admits having given permission to drive the truck to Miguel Castillo-Valencia, one of the other illegal aliens who was arrested by the local police that same evening. According to the government's affidavits, Castillo-Valencia stated that he and the six other aliens had traveled to Waldron in the truck and that after their arrival in Waldron, he and two of the aliens had gotten out of the truck, leaving it with Moreno-Murillo and the other three occupants"
]
| https://www.courtlistener.com/api/rest/v3/opinions/482137/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION
§ PERCY D. MAYFIELD, § § Plaintiff, § § v. § CASE NO. 6:18-CV-510-JDK-JDL § CHEVRON U.S.A. INC., § § Defendant. § §
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case was referred to United States Magistrate Judge John D. Love
pursuant to 28 U.S.C. § 636. On November 11, 2018, the Magistrate Judge
recommended the case be dismissed without prejudice for failure to prosecute (Docket
No. 12). Overruling Plaintiff Percy D. Mayfield’s limited objection to the Magistrate
Judge’s Report and Recommendation, the Court adopts the Report and
Recommendation and dismisses this action without prejudice for the reasons stated
below.
BACKGROUND
Plaintiff filed this action in Texas state court on October 31, 2017, alleging nine
causes of action: (1) disparate treatment based on race violating Title VII of the Civil
Rights Act; (2) retaliation violating Title VII of the Civil Rights Act and Chapter 21
of the Texas Labor Code; (3) race discrimination violating Chapter 21 of the Texas
Labor Code; (4) ethnic discrimination violating Chapter 21 of the Texas Labor Code;
1 (5) hostile work environment based on race; (6) intentional infliction of emotional
distress; (7) negligence; (8) negligent hiring; and (9) negligent retention. Docket No. 3
at ¶¶ 25–62.
On September 26, 2018, Defendant Chevron U.S.A. Inc. 1 (“Chevron”) removed
the case to this Court based on federal-question jurisdiction under 28 U.S.C. § 1331.
Shortly thereafter, Defendant moved to dismiss for insufficient service of process
under F.R.C.P. 12(b)(5) and failure to state a claim under F.R.C.P. 12(b)(6). Docket
No. 7.
Local Rule CV-7(e) requires a party opposing a motion to file a response and
any supporting documents within fourteen days from when the motion was served.
Plaintiff failed to file anything by this deadline. Consequently, on October 22, 2018,
the Court ordered Plaintiff to file within seven days “any opposition [to Defendant’s
Motion] and explanation for why such opposition was not timely filed or the Court
will treat the motion as unopposed and dismiss the complaint for failure to prosecute.”
Docket No. 8 at 2.
On the October 29, 2018 deadline set by the Court’s Order, Plaintiff did not file
his opposition to Defendant’s Motion to Dismiss, but instead filed a Response to the
Court’s Order to Show Cause (Docket No. 9) and a Motion for Leave to File Out of
Time Response in Objections to Defendant Chevron Industries, Inc.’s Motion to
1 Plaintiff incorrectly names “Chevron Industries, Inc.” as defendant in his state-court Petition. According to Defendant, the entity “Chevron Industries, Inc.” does not exist. Rather, Defendant claims that Plaintiff was previously employed by “Chevron U.S.A. Inc.” Docket No. 1 at 1. The Court notes that public records with the Texas Secretary of State and Texas Comptroller of Public Accounts suggest the entity “Chevron Industries, Inc.” previously existed, but is no longer registered to transact business in Texas and appears to have been dissolved several years ago.
2 Dismiss (Docket No. 10). In response to the Court’s show-cause order, Plaintiff
claimed that he failed to timely respond to Defendant’s Motion to Dismiss because of
a calendaring error by an office receptionist. Docket No. 9-1 at ¶¶ 9–10. In Plaintiff’s
Motion for Leave, Plaintiff requested “that this Court allow Plaintiff five (5) days to
file a Response in Objections to Defendant Chevron’s Motion to Dismiss for
Insufficient Service of Process under F.R.C.P. 12(b)(5) and For Failure to State a
Claim Under F.R.C.P. 12(b)(6) immediately upon the Court’s approval to do so.”
Docket No. 10 at 2. On October 31, 2018, the Court granted Plaintiff’s Motion
for Leave, which allowed five days—until November 5, 2018—to respond to
Defendant’s Motion to Dismiss. Docket No. 11.
Plaintiff again ignored the Court’s deadline. Accordingly, on November 8,
2018, the Magistrate Judge issued a Report and Recommendation recommending
that the Court grant Defendant’s Motion to Dismiss and that Plaintiff’s Complaint be
dismissed without prejudice for failure to prosecute. Docket No. 12 at 2. The Report
and Recommendation noted that the Court had “allow[ed] Plaintiff’s counsel 5 days
to file an out of time response,” that Plaintiff’s counsel had missed that deadline, and
that “the Court must assume that in fact Plaintiff has no opposition to Chevron’s
motion.” Id.
Plaintiff had fourteen days to serve and file written objections to the findings
and recommendations in the Report. 28 U.S.C. § 636(b)(1)(C); see also Docket No. 12
at 2. On the November 23, 2018 deadline, Plaintiff filed a Written Objection to the
Findings and Recommendations Contained in the Magistrate Judge’s Report (Docket
3 No. 13). Plaintiff filed several additional documents on the same day: (1) a Motion to
Extend Time to Respond to Defendant’s Motion to Dismiss (Docket No. 14); (2) a
Response to Defendant’s Motion to Dismiss (Docket No. 15); and (3) an Amended
Response to Defendant’s Motion to Dismiss (Docket No. 16). 2
On November 26, 2018, the Court ordered Defendant to respond to Plaintiff’s
Motion to Extend Time. On December 3, 2018, Defendant filed a Response to
Plaintiff’s Motion for Extension of Time (Docket No. 18) and a Reply Brief in Support
of its Motion to Dismiss (Docket No. 19).
PLAINTIFF’S OBJECTION
Plaintiff objects to the Magistrate Judge’s Report and Recommendation on only
two grounds. First, Plaintiff argues that, contrary to the Report and
Recommendation’s finding, Plaintiff’s counsel never requested a five-day extension to
respond to Defendant’s Motion to Dismiss. Docket No. 13 ¶¶ 8, 10-11. Second,
Plaintiff argues that the Court’s Order granting an extension (Docket No. 11) never
mentions the length of the granted extension or a specific deadline for Plaintiff’s
response. Id. ¶¶ 10-11. Based on these objections, Plaintiff argues that he had “no
basis for understanding that the Court’s Order only allowed 5 days leave to file a
response” and that the Magistrate Judge should not have assumed “that Plaintiff has
no opposition to Defendant’s motion.” Id. ¶ 11.
2 The only difference between Plaintiff’s Response (Docket No. 15) and Plaintiff’s Amended Response (Docket No. 16) appears to be that Plaintiff forgot to attach referenced exhibits when electronically filing the initial document.
4 Plaintiff’s objections are misplaced. Contrary to Plaintiff’s argument in his
objections, Plaintiff’s Motion for Leave explicitly stated: “Plaintiff requests that this
Court allow Plaintiff five (5) days to file a Response in Objections to Defendant
Chevron’s Motion to Dismiss for Insufficient Service of Process under F.R.C.P.
12(b)(5) and For Failure to State a Claim Under F.R.C.P. 12(b)(6) immediately upon
the Court’s approval to do so.” Docket No. 10 at 2 (emphasis added). The Court
granted Plaintiff’s Motion, providing the relief requested—namely, a five-day
extension from the date of the order. Docket No. 11. While the Court agrees that the
order did not specifically reference the five-day deadline or calculate the deadline for
Plaintiff, the Court presumes Plaintiff’s counsel knew and understood the relief he
requested. Further, interpreting the Order as granting Plaintiff an indefinite
extension of time to respond is unsound.
Accordingly, the Magistrate Judge correctly presumed when he issued the
Report and Recommendation that Plaintiff had no opposition to Defendant’s Motion
to Dismiss. See Local R. CV-7(d) (“A party’s failure to oppose a motion in the manner
prescribed herein creates a presumption that the party does not controvert the facts
set out by movant and has no evidence to offer in opposition to the motion.”). The
Court therefore OVERRULES Plaintiff’s Objection (Docket No. 13) and ORDERS
that Defendant’s Motion to Dismiss (Docket No. 7) is GRANTED and the Complaint
is hereby DISMISSED without prejudice for failure to prosecute.
DEFENDANT’S MOTION TO DISMISS
As explained above, the Court finds dismissal appropriate based solely on
Plaintiff’s failure to timely respond to Defendant’s Motion despite multiple
5 opportunities. Further, even if Plaintiff had filed a timely response to Defendant’s
Motion to Dismiss, the Court would still dismiss the Complaint.
Defendant argues that all of Plaintiff’s claims, except the one arising under 42
U.S.C. § 1981, 3 should be dismissed under Rule 12(b)(5) for improper service of
process. Defendant also argues that Plaintiff’s claims should be dismissed for failing
to state a claim under Rule 12(b)(6). The Court agrees that dismissal is appropriate
under Rule 12(b)(5) for all claims, other than Plaintiff’s § 1981 claim, and agrees that
dismissal of the § 1981 claim is proper under Rule 12(b)(6).
A. Failure of Service of Process Under Rule 12(b)(5)
Defendant argues that Plaintiff failed to timely serve process because he failed
to procure service within the statutory limitations periods for any of the claims except
the claim arising under § 1981. Docket No. 7. Plaintiff does not argue otherwise.
Plaintiff instead asserts that he nevertheless acted diligently in attempting timely
service. Docket No. 16. “Diligence is determined by asking whether the plaintiff acted
as an ordinarily prudent person would have acted under the same or similar
circumstances and was diligent up until the time the defendant was served.” Cho v.
Wells Fargo Bank, N.A., No. 4:16-cv-256, 2016 WL 9504322, at *3 (E.D. Tex. June 7,
2016) (quoting Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009)). Although
determining reasonable diligence is generally a fact question, “a plaintiff’s
3It is not clear that Plaintiff even seeks to bring a claim under 42 U.S.C. § 1981. Plaintiff’s Complaint specifically asserts only Title VII of the 1964 Civil Rights Act and Chapter 21 of the Texas Labor Code in his enumerated counts. Docket No. 3 ¶¶ 25–62. Plaintiff does, however, reference § 1981 in other sections of his Complaint. Docket No. 3 ¶¶ 1, 2, 7. Reading the Complaint in the light most favorable to the Plaintiff, the Court will address 42 U.S.C. § 1981.
6 explanation may demonstrate a lack of diligence as a matter of law, when one or more
lapses between service efforts are unexplained or patently unreasonable.” Id.
The Court finds that Plaintiff has not demonstrated due diligence. Plaintiff
filed his original petition in October 2017 but did not serve Defendant until August
2018—ten months later. Plaintiff argues that he exercised due diligence because
“multiple Chevron entities exist or have existed over the years” and he “secured
citations and attempted service on registered agents which rejected service for the
Defendant at issue.” Docket No. 16 ¶ 1. But once challenged, it is Plaintiff’s burden
to present evidence explaining “every lapse in effort or period of delay.” Ashley, 293
S.W.3d at 179. Plaintiff fails to carry that burden, never explaining what steps he
took to effect service, when he took those steps, or why he needed ten months to serve
Defendant. Plaintiff’s excuse that there are “multiple Chevron entities” is unavailing.
Plaintiff received express notice that “Chevron Industries, Inc.” was an inactive entity
in the State of Texas by January 24, 2018—a fact Plaintiff could have easily
discovered by searching publicly available records. Docket No. 16-1 at 5.
Although the “reasonableness of a plaintiff’s delay in serving citation is usually
a question of fact,” where “no explanation consistent with due diligence is offered, the
reasonableness of a plaintiff’s delay cannot be factually determined.” Butler v. Ross,
836 S.W.2d 833, 836 (Tex. App.—Houston [1st Dist.] 1992, no writ) (citing Liles v.
Phillips, 677 S.W.2d 802, 809 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.)). And
several Texas courts have held that delays of more than a few months of unexplained
inactivity negate due diligence as a matter of law. E.g., Weaver v. E–Z Mart Stores,
7 Inc., 942 S.W.2d 167, 168 (Tex. App.—Texarkana 1997, no writ) (nine months);
Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.—Corpus
Christi 1994, no writ) (five months); Butler v. Ross, 836 S.W.2d 833, 835–36 (Tex.
App.—Houston [1st Dist.] 1992, no writ) (five-and-a-half months); Hansler v. Mainka,
807 S.W.2d 3, 5 (Tex. App.—Corpus Christi 1991, no writ) (five months); Allen v.
Bentley Labs., Inc., 538 S.W.2d 857, 860 (Tex. Civ. App.—San Antonio 1976, writ ref’d
n.r.e.) (six months). Here, Plaintiff offers no reasonable explanation for his ten-month
delay in serving process, negating due diligence as a matter of law.
Because Plaintiff failed to act with due diligence, his service was not timely
and dismissal under Rule 12(b)(5) is proper as to all but the § 1981 claim. 4
B. Failure to State a Claim Under Rule 12(b)(6)
Defendant argues in the alternative that the Court should dismiss Plaintiff’s
claims for failing to state a claim upon which relief can be granted under
Rule 12(b)(6). Because the Court finds all other claims should be dismissed under
Rule 12(b)(5), the Court considers this argument only as to Plaintiff’s § 1981 claim.
The Court agrees that Plaintiff fails to sufficiently plead facts demonstrating that
race was the reason for his termination, as required by § 1981.
The Court utilizes a “two-pronged approach” in considering a motion to dismiss
under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, the Court
4 Defendant requests dismissal with prejudice but identifies no Fifth Circuit authority to support this request. In fact, Rule 4(m) suggests that an action dismissed for failure of service should be dismissed “without prejudice.” FED. R. CIV. P. 4(m). That said, the Fifth Circuit has recognized that when an action is dismissed for insufficient service of process without prejudice, but an applicable statute of limitations bars further litigation, the dismissal effectively operates as a dismissal with prejudice. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (citing Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976)).
8 identifies and excludes legal conclusions that “are not entitled to the assumption of
truth.” Id. Second, the Court considers the remaining “well-pleaded factual
allegations.” Id. The Court must accept as true all facts alleged in a plaintiff’s
complaint, and the Court views the facts in the light most favorable to a plaintiff. In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Plaintiff’s § 1981 claim does not state facts sufficient to show that Defendant
discriminated against him on the basis of race. A § 1981 claim requires a plaintiff to
establish: (1) that he is a member of a racial minority; (2) that the defendant intended
to discriminate on the basis of race; and (3) that the discrimination concerned one or
more of the activities enumerated in the statute. Arguello v. Conoco, Inc., 330 F.3d
355, 358 (5th Cir. 2003) (quoting Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743,
751 (5th Cir. 2001)). But here, Plaintiff’s Petition is bare-bones and alleges only that
he is African American, that “co-workers” used offensive language and interfered with
his taking of a promotion examination by “talking loudly,” that a “Supervisor” accused
him of “faking illness,” and that he was later “terminated under the pretext of a
layoff.” Docket No. 3 at ¶¶ 16-24.
Nowhere does Plaintiff plead facts demonstrating that the Defendant
intentionally discriminated against him concerning one of the statutorily enumerated
activities. The alleged discriminatory activity—that he was “terminated under the
pretext of a layoff”—is described with a single sentence and fails to identify facts
connecting the layoff with any racially discriminatory conduct. See, e.g., Landavazo
v. Toro Co., 301 F. App’x 333, 336 (5th Cir. 2008). Nor are there any allegations that
9 Defendant sanctioned the offensive language and conduct of Plaintiff’s co-workers, or
that the Supervisor who allegedly accused him of faking illness intended to
discriminate against Plaintiff on the basis of his race.
Plaintiff has therefore failed to state a claim under § 1981, and his claim should
be dismissed without prejudice under Rule 12(b)(6).
CONCLUSION
For the reasons stated above, the Court OVERRULES Plaintiff’s Objection
(Docket No. 13). It is therefore ORDERED that Defendant’s Motion to Dismiss
(Docket No. 7) is GRANTED and the Complaint is hereby DISMISSED without
prejudice. All other pending Motions are DENIED as MOOT.
So ORDERED and SIGNED this 7th day of January, 2019.
___________________________________ JEREMY D. KERNODLE UNITED STATES DISTRICT JUDGE
10 | 2019-01-07 | [
"IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION § PERCY D. MAYFIELD, § § Plaintiff, § § v. § CASE NO. 6:18-CV-510-JDK-JDL § CHEVRON U.S.A. INC., § § Defendant. § § ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This case was referred to United States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. On November 11, 2018, the Magistrate Judge recommended the case be dismissed without prejudice for failure to prosecute (Docket No. 12). Overruling Plaintiff Percy D. Mayfield’s limited objection to the Magistrate Judge’s Report and Recommendation, the Court adopts the Report and Recommendation and dismisses this action without prejudice for the reasons stated below. BACKGROUND Plaintiff filed this action in Texas state court on October 31, 2017, alleging nine causes of action: (1) disparate treatment based on race violating Title VII of the Civil Rights Act; (2) retaliation violating Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code; (3) race discrimination violating Chapter 21 of the Texas Labor Code; (4) ethnic discrimination violating Chapter 21 of the Texas Labor Code; 1 (5) hostile work environment based on race; (6) intentional infliction of emotional distress; (7) negligence; (8) negligent hiring; and (9) negligent retention.",
"Docket No. 3 at ¶¶ 25–62. On September 26, 2018, Defendant Chevron U.S.A. Inc. 1 (“Chevron”) removed the case to this Court based on federal-question jurisdiction under 28 U.S.C. § 1331. Shortly thereafter, Defendant moved to dismiss for insufficient service of process under F.R.C.P. 12(b)(5) and failure to state a claim under F.R.C.P. 12(b)(6). Docket No. 7. Local Rule CV-7(e) requires a party opposing a motion to file a response and any supporting documents within fourteen days from when the motion was served.",
"Plaintiff failed to file anything by this deadline. Consequently, on October 22, 2018, the Court ordered Plaintiff to file within seven days “any opposition [to Defendant’s Motion] and explanation for why such opposition was not timely filed or the Court will treat the motion as unopposed and dismiss the complaint for failure to prosecute.” Docket No. 8 at 2. On the October 29, 2018 deadline set by the Court’s Order, Plaintiff did not file his opposition to Defendant’s Motion to Dismiss, but instead filed a Response to the Court’s Order to Show Cause (Docket No. 9) and a Motion for Leave to File Out of Time Response in Objections to Defendant Chevron Industries, Inc.’s Motion to 1 Plaintiff incorrectly names “Chevron Industries, Inc.” as defendant in his state-court Petition.",
"According to Defendant, the entity “Chevron Industries, Inc.” does not exist. Rather, Defendant claims that Plaintiff was previously employed by “Chevron U.S.A. Inc.” Docket No. 1 at 1. The Court notes that public records with the Texas Secretary of State and Texas Comptroller of Public Accounts suggest the entity “Chevron Industries, Inc.” previously existed, but is no longer registered to transact business in Texas and appears to have been dissolved several years ago. 2 Dismiss (Docket No. 10). In response to the Court’s show-cause order, Plaintiff claimed that he failed to timely respond to Defendant’s Motion to Dismiss because of a calendaring error by an office receptionist. Docket No.",
"9-1 at ¶¶ 9–10. In Plaintiff’s Motion for Leave, Plaintiff requested “that this Court allow Plaintiff five (5) days to file a Response in Objections to Defendant Chevron’s Motion to Dismiss for Insufficient Service of Process under F.R.C.P. 12(b)(5) and For Failure to State a Claim Under F.R.C.P. 12(b)(6) immediately upon the Court’s approval to do so.” Docket No. 10 at 2. On October 31, 2018, the Court granted Plaintiff’s Motion for Leave, which allowed five days—until November 5, 2018—to respond to Defendant’s Motion to Dismiss. Docket No. 11. Plaintiff again ignored the Court’s deadline. Accordingly, on November 8, 2018, the Magistrate Judge issued a Report and Recommendation recommending that the Court grant Defendant’s Motion to Dismiss and that Plaintiff’s Complaint be dismissed without prejudice for failure to prosecute. Docket No. 12 at 2.",
"The Report and Recommendation noted that the Court had “allow[ed] Plaintiff’s counsel 5 days to file an out of time response,” that Plaintiff’s counsel had missed that deadline, and that “the Court must assume that in fact Plaintiff has no opposition to Chevron’s motion.” Id. Plaintiff had fourteen days to serve and file written objections to the findings and recommendations in the Report. 28 U.S.C. § 636(b)(1)(C); see also Docket No. 12 at 2. On the November 23, 2018 deadline, Plaintiff filed a Written Objection to the Findings and Recommendations Contained in the Magistrate Judge’s Report (Docket 3 No. 13). Plaintiff filed several additional documents on the same day: (1) a Motion to Extend Time to Respond to Defendant’s Motion to Dismiss (Docket No.",
"14); (2) a Response to Defendant’s Motion to Dismiss (Docket No. 15); and (3) an Amended Response to Defendant’s Motion to Dismiss (Docket No. 16). 2 On November 26, 2018, the Court ordered Defendant to respond to Plaintiff’s Motion to Extend Time. On December 3, 2018, Defendant filed a Response to Plaintiff’s Motion for Extension of Time (Docket No. 18) and a Reply Brief in Support of its Motion to Dismiss (Docket No. 19). PLAINTIFF’S OBJECTION Plaintiff objects to the Magistrate Judge’s Report and Recommendation on only two grounds. First, Plaintiff argues that, contrary to the Report and Recommendation’s finding, Plaintiff’s counsel never requested a five-day extension to respond to Defendant’s Motion to Dismiss. Docket No.",
"13 ¶¶ 8, 10-11. Second, Plaintiff argues that the Court’s Order granting an extension (Docket No. 11) never mentions the length of the granted extension or a specific deadline for Plaintiff’s response. Id. ¶¶ 10-11. Based on these objections, Plaintiff argues that he had “no basis for understanding that the Court’s Order only allowed 5 days leave to file a response” and that the Magistrate Judge should not have assumed “that Plaintiff has no opposition to Defendant’s motion.” Id. ¶ 11. 2 The only difference between Plaintiff’s Response (Docket No. 15) and Plaintiff’s Amended Response (Docket No. 16) appears to be that Plaintiff forgot to attach referenced exhibits when electronically filing the initial document. 4 Plaintiff’s objections are misplaced. Contrary to Plaintiff’s argument in his objections, Plaintiff’s Motion for Leave explicitly stated: “Plaintiff requests that this Court allow Plaintiff five (5) days to file a Response in Objections to Defendant Chevron’s Motion to Dismiss for Insufficient Service of Process under F.R.C.P.",
"12(b)(5) and For Failure to State a Claim Under F.R.C.P. 12(b)(6) immediately upon the Court’s approval to do so.” Docket No. 10 at 2 (emphasis added). The Court granted Plaintiff’s Motion, providing the relief requested—namely, a five-day extension from the date of the order. Docket No. 11. While the Court agrees that the order did not specifically reference the five-day deadline or calculate the deadline for Plaintiff, the Court presumes Plaintiff’s counsel knew and understood the relief he requested. Further, interpreting the Order as granting Plaintiff an indefinite extension of time to respond is unsound. Accordingly, the Magistrate Judge correctly presumed when he issued the Report and Recommendation that Plaintiff had no opposition to Defendant’s Motion to Dismiss. See Local R. CV-7(d) (“A party’s failure to oppose a motion in the manner prescribed herein creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition to the motion.”).",
"The Court therefore OVERRULES Plaintiff’s Objection (Docket No. 13) and ORDERS that Defendant’s Motion to Dismiss (Docket No. 7) is GRANTED and the Complaint is hereby DISMISSED without prejudice for failure to prosecute. DEFENDANT’S MOTION TO DISMISS As explained above, the Court finds dismissal appropriate based solely on Plaintiff’s failure to timely respond to Defendant’s Motion despite multiple 5 opportunities. Further, even if Plaintiff had filed a timely response to Defendant’s Motion to Dismiss, the Court would still dismiss the Complaint. Defendant argues that all of Plaintiff’s claims, except the one arising under 42 U.S.C. § 1981, 3 should be dismissed under Rule 12(b)(5) for improper service of process.",
"Defendant also argues that Plaintiff’s claims should be dismissed for failing to state a claim under Rule 12(b)(6). The Court agrees that dismissal is appropriate under Rule 12(b)(5) for all claims, other than Plaintiff’s § 1981 claim, and agrees that dismissal of the § 1981 claim is proper under Rule 12(b)(6). A. Failure of Service of Process Under Rule 12(b)(5) Defendant argues that Plaintiff failed to timely serve process because he failed to procure service within the statutory limitations periods for any of the claims except the claim arising under § 1981. Docket No. 7. Plaintiff does not argue otherwise. Plaintiff instead asserts that he nevertheless acted diligently in attempting timely service. Docket No. 16. “Diligence is determined by asking whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.” Cho v. Wells Fargo Bank, N.A., No. 4:16-cv-256, 2016 WL 9504322, at *3 (E.D. Tex. June 7, 2016) (quoting Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex.",
"2009)). Although determining reasonable diligence is generally a fact question, “a plaintiff’s 3It is not clear that Plaintiff even seeks to bring a claim under 42 U.S.C. § 1981. Plaintiff’s Complaint specifically asserts only Title VII of the 1964 Civil Rights Act and Chapter 21 of the Texas Labor Code in his enumerated counts. Docket No. 3 ¶¶ 25–62. Plaintiff does, however, reference § 1981 in other sections of his Complaint. Docket No. 3 ¶¶ 1, 2, 7. Reading the Complaint in the light most favorable to the Plaintiff, the Court will address 42 U.S.C. § 1981. 6 explanation may demonstrate a lack of diligence as a matter of law, when one or more lapses between service efforts are unexplained or patently unreasonable.” Id.",
"The Court finds that Plaintiff has not demonstrated due diligence. Plaintiff filed his original petition in October 2017 but did not serve Defendant until August 2018—ten months later. Plaintiff argues that he exercised due diligence because “multiple Chevron entities exist or have existed over the years” and he “secured citations and attempted service on registered agents which rejected service for the Defendant at issue.” Docket No. 16 ¶ 1. But once challenged, it is Plaintiff’s burden to present evidence explaining “every lapse in effort or period of delay.” Ashley, 293 S.W.3d at 179. Plaintiff fails to carry that burden, never explaining what steps he took to effect service, when he took those steps, or why he needed ten months to serve Defendant. Plaintiff’s excuse that there are “multiple Chevron entities” is unavailing. Plaintiff received express notice that “Chevron Industries, Inc.” was an inactive entity in the State of Texas by January 24, 2018—a fact Plaintiff could have easily discovered by searching publicly available records.",
"Docket No. 16-1 at 5. Although the “reasonableness of a plaintiff’s delay in serving citation is usually a question of fact,” where “no explanation consistent with due diligence is offered, the reasonableness of a plaintiff’s delay cannot be factually determined.” Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.—Houston [1st Dist.] 1992, no writ) (citing Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.)). And several Texas courts have held that delays of more than a few months of unexplained inactivity negate due diligence as a matter of law. E.g., Weaver v. E–Z Mart Stores, 7 Inc., 942 S.W.2d 167, 168 (Tex. App.—Texarkana 1997, no writ) (nine months); Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.—Corpus Christi 1994, no writ) (five months); Butler v. Ross, 836 S.W.2d 833, 835–36 (Tex. App.—Houston [1st Dist.]",
"1992, no writ) (five-and-a-half months); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.—Corpus Christi 1991, no writ) (five months); Allen v. Bentley Labs., Inc., 538 S.W.2d 857, 860 (Tex. Civ. App.—San Antonio 1976, writ ref’d n.r.e.) (six months). Here, Plaintiff offers no reasonable explanation for his ten-month delay in serving process, negating due diligence as a matter of law. Because Plaintiff failed to act with due diligence, his service was not timely and dismissal under Rule 12(b)(5) is proper as to all but the § 1981 claim. 4 B. Failure to State a Claim Under Rule 12(b)(6) Defendant argues in the alternative that the Court should dismiss Plaintiff’s claims for failing to state a claim upon which relief can be granted under Rule 12(b)(6). Because the Court finds all other claims should be dismissed under Rule 12(b)(5), the Court considers this argument only as to Plaintiff’s § 1981 claim. The Court agrees that Plaintiff fails to sufficiently plead facts demonstrating that race was the reason for his termination, as required by § 1981. The Court utilizes a “two-pronged approach” in considering a motion to dismiss under Rule 12(b)(6).",
"Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, the Court 4 Defendant requests dismissal with prejudice but identifies no Fifth Circuit authority to support this request. In fact, Rule 4(m) suggests that an action dismissed for failure of service should be dismissed “without prejudice.” FED. R. CIV. P. 4(m). That said, the Fifth Circuit has recognized that when an action is dismissed for insufficient service of process without prejudice, but an applicable statute of limitations bars further litigation, the dismissal effectively operates as a dismissal with prejudice. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (citing Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976)).",
"8 identifies and excludes legal conclusions that “are not entitled to the assumption of truth.” Id. Second, the Court considers the remaining “well-pleaded factual allegations.” Id. The Court must accept as true all facts alleged in a plaintiff’s complaint, and the Court views the facts in the light most favorable to a plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Plaintiff’s § 1981 claim does not state facts sufficient to show that Defendant discriminated against him on the basis of race. A § 1981 claim requires a plaintiff to establish: (1) that he is a member of a racial minority; (2) that the defendant intended to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute. Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (quoting Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 751 (5th Cir.",
"2001)). But here, Plaintiff’s Petition is bare-bones and alleges only that he is African American, that “co-workers” used offensive language and interfered with his taking of a promotion examination by “talking loudly,” that a “Supervisor” accused him of “faking illness,” and that he was later “terminated under the pretext of a layoff.” Docket No. 3 at ¶¶ 16-24. Nowhere does Plaintiff plead facts demonstrating that the Defendant intentionally discriminated against him concerning one of the statutorily enumerated activities. The alleged discriminatory activity—that he was “terminated under the pretext of a layoff”—is described with a single sentence and fails to identify facts connecting the layoff with any racially discriminatory conduct.",
"See, e.g., Landavazo v. Toro Co., 301 F. App’x 333, 336 (5th Cir. 2008). Nor are there any allegations that 9 Defendant sanctioned the offensive language and conduct of Plaintiff’s co-workers, or that the Supervisor who allegedly accused him of faking illness intended to discriminate against Plaintiff on the basis of his race. Plaintiff has therefore failed to state a claim under § 1981, and his claim should be dismissed without prejudice under Rule 12(b)(6). CONCLUSION For the reasons stated above, the Court OVERRULES Plaintiff’s Objection (Docket No. 13). It is therefore ORDERED that Defendant’s Motion to Dismiss (Docket No. 7) is GRANTED and the Complaint is hereby DISMISSED without prejudice. All other pending Motions are DENIED as MOOT.",
"So ORDERED and SIGNED this 7th day of January, 2019. ___________________________________ JEREMY D. KERNODLE UNITED STATES DISTRICT JUDGE 10"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/56529336/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Terminal Disclaimer The terminal disclaimer filed on 3/1/2021 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of Patent 10,353,604 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 21, 27-28, 33-35 and 39-40 are rejected under 35 U.S.C. 103 as being unpatentable over Khan et al. (US 2016/0094619) in view of Hashimoto (US 2015/0143134).
Regarding claim 21, Khan discloses a method, comprising: receiving, by a memory device, an data object definition command from a host that indicates one or more transformations to apply to an data object [see paragraphs 36 & 39-40; SSD controller receives job execution command from server (interpreted here as host), command is to perform compute intensive operations (e.g. encryption) on data]; causing the one or more transformations on the data object at the memory device to generate one or more transformed data objects [see paragraphs 40-41; result of compute on data is output data (transformed objects)]; storing the one or more transformed data objects in memory at the memory device [see 41; output data may be stored in non-volatile memory of SSD]; and sending completion information to the host to indicate completion of the one or more transformations on the data object [see paragraph 40; output of computed data may be sent to host (i.e. completion information)].
Khan does not expressly disclose that the memory associated with one or more namespaces identified in the data object definition command.
Hashimoto discloses a non-volatile storage system in which the storage comprises namespaces, and a host command (e.g. for encryption of data) can comprise namespace identification information [see paragraphs 5, 16, 25 and 27].
Before the effective filing date, it would have been obvious to a person of ordinary skill in the art to utilize the teachings of Hashimoto in the system of Khan.
The motivation for doing so would have been to access particular blocks within a shared storage resource such as non-volatile memory [see Hashimoto, paragraphs 16-17].
Therefore, it would have been obvious to combine Hashimoto with Khan for the benefits listed above, to obtain the invention as specified in claims 21, 27-28, 33-35 and 39-40.
Regarding claim 27, the combination discloses the method of claim 21, comprising: receiving the data object in a buffer at the memory device via a write operation from the host, prior to causing the one or more transformations on the data object [see paragraph 41; transfer buffer may temporarily host data sent to SSD and memory to be output from SSD].
Claims 28, 33-35 and 39 recite the same limitations as claims 21-22 and 27 and are rejected using the same logic as recited above.
40. The system of claim 39, the volatile memory comprising static random access memory [see Khan, paragraph 41; transfer buffer may comprise SRAM].
Claims 22-24, 29-30 and 36 are rejected under 35 U.S.C. 103(a) as being unpatentable over Khan et al. in view of Hashimoto, and further in view of Nagai et al. (US 2013/0142325).
Regarding claim 22, Khan and Hashimoto disclose the method of claim 21 as described above.
The combination does not expressly disclose transmitting the capabilities of the memory device to the host prior to receiving the data object definition command.
Nagai discloses a flash memory system in which a memory device may be queried for its capabilities [see paragraph 564; get features command determines functionality of flash memory].
At the time of the invention it would have been obvious to a person of ordinary skill in the art to utilize the teachings of Nagai and Hashimoto in the system of Khan.
The motivation for doing so would have been to determine the state of memory functions to enable certain signals [see Nagai, paragraph 564].
Therefore, it would have been obvious to combine Nagai with Khan and Hashimoto for the benefits listed above, to obtain the invention as specified in claims 22-24, 29-30 and 36.
Regarding claim 23, the combination discloses the method of claim 22, the capabilities comprising encryption, image processing, or deduplication [see Khan, paragraph 39; capabilities include encryption].
Regarding claim 24, the combination discloses the method of claim 22, the memory associated with the one or more namespaces identified in the data object definition command comprises non-volatile memory [see Hashimoto, paragraphs 5, 16, 25 & 27; non-volatile memory utilizes namespaces].
Claims 29-30 and 36 recite the same limitations as claims 22-24 and are rejected using the same reasoning s above.
Claims 25-26, 31-32 and 37-38 are rejected under 35 U.S.C. 103(a) as being unpatentable over Khan, Hashimoto and Nagai further in view of Shaharabany et al. (US 2015/0301763) hereinafter referred to as S.
Regarding claim 25, Khan, Hashimoto and Nagai disclose the method of claim 21 as discussed above.
The combination does not expressly disclose sending a pointer from the host to the memory representing the location of the data to be copied to the memory.
S discloses a storage system in which the host sends a pointer with a write command, wherein the pointer is a location of data stored on the host to be copied to the memory and the commands are stored in a queue of the memory [see claim 1 and paragraph 20].
At the time of the invention it would have been obvious to a person of ordinary skill in the art to utilize the teachings of S in the system of Khan, Hashimoto and Nagai.
The motivation for doing so would have been to maximize performance and to facilitate the transfer of data from host to memory [see S, paragraph 2 and claim 1].
Therefore, it would have been obvious to combine S with Khan, Hashimoto and Nagai for the benefits listed above, to obtain the invention as specified in claims 25-26, 31-32 and 37-38.
Regarding claim 26, the combination discloses the method of claim 25, comprising the buffer including volatile memory [see Khan, paragraph 41; SSD comprises SRAM transfer buffer 190 for temporarily holding I/O data].
Claims 31-32 and 37-38 recite the same limitations as claims 25-26 and are rejected using the same reasoning as above.
Response to Arguments Applicant’s arguments, filed 3/1/2021, with respect to the rejection(s) of claim(s) 21-40 under 35 USC 103 under Khan have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Khan (US 2016/0094619).
CLOSING COMMENTS Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Directions of Future Correspondences Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN BERTRAM whose telephone number is (571)270-1377. The examiner can normally be reached on M-F 8:30-5MNT.
Important Note If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Adam Queler can be reached on 571-272-41402-4140. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RYAN BERTRAM/Primary Examiner, Art Unit 2137 | 2021-03-22T06:35:48 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Terminal Disclaimer The terminal disclaimer filed on 3/1/2021 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of Patent 10,353,604 has been reviewed and is accepted. The terminal disclaimer has been recorded. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.",
"The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. The factual inquiries for establishing a background for determining obviousness under 35 U.S.C.",
"103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 21, 27-28, 33-35 and 39-40 are rejected under 35 U.S.C. 103 as being unpatentable over Khan et al.",
"(US 2016/0094619) in view of Hashimoto (US 2015/0143134). Regarding claim 21, Khan discloses a method, comprising: receiving, by a memory device, an data object definition command from a host that indicates one or more transformations to apply to an data object [see paragraphs 36 & 39-40; SSD controller receives job execution command from server (interpreted here as host), command is to perform compute intensive operations (e.g. encryption) on data]; causing the one or more transformations on the data object at the memory device to generate one or more transformed data objects [see paragraphs 40-41; result of compute on data is output data (transformed objects)]; storing the one or more transformed data objects in memory at the memory device [see 41; output data may be stored in non-volatile memory of SSD]; and sending completion information to the host to indicate completion of the one or more transformations on the data object [see paragraph 40; output of computed data may be sent to host (i.e.",
"completion information)]. Khan does not expressly disclose that the memory associated with one or more namespaces identified in the data object definition command. Hashimoto discloses a non-volatile storage system in which the storage comprises namespaces, and a host command (e.g. for encryption of data) can comprise namespace identification information [see paragraphs 5, 16, 25 and 27]. Before the effective filing date, it would have been obvious to a person of ordinary skill in the art to utilize the teachings of Hashimoto in the system of Khan. The motivation for doing so would have been to access particular blocks within a shared storage resource such as non-volatile memory [see Hashimoto, paragraphs 16-17]. Therefore, it would have been obvious to combine Hashimoto with Khan for the benefits listed above, to obtain the invention as specified in claims 21, 27-28, 33-35 and 39-40. Regarding claim 27, the combination discloses the method of claim 21, comprising: receiving the data object in a buffer at the memory device via a write operation from the host, prior to causing the one or more transformations on the data object [see paragraph 41; transfer buffer may temporarily host data sent to SSD and memory to be output from SSD].",
"Claims 28, 33-35 and 39 recite the same limitations as claims 21-22 and 27 and are rejected using the same logic as recited above. 40. The system of claim 39, the volatile memory comprising static random access memory [see Khan, paragraph 41; transfer buffer may comprise SRAM]. Claims 22-24, 29-30 and 36 are rejected under 35 U.S.C. 103(a) as being unpatentable over Khan et al. in view of Hashimoto, and further in view of Nagai et al. (US 2013/0142325).",
"Regarding claim 22, Khan and Hashimoto disclose the method of claim 21 as described above. The combination does not expressly disclose transmitting the capabilities of the memory device to the host prior to receiving the data object definition command. Nagai discloses a flash memory system in which a memory device may be queried for its capabilities [see paragraph 564; get features command determines functionality of flash memory]. At the time of the invention it would have been obvious to a person of ordinary skill in the art to utilize the teachings of Nagai and Hashimoto in the system of Khan. The motivation for doing so would have been to determine the state of memory functions to enable certain signals [see Nagai, paragraph 564].",
"Therefore, it would have been obvious to combine Nagai with Khan and Hashimoto for the benefits listed above, to obtain the invention as specified in claims 22-24, 29-30 and 36. Regarding claim 23, the combination discloses the method of claim 22, the capabilities comprising encryption, image processing, or deduplication [see Khan, paragraph 39; capabilities include encryption]. Regarding claim 24, the combination discloses the method of claim 22, the memory associated with the one or more namespaces identified in the data object definition command comprises non-volatile memory [see Hashimoto, paragraphs 5, 16, 25 & 27; non-volatile memory utilizes namespaces]. Claims 29-30 and 36 recite the same limitations as claims 22-24 and are rejected using the same reasoning s above. Claims 25-26, 31-32 and 37-38 are rejected under 35 U.S.C.",
"103(a) as being unpatentable over Khan, Hashimoto and Nagai further in view of Shaharabany et al. (US 2015/0301763) hereinafter referred to as S. Regarding claim 25, Khan, Hashimoto and Nagai disclose the method of claim 21 as discussed above. The combination does not expressly disclose sending a pointer from the host to the memory representing the location of the data to be copied to the memory. S discloses a storage system in which the host sends a pointer with a write command, wherein the pointer is a location of data stored on the host to be copied to the memory and the commands are stored in a queue of the memory [see claim 1 and paragraph 20].",
"At the time of the invention it would have been obvious to a person of ordinary skill in the art to utilize the teachings of S in the system of Khan, Hashimoto and Nagai. The motivation for doing so would have been to maximize performance and to facilitate the transfer of data from host to memory [see S, paragraph 2 and claim 1]. Therefore, it would have been obvious to combine S with Khan, Hashimoto and Nagai for the benefits listed above, to obtain the invention as specified in claims 25-26, 31-32 and 37-38. Regarding claim 26, the combination discloses the method of claim 25, comprising the buffer including volatile memory [see Khan, paragraph 41; SSD comprises SRAM transfer buffer 190 for temporarily holding I/O data]. Claims 31-32 and 37-38 recite the same limitations as claims 25-26 and are rejected using the same reasoning as above. Response to Arguments Applicant’s arguments, filed 3/1/2021, with respect to the rejection(s) of claim(s) 21-40 under 35 USC 103 under Khan have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Khan (US 2016/0094619).",
"CLOSING COMMENTS Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Directions of Future Correspondences Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN BERTRAM whose telephone number is (571)270-1377. The examiner can normally be reached on M-F 8:30-5MNT. Important Note If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Adam Queler can be reached on 571-272-41402-4140.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /RYAN BERTRAM/Primary Examiner, Art Unit 2137"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Filed 1/27/15 Certified for Publication 2/23/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANA LEMAIRE, as Successor in Interest, 2d Civil No. B248672 etc., (Super. Ct. No. 56-2010-00383376- CU-PO-VTA) Plaintiff and Respondent, (Ventura County)
v.
COVENANT CARE CALIFORNIA, LLC,
Defendant and Appellant.
Defendant Covenant Care California, LLC (Covenant) appeals a judgment after jury trial in favor of plaintiff Ana Lemaire, successor in interest to Laura Clausen. Lemaire was awarded $270,000 in statutory damages because Covenant violated regulations requiring it to maintain complete and accurate medical records at its nursing care facility. (Health & Saf. Code, § 1430, subd. (b).)1 We conclude, among other things, that: 1) patients may sue nursing facilities under section 1430, subdivision (b) for violation of federal and state regulations requiring complete and accurate health care records, 2) statutory damages under section 1430, subdivision (b) may not exceed $500 per action, and 3) the award of attorney fees and costs must be redetermined on remand. We reverse in part and affirm in part.
1 All statutory references are to the Health and Safety Code unless otherwise stated. FACTS Laura Clausen suffered a stroke and was admitted to Covenant's skilled nursing facility in 2010. After she died, Lemaire, her daughter, filed an action against Covenant for wrongful death, elder abuse, and violation of "patients' rights" under section 1430, subdivision (b). Lemaire alleged: 1) Covenant was "chronically understaffed," 2) her mother did not receive "appropriate care because there was not enough staff," and 3) her mother died as "a result of . . . elder abuse, neglect and willful misconduct." In the patients' rights cause of action, Lemaire alleged six violations of the California Code of Regulations. She said Covenant violated her mother's right "to have nurses' notes be clear and legible, dated and signed . . . including narratives [on] how a patient responds, eats, drinks, looks, feels, and reacts." (Cal. Code Regs., tit. 22, § 72547, subd. (a)(5).) She requested statutory damages of $500 per violation "per day." At trial, Covenant claimed, "Nothing in [section 1430, subdivision (b)] implies that the fine is to be expanded to include each violation of resident rights or for every day it existed . . . ." It argued the jury should be instructed that a plaintiff "can maintain an action for a violation for up to $500." The trial court overruled Covenant's objections. The jury found against Lemaire on her wrongful death cause of action. It rejected her claims that Covenant provided insufficient nursing staff and did not treat her mother with respect and dignity. The jury found for Lemaire on the heath care records issues. It found Covenant did not provide 1) "complete and accurate health records" and 2) "meaningful and informative nurses' progress notes as often as the patient's condition warrants." It found 468 violations of the first category, 72 in the second. It awarded $500 statutory damages for each "violation." (§ 1430, subd. (b.) The trial court entered judgment against Covenant for $270,000 as statutory damages. (§ 1430, subd. (b).) It awarded Lemaire $841,842 in attorney fees and $26,327.45 in costs.
2. DISCUSSION The Scope of Section 1430, Subdivision (b) Covenant contends patients do not have a right to sue under section 1430, subdivision (b) for violation of regulations requiring Covenant to have "complete and accurate health records" and "meaningful and informative nurses' progress notes." It claims these "regulations do not involve resident rights encompassed within the scope of section 1430(b)." We disagree. Section 1430, subdivision (b) provides, in relevant part, "A current or former resident or patient of a skilled nursing facility . . . may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients' Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation." (Italics added.) Covenant has a restrictive view of the private right of action. But the statutory language about the scope of that right is broad. It includes violation of any "right provided for by federal or state law or regulation." This is also a remedial statute. It must therefore be "liberally construed on behalf of the class of persons it is designed to protect." (California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal. 4th 284, 295.) Those individuals are nursing care patients, "one of the most vulnerable segments of our population." (Ibid.) The California Department of Public Health (CDPH) has authority to bring actions against nursing facilities that violate federal and state law and regulations. But the Legislature was aware that such enforcement could be "constrained by financial and demographic pressures in the coming years." (Shuts v. Covenant Holdco LLC (2012) 208 Cal. App. 4th 609, 624.) "[B]y enacting section 1430, subdivision (b), the Legislature specifically authorized skilled nursing facility residents themselves to bring actions to remedy violations of their rights rather than forcing them to depend upon the CDPH to take
3. action." (Shuts v. Covenant Holdco LLC, supra, 208 Cal.App.4th at pp. 623-624.) In Shuts, the court concluded the private right of action was not limited to regulations that expressly include a resident's right to sue for the particular regulatory violation. Instead, it broadly extends to "a violation of 'any other right provided for by federal or state law or regulation.'" (Id. at p. 624, italics added.) The duty to maintain accurate and complete health care records (Cal.Code of Regs., tit. 22, § 72547, subd. (a)(5)) involves a patient's "right provided for by . . . state law . . . ." (§ 1430, subd. (b).) "[I]t is the public policy of this state to ensure that long- term health care facilities provide the highest level of care possible." (§ 1422, subd. (a).) To meet this goal, the Legislature "mandated standards to ensure quality health care." (Kizer v. County of San Mateo (1991) 53 Cal. 3d 139, 148.) These include the statutory duty on nursing care facilities to maintain complete and accurate health care records. (§ 1427, subd. (a).) This duty is so important that where such records are not maintained, a court may presume that the "treatment, or care has not been provided." (Ibid.) Regulations were enacted to define the type of record keeping necessary to maintain compliance with this statute. The regulations Covenant violated involve the duty to maintain nurses health care records regarding: 1) the "[c]are and treatment of the patient," 2) monitoring "changes in the patient's condition," and 3) "the patient's response to care and treatments." (Cal. Code Regs., tit. 22, § 72547, subd. (a)(5).) Covenant contends: 1) these regulations involve only health record regulatory compliance, 2) they do not involve any "rights" of residents of nursing care facilities, and 3) a private right of action to enforce these regulations is not authorized because these regulations do not contain express language mentioning such litigation. We disagree. The absence of express language in the regulations about a private right of action does not bar litigation to enforce regulatory compliance in this statutory scheme. (Shuts v. Covenant Holdco LLC, supra, 208 Cal.App.4th at pp. 623-624.) "'Statutes should be construed so as to be given a reasonable result consistent with the legislative
4. purpose.'" (Cossack v. City of Los Angeles (1974) 11 Cal. 3d 726, 732-733.) "[T]hat purpose should not be sacrificed to a literal interpretation." (Silberman v. Swoap (1975) 50 Cal. App. 3d 568, 571.) Where the regulations directly involve the quality of patient health care, they involve patients' rights that patients may enforce through litigation. (Shuts, at pp. 623-624.) Here the duties imposed by the regulations that Covenant violated directly affect the patient's right to proper diagnosis, treatment and care. Failure to maintain complete health care records may lead to serious health and treatment consequences. These regulations set standards for the conduct of the facilities. But they were enacted to protect the patients who are the intended beneficiaries of regulatory compliance. (Kizer v. County of San Mateo, supra, 53 Cal.3d at p. 148.) California regulations give the nursing care patient the right to participate "in the total plan of care." (Cal. Code Regs., tit. 22, § 72527, subd. (a)(3) (Patients' Bill of Rights). But such a right and plan of care cannot be implemented where the facility does not maintain proper medical records. Consequently, the regulations involved in this action implement the statutory duty to ensure "quality health care" by requiring adequate health care records for patients. (Kizer, at p. 148; §§ 1422, subd. (a); 1427, subd. (a).) The "focus" of the private right of action is "to encourage regulatory compliance and prevent injury." (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal. App. 4th 102, 135, italics added.) Lemaire's action furthers these goals by enforcing regulations involving the rights of residents of nursing care facilities. Covenant has not shown trial court error on this issue. The Statutory Damage Award The judgment includes an award of statutory damages of $270,000. The trial court concluded that a $500 statutory damages provision applied to each regulatory violation. Covenant contends section 1430, subdivision (b) does not permit an award of $500 damages for each violation. It claims the statute only allows a maximum $500 award for this action. We agree.
5. Section 1430, subdivision (b) provides, in relevant part, "The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue." (Italics added.) Division Four of this district held the Legislature did not authorize a statutory damage award of up to $500 per violation. (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.) It said, "[T]he statute allows a single award of up to $500 per lawsuit." (Ibid., italics added.) Lemaire disagrees with Nevarrez. She claims the statutory language and legislative history show lawmakers intended this statutory damages provision to be applied to each violation. But the words of the statute do not support this result. The phrase "up to five hundred dollars" refers to "the suit" to "be brought." It is a liability cap for the action. Had the Legislature intended an award of statutory damages for each violation it would have used the phrase "up to $500 per violation." (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 132.) Such per violation language appears in other parts of this statute. "The absence of this phrase from subdivision (b) supports the inference that the phrase was intentionally left out . . . ." (Ibid.) Lemaire seeks to add it to the statute. But a court "'"'is not authorized to insert qualifying provisions not included [in a statute] and may not rewrite the statute to conform to an assumed intention which does not appear from its language.'"'" (Cadlerock Joint Venture, L.P. v. Lobel (2012) 206 Cal. App. 4th 1531, 1549.) Lemaire contends the legislative history supports her position. But this claim was rejected in Nevarrez. After examining the legislative history, the court concluded, "With the exception of the minority analysis for the Assembly Committee on the Judiciary, no legislative history material on Senate Bill No. 1930 . . . (Senate Bill No. 1930), which added subdivision (b) to section 1430, suggests that the $500 maximum was to be recovered per violation." (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 133, italics added.)
6. Lemaire contends precluding recovery of damages for each violation would undermine the goal of encouraging residents to exercise their private right of action under the statute. But Nevarrez said, "[T]he argument that the $500 statutory maximum must be applied on a 'per violation' basis in order to make private enforcement feasible does not withstand scrutiny." (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 135.) The statute has an attorney fee provision that "may generate substantial attorney fee awards irrespective of the amount the patient actually recovers . . . ." (Ibid.) It also authorizes injunctive relief to stop violations. The "focus" of the statute "is preventative." (Ibid.) It is not a substitute for the standard damage causes of action for injuries suffered by residents of nursing care facilities. Section 1430, subdivision (c) provides, "The remedies specified in this section shall be in addition to any other remedy provided by law." (Italics added.) We also grant Covenant's request to take judicial notice. Covenant notes that, in 1999, Assembly Bill No. 1160 was introduced to increase the statutory maximum from $500 to $25,000. This proposed amendment did not pass. "As a general rule, unpassed legislation provides '"very limited guidance"' when interpreting existing legislation." (Joannou v. City of Rancho Palos Verdes (2013) 219 Cal. App. 4th 746, 761.) "However, in some circumstances it may be a reliable indicator of existing legislative intent." (Ibid.) The proponents of Assembly Bill No. 1160 noted that "[e]xisting law" made the licensee "liable for up to $500." Assembly Bill No. 1160 provided, in relevant part, "This bill would authorize, instead, this civil action for violations of any rights of the resident or patient as set forth under state and federal law and would increase the maximum liability to $25,000." (Italics added.) This supports Covenant's position that lawmakers intended the $500 figure to be a maximum liability cap. Consequently, where the statutory damage award exceeds the $500 limit, as here, the damage award must be reversed. (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.)
7. Attorney Fees and Costs Covenant contends that because the statutory damages award must be reversed, the award of attorney fees and costs to Lemaire must also be vacated and remanded. We agree. The trial court must consider various factors, including the "success or failure" of the plaintiff's action in deciding the amount of attorney fees. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1096.) Where there is a reversal of the award of statutory damages, as here, "the trial court will need to redetermine the amount of attorney fees solely based on the result achieved under section 1430, subdivision (b)." (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.) The factor involving the reduced size of the statutory damages "will be relevant on remand." (Ibid.) Covenant contends it should now be considered the prevailing party "and entitled to its costs in the full amount of $102,851.69." But these issues must initially be decided by the trial court on remand. Disposition The award of statutory damages under section 1430, subdivision (b) exceeding the $500 limit is reversed and vacated. The attorney fee and cost awards are vacated and remanded for redetermination by the trial court. In all other respects, the judgment is affirmed. Costs on appeal are awarded in favor of Covenant.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
8. Charles McGrath; Frederick H. Bysshe, Jr., Judges
Superior Court County of Ventura
______________________________
Beach Cowdrey Owen, LLP, Thomas E. Beach; Manatt, Phelps & Phillips, LLP, Barry S. Landsberg, Joanna S. McCallum for Defendant and Appellant. Hooper, Lundy & Bookman, P.C., Mark E. Reagan, Felicia Y. Sze for Amicus Curiae California Association of Health Facilities on behalf of Defendant and Appellant. Johnson-Moore, Gregory L. Johnson, Jody C. Moore; McKenna Long & Aldridge LLP, Aaron T. Winn, Christopher J. Healey for Plaintiff and Respondent. Balisok & Associates, Inc., Russell S. Balisok for Amicus Curia California Advocates for Nursing Home Reform on behalf of Plaintiff and Respondent.
9. Filed 2/23/2015 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANA LEMAIRE, as Successor in Interest, 2d Civil No. B248672 etc., (Super. Ct. No. 56-2010-00383376- CU-PO-VTA) Plaintiff and Respondent, (Ventura County) ORDER CERTIFYING OPINION v. FOR PUBLICATION [NO CHANGE IN JUDGMENT] COVENANT CARE CALIFORNIA, LLC,
Defendant and Appellant.
THE COURT: The opinion in the above-entitled matter filed on January 27, 2015, was not certified for publication in the Official Reports. For good cause, it now appears that the opinion should be published in the Official Reports and it is so ordered. | 02-24-2015 | [
"Filed 1/27/15 Certified for Publication 2/23/15 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX ANA LEMAIRE, as Successor in Interest, 2d Civil No. B248672 etc., (Super. Ct. No. 56-2010-00383376- CU-PO-VTA) Plaintiff and Respondent, (Ventura County) v. COVENANT CARE CALIFORNIA, LLC, Defendant and Appellant. Defendant Covenant Care California, LLC (Covenant) appeals a judgment after jury trial in favor of plaintiff Ana Lemaire, successor in interest to Laura Clausen. Lemaire was awarded $270,000 in statutory damages because Covenant violated regulations requiring it to maintain complete and accurate medical records at its nursing care facility. (Health & Saf.",
"Code, § 1430, subd. (b). )1 We conclude, among other things, that: 1) patients may sue nursing facilities under section 1430, subdivision (b) for violation of federal and state regulations requiring complete and accurate health care records, 2) statutory damages under section 1430, subdivision (b) may not exceed $500 per action, and 3) the award of attorney fees and costs must be redetermined on remand. We reverse in part and affirm in part. 1 All statutory references are to the Health and Safety Code unless otherwise stated. FACTS Laura Clausen suffered a stroke and was admitted to Covenant's skilled nursing facility in 2010. After she died, Lemaire, her daughter, filed an action against Covenant for wrongful death, elder abuse, and violation of \"patients' rights\" under section 1430, subdivision (b). Lemaire alleged: 1) Covenant was \"chronically understaffed,\" 2) her mother did not receive \"appropriate care because there was not enough staff,\" and 3) her mother died as \"a result of . . .",
"elder abuse, neglect and willful misconduct.\" In the patients' rights cause of action, Lemaire alleged six violations of the California Code of Regulations. She said Covenant violated her mother's right \"to have nurses' notes be clear and legible, dated and signed . . . including narratives [on] how a patient responds, eats, drinks, looks, feels, and reacts.\" (Cal. Code Regs., tit. 22, § 72547, subd. (a)(5).) She requested statutory damages of $500 per violation \"per day.\" At trial, Covenant claimed, \"Nothing in [section 1430, subdivision (b)] implies that the fine is to be expanded to include each violation of resident rights or for every day it existed . . . .\" It argued the jury should be instructed that a plaintiff \"can maintain an action for a violation for up to $500.\"",
"The trial court overruled Covenant's objections. The jury found against Lemaire on her wrongful death cause of action. It rejected her claims that Covenant provided insufficient nursing staff and did not treat her mother with respect and dignity. The jury found for Lemaire on the heath care records issues. It found Covenant did not provide 1) \"complete and accurate health records\" and 2) \"meaningful and informative nurses' progress notes as often as the patient's condition warrants.\" It found 468 violations of the first category, 72 in the second. It awarded $500 statutory damages for each \"violation.\" (§ 1430, subd. (b.)",
"The trial court entered judgment against Covenant for $270,000 as statutory damages. (§ 1430, subd. (b).) It awarded Lemaire $841,842 in attorney fees and $26,327.45 in costs. 2. DISCUSSION The Scope of Section 1430, Subdivision (b) Covenant contends patients do not have a right to sue under section 1430, subdivision (b) for violation of regulations requiring Covenant to have \"complete and accurate health records\" and \"meaningful and informative nurses' progress notes.\" It claims these \"regulations do not involve resident rights encompassed within the scope of section 1430(b).\" We disagree. Section 1430, subdivision (b) provides, in relevant part, \"A current or former resident or patient of a skilled nursing facility . . .",
"may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients' Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.\" (Italics added.) Covenant has a restrictive view of the private right of action. But the statutory language about the scope of that right is broad.",
"It includes violation of any \"right provided for by federal or state law or regulation.\" This is also a remedial statute. It must therefore be \"liberally construed on behalf of the class of persons it is designed to protect.\" (California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal. 4th 284, 295.) Those individuals are nursing care patients, \"one of the most vulnerable segments of our population.\" (Ibid.) The California Department of Public Health (CDPH) has authority to bring actions against nursing facilities that violate federal and state law and regulations. But the Legislature was aware that such enforcement could be \"constrained by financial and demographic pressures in the coming years.\"",
"(Shuts v. Covenant Holdco LLC (2012) 208 Cal. App. 4th 609, 624.) \"[B]y enacting section 1430, subdivision (b), the Legislature specifically authorized skilled nursing facility residents themselves to bring actions to remedy violations of their rights rather than forcing them to depend upon the CDPH to take 3. action.\" (Shuts v. Covenant Holdco LLC, supra, 208 Cal.App.4th at pp. 623-624.) In Shuts, the court concluded the private right of action was not limited to regulations that expressly include a resident's right to sue for the particular regulatory violation. Instead, it broadly extends to \"a violation of 'any other right provided for by federal or state law or regulation.'\" (Id. at p. 624, italics added.) The duty to maintain accurate and complete health care records (Cal.Code of Regs., tit. 22, § 72547, subd. (a)(5)) involves a patient's \"right provided for by . . . state law .",
". . .\" (§ 1430, subd. (b).) \"[I]t is the public policy of this state to ensure that long- term health care facilities provide the highest level of care possible.\" (§ 1422, subd. (a).) To meet this goal, the Legislature \"mandated standards to ensure quality health care.\" (Kizer v. County of San Mateo (1991) 53 Cal. 3d 139, 148.) These include the statutory duty on nursing care facilities to maintain complete and accurate health care records. (§ 1427, subd. (a).) This duty is so important that where such records are not maintained, a court may presume that the \"treatment, or care has not been provided.\" (Ibid.)",
"Regulations were enacted to define the type of record keeping necessary to maintain compliance with this statute. The regulations Covenant violated involve the duty to maintain nurses health care records regarding: 1) the \"[c]are and treatment of the patient,\" 2) monitoring \"changes in the patient's condition,\" and 3) \"the patient's response to care and treatments.\" (Cal. Code Regs., tit. 22, § 72547, subd. (a)(5).) Covenant contends: 1) these regulations involve only health record regulatory compliance, 2) they do not involve any \"rights\" of residents of nursing care facilities, and 3) a private right of action to enforce these regulations is not authorized because these regulations do not contain express language mentioning such litigation. We disagree. The absence of express language in the regulations about a private right of action does not bar litigation to enforce regulatory compliance in this statutory scheme. (Shuts v. Covenant Holdco LLC, supra, 208 Cal.App.4th at pp. 623-624.) \"'Statutes should be construed so as to be given a reasonable result consistent with the legislative 4. purpose.'\"",
"(Cossack v. City of Los Angeles (1974) 11 Cal. 3d 726, 732-733.) \"[T]hat purpose should not be sacrificed to a literal interpretation.\" (Silberman v. Swoap (1975) 50 Cal. App. 3d 568, 571.) Where the regulations directly involve the quality of patient health care, they involve patients' rights that patients may enforce through litigation. (Shuts, at pp. 623-624.) Here the duties imposed by the regulations that Covenant violated directly affect the patient's right to proper diagnosis, treatment and care. Failure to maintain complete health care records may lead to serious health and treatment consequences. These regulations set standards for the conduct of the facilities. But they were enacted to protect the patients who are the intended beneficiaries of regulatory compliance. (Kizer v. County of San Mateo, supra, 53 Cal.3d at p.",
"148.) California regulations give the nursing care patient the right to participate \"in the total plan of care.\" (Cal. Code Regs., tit. 22, § 72527, subd. (a)(3) (Patients' Bill of Rights). But such a right and plan of care cannot be implemented where the facility does not maintain proper medical records. Consequently, the regulations involved in this action implement the statutory duty to ensure \"quality health care\" by requiring adequate health care records for patients. (Kizer, at p. 148; §§ 1422, subd. (a); 1427, subd. (a).) The \"focus\" of the private right of action is \"to encourage regulatory compliance and prevent injury.\" (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal. App. 4th 102, 135, italics added.) Lemaire's action furthers these goals by enforcing regulations involving the rights of residents of nursing care facilities. Covenant has not shown trial court error on this issue. The Statutory Damage Award The judgment includes an award of statutory damages of $270,000. The trial court concluded that a $500 statutory damages provision applied to each regulatory violation. Covenant contends section 1430, subdivision (b) does not permit an award of $500 damages for each violation.",
"It claims the statute only allows a maximum $500 award for this action. We agree. 5. Section 1430, subdivision (b) provides, in relevant part, \"The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue.\" (Italics added.) Division Four of this district held the Legislature did not authorize a statutory damage award of up to $500 per violation. (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.) It said, \"[T]he statute allows a single award of up to $500 per lawsuit.\" (Ibid., italics added.)",
"Lemaire disagrees with Nevarrez. She claims the statutory language and legislative history show lawmakers intended this statutory damages provision to be applied to each violation. But the words of the statute do not support this result. The phrase \"up to five hundred dollars\" refers to \"the suit\" to \"be brought.\" It is a liability cap for the action. Had the Legislature intended an award of statutory damages for each violation it would have used the phrase \"up to $500 per violation.\" (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 132.) Such per violation language appears in other parts of this statute. \"The absence of this phrase from subdivision (b) supports the inference that the phrase was intentionally left out . . .",
".\" (Ibid.) Lemaire seeks to add it to the statute. But a court \"'\"'is not authorized to insert qualifying provisions not included [in a statute] and may not rewrite the statute to conform to an assumed intention which does not appear from its language.'\"'\" (Cadlerock Joint Venture, L.P. v. Lobel (2012) 206 Cal. App. 4th 1531, 1549.) Lemaire contends the legislative history supports her position. But this claim was rejected in Nevarrez. After examining the legislative history, the court concluded, \"With the exception of the minority analysis for the Assembly Committee on the Judiciary, no legislative history material on Senate Bill No. 1930 . . . (Senate Bill No. 1930), which added subdivision (b) to section 1430, suggests that the $500 maximum was to be recovered per violation.\" (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 133, italics added.)",
"6. Lemaire contends precluding recovery of damages for each violation would undermine the goal of encouraging residents to exercise their private right of action under the statute. But Nevarrez said, \"[T]he argument that the $500 statutory maximum must be applied on a 'per violation' basis in order to make private enforcement feasible does not withstand scrutiny.\" (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 135.) The statute has an attorney fee provision that \"may generate substantial attorney fee awards irrespective of the amount the patient actually recovers . . . .\" (Ibid.) It also authorizes injunctive relief to stop violations. The \"focus\" of the statute \"is preventative.\" (Ibid.) It is not a substitute for the standard damage causes of action for injuries suffered by residents of nursing care facilities. Section 1430, subdivision (c) provides, \"The remedies specified in this section shall be in addition to any other remedy provided by law.\"",
"(Italics added.) We also grant Covenant's request to take judicial notice. Covenant notes that, in 1999, Assembly Bill No. 1160 was introduced to increase the statutory maximum from $500 to $25,000. This proposed amendment did not pass. \"As a general rule, unpassed legislation provides '\"very limited guidance\"' when interpreting existing legislation.\" (Joannou v. City of Rancho Palos Verdes (2013) 219 Cal. App. 4th 746, 761.) \"However, in some circumstances it may be a reliable indicator of existing legislative intent.\" (Ibid.) The proponents of Assembly Bill No. 1160 noted that \"[e]xisting law\" made the licensee \"liable for up to $500.\" Assembly Bill No.",
"1160 provided, in relevant part, \"This bill would authorize, instead, this civil action for violations of any rights of the resident or patient as set forth under state and federal law and would increase the maximum liability to $25,000.\" (Italics added.) This supports Covenant's position that lawmakers intended the $500 figure to be a maximum liability cap. Consequently, where the statutory damage award exceeds the $500 limit, as here, the damage award must be reversed. (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.) 7. Attorney Fees and Costs Covenant contends that because the statutory damages award must be reversed, the award of attorney fees and costs to Lemaire must also be vacated and remanded. We agree. The trial court must consider various factors, including the \"success or failure\" of the plaintiff's action in deciding the amount of attorney fees.",
"(PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1096.) Where there is a reversal of the award of statutory damages, as here, \"the trial court will need to redetermine the amount of attorney fees solely based on the result achieved under section 1430, subdivision (b).\" (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, supra, 221 Cal.App.4th at p. 129.) The factor involving the reduced size of the statutory damages \"will be relevant on remand.\" (Ibid.)",
"Covenant contends it should now be considered the prevailing party \"and entitled to its costs in the full amount of $102,851.69.\" But these issues must initially be decided by the trial court on remand. Disposition The award of statutory damages under section 1430, subdivision (b) exceeding the $500 limit is reversed and vacated. The attorney fee and cost awards are vacated and remanded for redetermination by the trial court. In all other respects, the judgment is affirmed. Costs on appeal are awarded in favor of Covenant. GILBERT, P. J.",
"We concur: YEGAN, J. PERREN, J. 8. Charles McGrath; Frederick H. Bysshe, Jr., Judges Superior Court County of Ventura ______________________________ Beach Cowdrey Owen, LLP, Thomas E. Beach; Manatt, Phelps & Phillips, LLP, Barry S. Landsberg, Joanna S. McCallum for Defendant and Appellant. Hooper, Lundy & Bookman, P.C., Mark E. Reagan, Felicia Y. Sze for Amicus Curiae California Association of Health Facilities on behalf of Defendant and Appellant. Johnson-Moore, Gregory L. Johnson, Jody C. Moore; McKenna Long & Aldridge LLP, Aaron T. Winn, Christopher J. Healey for Plaintiff and Respondent. Balisok & Associates, Inc., Russell S. Balisok for Amicus Curia California Advocates for Nursing Home Reform on behalf of Plaintiff and Respondent. 9.",
"Filed 2/23/2015 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX ANA LEMAIRE, as Successor in Interest, 2d Civil No. B248672 etc., (Super. Ct. No. 56-2010-00383376- CU-PO-VTA) Plaintiff and Respondent, (Ventura County) ORDER CERTIFYING OPINION v. FOR PUBLICATION [NO CHANGE IN JUDGMENT] COVENANT CARE CALIFORNIA, LLC, Defendant and Appellant. THE COURT: The opinion in the above-entitled matter filed on January 27, 2015, was not certified for publication in the Official Reports. For good cause, it now appears that the opinion should be published in the Official Reports and it is so ordered."
]
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Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 1-3, 5, 7-11, 13-16, and 18-19 are currently pending in the present application. Claims 1, 5, 7, 9-10, 15-16, and 18-19 have been previously presented; claims 2-3 are original; claims 4, 6, 12, 17, and 20 have been cancelled by the applicant; and claims 8, 11, 13, and 14 are currently amended. Response to Amendment The amendment dated 07 June 2021 has been entered into the record. EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The application has been amended as follows: Claim 11. The display device according to claim 10, further comprising a light control panel disposed between the backlight panel and the liquid crystal display panel; wherein the light control panel comprises: a controllable liquid crystal lens; a first polarizer located on a light entrance side of the controllable liquid crystal lens; a determining unit for determining a light exit direction of the light control panel; and a control unit configured to adjust [[the]] an electric field in one or more subregions in a tilt angle of [[the]] liquid crystal in the subregions. Allowable Subject Matter Claims 1-3, 5, 7-11, 13-16, and 18-19 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding independent claims 1 and 7, the prior art of record, alone or in combination, does not explicitly disclose or suggest that a shape of the bowl-shaped freeform curved surface is determined by the recurrence relations (xi+1 – yi+1)Nxi + (yi+1 – yi)Nyi = 0; ((xi – r)/(Ki + sin Θi)) = ((yi – r cot Θi)/cos Θi)); Nxi = - (Ki + sin Θi); Nyi = n – cos Θi; Ki = (sqrt (n2 – cos2 Θi)) – sin Θi; where (xi, yi) and (Nxi, Nyi) are respectively coordinates of a point on the bowl-shaped freeform curved surface corresponding to a light beam with an incident angle Θi and a normal vector at the point; r is a distance between the second light entrance surface and an origin; and n is a refractive index of a material of the lens, in combination with the remaining claim limitations. Regarding claims 2-3, 5, 8-11, 13-16, and 18-19, because they depend upon either claim 1 or claim 7, they are likewise allowed. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGELA DAVISON whose telephone number is (313)446-4819. The examiner can normally be reached on M-F 10:00 AM - 3:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Caley can be reached on 571-272-2286. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANGELA K DAVISON/ Primary Examiner, Art Unit 2871 | 2021-06-23T15:02:17 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 1-3, 5, 7-11, 13-16, and 18-19 are currently pending in the present application. Claims 1, 5, 7, 9-10, 15-16, and 18-19 have been previously presented; claims 2-3 are original; claims 4, 6, 12, 17, and 20 have been cancelled by the applicant; and claims 8, 11, 13, and 14 are currently amended. Response to Amendment The amendment dated 07 June 2021 has been entered into the record. EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee.",
"The application has been amended as follows: Claim 11. The display device according to claim 10, further comprising a light control panel disposed between the backlight panel and the liquid crystal display panel; wherein the light control panel comprises: a controllable liquid crystal lens; a first polarizer located on a light entrance side of the controllable liquid crystal lens; a determining unit for determining a light exit direction of the light control panel; and a control unit configured to adjust [[the]] an electric field in one or more subregions in a tilt angle of [[the]] liquid crystal in the subregions. Allowable Subject Matter Claims 1-3, 5, 7-11, 13-16, and 18-19 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding independent claims 1 and 7, the prior art of record, alone or in combination, does not explicitly disclose or suggest that a shape of the bowl-shaped freeform curved surface is determined by the recurrence relations (xi+1 – yi+1)Nxi + (yi+1 – yi)Nyi = 0; ((xi – r)/(Ki + sin Θi)) = ((yi – r cot Θi)/cos Θi)); Nxi = - (Ki + sin Θi); Nyi = n – cos Θi; Ki = (sqrt (n2 – cos2 Θi)) – sin Θi; where (xi, yi) and (Nxi, Nyi) are respectively coordinates of a point on the bowl-shaped freeform curved surface corresponding to a light beam with an incident angle Θi and a normal vector at the point; r is a distance between the second light entrance surface and an origin; and n is a refractive index of a material of the lens, in combination with the remaining claim limitations.",
"Regarding claims 2-3, 5, 8-11, 13-16, and 18-19, because they depend upon either claim 1 or claim 7, they are likewise allowed. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGELA DAVISON whose telephone number is (313)446-4819. The examiner can normally be reached on M-F 10:00 AM - 3:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Caley can be reached on 571-272-2286. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /ANGELA K DAVISON/ Primary Examiner, Art Unit 2871"
]
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THIRD DIVISION MILLER, P. J., MCFADDEN and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
July 7, 2016
In the Court of Appeals of Georgia A16A0612. IN THE INTEREST OF J. M., a child.
MCMILLIAN, Judge.
After this Court granted his application for discretionary appeal, the putative
father of J. M. appealed the juvenile court’s order denying his petition to legitimate
the child. We affirm for the reasons set forth below.
“We review a trial court’s ruling on a legitimation petition for abuse of
discretion.” Binns v. Fairnot, 292 Ga. App. 336, 337 (665 SE2d 36) (2008). In so
doing, we review the trial court’s factual findings for clear error and will only sustain
such findings if there is competent evidence to support them. Neill v. Brannon, 320
Ga. App. 820, 822 (1) (738 SE2d 724) (2013).
J. M. was born March 4, 2014, and at the time both J. M. and his mother tested
positive for methamphetamine. The next day, the Department of Family and Children Services (DFACS) filed a dependency complaint and petition to obtain custody of J.
M. The juvenile court held a dependency hearing and later issued an order placing J.
M. in DFACS’s custody on May 29, 2014. The putative father filed his petition for
legitimation on December 4, 2014, and the juvenile court held a hearing on the
petition on April 27, 2015.
At the hearing, the parties stipulated to the fact that DNA testing showed that
the putative father was J. M.’s biological father. However, J. M.’s mother testified
that she opposed the legitimation of her child because she did not believe that the
putative father’s behavior would change. She said that he did not have a job, was still
doing drugs, and was back in jail. She also stated that she did not like the
neighborhood in which he lived because a lot of people in the vicinity used drugs.
Both parents had a history of drug use, and they used drugs together on multiple
occasions, sometimes at the house where the putative father was living. The mother
said that the putative father and she had no romantic relationship and had only slept
together once. She had believed that someone else was the father of J. M. until the
DNA test showed otherwise. The mother had decided to surrender her rights in J. M.
to give him a better life and stability in the home where he had been his whole life
because neither the putative father nor she were able to provide J. M. a home.
2 At the time of the hearing, the putative father had been in jail for approximately
two months awaiting trial on charges of possession of methamphetamine, possession
of tools for the commission of a crime, and possession of a firearm during the
commission of a criminal offense. Since the time of J. M.’s birth, the putative father
also had been arrested on another occasion but had bonded out. And at some point he
had pled guilty to several charges of misdemeanor theft by receiving. Prior to his
arrest on February 11, 2015, the putative father had been living with his grandparents
and had been attempting to get into a drug rehabilitation program. He said that he had
worked for about six months for a construction company and then about three months
for a pizza delivery business, although he had been unemployed for about one month
before his arrest. The putative father had never owned his own home, never been
married, and never fathered another child.
The putative father said that he had started using drugs approximately ten years
earlier when he was a teenager, and he ultimately became a heroin addict. He said he
went to substance abuse treatment in connection with that addiction and successfully
completed the program, with one relapse since; however, he had begun using
methamphetamine prior to his arrest.
3 During her pregnancy, J. M.’s mother told the putative father he was not the
biological father of the child, but he nevertheless bought her groceries and a washer
and dryer before J. M.’s birth. The putative father said that he first realized that J. M.
could be his child when he saw a picture taken about one week after the child’s birth,
and he then sought a DNA test. Since that time he had been visiting J. M. every week.
Although he did not provide any child support, he had given the child gifts at
Christmas. He hoped to go straight to an inpatient treatment facility after he was
released from jail, and during his incarceration, he had been attending substance
abuse and life skills classes, as well as Narcotic Anonymous and Alcoholics
Anonymous meetings. The putative father said that he wanted to legitimate J. M.
because he wanted to be a better father than he previously had been and a better father
than his own father.
DFACS created a case plan for the putative father on December 30, 2014,
which required that he maintain stable housing; legitimate J. M.; attend and
successfully complete parenting classes; complete a substance abuse assessment and
follow all treatment recommendations; attend all visits with the child; remain drug
and alcohol free for six consecutive months and test negative on random drug tests;
arrange for adequate child care; attend and complete a psychological evaluation and
4 follow the recommendations; and enroll and successfully complete an inpatient drug
rehabilitative program. The DFACS case worker assigned to J. M.’s case testified that
the putative father had completed only certain requirements of his case plan. He had
submitted to the substance abuse and psychological evaluations and to three DFACS
drug tests, but he tested positive for drugs on all three.
The guardian ad litem appointed to the case recommended that the trial court
deny the putative father’s petition for legitimation based, inter alia, on his long
history of drug use and his lack of a steady employment history.
In considering a petition to legitimate,
the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.
(Citation omitted.) In the Interest of B. H.-W., 332 Ga. App. 269, 272 (3) (772 SE2d
66) (2015). See also In the Interest of Baby Girl Eason, 257 Ga. 292, 296 (1) (358
SE2d 459) (1987). In considering the best interest of the child, the juvenile court “is
not bound by the desires and contentions of the parents” but instead “must examine
5 the benefits that might flow to the child if [he or] she were legitimated and to consider
the legal consequences of the grant of the petition.” (Citation omitted.) In the Interest
of M. K., 288 Ga. App. 71, 73 (2) (653 SE2d 354) (2007). Thus, “trial courts may
consider the best interest of the child and deny the petition under certain
circumstances, even if the petitioner is in fact the biological father of the child.” In
the Interest of C. L., 284 Ga. App. 674, 676 (1) (644 SE2d 530) (2007). See also
OCGA § 15-11-26 (listing factors to be evaluated “[w]henever a best interests
determination is required”).1
Here, the juvenile court issued an oral ruling at the April 27, 2015 hearing
denying the legitimation petition and entered a written order to that effect on
September 1, 2015 (the “September 1 Order”).2 In the written order, the juvenile court
1 The legitimation proceeding in this case was initiated after the new Juvenile Code, including the current version of OCGA § 15-11-26, went into effect. See Ga. L. 2013, pp. 294, 514 § 5-1. 2 The putative father subsequently filed a motion to vacate the September 1 Order, and the trial court held an evidentiary hearing on the motion on September 22, 2015. The trial court issued an order denying the motion on October 2, 2015 (the “October 2 Order”). However, the putative father had filed his application for discretionary appeal of the September 1 Order the day before, on October 1, 2015. This Court granted the application on October 23, 2015 , and the putative father filed his notice of appeal in this case the same day. Although the notice of appeal referenced both the September 1 and October 2 Orders and he cites evidence presented at the September 22 hearing in his appellate brief, the putative father
6 found that the putative father was an unrehabilitated user of illegal drugs over a ten-
year period; nothing prevented him from rehabilitating himself during that period;
after DFACS issued the case plan, the putative father should have stayed clean and
immediately begun supporting his child, yet the putative father did not provide any
diapers, clothes, or other forms of support for J. M., other than a few “token gifts”3;
the putative father failed to take parenting classes despite having the opportunity to
do so while incarcerated; the putative father failed to complete other portions of his
case plan; the putative father failed to take the requisite steps to prove to the court
that he wanted the child in his care; the putative father is in need of substance abuse
rehabilitation; and the putative father has no clear plans for supporting the child. The
juvenile court also found that J. M. had been with the same foster care family since
his birth and further found that “based on the testimony that this mother is putting the
confines his appellate argument and request for relief to seeking reversal of the September 1 Order and not the October 2 Order. Therefore, we will consider any argument regarding the October 2 Order to be abandoned and will instead confine our review to the September 1 Order. Consequently, we will not consider the evidence from the September 22 hearing, as such evidence was not available to the juvenile court when it issued its September 1 Order. 3 See OCGA § 19-7-24 (“It is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until the child reaches the age of 18 or becomes emancipated, except to the extent that the duty of one parent is otherwise or further defined by court order.”).
7 child’s best interest before her own in that the mother believes that the foster parents
have been this child’s parents.” Based on these findings, the juvenile court denied the
petition, concluding that although the putative father did not abandon his opportunity
interest in the child, legitimation would not be in the child’s best interests.
1. On appeal, the putative father asserts that the juvenile court erred in finding
that he had the opportunity to take parenting classes while incarcerated, as no
evidence was presented at the hearing on whether such classes were available. And,
indeed, we found no such testimony in our review of the April 27 hearing, although
the juvenile court judge may have had independent knowledge of the classes offered
at the jail. But even discounting that finding, we conclude that the juvenile court’s
remaining findings are supported by clear evidence, and that evidence is sufficient to
support the trial court’s denial of the legitimation petition.
2. The putative father also asserts that the juvenile court erred in basing his
ruling on a determination of whether he was fit to assume immediate custody of J. M.
because the father was not seeking custody and the determination of custody is
separate from that of legitimation. However, the best interests analysis as codified
under OCGA § 15-11-26 includes consideration of:
8 (1) [t]he physical safety and welfare of such child, including food, shelter, health, and clothing;
(2) [t]he love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child;
****
(4) [s]uch child’s need for permanence, including such child’s need for stability and continuity of relationships with his or her parent . . . and any other person who has provided significant care to such child;
(5) [s]uch child’s sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child;
(6) [t]he capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child;
(7) [t]he home environment of each parent or person available to care for such child considering the promotion of such child’s nurturance and safety rather than superficial or material factors;
(8) [t]he stability of the family unit and the presence or absence of support systems within the community to benefit such child;
****
9 (13) [t]he least disruptive placement alternative for such child;
****
(17) [t]he preferences of the persons available to care for such child;
****
(19) [a]ny recommendation by a court appointed custody evaluator or guardian ad litem; and
(20) [a]ny other factors considered by the court to be relevant and proper to its determination
Although as part of the best interests analysis the juvenile court considered the
putative father’s interest in caring for J. M., his ability to support the child if placed
in his care, and the child’s current placement, we find that the consideration of such
factors was proper under OCGA § 15-11-26 and did not constitute an abuse of
discretion.
10 Therefore, we cannot say that the juvenile court abused its discretion in
denying the putative father’s petition to legitimate J. M.4 See Neill, 320 Ga. App. at
827 (2).
Judgment affirmed. Miller, P. J., and McFadden, J., concur.
4 In fact, the putative father’s appellate counsel stated at the September 22, 2015 hearing on the motion to vacate, that she chose to file a motion to vacate instead of an application for discretionary appeal following entry of the September 1 Order, because her review of the transcript from the April 27 hearing revealed that “there just weren’t any reversible errors that jumped out at me” and that she “could not find that the Court had made a mistake.”
11 | 07-18-2016 | [
"THIRD DIVISION MILLER, P. J., MCFADDEN and MCMILLIAN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules July 7, 2016 In the Court of Appeals of Georgia A16A0612. IN THE INTEREST OF J. M., a child. MCMILLIAN, Judge. After this Court granted his application for discretionary appeal, the putative father of J. M. appealed the juvenile court’s order denying his petition to legitimate the child. We affirm for the reasons set forth below. “We review a trial court’s ruling on a legitimation petition for abuse of discretion.” Binns v. Fairnot, 292 Ga. App. 336, 337 (665 SE2d 36) (2008). In so doing, we review the trial court’s factual findings for clear error and will only sustain such findings if there is competent evidence to support them. Neill v. Brannon, 320 Ga. App.",
"820, 822 (1) (738 SE2d 724) (2013). J. M. was born March 4, 2014, and at the time both J. M. and his mother tested positive for methamphetamine. The next day, the Department of Family and Children Services (DFACS) filed a dependency complaint and petition to obtain custody of J. M. The juvenile court held a dependency hearing and later issued an order placing J. M. in DFACS’s custody on May 29, 2014. The putative father filed his petition for legitimation on December 4, 2014, and the juvenile court held a hearing on the petition on April 27, 2015. At the hearing, the parties stipulated to the fact that DNA testing showed that the putative father was J. M.’s biological father.",
"However, J. M.’s mother testified that she opposed the legitimation of her child because she did not believe that the putative father’s behavior would change. She said that he did not have a job, was still doing drugs, and was back in jail. She also stated that she did not like the neighborhood in which he lived because a lot of people in the vicinity used drugs. Both parents had a history of drug use, and they used drugs together on multiple occasions, sometimes at the house where the putative father was living. The mother said that the putative father and she had no romantic relationship and had only slept together once. She had believed that someone else was the father of J. M. until the DNA test showed otherwise. The mother had decided to surrender her rights in J. M. to give him a better life and stability in the home where he had been his whole life because neither the putative father nor she were able to provide J. M. a home. 2 At the time of the hearing, the putative father had been in jail for approximately two months awaiting trial on charges of possession of methamphetamine, possession of tools for the commission of a crime, and possession of a firearm during the commission of a criminal offense. Since the time of J. M.’s birth, the putative father also had been arrested on another occasion but had bonded out.",
"And at some point he had pled guilty to several charges of misdemeanor theft by receiving. Prior to his arrest on February 11, 2015, the putative father had been living with his grandparents and had been attempting to get into a drug rehabilitation program. He said that he had worked for about six months for a construction company and then about three months for a pizza delivery business, although he had been unemployed for about one month before his arrest.",
"The putative father had never owned his own home, never been married, and never fathered another child. The putative father said that he had started using drugs approximately ten years earlier when he was a teenager, and he ultimately became a heroin addict. He said he went to substance abuse treatment in connection with that addiction and successfully completed the program, with one relapse since; however, he had begun using methamphetamine prior to his arrest. 3 During her pregnancy, J. M.’s mother told the putative father he was not the biological father of the child, but he nevertheless bought her groceries and a washer and dryer before J. M.’s birth. The putative father said that he first realized that J. M. could be his child when he saw a picture taken about one week after the child’s birth, and he then sought a DNA test.",
"Since that time he had been visiting J. M. every week. Although he did not provide any child support, he had given the child gifts at Christmas. He hoped to go straight to an inpatient treatment facility after he was released from jail, and during his incarceration, he had been attending substance abuse and life skills classes, as well as Narcotic Anonymous and Alcoholics Anonymous meetings. The putative father said that he wanted to legitimate J. M. because he wanted to be a better father than he previously had been and a better father than his own father.",
"DFACS created a case plan for the putative father on December 30, 2014, which required that he maintain stable housing; legitimate J. M.; attend and successfully complete parenting classes; complete a substance abuse assessment and follow all treatment recommendations; attend all visits with the child; remain drug and alcohol free for six consecutive months and test negative on random drug tests; arrange for adequate child care; attend and complete a psychological evaluation and 4 follow the recommendations; and enroll and successfully complete an inpatient drug rehabilitative program. The DFACS case worker assigned to J. M.’s case testified that the putative father had completed only certain requirements of his case plan. He had submitted to the substance abuse and psychological evaluations and to three DFACS drug tests, but he tested positive for drugs on all three.",
"The guardian ad litem appointed to the case recommended that the trial court deny the putative father’s petition for legitimation based, inter alia, on his long history of drug use and his lack of a steady employment history. In considering a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child.",
"Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child. (Citation omitted.) In the Interest of B. H.-W., 332 Ga. App. 269, 272 (3) (772 SE2d 66) (2015). See also In the Interest of Baby Girl Eason, 257 Ga. 292, 296 (1) (358 SE2d 459) (1987). In considering the best interest of the child, the juvenile court “is not bound by the desires and contentions of the parents” but instead “must examine 5 the benefits that might flow to the child if [he or] she were legitimated and to consider the legal consequences of the grant of the petition.” (Citation omitted.)",
"In the Interest of M. K., 288 Ga. App. 71, 73 (2) (653 SE2d 354) (2007). Thus, “trial courts may consider the best interest of the child and deny the petition under certain circumstances, even if the petitioner is in fact the biological father of the child.” In the Interest of C. L., 284 Ga. App. 674, 676 (1) (644 SE2d 530) (2007). See also OCGA § 15-11-26 (listing factors to be evaluated “[w]henever a best interests determination is required”).1 Here, the juvenile court issued an oral ruling at the April 27, 2015 hearing denying the legitimation petition and entered a written order to that effect on September 1, 2015 (the “September 1 Order”).2 In the written order, the juvenile court 1 The legitimation proceeding in this case was initiated after the new Juvenile Code, including the current version of OCGA § 15-11-26, went into effect.",
"See Ga. L. 2013, pp. 294, 514 § 5-1. 2 The putative father subsequently filed a motion to vacate the September 1 Order, and the trial court held an evidentiary hearing on the motion on September 22, 2015. The trial court issued an order denying the motion on October 2, 2015 (the “October 2 Order”). However, the putative father had filed his application for discretionary appeal of the September 1 Order the day before, on October 1, 2015. This Court granted the application on October 23, 2015 , and the putative father filed his notice of appeal in this case the same day.",
"Although the notice of appeal referenced both the September 1 and October 2 Orders and he cites evidence presented at the September 22 hearing in his appellate brief, the putative father 6 found that the putative father was an unrehabilitated user of illegal drugs over a ten- year period; nothing prevented him from rehabilitating himself during that period; after DFACS issued the case plan, the putative father should have stayed clean and immediately begun supporting his child, yet the putative father did not provide any diapers, clothes, or other forms of support for J. M., other than a few “token gifts”3; the putative father failed to take parenting classes despite having the opportunity to do so while incarcerated; the putative father failed to complete other portions of his case plan; the putative father failed to take the requisite steps to prove to the court that he wanted the child in his care; the putative father is in need of substance abuse rehabilitation; and the putative father has no clear plans for supporting the child.",
"The juvenile court also found that J. M. had been with the same foster care family since his birth and further found that “based on the testimony that this mother is putting the confines his appellate argument and request for relief to seeking reversal of the September 1 Order and not the October 2 Order. Therefore, we will consider any argument regarding the October 2 Order to be abandoned and will instead confine our review to the September 1 Order. Consequently, we will not consider the evidence from the September 22 hearing, as such evidence was not available to the juvenile court when it issued its September 1 Order. 3 See OCGA § 19-7-24 (“It is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until the child reaches the age of 18 or becomes emancipated, except to the extent that the duty of one parent is otherwise or further defined by court order.”). 7 child’s best interest before her own in that the mother believes that the foster parents have been this child’s parents.” Based on these findings, the juvenile court denied the petition, concluding that although the putative father did not abandon his opportunity interest in the child, legitimation would not be in the child’s best interests.",
"1. On appeal, the putative father asserts that the juvenile court erred in finding that he had the opportunity to take parenting classes while incarcerated, as no evidence was presented at the hearing on whether such classes were available. And, indeed, we found no such testimony in our review of the April 27 hearing, although the juvenile court judge may have had independent knowledge of the classes offered at the jail. But even discounting that finding, we conclude that the juvenile court’s remaining findings are supported by clear evidence, and that evidence is sufficient to support the trial court’s denial of the legitimation petition.",
"2. The putative father also asserts that the juvenile court erred in basing his ruling on a determination of whether he was fit to assume immediate custody of J. M. because the father was not seeking custody and the determination of custody is separate from that of legitimation. However, the best interests analysis as codified under OCGA § 15-11-26 includes consideration of: 8 (1) [t]he physical safety and welfare of such child, including food, shelter, health, and clothing; (2) [t]he love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child; **** (4) [s]uch child’s need for permanence, including such child’s need for stability and continuity of relationships with his or her parent . .",
". and any other person who has provided significant care to such child; (5) [s]uch child’s sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child; (6) [t]he capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child; (7) [t]he home environment of each parent or person available to care for such child considering the promotion of such child’s nurturance and safety rather than superficial or material factors; (8) [t]he stability of the family unit and the presence or absence of support systems within the community to benefit such child; **** 9 (13) [t]he least disruptive placement alternative for such child; **** (17) [t]he preferences of the persons available to care for such child; **** (19) [a]ny recommendation by a court appointed custody evaluator or guardian ad litem; and (20) [a]ny other factors considered by the court to be relevant and proper to its determination Although as part of the best interests analysis the juvenile court considered the putative father’s interest in caring for J. M., his ability to support the child if placed in his care, and the child’s current placement, we find that the consideration of such factors was proper under OCGA § 15-11-26 and did not constitute an abuse of discretion.",
"10 Therefore, we cannot say that the juvenile court abused its discretion in denying the putative father’s petition to legitimate J. M.4 See Neill, 320 Ga. App. at 827 (2). Judgment affirmed. Miller, P. J., and McFadden, J., concur. 4 In fact, the putative father’s appellate counsel stated at the September 22, 2015 hearing on the motion to vacate, that she chose to file a motion to vacate instead of an application for discretionary appeal following entry of the September 1 Order, because her review of the transcript from the April 27 hearing revealed that “there just weren’t any reversible errors that jumped out at me” and that she “could not find that the Court had made a mistake.” 11"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4016499/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,278
EX PARTE JOSHIA HUMPHRIES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 04-03271-CRF IN THE 361st JUDICIAL DISTRICT COURT BRAZOS COUNTY
Per curiam.
O P I N I O N
This is a post-conviction application for a writ of habeas corpus filed pursuant to tex.
code crim. proc. art. 11.07. Applicant was convicted of escape and punishment was
assessed at eight years imprisonment. No appeal was taken from this conviction. Applicant contends that he was denied his right to a meaningful appeal when his
counsel, after being requested to do so, failed to timely file notice of appeal. The trial court
has entered findings of fact and conclusions of law, based upon an affidavit filed by counsel,
in which it concludes that counsel rendered ineffective assistance on appeal, and
recommends that an out-of-time appeal be granted. Relief is granted. Applicant is entitled to an out-of-time appeal in cause number 04-03271-CRF in the 361st Judicial District Court of Brazoria County. Applicant is ordered
returned to that point in time at which he may give written notice of appeal so that he may
then, with the aid of counsel, obtain a meaningful appeal. For purposes of the Texas Rules
of Appellate Procedure, all time limits shall be calculated as if the sentence had been
imposed on the date that the mandate of this Court issues. We hold that should Applicant
desire to prosecute an appeal, he must take affirmative steps to see that written notice of
appeal is given within thirty days after the mandate of this Court has issued. DELIVERED: October 26, 2005 DO NOT PUBLISH | 09-15-2015 | [
"IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,278 EX PARTE JOSHIA HUMPHRIES, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 04-03271-CRF IN THE 361st JUDICIAL DISTRICT COURT BRAZOS COUNTY Per curiam. O P I N I O N This is a post-conviction application for a writ of habeas corpus filed pursuant to tex. code crim. proc. art. 11.07. Applicant was convicted of escape and punishment was assessed at eight years imprisonment. No appeal was taken from this conviction.",
"Applicant contends that he was denied his right to a meaningful appeal when his counsel, after being requested to do so, failed to timely file notice of appeal. The trial court has entered findings of fact and conclusions of law, based upon an affidavit filed by counsel, in which it concludes that counsel rendered ineffective assistance on appeal, and recommends that an out-of-time appeal be granted. Relief is granted. Applicant is entitled to an out-of-time appeal in cause number 04-03271-CRF in the 361st Judicial District Court of Brazoria County. Applicant is ordered returned to that point in time at which he may give written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal.",
"For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentence had been imposed on the date that the mandate of this Court issues. We hold that should Applicant desire to prosecute an appeal, he must take affirmative steps to see that written notice of appeal is given within thirty days after the mandate of this Court has issued. DELIVERED: October 26, 2005 DO NOT PUBLISH"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2936720/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DAWSON, District Judge. Defendant has filed a special appearance and moved that service be quashed because of insufficiency of process and insufficiency of service of process. The case concerns a suit by a New York resident against a nonresident motorist. Section 52 of the Vehicle and Traffic Law,1 in pertinent part, provides: “§ 52(a) * * * Service of [the summons on nonresidents] shall be made by mailing a copy thereof to the secretary of state at his office in the city of Albany, or by personally delivering a copy thereof to one of his regularly established offices, with a fee of two dollars, and such service shall be sufficient service upon such nonresident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court in case there be no clerk, an affidavit of compliance herewith, a copy of *175the summons and complaint, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his registered mail, in accordance with the rules and customs of the post-office department; or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that receipt was refused, and an affidavit by or on behalf of the plaintiff that notice of such mailing and refusal was forthwith sent to the defendant by ordinary mail * * *. The return receipt or other official proof of delivery shall constitute presumptive evidence that the summons mailed was received by the defendant or a person qualified to receive his registered mail; and the notation or refusal shall constitute presumptive evidence that the refusal was by the defendant or his agent.” In the case at bar, proper service was made upon the secretary of state and notice of such service, together with a copy of the summons and complaint, were sent by registered mail to the defendant, Derderian, with return receipt requested. This letter was returned marked “Moved, Left no address;” whereupon a second letter was mailed and returned in the same fashion. Attempts by plaintiff and the defendant’s insurance company to locate Derderian have been unsuccessful. The statute contains two requirements: one, that the summons shall be mailed to the secretary of state, and two, that notice of such service upon the secretary shall be mailed to the nonresident defendant. Section 52 of the statute details the methods of proof of the notice. The return receipt, signed by the defendant or his agent, or refused by the defendant or his agent, is presumptive evidence of notification and a prerequisite to the court’s jurisdiction. Here the defendant was not located. As a result there was no actual notice and therefore no return receipt was possible. The case presents a pointed question of law: Must the defendant either receive or refuse the notice? — i. e., has the plaintiff any recourse if the defendant cannot be found and notified of the action, pursuant to § 52 ? The nonresident motorist statute, § 52, is in derogation of the common law and must be strictly construed. Mulligan v. Jersey Truck Renters, N.Y.City Ct.1949, 196 Misc. 828, 95 N.Y.S.2d 232; Balter v. Webner, N.Y.City Ct.1940, 175 Misc. 184, 23 N.Y.S.2d 918. In Dusminski v. Ladenheim, D.C.E.D.N.Y.1942, 43 F.Supp. 139, where copy of the summons was mailed to the secretary of state but notice of such service was not sent to the defendant by registered mail with the copy of the pleadings and process, the court upheld the motion to quash service, saying: “It is not for this court to decide that the omission of the notice was unimportant, since the terms of the statute explicitly require that it be given.” Id. at page 140. It is firmly established that where the return receipt is not signed and therefore not returned, this failure to conform with the provisions of § 52 is fatal to the action. Dwyer v. Shalck, 2d Dept.1931, 232 App.Div. 780, 248 N.Y.S. 355; Robinson v. D’Odom, 1956, 2 Misc.2d 963, 150 N.Y.S.2d 700. Jurisdiction in nonresident motorist eases rests on notice having been given the defendant. See, Ten-nant v. Farm Bureau Mutual Automobile Ins. Co., 4th Dept.1955, 286 App.Div. 117, 121, 141 N.Y.S.2d 449, 452; Hayuk v. Hallock, 1958, 11 Misc.2d 1086, 172 N.Y. S.2d 19, 22. The statute contemplates and in fact requires actual notice. Shushereba V. Ames, Ct.App.1931, 255 N.Y. 490, 492, 175 N.E. 187. “In order to insure that a defendant so served shall receive actual notice of the action, the statute provides that such service shall be sufficient only ‘provided that notice of such service and a copy of the summons are forthwith sent by regis*176tered mail by the plaintiff to the defendant and the defendant’s return receipt, the plaintiff’s affidavit of compliance herewith, and a copy of the summons and complaint are filed with the clerk of the court in which the action is pending.’ Where the statute has been complied with and the defendant has received actual notice, a judgment rendered is in accordance with due process of law * * * ” Id. 255 N.Y. at page 492, 175 N.E. at page 187. The actual notice requirement is supported by the Supreme Court in Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, and Wuchter v. Pizzutti, 1928, 276 U.S. 13, 48 S.Ct. 259, 57 A.L.R. 1230. Citing McDonald v. Mabee, 1917, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608, the Court in Hess said that a personal judgment rendered against a nonresident who had neither been served with process nor appeared in the suit was without validity. The nonresident motorist statute was upheld after the Court found that the statute required actual notice of service and process be received by the nonresident motorist. The New York statute may well have been framed in view of Chief Justice Taft’s opinion in Wuchter. “The question made in the present case is whether a statute, making the secretary of state the person to receive process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Chapter 232 of the Laws of 1924 makes no such requirement and we have not been shown any provision in any applicable law of the state of New Jersey requiring such communication. We think that a law with the effect of this one should make a reasonable provision for such probable communication. We quite agree, and, indeed, have so held in the Pawloski case, that the act of a nonresident in using the highways of another state may be properly declared to be an agreement to accept service of summons in a suit growing out of the use of the highway by the owner of the automobile, but the enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice. Otherwise, where the service of summons is limited to a service on the secretary of state or some officer of the state, without more, it will be entirely possible for a person injured to sue any nonresident he chooses, and through service upon the state official obtain a default judgment against a nonresident who has never been in the state, who had nothing to do with the accident, or whose automobile having been in the state has. never injured anybody. A provision of law for service that leaves open such a clear opportunity for the commission of fraud (Heinemann v. Pier, 110 Wis. 185 [85 N.W. 646] ) or injustice is not a reasonable provision, and in the case supposed would certainly be depriving a defendant of his property without due process of law * * Wuchter v. Pizutti, 276 U.S. 13, 18-19, 48 S.Ct. 259, 260. Although this is a case of first impression in the specific construction of § 52, the matter was discussed in dicta by the New York Supreme Court in Harvey v. Fussell, 13 Misc.2d 602, 177 N.Y.S.2d 234, affirmed 2d Dept.1958, 7 A.D.2d 742, 181 N.Y.S.2d 198 where the court said: “In the instant case, it will be noted that plaintiff’s original attempt to serve the defendant, pursuant to section 52, was frustrated because it was impossible to obtain either a return receipt or the return of the original envelope bearing a notation, that it was ‘refused’. De*177fendant neither accepted nor refused it. She had merely moved away leaving no address. Without proof of such receipt or refusal, service on the Secretary of State in and of itself did not have the same ‘legal force and validity as if served personally’ on the defendant within the state * * * ” Id. 177 N.Y.S.2d at page 237. To hold that notice is not necessary would appear to be a denial of due process. This the statute guards against by requiring that a return receipt be filed with the court as proof of actual notice or refusal to accept notice by the defendant or his agent. This has not been done here. The statutory requirements not having been complied with, process is found insufficient and the motion to quash service is granted. So ordered.
. Now McKinney’s Consol.Laws, c. 71, Vehicle and Traffic Law, § 253. | 11-26-2022 | [
"DAWSON, District Judge. Defendant has filed a special appearance and moved that service be quashed because of insufficiency of process and insufficiency of service of process. The case concerns a suit by a New York resident against a nonresident motorist. Section 52 of the Vehicle and Traffic Law,1 in pertinent part, provides: Ҥ 52(a) * * * Service of [the summons on nonresidents] shall be made by mailing a copy thereof to the secretary of state at his office in the city of Albany, or by personally delivering a copy thereof to one of his regularly established offices, with a fee of two dollars, and such service shall be sufficient service upon such nonresident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by registered mail with return receipt requested.",
"The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court in case there be no clerk, an affidavit of compliance herewith, a copy of *175the summons and complaint, and either a return receipt purporting to be signed by the defendant or a person qualified to receive his registered mail, in accordance with the rules and customs of the post-office department; or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that receipt was refused, and an affidavit by or on behalf of the plaintiff that notice of such mailing and refusal was forthwith sent to the defendant by ordinary mail * * *. The return receipt or other official proof of delivery shall constitute presumptive evidence that the summons mailed was received by the defendant or a person qualified to receive his registered mail; and the notation or refusal shall constitute presumptive evidence that the refusal was by the defendant or his agent.” In the case at bar, proper service was made upon the secretary of state and notice of such service, together with a copy of the summons and complaint, were sent by registered mail to the defendant, Derderian, with return receipt requested.",
"This letter was returned marked “Moved, Left no address;” whereupon a second letter was mailed and returned in the same fashion. Attempts by plaintiff and the defendant’s insurance company to locate Derderian have been unsuccessful. The statute contains two requirements: one, that the summons shall be mailed to the secretary of state, and two, that notice of such service upon the secretary shall be mailed to the nonresident defendant. Section 52 of the statute details the methods of proof of the notice. The return receipt, signed by the defendant or his agent, or refused by the defendant or his agent, is presumptive evidence of notification and a prerequisite to the court’s jurisdiction. Here the defendant was not located. As a result there was no actual notice and therefore no return receipt was possible.",
"The case presents a pointed question of law: Must the defendant either receive or refuse the notice? — i. e., has the plaintiff any recourse if the defendant cannot be found and notified of the action, pursuant to § 52 ? The nonresident motorist statute, § 52, is in derogation of the common law and must be strictly construed. Mulligan v. Jersey Truck Renters, N.Y.City Ct.1949, 196 Misc.",
"828, 95 N.Y.S.2d 232; Balter v. Webner, N.Y.City Ct.1940, 175 Misc. 184, 23 N.Y.S.2d 918. In Dusminski v. Ladenheim, D.C.E.D.N.Y.1942, 43 F.Supp. 139, where copy of the summons was mailed to the secretary of state but notice of such service was not sent to the defendant by registered mail with the copy of the pleadings and process, the court upheld the motion to quash service, saying: “It is not for this court to decide that the omission of the notice was unimportant, since the terms of the statute explicitly require that it be given.” Id.",
"at page 140. It is firmly established that where the return receipt is not signed and therefore not returned, this failure to conform with the provisions of § 52 is fatal to the action. Dwyer v. Shalck, 2d Dept.1931, 232 App.Div. 780, 248 N.Y.S. 355; Robinson v. D’Odom, 1956, 2 Misc.2d 963, 150 N.Y.S.2d 700. Jurisdiction in nonresident motorist eases rests on notice having been given the defendant. See, Ten-nant v. Farm Bureau Mutual Automobile Ins. Co., 4th Dept.1955, 286 App.Div. 117, 121, 141 N.Y.S.2d 449, 452; Hayuk v. Hallock, 1958, 11 Misc.2d 1086, 172 N.Y. S.2d 19, 22. The statute contemplates and in fact requires actual notice. Shushereba V. Ames, Ct.App.1931, 255 N.Y. 490, 492, 175 N.E. 187. “In order to insure that a defendant so served shall receive actual notice of the action, the statute provides that such service shall be sufficient only ‘provided that notice of such service and a copy of the summons are forthwith sent by regis*176tered mail by the plaintiff to the defendant and the defendant’s return receipt, the plaintiff’s affidavit of compliance herewith, and a copy of the summons and complaint are filed with the clerk of the court in which the action is pending.’ Where the statute has been complied with and the defendant has received actual notice, a judgment rendered is in accordance with due process of law * * * ” Id.",
"255 N.Y. at page 492, 175 N.E. at page 187. The actual notice requirement is supported by the Supreme Court in Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, and Wuchter v. Pizzutti, 1928, 276 U.S. 13, 48 S.Ct. 259, 57 A.L.R. 1230. Citing McDonald v. Mabee, 1917, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608, the Court in Hess said that a personal judgment rendered against a nonresident who had neither been served with process nor appeared in the suit was without validity. The nonresident motorist statute was upheld after the Court found that the statute required actual notice of service and process be received by the nonresident motorist.",
"The New York statute may well have been framed in view of Chief Justice Taft’s opinion in Wuchter. “The question made in the present case is whether a statute, making the secretary of state the person to receive process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Chapter 232 of the Laws of 1924 makes no such requirement and we have not been shown any provision in any applicable law of the state of New Jersey requiring such communication. We think that a law with the effect of this one should make a reasonable provision for such probable communication. We quite agree, and, indeed, have so held in the Pawloski case, that the act of a nonresident in using the highways of another state may be properly declared to be an agreement to accept service of summons in a suit growing out of the use of the highway by the owner of the automobile, but the enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice.",
"Otherwise, where the service of summons is limited to a service on the secretary of state or some officer of the state, without more, it will be entirely possible for a person injured to sue any nonresident he chooses, and through service upon the state official obtain a default judgment against a nonresident who has never been in the state, who had nothing to do with the accident, or whose automobile having been in the state has. never injured anybody. A provision of law for service that leaves open such a clear opportunity for the commission of fraud (Heinemann v. Pier, 110 Wis. 185 [85 N.W. 646] ) or injustice is not a reasonable provision, and in the case supposed would certainly be depriving a defendant of his property without due process of law * * Wuchter v. Pizutti, 276 U.S. 13, 18-19, 48 S.Ct.",
"259, 260. Although this is a case of first impression in the specific construction of § 52, the matter was discussed in dicta by the New York Supreme Court in Harvey v. Fussell, 13 Misc.2d 602, 177 N.Y.S.2d 234, affirmed 2d Dept.1958, 7 A.D.2d 742, 181 N.Y.S.2d 198 where the court said: “In the instant case, it will be noted that plaintiff’s original attempt to serve the defendant, pursuant to section 52, was frustrated because it was impossible to obtain either a return receipt or the return of the original envelope bearing a notation, that it was ‘refused’. De*177fendant neither accepted nor refused it. She had merely moved away leaving no address. Without proof of such receipt or refusal, service on the Secretary of State in and of itself did not have the same ‘legal force and validity as if served personally’ on the defendant within the state * * * ” Id.",
"177 N.Y.S.2d at page 237. To hold that notice is not necessary would appear to be a denial of due process. This the statute guards against by requiring that a return receipt be filed with the court as proof of actual notice or refusal to accept notice by the defendant or his agent. This has not been done here. The statutory requirements not having been complied with, process is found insufficient and the motion to quash service is granted. So ordered. . Now McKinney’s Consol.Laws, c. 71, Vehicle and Traffic Law, § 253."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8731748/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
No. 2--00--1219 __________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
___________________________________________________________________
KONAMI (AMERICA) INC., ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee and )
Cross-Appellant, )
)
v. ) No. 94--L--982
)
HARTFORD INSURANCE COMPANY )
OF ILLINOIS, )
)
Defendant-Appellant and )
Cross-Appellee )
) Honorable
(Hartford Casualty Insurance ) Richard A. Lucas,
Company, Defendant). ) Judge, Presiding.
___________________________________________________________________
JUSTICE GEIGER delivered the opinion of the court:
The instant controversy arose after the plaintiff, Konami (America) Inc., was sued by a business competitor for patent infringement. The plaintiff tendered defense of the case to its insurer, defendant Hartford Insurance Company of Illinois, under a provision of the insurance policy pertaining to "advertising injuries." Hartford denied coverage, and Konami brought a breach of contract action against Hartford. Both Hartford and Konami subsequently filed cross-motions for summary judgment. The circuit court of Du Page County granted Konami's motion and denied Hartford's, finding that Hartford had a duty to defend Konami in the underlying litigation. The trial court also subsequently awarded Konami certain attorney fees and costs it incurred in the proceedings but denied its request for additional attorney fees pursuant to section 155 of the Illinois Insurance Code (Code) (215 ILCS 5/155 (West 1996)). Both Hartford and Konami appeal from the trial court's orders. We reverse.
The record reveals that Konami is in the business of designing, advertising, and selling video games. Konami sells coin-operated video games that are used in bars and arcades. The coin-operated video games have an advertising mode that repeatedly shows portions of the video game to attract customers to play the game. The video games are in advertising mode until a customer deposits a coin to play the game.
Konami purchased two comprehensive general liability (CGL) policies from Hartford and one CGL policy from Hartford Casualty Insurance Company (Hartford Casualty). The first policy issued by Hartford was valid from December 17, 1986, to December 17, 1987. The second policy was valid from December 17, 1987, to December 17, 1988. The third policy, issued by Hartford Casualty, was valid from December 17, 1988, to December 17, 1989. Each of the policies contained an endorsement that provided coverage for certain injuries arising in the course of Konami's advertising. The three policies were similar, although only the first policy provided coverage for piracy. None of the policies explicitly provided coverage for injuries arising out of patent infringement.
On June 1, 1993, North American Philips Corporation and Lockheed Sanders, Inc. (collectively referred to as North American Philips) filed a complaint in federal court against Konami. The complaint sounded in direct and contributory patent infringement and also alleged that Konami had induced others to commit patent infringement. The complaint alleged that Konami had infringed upon North American Philips's patents relating to a digital circuitry for television gaming apparatuses. The complaint also alleged that Konami had incorporated North American Philips's patented device into the coin-operated video games that Konami manufactured, used, and sold to its distributors.
On July 9, 1993, Konami tendered its defense to its insurers, Hartford and Hartford Casualty. In making its tender, Konami asserted that it was entitled to a defense and indemnification under the advertising injury provisions of the policies. On December 8, 1993, Hartford and Hartford Casualty denied coverage, explaining that the patent infringement alleged in the underlying complaint was not an advertising injury arising out of Konami's advertising activities.
On February 15, 1994, North American Philips and Konami reached a settlement as to the patent infringement lawsuit. Konami agreed to pay North American Philips $495,000. This amount represented a 3% royalty for each game Konami sold between June 1987 and April 1989 that incorporated the patented device.
On June 28, 1994, Konami filed a complaint for breach of contract against Hartford and Hartford Casualty. The complaint alleged that Hartford and Hartford Casualty had breached the terms of the insurance policies issued to Konami. Konami alleged that Hartford and Hartford Casualty were obligated to defend and indemnify Konami against any lawsuits arising from purported patent infringement under the "advertising injury" provision of the policies.
On November 23, 1994, Konami filed a motion for summary judgment, arguing that the undisputed facts established that it had violated North American Philips's patent in the course of its advertising. On January 17, 1995, Hartford and Hartford Casualty filed cross-motions for summary judgment, arguing that there was no causal connection between Konami's advertising and the alleged patent infringement. The trial court denied Konami's motion for summary judgment and granted Hartford and Hartford Casualty's motion as to the second and third policy. The trial court, however, did not grant Hartford's motion for summary judgment as to the first policy. Konami did not appeal from the orders granting summary judgment to Hartford on the second policy and Hartford Casualty on the third policy. Therefore, these policies are not at issue, and Hartford Casualty is not a party to the instant appeal.
On June 2, 1995, Konami filed a motion requesting the trial court to reconsider its denial of Konami's motion for summary judgment as to the first policy. In support of its motion, Konami relied on Union Insurance Co. v. Land & Sky, Inc. , 247 Neb. 696, 529 N.W.2d 773 (1995), in which the Nebraska Supreme Court held that an insurer was obligated to defend and indemnify its insured under the "advertising injury" provision of its policy in a patent infringement lawsuit. On February 20, 1996, relying on Land & Sky , the trial court granted the motion to reconsider and entered summary judgment on Konami's behalf.
On April 23, 1996, Konami filed a petition for damages seeking to recover its attorney fees and costs from Hartford as well as the amount it had paid to settle the underlying complaint. On May 6, 1996, Konami filed an amended complaint for breach of insurance contract requesting attorney fees against Hartford pursuant to section 155 of the Code. Konami argued that it was entitled to such fees under section 155 because Hartford's delay and refusal to pay its claims had been both vexatious and unreasonable. On October 3, 1997, the trial court granted Hartford's motion for judgment on the pleadings as to Konami's request for section 155 attorney fees.
Between July 31, 1998, and April 16, 1999, the trial court conducted a hearing on the petition for damages. On September 14, 2000, the trial court entered judgment in favor of Konami for $984,943.15. This amount included the sum Konami paid to settle the underlying patent infringement suit, attorney fees, and prejudgment interest. Hartford thereafter filed this timely notice of appeal. Konami has filed a cross-appeal, arguing that the trial court erred in not awarding it additional attorney fees pursuant to section 155 of the Code.
Hartford's first contention on appeal is that the trial court erred in denying its motion for summary judgment and granting Konami summary judgment as to Hartford's duty to defend and indemnify. Specifically, Hartford argues that it had no duty to defend or indemnify Konami pursuant to the advertising injury provision of the policy. Hartford contends that patent infringement is not a covered offense under the policy. Hartford further contends that the underlying complaint did not allege that any offense occurred in the course of Konami's advertising.
Our review of the trial court's entry of summary judgment is de novo . Clausen v. Carroll , 291 Ill. App. 3d 530, 536 (1997). The construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and appropriate subjects for disposition by summary judgment. Pekin Insurance Co. v. L.J. Shaw & Co. , 291 Ill. App. 3d 888, 891 (1997).
To determine an insurer's duty to defend its insured, the court must look to the allegations of the underlying complaint. Northbrook Property & Casualty Co. v. Transportation Joint Agreement , 194 Ill. 2d 96, 98 (2000). If the underlying complaint alleges facts within or potentially within policy coverage, the insurer is obligated to defend its insured even if the allegations are groundless, false, or fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. , 144 Ill. 2d 64, 73 (1991). An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaint that the allegations fail to state facts that bring the case within, or potentially within, the policy's coverage. Northbrook Property , 194 Ill. 2d at 98.
In the instant case, the underlying complaint alleged that Konami infringed, induced infringement, and committed acts of contributory patent infringement through its manufacture, use, and sale of a patented device. Konami asserts that these allegations fall within the scope of its policy providing coverage for advertising injuries. The CGL policy at issue explicitly provided coverage for advertising injuries, stating:
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies."
The CGL policy defined advertising injury as follows:
"Advertising injury means injury arising out of an offense committed during the policy period occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright title or slogan."
Konami asserts that patent infringement is a form of piracy, a specifically enumerated offense under the policy. Konami further argues that, as it committed patent infringement in the course of its advertising, Hartford was obligated to defend and indemnify it. Conversely, Hartford argues that patent infringement is not encompassed in any of the enumerated provisions of the policy. We note that Konami argues that none of the other enumerated offense under the advertising injury provision of the policy are applicable to the case at bar.
Our research reveals that whether a CGL policy providing coverage for advertising injury resulting from piracy should be construed to cover patent infringement occurring in the manufacture, sale, and use of a patented device is an issue of first impression in Illinois. Therefore, in order to discern the meaning of this provision, we must turn to well-settled rules of contract interpretation.
The construction of an insurance policy's provisions is a question of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 108 (1992). In construing an insurance policy, the court must ascertain the intent of the parties to the contract. International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. , 168 Ill. App. 3d 361, 370 (1988). To ascertain the meaning of the policy's words and the intent of the parties, the court must construe the policy as a whole with due regard to the risk undertaken, the subject matter that is insured, and the purposes of the entire contract. Outboard Marine , 154 Ill. 2d at 108. If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. Wilkin , 144 Ill. 2d at 74. However, if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous and will be construed in favor of the insured and against the insurer who drafted the policy. Outboard Marine , 154 Ill. 2d at 108-09.
Based on these foregoing principles, we do not believe that the provision at issue provided coverage for patent infringement occurring in the course of the insured's manufacture, use, and sale of a patented device. As Konami correctly notes, some dictionaries define "piracy" to encompass patent infringement. See Black's Law Dictionary 1148 (6th ed. 1990). However, the issue is not what "piracy" means in isolation but what it means in the context of the insurance policy at issue. See Outboard Marine , 154 Ill. 2d at 108. The insurance policy at issue uses the term "piracy" within the definition of advertising injury. Coverage under this provision is explicitly limited to occurrences in the course of the named insured's advertising activities.
Here, North American Philips did not allege in its underlying complaint that it was injured in any manner by Konami's advertising. Moreover, as a matter of law, North American Philips's allegations of direct and contributory infringement are not offenses that occur in the course of one's advertising. Direct patent infringement refers to the making, using, or selling of a patented invention. 35 U.S.C.A. §271(a) (2001). Contributory infringement is based solely on the sale of a patented component. See 35 U.S.C.A. §271(c) (2001); United States Fidelity & Guaranty Co. v. Star Technologies, Inc. , 935 F. Supp. 1110, 1115-16 (D. Ore. 1996). Thus, the gravamen of a direct or contributory infringement of a patent is the making, using, or selling of a patented invention, not the advertising of it. See Star Technologies , 935 F. Supp. at 1115-16.
Unlike direct or contributory infringement, it is possible for the inducement to infringe to occur during the course of advertising activities. New Hampshire Insurance Co. v. RL Chaides Construction Co., Inc. , 847 F. Supp. 1452, 1458 (N.D. Cal. 1994). Konami argues that, because it was using its coin-operated machines in its "advertising mode," it was inducing others to use the machine and thereby violate North American Philips's patent. However, something more is required for this type of infringement than the mere advertising of a product. Star Technologies , 935 F. Supp. at 1116. The advertisement must instruct or explain to the purchaser exactly how to recreate or reassemble the product into one that infringes a patent. See, e.g. , Fromberg, Inc. v. Thornhill , 315 F.2d 407, 412 (5th Cir. 1963) (defendant advertised and personally demonstrated to purchasers how his device could be inserted into another object to recreate a patented project); Rohm & Haas v. Owens-Corning Fiberglas Corp. , 196 U.S.P.Q. (BNA) 726, 745 (N.D. Ala. 1977) (defendant promoted and sold product "with the specific recommendation that they be used in an infringing manner," i.e. , molded under heat and pressure to approximate a patented product). Here, North American Philips's complaint did not allege that Konami provided any detailed instructions to its customers on how to infringe the patent. Indeed, as noted above, North American Philips's complaint did not allege that it was injured at all in the course of Konami's advertising. Without such a connection to advertising activities, Konami cannot be afforded coverage under the advertising injury provision of the CGL policy. See International Insurance Co. v. Florists' Mutual Insurance Co. , 201 Ill. App. 3d 428, 433 (1990) (holding that there must be a causal connection between the advertising activity and the injury alleged in the underlying complaint).
Furthermore, we believe Konami's reliance on Union Insurance Co. v. Land & Sky, Inc., 247 Neb. 696, 529 N.W.2d 773 (1995) is misplaced. In Land & Sky , the insured was sued for patent infringement. 247 Neb. at 697, 529 N.W.2d at 774. The insured tendered defense of the case to its insurer pursuant to the provision in its CGL policy pertaining to advertising injuries. Land & Sky , 247 Neb. at 698, 529 N.W.2d at 775. The insurer filed an action for declaratory judgment, and the trial court subsequently granted its motion for summary judgment. Land & Sky , 247 Neb. at 697, 529 N.W.2d at 774. The Supreme Court of Nebraska, however, reversed. Land & Sky , 247 Neb. at 705, 529 N.W.2d at 778. The court noted that the insurer had issued two policies, a CGL policy and an excess policy, to its insured. Land & Sky , 247 Neb. at 698, 529 N.W.2d at 775. The excess policy explicitly excluded coverage for patent infringement, while the CGL policy did not. Land & Sky , 247 Neb. at 698-99, 529 N.W.2d at 775. The court found that these policies were inconsistent and therefore concluded that the CGL policy must be read to include patent infringement. Land & Sky , 247 Neb. at 702, 529 N.W.2d at 777.
The court additionally found that the insured was potentially liable for inducing patent infringement due to its advertising activities. Land & Sky , 247 Neb. at 703, 529 N.W.2d at 777. Based on its apparent review of facts beyond those alleged in the underlying complaint, the court found that the insured's advertising activities included distributing instruction sheets demonstrating how to use the patent in an infringing manner. See Land & Sky , 247 Neb. at 703, 529 N.W.2d at 778. Accordingly, the court found that the insurer was obligated to provide a defense for its insured because the policy included coverage for patent infringement and the insured was inducing infringement through its advertising. Land & Sky , 247 Neb. at 704, 529 N.W.2d at 778.
We believe Land & Sky is factually distinguishable from this case. Here, unlike Land & Sky , there are no inconsistent policies at issue. As discussed above, the only policy involved in this case did not provide coverage for patent infringement arising in the course of the manufacture, sale, and use of a patented item. Furthermore, it appears that, in determining that the insurer had a duty to defend its insured, the Land & Sky court looked beyond the allegations of the underlying complaint. In doing so, the court found that the insured had committed patent infringement in the course of its advertising by providing instructions detailing how the patented product could be violated. However, in Illinois, an insurer's duty to defend must be based on an examination of the underlying complaint. State Farm Fire & Casualty Co. v. Hatherley , 250 Ill. App. 3d 333, 336 (1993). North American Philips made no allegations in its underlying complaint that Konami had induced patent infringement in its advertising. Thus, we believe Land & Sky is inapplicable to the case at bar.
Konami also contends that, because of a letter Hartford sent Konami, Hartford is essentially estopped from denying that it had a duty to defend. In this letter, Hartford indicated that there was "a question as to whether coverage exists" under the policy. Konami contends that this letter constituted an admission and therefore triggered Hartford's duty to defend as a matter of law. We disagree.
In the letter at issue, Hartford explained that it was forwarding the underlying complaint to its home office for evaluation and would inform Konami of its decision whether to provide a defense. Hartford also expressly stated that it was not waiving any policy defenses during its review of coverage. Thus, despite Konami's contentions to the contrary, Hartford did not admit in this letter that it was under a duty to defend Konami. Additionally, we note that Konami did not rely on this letter for coverage, as it immediately hired its own counsel and entered settlement negotiations with North American Philips. Thus, we do not believe that Konami was prejudiced by this letter in such a manner that would estop Hartford from later denying that it had a duty to defend under the policy. See Western Casualty & Surety Co. v. Brochu , 105 Ill. 2d 486, 500 (1985) (for insurance purposes, in order for there to be estoppel, there must be some prejudicial reliance on behalf of the insured).
Accordingly, as the underlying complaint did not allege that Konami committed any offense in the course of its advertising that was covered in its policy with Hartford, Hartford did not have a duty to defend Konami. Thus, the trial court erred in denying Hartford's motion for summary judgment and in allowing Konami's. Based on our resolution of this issue, we need not address the remaining issues that Hartford raises on appeal or those arguments that Konami raises in its cross-appeal.
For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed.
Reversed.
HUTCHINSON, P.J., and BOWMAN, J., concur. | 10-22-2015 | [
"No. 2--00--1219 __________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ___________________________________________________________________ KONAMI (AMERICA) INC., ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee and ) Cross-Appellant, ) ) v. ) No. 94--L--982 ) HARTFORD INSURANCE COMPANY ) OF ILLINOIS, ) ) Defendant-Appellant and ) Cross-Appellee ) ) Honorable (Hartford Casualty Insurance ) Richard A. Lucas, Company, Defendant). ) Judge, Presiding. ___________________________________________________________________ JUSTICE GEIGER delivered the opinion of the court: The instant controversy arose after the plaintiff, Konami (America) Inc., was sued by a business competitor for patent infringement. The plaintiff tendered defense of the case to its insurer, defendant Hartford Insurance Company of Illinois, under a provision of the insurance policy pertaining to \"advertising injuries.\" Hartford denied coverage, and Konami brought a breach of contract action against Hartford. Both Hartford and Konami subsequently filed cross-motions for summary judgment. The circuit court of Du Page County granted Konami's motion and denied Hartford's, finding that Hartford had a duty to defend Konami in the underlying litigation.",
"The trial court also subsequently awarded Konami certain attorney fees and costs it incurred in the proceedings but denied its request for additional attorney fees pursuant to section 155 of the Illinois Insurance Code (Code) (215 ILCS 5/155 (West 1996)). Both Hartford and Konami appeal from the trial court's orders. We reverse. The record reveals that Konami is in the business of designing, advertising, and selling video games. Konami sells coin-operated video games that are used in bars and arcades.",
"The coin-operated video games have an advertising mode that repeatedly shows portions of the video game to attract customers to play the game. The video games are in advertising mode until a customer deposits a coin to play the game. Konami purchased two comprehensive general liability (CGL) policies from Hartford and one CGL policy from Hartford Casualty Insurance Company (Hartford Casualty). The first policy issued by Hartford was valid from December 17, 1986, to December 17, 1987. The second policy was valid from December 17, 1987, to December 17, 1988. The third policy, issued by Hartford Casualty, was valid from December 17, 1988, to December 17, 1989. Each of the policies contained an endorsement that provided coverage for certain injuries arising in the course of Konami's advertising.",
"The three policies were similar, although only the first policy provided coverage for piracy. None of the policies explicitly provided coverage for injuries arising out of patent infringement. On June 1, 1993, North American Philips Corporation and Lockheed Sanders, Inc. (collectively referred to as North American Philips) filed a complaint in federal court against Konami. The complaint sounded in direct and contributory patent infringement and also alleged that Konami had induced others to commit patent infringement. The complaint alleged that Konami had infringed upon North American Philips's patents relating to a digital circuitry for television gaming apparatuses. The complaint also alleged that Konami had incorporated North American Philips's patented device into the coin-operated video games that Konami manufactured, used, and sold to its distributors. On July 9, 1993, Konami tendered its defense to its insurers, Hartford and Hartford Casualty. In making its tender, Konami asserted that it was entitled to a defense and indemnification under the advertising injury provisions of the policies. On December 8, 1993, Hartford and Hartford Casualty denied coverage, explaining that the patent infringement alleged in the underlying complaint was not an advertising injury arising out of Konami's advertising activities. On February 15, 1994, North American Philips and Konami reached a settlement as to the patent infringement lawsuit.",
"Konami agreed to pay North American Philips $495,000. This amount represented a 3% royalty for each game Konami sold between June 1987 and April 1989 that incorporated the patented device. On June 28, 1994, Konami filed a complaint for breach of contract against Hartford and Hartford Casualty. The complaint alleged that Hartford and Hartford Casualty had breached the terms of the insurance policies issued to Konami. Konami alleged that Hartford and Hartford Casualty were obligated to defend and indemnify Konami against any lawsuits arising from purported patent infringement under the \"advertising injury\" provision of the policies. On November 23, 1994, Konami filed a motion for summary judgment, arguing that the undisputed facts established that it had violated North American Philips's patent in the course of its advertising. On January 17, 1995, Hartford and Hartford Casualty filed cross-motions for summary judgment, arguing that there was no causal connection between Konami's advertising and the alleged patent infringement.",
"The trial court denied Konami's motion for summary judgment and granted Hartford and Hartford Casualty's motion as to the second and third policy. The trial court, however, did not grant Hartford's motion for summary judgment as to the first policy. Konami did not appeal from the orders granting summary judgment to Hartford on the second policy and Hartford Casualty on the third policy. Therefore, these policies are not at issue, and Hartford Casualty is not a party to the instant appeal. On June 2, 1995, Konami filed a motion requesting the trial court to reconsider its denial of Konami's motion for summary judgment as to the first policy.",
"In support of its motion, Konami relied on Union Insurance Co. v. Land & Sky, Inc. , 247 Neb. 696, 529 N.W.2d 773 (1995), in which the Nebraska Supreme Court held that an insurer was obligated to defend and indemnify its insured under the \"advertising injury\" provision of its policy in a patent infringement lawsuit. On February 20, 1996, relying on Land & Sky , the trial court granted the motion to reconsider and entered summary judgment on Konami's behalf. On April 23, 1996, Konami filed a petition for damages seeking to recover its attorney fees and costs from Hartford as well as the amount it had paid to settle the underlying complaint. On May 6, 1996, Konami filed an amended complaint for breach of insurance contract requesting attorney fees against Hartford pursuant to section 155 of the Code.",
"Konami argued that it was entitled to such fees under section 155 because Hartford's delay and refusal to pay its claims had been both vexatious and unreasonable. On October 3, 1997, the trial court granted Hartford's motion for judgment on the pleadings as to Konami's request for section 155 attorney fees. Between July 31, 1998, and April 16, 1999, the trial court conducted a hearing on the petition for damages. On September 14, 2000, the trial court entered judgment in favor of Konami for $984,943.15.",
"This amount included the sum Konami paid to settle the underlying patent infringement suit, attorney fees, and prejudgment interest. Hartford thereafter filed this timely notice of appeal. Konami has filed a cross-appeal, arguing that the trial court erred in not awarding it additional attorney fees pursuant to section 155 of the Code. Hartford's first contention on appeal is that the trial court erred in denying its motion for summary judgment and granting Konami summary judgment as to Hartford's duty to defend and indemnify.",
"Specifically, Hartford argues that it had no duty to defend or indemnify Konami pursuant to the advertising injury provision of the policy. Hartford contends that patent infringement is not a covered offense under the policy. Hartford further contends that the underlying complaint did not allege that any offense occurred in the course of Konami's advertising. Our review of the trial court's entry of summary judgment is de novo . Clausen v. Carroll , 291 Ill. App. 3d 530, 536 (1997). The construction of an insurance policy and a determination of the rights and obligations thereunder are questions of law for the court and appropriate subjects for disposition by summary judgment.",
"Pekin Insurance Co. v. L.J. Shaw & Co. , 291 Ill. App. 3d 888, 891 (1997). To determine an insurer's duty to defend its insured, the court must look to the allegations of the underlying complaint. Northbrook Property & Casualty Co. v. Transportation Joint Agreement , 194 Ill. 2d 96, 98 (2000). If the underlying complaint alleges facts within or potentially within policy coverage, the insurer is obligated to defend its insured even if the allegations are groundless, false, or fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. , 144 Ill. 2d 64, 73 (1991). An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the underlying complaint that the allegations fail to state facts that bring the case within, or potentially within, the policy's coverage.",
"Northbrook Property , 194 Ill. 2d at 98. In the instant case, the underlying complaint alleged that Konami infringed, induced infringement, and committed acts of contributory patent infringement through its manufacture, use, and sale of a patented device. Konami asserts that these allegations fall within the scope of its policy providing coverage for advertising injuries. The CGL policy at issue explicitly provided coverage for advertising injuries, stating: \"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies.\" The CGL policy defined advertising injury as follows: \"Advertising injury means injury arising out of an offense committed during the policy period occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright title or slogan.\" Konami asserts that patent infringement is a form of piracy, a specifically enumerated offense under the policy.",
"Konami further argues that, as it committed patent infringement in the course of its advertising, Hartford was obligated to defend and indemnify it. Conversely, Hartford argues that patent infringement is not encompassed in any of the enumerated provisions of the policy. We note that Konami argues that none of the other enumerated offense under the advertising injury provision of the policy are applicable to the case at bar. Our research reveals that whether a CGL policy providing coverage for advertising injury resulting from piracy should be construed to cover patent infringement occurring in the manufacture, sale, and use of a patented device is an issue of first impression in Illinois. Therefore, in order to discern the meaning of this provision, we must turn to well-settled rules of contract interpretation.",
"The construction of an insurance policy's provisions is a question of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 108 (1992). In construing an insurance policy, the court must ascertain the intent of the parties to the contract. International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. , 168 Ill. App. 3d 361, 370 (1988). To ascertain the meaning of the policy's words and the intent of the parties, the court must construe the policy as a whole with due regard to the risk undertaken, the subject matter that is insured, and the purposes of the entire contract. Outboard Marine , 154 Ill. 2d at 108.",
"If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. Wilkin , 144 Ill. 2d at 74. However, if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous and will be construed in favor of the insured and against the insurer who drafted the policy. Outboard Marine , 154 Ill. 2d at 108-09. Based on these foregoing principles, we do not believe that the provision at issue provided coverage for patent infringement occurring in the course of the insured's manufacture, use, and sale of a patented device.",
"As Konami correctly notes, some dictionaries define \"piracy\" to encompass patent infringement. See Black's Law Dictionary 1148 (6th ed. 1990). However, the issue is not what \"piracy\" means in isolation but what it means in the context of the insurance policy at issue. See Outboard Marine , 154 Ill. 2d at 108. The insurance policy at issue uses the term \"piracy\" within the definition of advertising injury. Coverage under this provision is explicitly limited to occurrences in the course of the named insured's advertising activities. Here, North American Philips did not allege in its underlying complaint that it was injured in any manner by Konami's advertising. Moreover, as a matter of law, North American Philips's allegations of direct and contributory infringement are not offenses that occur in the course of one's advertising. Direct patent infringement refers to the making, using, or selling of a patented invention. 35 U.S.C.A. §271(a) (2001). Contributory infringement is based solely on the sale of a patented component.",
"See 35 U.S.C.A. §271(c) (2001); United States Fidelity & Guaranty Co. v. Star Technologies, Inc. , 935 F. Supp. 1110, 1115-16 (D. Ore. 1996). Thus, the gravamen of a direct or contributory infringement of a patent is the making, using, or selling of a patented invention, not the advertising of it. See Star Technologies , 935 F. Supp. at 1115-16. Unlike direct or contributory infringement, it is possible for the inducement to infringe to occur during the course of advertising activities. New Hampshire Insurance Co. v. RL Chaides Construction Co., Inc. , 847 F. Supp.",
"1452, 1458 (N.D. Cal. 1994). Konami argues that, because it was using its coin-operated machines in its \"advertising mode,\" it was inducing others to use the machine and thereby violate North American Philips's patent. However, something more is required for this type of infringement than the mere advertising of a product. Star Technologies , 935 F. Supp. at 1116. The advertisement must instruct or explain to the purchaser exactly how to recreate or reassemble the product into one that infringes a patent. See, e.g. , Fromberg, Inc. v. Thornhill , 315 F.2d 407, 412 (5th Cir. 1963) (defendant advertised and personally demonstrated to purchasers how his device could be inserted into another object to recreate a patented project); Rohm & Haas v. Owens-Corning Fiberglas Corp. , 196 U.S.P.Q. (BNA) 726, 745 (N.D. Ala. 1977) (defendant promoted and sold product \"with the specific recommendation that they be used in an infringing manner,\" i.e. , molded under heat and pressure to approximate a patented product). Here, North American Philips's complaint did not allege that Konami provided any detailed instructions to its customers on how to infringe the patent.",
"Indeed, as noted above, North American Philips's complaint did not allege that it was injured at all in the course of Konami's advertising. Without such a connection to advertising activities, Konami cannot be afforded coverage under the advertising injury provision of the CGL policy. See International Insurance Co. v. Florists' Mutual Insurance Co. , 201 Ill. App. 3d 428, 433 (1990) (holding that there must be a causal connection between the advertising activity and the injury alleged in the underlying complaint). Furthermore, we believe Konami's reliance on Union Insurance Co. v. Land & Sky, Inc., 247 Neb. 696, 529 N.W.2d 773 (1995) is misplaced. In Land & Sky , the insured was sued for patent infringement. 247 Neb.",
"at 697, 529 N.W.2d at 774. The insured tendered defense of the case to its insurer pursuant to the provision in its CGL policy pertaining to advertising injuries. Land & Sky , 247 Neb. at 698, 529 N.W.2d at 775. The insurer filed an action for declaratory judgment, and the trial court subsequently granted its motion for summary judgment. Land & Sky , 247 Neb. at 697, 529 N.W.2d at 774. The Supreme Court of Nebraska, however, reversed. Land & Sky , 247 Neb. at 705, 529 N.W.2d at 778. The court noted that the insurer had issued two policies, a CGL policy and an excess policy, to its insured.",
"Land & Sky , 247 Neb. at 698, 529 N.W.2d at 775. The excess policy explicitly excluded coverage for patent infringement, while the CGL policy did not. Land & Sky , 247 Neb. at 698-99, 529 N.W.2d at 775. The court found that these policies were inconsistent and therefore concluded that the CGL policy must be read to include patent infringement. Land & Sky , 247 Neb. at 702, 529 N.W.2d at 777. The court additionally found that the insured was potentially liable for inducing patent infringement due to its advertising activities.",
"Land & Sky , 247 Neb. at 703, 529 N.W.2d at 777. Based on its apparent review of facts beyond those alleged in the underlying complaint, the court found that the insured's advertising activities included distributing instruction sheets demonstrating how to use the patent in an infringing manner. See Land & Sky , 247 Neb. at 703, 529 N.W.2d at 778. Accordingly, the court found that the insurer was obligated to provide a defense for its insured because the policy included coverage for patent infringement and the insured was inducing infringement through its advertising.",
"Land & Sky , 247 Neb. at 704, 529 N.W.2d at 778. We believe Land & Sky is factually distinguishable from this case. Here, unlike Land & Sky , there are no inconsistent policies at issue. As discussed above, the only policy involved in this case did not provide coverage for patent infringement arising in the course of the manufacture, sale, and use of a patented item. Furthermore, it appears that, in determining that the insurer had a duty to defend its insured, the Land & Sky court looked beyond the allegations of the underlying complaint.",
"In doing so, the court found that the insured had committed patent infringement in the course of its advertising by providing instructions detailing how the patented product could be violated. However, in Illinois, an insurer's duty to defend must be based on an examination of the underlying complaint. State Farm Fire & Casualty Co. v. Hatherley , 250 Ill. App. 3d 333, 336 (1993). North American Philips made no allegations in its underlying complaint that Konami had induced patent infringement in its advertising. Thus, we believe Land & Sky is inapplicable to the case at bar. Konami also contends that, because of a letter Hartford sent Konami, Hartford is essentially estopped from denying that it had a duty to defend.",
"In this letter, Hartford indicated that there was \"a question as to whether coverage exists\" under the policy. Konami contends that this letter constituted an admission and therefore triggered Hartford's duty to defend as a matter of law. We disagree. In the letter at issue, Hartford explained that it was forwarding the underlying complaint to its home office for evaluation and would inform Konami of its decision whether to provide a defense.",
"Hartford also expressly stated that it was not waiving any policy defenses during its review of coverage. Thus, despite Konami's contentions to the contrary, Hartford did not admit in this letter that it was under a duty to defend Konami. Additionally, we note that Konami did not rely on this letter for coverage, as it immediately hired its own counsel and entered settlement negotiations with North American Philips. Thus, we do not believe that Konami was prejudiced by this letter in such a manner that would estop Hartford from later denying that it had a duty to defend under the policy. See Western Casualty & Surety Co. v. Brochu , 105 Ill. 2d 486, 500 (1985) (for insurance purposes, in order for there to be estoppel, there must be some prejudicial reliance on behalf of the insured).",
"Accordingly, as the underlying complaint did not allege that Konami committed any offense in the course of its advertising that was covered in its policy with Hartford, Hartford did not have a duty to defend Konami. Thus, the trial court erred in denying Hartford's motion for summary judgment and in allowing Konami's. Based on our resolution of this issue, we need not address the remaining issues that Hartford raises on appeal or those arguments that Konami raises in its cross-appeal. For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed. Reversed. HUTCHINSON, P.J., and BOWMAN, J., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3140829/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:18-cv-03456-AJN-GWG Document 93 Filed 03/12/20 Page 1 of 1 PARKER HANSKI LLC 40 WORTH STREET, 10TH FLOOR NEW YORK, NEW YORK 10013 PHONE: 212.248.7400 FAX: 212.248.5600 Contact@ParkerHanski.com
March 12, 2020 Via ECF The Honorable Alison J. Nathan United States District Judge Southern District of New York
Re: Dedra De La Rosa v. Aspenly Co. LLC and Pure Green NYC 8th Street Corp
Docket No. 1:18-cv-03456 (AJN)(GWG)
Dear Judge Nathan:
We represent the plaintiff in the above-entitled action. We write to respectfully ask the Court to inform the court that the defendant has refused to participate in drafting and submitting the proposed trial filings that are due today. Accordingly, plaintiff hereby submits the trial filings as drafted by plaintiff.
Thank you for your time and attention to this matter. With kindest regards, I am
very truly yours,
/s/ Glen H. Parker, Esq. | 2020-03-12 | [
"Case 1:18-cv-03456-AJN-GWG Document 93 Filed 03/12/20 Page 1 of 1 PARKER HANSKI LLC 40 WORTH STREET, 10TH FLOOR NEW YORK, NEW YORK 10013 PHONE: 212.248.7400 FAX: 212.248.5600 Contact@ParkerHanski.com March 12, 2020 Via ECF The Honorable Alison J. Nathan United States District Judge Southern District of New York Re: Dedra De La Rosa v. Aspenly Co. LLC and Pure Green NYC 8th Street Corp Docket No. 1:18-cv-03456 (AJN)(GWG) Dear Judge Nathan: We represent the plaintiff in the above-entitled action. We write to respectfully ask the Court to inform the court that the defendant has refused to participate in drafting and submitting the proposed trial filings that are due today.",
"Accordingly, plaintiff hereby submits the trial filings as drafted by plaintiff. Thank you for your time and attention to this matter. With kindest regards, I am very truly yours, /s/ Glen H. Parker, Esq."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/127204378/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The amendments and arguments presented in the papers filed 6/17/2022 ("Remarks”) have been thoroughly considered. The issues raised in the Office action dated 3/21/2022 listed below have been reconsidered as indicated. a) The rejections of claims 1-12 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, are withdrawn in view of the amendments to the claims.
b) The rejection of claim(s) 1-12 under 35 U.S.C. 102(a)(1) and 102(a)(2) as anticipated by Yu (US 2011/0053882 A1) are withdrawn in view of the amendments to the claims and the Remarks (p. 7-8).
The Examiner’s responses to the Remarks regarding issues not listed above are detailed below in this Office action. New and modified grounds of rejection necessitated by amendment are detailed below and this action is made FINAL.
Claim Interpretation Citations to the instant specification are to the published application US 2019/0233903 A1.
The term “PDAC” is interpreted in view of the instant specification as an acronym for “pancreatic ductal adenocarcinoma” (para. 5).
The term “LOCK” is interpreted in view of the instant specification as an acronym for “large organized chromatin K9-modified” (para. 5) or “large organized heterochromatin lysine (K)-9 modified domains” as specified in claim 1. The terms “large organized chromatin K9-modified” or “large organized heterochromatin lysine (K)-9 modified domains” are understood to be variations of a name for a single element.
Claim 1 is drawn to a method of “identifying a target for epigenetic reprogramming”. The method requires three active steps. The first step (a) is detecting large organized heterochromatin lysine (K)-9 modified domains or LOCK and detecting large DNA hypomethylated blocks. The detection occurs in a region of DNA in a cell from a subject having cancer. The step broadly encompasses a “screening” process in which regions of LOCKs are identified within DNA and analyzing specific locations within DNA regions for LOCKs. The types of LOCKs, e.g. known or unknown, are not specified by the claim and broadly encompassing detecting any LOCKs within any region of the DNA of a cell from a subject having cancer. The second step is contacting the cell with a reprogramming agent and the step is performed after step (a). The term “reprogramming” is interpreted in view of the specification (para. 116) as referring to “a process that alters or reverses the differentiation status of a somatic cell that is either partially or terminally differentiated”. The term “reprogramming” is not limited to reversing the differentiation status of a partially or terminally differentiated somatic cell, but broadly encompasses altering the differentiation status, which includes advancing the differentiation status of a cell or modifying the differentiation status in any manner. The term “agent” is interpreted in view of the instant specification (para. 120) as encompassing “any agent capable of altering the methylation status of one or more nucleic acid sequences of a somatic cell”. The agent may directly impact methylation status or act on any target that impacts the methylation status of a cell, for example, by increasing or decreasing methylation of the genome or a region of the genome. If a pathway controls the methylation of a cell, blocking that pathway at any point alters the methylation status of the cell. The element of a “reprogramming agent” is interpreted as encompassing agents, such as miRNA, that interact with and alter well-known genes associated with pluripotency. The genes include those listed in paragraph 122. See also paragraphs 120-121. The third step is identifying one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks detected in the region in the cell in (a) as compared to a reference DNA. The identifying of the epigenetic changes results in or is sufficient for “identifying epigenetic reprogramming of the cell” and “identifying a target for epigenetic reprogramming”. The claim does not require active method steps of “identifying epigenetic reprogramming of the cell” and “identifying a target for epigenetic reprogramming” but simply the act of “identifying one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks” is considered to satisfy the elements of the claim. The step limits the regions of epigenetic changes to those detected as a result of the recited step (a) of “detecting [LOCKS] and large DNA hypomethylated blocks” in the region of DNA. In other words, the epigenetic changes identified are in the same region of DNA that is subjected to the detection performed in step (a). The detection techniques of claims 4, 5, 6, 7, 8 and 9 are sufficient to accomplish the first and third step, based on the claims depending from claim 1 and further limiting how the detecting is to carried out. The combination of the three steps once preformed are sufficient in and of themselves for identifying a target for epigenetic reprogramming.
MPEP 2111.01(II) states it is improper to read a specific order of steps into method claims where, as a matter of logic or grammar, the language of the method claims did not impose a specific order on the performance of the method steps, and the specification did not directly or implicitly require a particular order. Here steps (b) and (c) must be performed after step (a), such that the claim encompasses embodiments in which the step are performed in the following orders: step (a), step (b) and step (c); or step (a), step (c) and step (b).
Claim 1 states “identifying one or more epigenetic changes” in the claimed regions “as compared to a reference DNA”. The term “reference DNA” is broadly interpreted as DNA from any cell, e.g. cells not treated with the reprogramming agent, cells prior to treatment with the reprogramming agent, negative control cells, such as DMSO treated cells or cells that do not undergo epigenetic changes in the region of DNA when treated with the reprogramming agent. The interpretation is based on the fact the claim requires a positively recited active method step of “identifying one or more epigenetic changes” and in order to detect such changes.
Claim 2 depends from claim 1 and further limits the cell to one from a solid tumor, which does not include cancers such as leukemia.
Claim 3 depends from claim 1 and further limits the subject to one that has PDAC and/or is at risk of having metastasis of PDAC. The claim requires the subject to have PDAC or has PDAC that is at risk of metastasizing.
Claim 4 depends from claim 1 and further limits the detecting step to comprising analysis of H3K9Me2/3 and/or H4K20Me3. The claim is interpreted as limiting how the detecting of LOCKs is to be carried out along with the detecting of large DNA hypomethylated blocks.
Claim 5 depends from claim 1 and further limits the detecting step to comprising an analysis of H3K27Ac and/or H3K9Ac. The claim is interpreted as limiting how the detecting of LOCKs is to be carried out along with the detecting of large DNA hypomethylated blocks.
Claim 6 depends from claim 1 and further limits the detecting step to comprising Western blotting. The claim is interpreted as limiting how the detecting of LOCKs is to be carried out along with the detecting of large DNA hypomethylated blocks.
Claim 7 depends from claim 1 and further limits the detecting step to comprising ChIP with antibodies to H3K9Me2/3 and/or H4K20Me3. The claim further includes an optional step of sequencing after the detection by ChIP. Claim scope is not limited by claim language that makes optional but does not require steps to be performed. MPEP 2111.04.
Claim 8 depends from claim 1 and further limits the detecting step to comprising ChIP with antibodies to H3K27Ac and/or H3K9Ac. The claim further includes an optional step of sequencing after the detection by ChIP. Claim scope is not limited by claim language that makes optional but does not require steps to be performed. MPEP 2111.04. Claim 9 depends from claim 1 and further limits the detecting step to comprising whole genome bisulfite sequencing.
Claim 10 depends from claim 2 and further requires a step of gene expression analysis.
Claim 11 depends from claim 1 and states in a “wherein” there is an absence of driver mutations for metastasis. The clause does not refer to an element of claim 11 and does not recite any active methods steps or modify the steps or elements of claim 1. The clause is interpreted as describing a property or finding that naturally flows from performing the active method steps recited in claim 1.
Claim 12 depends from claim 1 and further requires a step of the analysis of euchromatin islands and/or euchromatin LOCKs. Euchromatin is a form of chromatin that is enriched in genes and often under active transcription. The type of analysis or how it is carried out is not limited by the claim. In view of the instant specification analysis of H3K27Ac or H3k36Me3 is encompassed by an analysis of euchromatin islands and/or euchromatin LOCKs (para. 181).
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-12 is/are rejected under under 35 U.S.C. 103 as obvious over Yu (US 2011/0053882 A1; previously cited). The following are modified rejections necessitated by the amendments to the claims. Regarding claims 1, 4, 5, 7 and 8, Yu teaches detecting large organized heterochromatin lysine (K)-9 modified domains (LOCKs) and large hypomethylated blocks in a region of DNA in a cell from a subject having cancer by analyzing H4K20me3 and/or H3K9/14ac (para. 189; and Fig. 5D) and/or H3K9Me2 (Fig. 5C). The analysis uses ChIP with antibodies to H4K20me3, H3K9/14ac and/or H3K9Me2. The cells are of a subject having colorectal adenocarcinoma in the form of HT-29 cells, a subject having human colon adenocarcinoma in the form of SW480 cells or DLD1 cells. The cells have been untreated, treated with TSA and/or DZNep (para. 189; and Fig. 5). Yu further teaches later contacting DLD1 cells with a GSK-3 inhibitor treatment using LY2119301 (para. 26, 194 and 237; and Fig. 10). The GSK-3 inhibitor treatment LY2119301 is a reprogramming agent encompassed by the present claims in the context of cells treated with TSA and/or DZNep because it activates the Wnt/β-catenin pathway. The Wnt/β-catenin pathway maintains the undifferentiated state of pluripotent human and mouse embryonic stem cells (para. 26, 90, 194, 237 and 256; Fig. 10). Yu teaches identifying one or more epigenetic changes in the region of DNA as compared to reference DNA from cells that have not been treated (para. 189; and Fig. 5). It would have been prima facie obvious to the ordinary artisan to have utilized primary cancer cells and the various analyses of H4K20me3, H3K9/14ac and H3K9Me2 in a single unified method to better understand DNZep and/or TSA effects and the action of LY2119301 as measured through LOCKs and large hypomethylated blocks in the context of primary cancer samples. The methods have been developed and verified using cell lines, and one would reasonably expect such methods would successfully be applied to primary cell samples. Regarding claim 2, colorectal adenocarcinoma and human colon adenocarcinoma, which are the source of the cells analyzed, are examples of well-known solid tumors. Regarding claim 3, Yu teaches the cells are from a pancreatic tumor (para. 50 and 174). Pancreatic ductal adenocarcinoma is well-known type of pancreatic tumor. Regarding claim 6, Yu teaches the detection is by Western blotting, also known as immunoblotting (para. 189). Regarding claim 9, Yu teaches whole genome bisulfite sequencing as a method to analyze further analyze epigenetic alterations (para. 70). Regarding claim 10, Yu teaches the gene expression analysis of Wnt/β-catenin (para. 22). Regarding claim 11, Yu is silent regarding mutations that drive metastasis and thus, is in the context of the absence of driver mutations for metastasis. Regarding claim 12, Yu teaches an analysis of H3K4Me3 (Fig. 5C; Fig. 5D), which is present in euchromatin islands and/or euchromatin LOCKs in view of the specification (para. 204). If the claims are amended to require step (a), step (b), a step of detecting LOCKs and large DNA hypomethylated blocks in the regions in of DNA after the contacting of step (b) and identifying one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks after contacting with a reprogramming agent as compared to a LOCKs and large DNA hypomethylated blocks detected in (a), the Examiner would reject the claims over Yu for the similar reason provided above. Even if the claims were amended to require active method steps of “identifying epigenetic reprogramming of the cell” or “identifying a target for epigenetic reprogramming”, the Examiner would find the claims obvious over Yu as Yu identifies LY2119301 as an agent that reprograms cells via epigenetic changes. Amending the claims to require detecting LOCKs and large DNA hypomethylated blocks in particular regions of DNA, such as CDH2 or TOP2B and/or particular types of epigenetic changes, such as reduction in H3K27Ac, may aid in overcoming this rejection.
Response to the traversal of the 102/103 rejections The Remarks argue the Examiner inappropriately characterized Yu and sets forth the standard for anticipation of a claim (p. 6). The Remarks summarize the claims (p. 6-7). The Examiner’s characterization of Yu in view of the amendments is provided above and has followed the guidance provided in the MPEP.
The Remarks argue Yu has a predetermined target in mind and focuses on increasing the amount and/or activity of a DACT protein (p. 7). The relevant teachings of Yu in view of the amendments to the claims is provided above.
The Remarks argue “epigenetic reprogramming” of the present claims aims to identify a target for epigenetic reprogramming (p. 7). The Remarks then characterize the term “reprogramming” (p. 7-8) and argue Yu does not detect one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks (p. 8). The term “reprogramming” has been broadly interpreted in view of the specification as described above. While Yu may focus on the DACT protein activity, the assays described by Yu analyze epigenetic changes at multiple genes as encompassed by one or more epigenetic changes. Regarding detecting one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks, it is noted that the instant specification describes LOCKS as being block-like regions that are DNA hypomethylated and includes those detected using H3K9Me2 (para. 175). The instant specification further notes the hypomethylation occurs in LOCKs analyzed with H3K36Me3 and it is known that euchromatin is unmethylated. Yu analyzes H3K9Me2 as noted above, and thus analyzes regions of LOCKs and hypomethylated DNA blocks. Furthermore, Yu teaches the analysis of methylation and observes hypomethylation of DACT1, DACT2 and DACT3 (Fig. 3).
The Remarks argue Yu focuses on particular regions while the present methods focus on targets that are unknown at the onset (p. 8). The arguments have been fully considered but are not persuasive. The claims broadly encompass the methods of Yu as applied above. The methods of Yu analyze particular targets and how histone modification and methylation vary in pre-treated cells, post-treated cells and cells treated with various combinations of treatments, including the use of LY2119301. LY2119301 is a reprogramming agent as noted above. There is nothing in the claims that requires any target to be unknown at onset. Step (a) broadly encompasses screening targets to get a base-line status of known regions and to see how various agents impact those targets. It is noted the claims do not specify how the detecting step is carried out, for example the claims do not require both ChIP-seq and an analysis of DMRs. The claims encompass the ChIP-seq using particular antibodies against unmethylated regions. Such an assay detects both LOCKs and DNA hypomethylated regions. Conclusion No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH G DAUNER whose telephone number is (571)270-3574. The examiner can normally be reached 7 am EST to 4:30 EST with second Fridays Off. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dave Nguyen can be reached on 5712700731. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOSEPH G. DAUNER/Primary Examiner, Art Unit 1634 | 2022-09-07T10:53:30 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The amendments and arguments presented in the papers filed 6/17/2022 (\"Remarks”) have been thoroughly considered. The issues raised in the Office action dated 3/21/2022 listed below have been reconsidered as indicated. a) The rejections of claims 1-12 under 35 U.S.C. 112(b) or 35 U.S.C.",
"112 (pre-AIA ), second paragraph, are withdrawn in view of the amendments to the claims. b) The rejection of claim(s) 1-12 under 35 U.S.C. 102(a)(1) and 102(a)(2) as anticipated by Yu (US 2011/0053882 A1) are withdrawn in view of the amendments to the claims and the Remarks (p. 7-8). The Examiner’s responses to the Remarks regarding issues not listed above are detailed below in this Office action. New and modified grounds of rejection necessitated by amendment are detailed below and this action is made FINAL. Claim Interpretation Citations to the instant specification are to the published application US 2019/0233903 A1. The term “PDAC” is interpreted in view of the instant specification as an acronym for “pancreatic ductal adenocarcinoma” (para.",
"5). The term “LOCK” is interpreted in view of the instant specification as an acronym for “large organized chromatin K9-modified” (para. 5) or “large organized heterochromatin lysine (K)-9 modified domains” as specified in claim 1. The terms “large organized chromatin K9-modified” or “large organized heterochromatin lysine (K)-9 modified domains” are understood to be variations of a name for a single element. Claim 1 is drawn to a method of “identifying a target for epigenetic reprogramming”. The method requires three active steps. The first step (a) is detecting large organized heterochromatin lysine (K)-9 modified domains or LOCK and detecting large DNA hypomethylated blocks. The detection occurs in a region of DNA in a cell from a subject having cancer. The step broadly encompasses a “screening” process in which regions of LOCKs are identified within DNA and analyzing specific locations within DNA regions for LOCKs.",
"The types of LOCKs, e.g. known or unknown, are not specified by the claim and broadly encompassing detecting any LOCKs within any region of the DNA of a cell from a subject having cancer. The second step is contacting the cell with a reprogramming agent and the step is performed after step (a). The term “reprogramming” is interpreted in view of the specification (para. 116) as referring to “a process that alters or reverses the differentiation status of a somatic cell that is either partially or terminally differentiated”. The term “reprogramming” is not limited to reversing the differentiation status of a partially or terminally differentiated somatic cell, but broadly encompasses altering the differentiation status, which includes advancing the differentiation status of a cell or modifying the differentiation status in any manner. The term “agent” is interpreted in view of the instant specification (para. 120) as encompassing “any agent capable of altering the methylation status of one or more nucleic acid sequences of a somatic cell”.",
"The agent may directly impact methylation status or act on any target that impacts the methylation status of a cell, for example, by increasing or decreasing methylation of the genome or a region of the genome. If a pathway controls the methylation of a cell, blocking that pathway at any point alters the methylation status of the cell. The element of a “reprogramming agent” is interpreted as encompassing agents, such as miRNA, that interact with and alter well-known genes associated with pluripotency. The genes include those listed in paragraph 122. See also paragraphs 120-121. The third step is identifying one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks detected in the region in the cell in (a) as compared to a reference DNA. The identifying of the epigenetic changes results in or is sufficient for “identifying epigenetic reprogramming of the cell” and “identifying a target for epigenetic reprogramming”.",
"The claim does not require active method steps of “identifying epigenetic reprogramming of the cell” and “identifying a target for epigenetic reprogramming” but simply the act of “identifying one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks” is considered to satisfy the elements of the claim. The step limits the regions of epigenetic changes to those detected as a result of the recited step (a) of “detecting [LOCKS] and large DNA hypomethylated blocks” in the region of DNA. In other words, the epigenetic changes identified are in the same region of DNA that is subjected to the detection performed in step (a). The detection techniques of claims 4, 5, 6, 7, 8 and 9 are sufficient to accomplish the first and third step, based on the claims depending from claim 1 and further limiting how the detecting is to carried out. The combination of the three steps once preformed are sufficient in and of themselves for identifying a target for epigenetic reprogramming.",
"MPEP 2111.01(II) states it is improper to read a specific order of steps into method claims where, as a matter of logic or grammar, the language of the method claims did not impose a specific order on the performance of the method steps, and the specification did not directly or implicitly require a particular order. Here steps (b) and (c) must be performed after step (a), such that the claim encompasses embodiments in which the step are performed in the following orders: step (a), step (b) and step (c); or step (a), step (c) and step (b). Claim 1 states “identifying one or more epigenetic changes” in the claimed regions “as compared to a reference DNA”. The term “reference DNA” is broadly interpreted as DNA from any cell, e.g. cells not treated with the reprogramming agent, cells prior to treatment with the reprogramming agent, negative control cells, such as DMSO treated cells or cells that do not undergo epigenetic changes in the region of DNA when treated with the reprogramming agent. The interpretation is based on the fact the claim requires a positively recited active method step of “identifying one or more epigenetic changes” and in order to detect such changes. Claim 2 depends from claim 1 and further limits the cell to one from a solid tumor, which does not include cancers such as leukemia.",
"Claim 3 depends from claim 1 and further limits the subject to one that has PDAC and/or is at risk of having metastasis of PDAC. The claim requires the subject to have PDAC or has PDAC that is at risk of metastasizing. Claim 4 depends from claim 1 and further limits the detecting step to comprising analysis of H3K9Me2/3 and/or H4K20Me3. The claim is interpreted as limiting how the detecting of LOCKs is to be carried out along with the detecting of large DNA hypomethylated blocks. Claim 5 depends from claim 1 and further limits the detecting step to comprising an analysis of H3K27Ac and/or H3K9Ac. The claim is interpreted as limiting how the detecting of LOCKs is to be carried out along with the detecting of large DNA hypomethylated blocks.",
"Claim 6 depends from claim 1 and further limits the detecting step to comprising Western blotting. The claim is interpreted as limiting how the detecting of LOCKs is to be carried out along with the detecting of large DNA hypomethylated blocks. Claim 7 depends from claim 1 and further limits the detecting step to comprising ChIP with antibodies to H3K9Me2/3 and/or H4K20Me3. The claim further includes an optional step of sequencing after the detection by ChIP. Claim scope is not limited by claim language that makes optional but does not require steps to be performed. MPEP 2111.04. Claim 8 depends from claim 1 and further limits the detecting step to comprising ChIP with antibodies to H3K27Ac and/or H3K9Ac.",
"The claim further includes an optional step of sequencing after the detection by ChIP. Claim scope is not limited by claim language that makes optional but does not require steps to be performed. MPEP 2111.04. Claim 9 depends from claim 1 and further limits the detecting step to comprising whole genome bisulfite sequencing. Claim 10 depends from claim 2 and further requires a step of gene expression analysis. Claim 11 depends from claim 1 and states in a “wherein” there is an absence of driver mutations for metastasis.",
"The clause does not refer to an element of claim 11 and does not recite any active methods steps or modify the steps or elements of claim 1. The clause is interpreted as describing a property or finding that naturally flows from performing the active method steps recited in claim 1. Claim 12 depends from claim 1 and further requires a step of the analysis of euchromatin islands and/or euchromatin LOCKs. Euchromatin is a form of chromatin that is enriched in genes and often under active transcription. The type of analysis or how it is carried out is not limited by the claim. In view of the instant specification analysis of H3K27Ac or H3k36Me3 is encompassed by an analysis of euchromatin islands and/or euchromatin LOCKs (para. 181).",
"Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.",
"The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C.",
"102(a)(2) prior art against the later invention. Claim(s) 1-12 is/are rejected under under 35 U.S.C. 103 as obvious over Yu (US 2011/0053882 A1; previously cited). The following are modified rejections necessitated by the amendments to the claims. Regarding claims 1, 4, 5, 7 and 8, Yu teaches detecting large organized heterochromatin lysine (K)-9 modified domains (LOCKs) and large hypomethylated blocks in a region of DNA in a cell from a subject having cancer by analyzing H4K20me3 and/or H3K9/14ac (para. 189; and Fig. 5D) and/or H3K9Me2 (Fig. 5C).",
"The analysis uses ChIP with antibodies to H4K20me3, H3K9/14ac and/or H3K9Me2. The cells are of a subject having colorectal adenocarcinoma in the form of HT-29 cells, a subject having human colon adenocarcinoma in the form of SW480 cells or DLD1 cells. The cells have been untreated, treated with TSA and/or DZNep (para. 189; and Fig. 5). Yu further teaches later contacting DLD1 cells with a GSK-3 inhibitor treatment using LY2119301 (para.",
"26, 194 and 237; and Fig. 10). The GSK-3 inhibitor treatment LY2119301 is a reprogramming agent encompassed by the present claims in the context of cells treated with TSA and/or DZNep because it activates the Wnt/β-catenin pathway. The Wnt/β-catenin pathway maintains the undifferentiated state of pluripotent human and mouse embryonic stem cells (para. 26, 90, 194, 237 and 256; Fig. 10). Yu teaches identifying one or more epigenetic changes in the region of DNA as compared to reference DNA from cells that have not been treated (para. 189; and Fig.",
"5). It would have been prima facie obvious to the ordinary artisan to have utilized primary cancer cells and the various analyses of H4K20me3, H3K9/14ac and H3K9Me2 in a single unified method to better understand DNZep and/or TSA effects and the action of LY2119301 as measured through LOCKs and large hypomethylated blocks in the context of primary cancer samples. The methods have been developed and verified using cell lines, and one would reasonably expect such methods would successfully be applied to primary cell samples. Regarding claim 2, colorectal adenocarcinoma and human colon adenocarcinoma, which are the source of the cells analyzed, are examples of well-known solid tumors. Regarding claim 3, Yu teaches the cells are from a pancreatic tumor (para. 50 and 174).",
"Pancreatic ductal adenocarcinoma is well-known type of pancreatic tumor. Regarding claim 6, Yu teaches the detection is by Western blotting, also known as immunoblotting (para. 189). Regarding claim 9, Yu teaches whole genome bisulfite sequencing as a method to analyze further analyze epigenetic alterations (para. 70). Regarding claim 10, Yu teaches the gene expression analysis of Wnt/β-catenin (para. 22). Regarding claim 11, Yu is silent regarding mutations that drive metastasis and thus, is in the context of the absence of driver mutations for metastasis. Regarding claim 12, Yu teaches an analysis of H3K4Me3 (Fig. 5C; Fig. 5D), which is present in euchromatin islands and/or euchromatin LOCKs in view of the specification (para. 204). If the claims are amended to require step (a), step (b), a step of detecting LOCKs and large DNA hypomethylated blocks in the regions in of DNA after the contacting of step (b) and identifying one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks after contacting with a reprogramming agent as compared to a LOCKs and large DNA hypomethylated blocks detected in (a), the Examiner would reject the claims over Yu for the similar reason provided above. Even if the claims were amended to require active method steps of “identifying epigenetic reprogramming of the cell” or “identifying a target for epigenetic reprogramming”, the Examiner would find the claims obvious over Yu as Yu identifies LY2119301 as an agent that reprograms cells via epigenetic changes.",
"Amending the claims to require detecting LOCKs and large DNA hypomethylated blocks in particular regions of DNA, such as CDH2 or TOP2B and/or particular types of epigenetic changes, such as reduction in H3K27Ac, may aid in overcoming this rejection. Response to the traversal of the 102/103 rejections The Remarks argue the Examiner inappropriately characterized Yu and sets forth the standard for anticipation of a claim (p. 6). The Remarks summarize the claims (p. 6-7). The Examiner’s characterization of Yu in view of the amendments is provided above and has followed the guidance provided in the MPEP. The Remarks argue Yu has a predetermined target in mind and focuses on increasing the amount and/or activity of a DACT protein (p. 7). The relevant teachings of Yu in view of the amendments to the claims is provided above. The Remarks argue “epigenetic reprogramming” of the present claims aims to identify a target for epigenetic reprogramming (p. 7).",
"The Remarks then characterize the term “reprogramming” (p. 7-8) and argue Yu does not detect one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks (p. 8). The term “reprogramming” has been broadly interpreted in view of the specification as described above. While Yu may focus on the DACT protein activity, the assays described by Yu analyze epigenetic changes at multiple genes as encompassed by one or more epigenetic changes. Regarding detecting one or more epigenetic changes in the LOCKs and large DNA hypomethylated blocks, it is noted that the instant specification describes LOCKS as being block-like regions that are DNA hypomethylated and includes those detected using H3K9Me2 (para. 175). The instant specification further notes the hypomethylation occurs in LOCKs analyzed with H3K36Me3 and it is known that euchromatin is unmethylated.",
"Yu analyzes H3K9Me2 as noted above, and thus analyzes regions of LOCKs and hypomethylated DNA blocks. Furthermore, Yu teaches the analysis of methylation and observes hypomethylation of DACT1, DACT2 and DACT3 (Fig. 3). The Remarks argue Yu focuses on particular regions while the present methods focus on targets that are unknown at the onset (p. 8). The arguments have been fully considered but are not persuasive. The claims broadly encompass the methods of Yu as applied above. The methods of Yu analyze particular targets and how histone modification and methylation vary in pre-treated cells, post-treated cells and cells treated with various combinations of treatments, including the use of LY2119301. LY2119301 is a reprogramming agent as noted above. There is nothing in the claims that requires any target to be unknown at onset. Step (a) broadly encompasses screening targets to get a base-line status of known regions and to see how various agents impact those targets.",
"It is noted the claims do not specify how the detecting step is carried out, for example the claims do not require both ChIP-seq and an analysis of DMRs. The claims encompass the ChIP-seq using particular antibodies against unmethylated regions. Such an assay detects both LOCKs and DNA hypomethylated regions. Conclusion No claims allowed. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH G DAUNER whose telephone number is (571)270-3574. The examiner can normally be reached 7 am EST to 4:30 EST with second Fridays Off. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dave Nguyen can be reached on 5712700731. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center.",
"Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /JOSEPH G. DAUNER/Primary Examiner, Art Unit 1634"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-11.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT E
(FILED: NEW YORK COUNTY CLERK 11/25/2014 04:27 PM NYSCEF DOC. NO.
INDEX NO. 651089/2010 1153 RECEIVED NYSCEF: 11/25/2014
GLENCLOVA INVESTMENT CO., TR INVESTORS, LLC, NEW TR EQUITY I, LLC, NEW TR EQUITY Uf, LLC, JULES TRUMP, EDDIE TRUMP, MARK HIRSCH, and TRANS- RESOURCES, INC.,
Counterclaimants, Cross-Claimants, and Third- Party Plaintiffs,
- against — tndey Vo. &F | 08" [2010
ARIE GENGER, ORLY GENGER, SAGI GENGER, TPR INVESTMENT ASSOCIATES, INC., THE SAGI GENGER 1993 TRUST, WILLIAM DOWD,
ARNOLD BROSER, DAVID BROSER, and ONE OR O rd wm to Gover MORE ENTITIES DIRECTED, OWNED OR CONTROLLED BY ARNOLD BROSER AND/OR DAVID BROSER,
Counterclaim, Cross-Claim, and/or Third-Party _ Defendants.
WHEREAS, on January 2, 2013, the Clerk entered an Amended Decision and Order of this Court that (1) dismissed all of Plaintiffs claims against Defendants Dalia Genger, Rochelle Fang, individually and as trustee of the Sagi Genger 1993 Trust, and the Sagi Genger 1993 Trust; (ii) dismissed Plaintiffs’ first, second, fourth (rescission only), fifth, ninth and tenth causes of action against Sagi Genger (“‘Sagi”); (iii) dismissed Plaintiffs’ first, second, third, fourth (rescission only), fifth, sixth and tenth causes of action against TPR Investment Associates, Inc. (“TPR”); and (iv) dismissed Plaintiffs’ first, second, third (conspiracy only), fourth (rescission only), fifth, eighth and tenth causes of action against Defendants Glenclova Investment 4 Company, TR Investors, LLC, New TR Equity I, LLC, New TR Equity II, LLC, Jules Trump,
Eddie Trump and Mark Hirsch (collectively, the “Trump Group”);
WHEREAS, pursuant to a stipulation So-Ordered by the Court on July 1, 2013, all of Plaintiffs’ remaining claims against the Trump Group were discontinued with prejudice;
WHEREAS, on July 24, 2014, the Appellate Division, First Department issued an Order dismissing Plaintiffs’ remaining claims against Sagi and TPR; and
WHEREAS, on October 23, 2014 the Appellate Division, First Department issued an Order denying Plaintiffs' motions for reargument or leave to appeal to the Court of Appeals;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. Plaintiffs’ Third Amended and Supplemental Complaint is dismissed in its entirety with prejudice, including all claims and causes of action stated therein, and without prejudice
to Plantifs’ right to seek leave to appeal to the Court of Appeals from the July 24, 2014
Order of the Appellate Division.
2. The Cross-Claims, Counterclaims and Third-Party Claims of Sagi Genger, individually and as assignee of the Sagi Genger 1993 Trust, and TPR Investment Associates, Inc., as well as the Counterclaims, Cross-Claim and Third-Party Claims of Glenclova Investment Co., TR Investors, LLC, New TR Equity I, LLC, New TR Equity I, LLC, Jules Trump, Eddie Trump, Mark Hirsch and Trans-Resources, Inc. are hereby expressly severed from this action.
DATED: New York, New York November 3, 2014
Barbara/afik, 1.S.C.
MITCHELL SILBERBERG & KNUPP LLP
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
MSSIK Lure J Wace
October 31, 2014
VIA ECF
Honorable Barbara Jaffe
Supreme Court of the State of New York 80 Centre Street _
New York, NY 10007
Re: Genger v Genger Index No. 651089/2010
Dear Justice Jaffe:
As previously discussed, enclosed for Your Honor’s signature is a proposed order severing the main action, which has been dismissed from the counterclaim in this case. We would appreciate Your Honor signing the Order at your earliest convenience..
Respectfully submitted,
Laurer J, Wachtler/6f MITCHELL SILBERBERG & KNUPP LLP
LJW/nst
CC: All Counsel
12 East 49th Street, 30th Floor, New York, New York 10017-1028 6468559. 1/43419-00004 Phone: (212) 509-3900 Fax: (212) 509-7239 Website: www.msk.cOM | 2019-10-18 | [
"EXHIBIT E (FILED: NEW YORK COUNTY CLERK 11/25/2014 04:27 PM NYSCEF DOC. NO. INDEX NO. 651089/2010 1153 RECEIVED NYSCEF: 11/25/2014 GLENCLOVA INVESTMENT CO., TR INVESTORS, LLC, NEW TR EQUITY I, LLC, NEW TR EQUITY Uf, LLC, JULES TRUMP, EDDIE TRUMP, MARK HIRSCH, and TRANS- RESOURCES, INC., Counterclaimants, Cross-Claimants, and Third- Party Plaintiffs, - against — tndey Vo. &F | 08\" [2010 ARIE GENGER, ORLY GENGER, SAGI GENGER, TPR INVESTMENT ASSOCIATES, INC., THE SAGI GENGER 1993 TRUST, WILLIAM DOWD, ARNOLD BROSER, DAVID BROSER, and ONE OR O rd wm to Gover MORE ENTITIES DIRECTED, OWNED OR CONTROLLED BY ARNOLD BROSER AND/OR DAVID BROSER, Counterclaim, Cross-Claim, and/or Third-Party _ Defendants.",
"WHEREAS, on January 2, 2013, the Clerk entered an Amended Decision and Order of this Court that (1) dismissed all of Plaintiffs claims against Defendants Dalia Genger, Rochelle Fang, individually and as trustee of the Sagi Genger 1993 Trust, and the Sagi Genger 1993 Trust; (ii) dismissed Plaintiffs’ first, second, fourth (rescission only), fifth, ninth and tenth causes of action against Sagi Genger (“‘Sagi”); (iii) dismissed Plaintiffs’ first, second, third, fourth (rescission only), fifth, sixth and tenth causes of action against TPR Investment Associates, Inc. (“TPR”); and (iv) dismissed Plaintiffs’ first, second, third (conspiracy only), fourth (rescission only), fifth, eighth and tenth causes of action against Defendants Glenclova Investment 4 Company, TR Investors, LLC, New TR Equity I, LLC, New TR Equity II, LLC, Jules Trump, Eddie Trump and Mark Hirsch (collectively, the “Trump Group”); WHEREAS, pursuant to a stipulation So-Ordered by the Court on July 1, 2013, all of Plaintiffs’ remaining claims against the Trump Group were discontinued with prejudice; WHEREAS, on July 24, 2014, the Appellate Division, First Department issued an Order dismissing Plaintiffs’ remaining claims against Sagi and TPR; and WHEREAS, on October 23, 2014 the Appellate Division, First Department issued an Order denying Plaintiffs' motions for reargument or leave to appeal to the Court of Appeals; IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: 1. Plaintiffs’ Third Amended and Supplemental Complaint is dismissed in its entirety with prejudice, including all claims and causes of action stated therein, and without prejudice to Plantifs’ right to seek leave to appeal to the Court of Appeals from the July 24, 2014 Order of the Appellate Division.",
"2. The Cross-Claims, Counterclaims and Third-Party Claims of Sagi Genger, individually and as assignee of the Sagi Genger 1993 Trust, and TPR Investment Associates, Inc., as well as the Counterclaims, Cross-Claim and Third-Party Claims of Glenclova Investment Co., TR Investors, LLC, New TR Equity I, LLC, New TR Equity I, LLC, Jules Trump, Eddie Trump, Mark Hirsch and Trans-Resources, Inc. are hereby expressly severed from this action. DATED: New York, New York November 3, 2014 Barbara/afik, 1.S.C. MITCHELL SILBERBERG & KNUPP LLP A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS MSSIK Lure J Wace October 31, 2014 VIA ECF Honorable Barbara Jaffe Supreme Court of the State of New York 80 Centre Street _ New York, NY 10007 Re: Genger v Genger Index No. 651089/2010 Dear Justice Jaffe: As previously discussed, enclosed for Your Honor’s signature is a proposed order severing the main action, which has been dismissed from the counterclaim in this case. We would appreciate Your Honor signing the Order at your earliest convenience.. Respectfully submitted, Laurer J, Wachtler/6f MITCHELL SILBERBERG & KNUPP LLP LJW/nst CC: All Counsel 12 East 49th Street, 30th Floor, New York, New York 10017-1028 6468559.",
"1/43419-00004 Phone: (212) 509-3900 Fax: (212) 509-7239 Website: www.msk.cOM"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/110793286/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment In light of newly discovered art, Examiner is withdrawing the finality of the previous Office action.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5, and 7-12 are rejected over 35 U.S.C. 103 as being unpatentable over Matsuura (US 7,185,957 B2) (“Matsuura”), in view of Schmitt (US 2003/0144777 A1) (“Schmitt”). EXAMINER NOTE: See also Kogure et al. (US 2005/0044944 A1) (“Kogure”), in light of evidentiary reference Carlson et al. (US 2004/0225423 A1) (“Carlson”) – this combination was not element-to-element mapped for the purpose of the Office action. However, this combination also provides a clear showing of obviousness. Examiner recommends that Applicant review the references in their entirety because selecting tire class/type based on the characteristics of the tire, especially including via longitudinal rigidity and other conventional parameters, is well characterized in the prior art. Regarding claim 1, Matsuura teaches, at least in figures 1-12: obtaining, at a processor (51) communicatively coupled to sensors over a vehicle data bus (all sensors are communicatively coupled to 55), a set of vehicle properties parameters determined using sensor signals received from the sensors comprised in said vehicle (figure 4 shows a plurality of vehicle property parameters determined by using the sensors of figure 1 defined below), wherein said sensors include (detailed below) one or more wheel speed sensors (31), and said sensors include one or more of wheel temperature sensors and ambient temperature sensors (35-38;col. 12 at lines 26-40, where temp sensor is used), and wherein the set of vehicle properties parameters indicate (b) at least one of ambient temperature and tire temperature (figure 4 step 430); wherein the sensor signals provide: (b) at least one of sensor data, from the one or more ambient temperature sensors, indicative of ambient temperature and sensor data, from the one or more wheel temperature sensors, indicative of individual tire temperature for at least one wheel (35-38).
Matsuura does not explicitly teach: wherein the set of vehicle properties parameters indicate (a) tire longitudinal stiffness; determining, using the processor, a tire class based on said set of vehicle properties parameters and a predetermined vehicle property parameter values estimation relation; and
wherein the sensor signals provide: (a) at least one of sensor data, from the one or more wheel speed sensors, indicative of individual tire longitudinal stiffness for at least one wheel and sensor data, from the one or more wheel speed sensors, indicative of inverse individual tire longitudinal stiffness for at least one wheel.
However, Matsuura teaches: That one can input the tire class in to element 39.
Schmitt teaches: wherein the set of vehicle properties parameters indicate (a) tire longitudinal stiffness (¶ 0020-21, where wheel longitudinal rigidity is calculated by means of wheel longitudinal force and difference in wheel speed); determining, using the processor, a tire class based on said set of vehicle properties parameters and a predetermined vehicle property parameter values estimation relation (¶ 0025, where one may determine the type of wheel and its characteristics based upon predetermined curves and the sensor values) ; and
It would have been obvious to one of ordinary skill in the art to add the teachings of Schmitt to Matsuura because Schmitt teaches an automatic means to calculate the tire class that is an improvement on Matsuura because one does not have to input the tire class. Schmitt teaches that the one can incorporate this into the existing system. This can be done by incorporating the wheel longitudinal rigidity (Stiffness) into the calculation performed by the processor of Matsuura. By doing so one will be able to optimally control the driving behavior of the vehicle. ¶ 0027. The combination of Matsuura and Schmitt teaches transmitting, by the processor over the vehicle data bus, data indicative of the determined tire class to active control system of the driving vehicle, the data indicative of the tire class active control system based at least in part on the determined tire class while the vehicle is driving, wherein the active control system is communicatively coupled with the vehicle data bus (it would have been obvious to one of ordinary skill in the art before the effective filing that all the sensor signals and the data determined by said sensor signals over the systems data bus as the sensor signal must transmit over the data bus to get to the cpu and the data determined by the sensor signals must be transmitted back over the data bus to get to the ram and to get to the other subsystems, such as the braking system, in order for the vehicle to act on the determined data. Further, the active Regarding claims 2, and 8, Matsuura teaches, at least in figures 1-12: wherein the determining is further based on one or more decision boundaries (figures 3-5, 8-9, and 11-12 all show decision boundaries, i.e. the diamond shaped decision points). Regarding claims 3, and 9, Matsuura teaches, at least in figures 1-12: wherein one or more decision boundaries are predetermined vehicle property parameter value thresholds and the determining is further based on comparing the set of estimated vehicle properties parameters to the predetermined vehicle property parameter value thresholds (this is taught throughout Matsuura for example at least figure 11 has step 510 where it is determined if the wheel speed is normal; at least figure 5, where the temp of the tire compared to a predetermined tire temp; see figure 9 elements 930, 935, and at least 950). Regarding claims 4, and 10, the combination of prior art references teach: wherein said set of estimated vehicle properties parameters are determined further on the basis of at least one sensor signal providing at least one of: sensor data indicative of individual wheel/tire pressure for at least one wheel; sensor data indicative of suspension pressure and/or force acting on at least one of the at least one tire; sensor data indicative of individual wheel radius change for at least one wheel; sensor data indicative of individual wheel vibration for at least one wheel; sensor data indicative of individual wheel speeds for at least one wheel; sensor data indicative of individual wheel acceleration for at least one wheel; sensor data indicative of suspension height information related to at least one tire;
sensor data indicative of at least one of current and future control measures of extension and/or height of suspension means acting on at least one tire; sensor data indicative of operation of a semi-active or active suspension control system of the driving vehicle; sensor data indicative of at least one of a lateral acceleration and a longitudinal acceleration of the vehicle; sensor data indicative of a yaw rate of the vehicle, sensor data indicative of a speed of the vehicle; sensor data indicative of a steering wheel angle of a steering wheel of the vehicle; sensor data indicative of at least one of positioning, orientation and emission direction of at least one head light of the vehicle; sensor data indicative of a driving condition of the vehicle, particularly a braking condition; sensor data indicative that a braking system of the vehicle is operating; sensor data indicative of brake pressure; sensor data indicative that at least one active control device of the vehicle is active; sensor data indicative of an engine torque of an engine of the vehicle; sensor data indicative of a torque acting on the at least one tire; sensor data indicative of wheel slip related to the at least one tire; sensor data indicative of a tractive force of at least one wheel; sensor data indicative of an engine speed of an engine of the vehicle; and sensor data indicative that a gear shift of the vehicle is in progress.
Regarding claim 5, Schmitt teaches: a tire class comprises data indicative of 1) a tire type selected from a group of tire types including a summer tire, an all season tire, a winter tire and a cup-tire, and/or 2) wheel rim size, and/or 3) pressure vibration sensitivity (¶ 0025, where the types of tires are created by one of ordinary skill in the art, and stored in memory, and the system then determines which tire class to use based upon the inputted sensor data and the calculated values to reference the previously stored types of tire, e.g. a lookup table). Regarding claim 6, Schmitt teaches: wherein the active control system of the driving vehicle comprises a traction control system, an electronic stability program system, an active suspension system, an anti-lock braking system and a tire pressure monitoring system comprised in said vehicle based on the determined tire class (¶ 0027, active suspension system, i.e. a wheel suspension interventions, ESP (ESP is an electronic stability program) and ASR (Anti-slip regulation) which is synonymous with a traction control system are used to determine tire class.).
Regarding claims 7, and 12, Claims 7 and 12 are analogous to claim 1 and appear to rise and fall with the rejection of claim 1, as they all require substantially the same structural elements. Regarding claim 11, Schmitt teaches: at least one sensors includes at least one of a rotary speed sensor located at a wheel, a common wheel speed sensor, or a wheel acceleration sensor (¶ 0015).
Response to Arguments Applicant's arguments filed in their Brief on February 12, 2021, and March 29, 2021 have been fully considered. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of the prior art above.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINCENT WALL whose telephone number is (571)272-9567. The examiner can normally be reached on Monday to Thursday at 7:30am to 2:30pm PST. Interviews can be scheduled on Tuesday thru Thursday at 10am PST or 2pm PST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /VINCENT WALL/ Primary Examiner, Art Unit 2822 /BRETT A FEENEY/ Supervisory Patent Examiner, Art Unit 2822 | 2021-11-17T09:21:40 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment In light of newly discovered art, Examiner is withdrawing the finality of the previous Office action. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claims 1-5, and 7-12 are rejected over 35 U.S.C.",
"103 as being unpatentable over Matsuura (US 7,185,957 B2) (“Matsuura”), in view of Schmitt (US 2003/0144777 A1) (“Schmitt”). EXAMINER NOTE: See also Kogure et al. (US 2005/0044944 A1) (“Kogure”), in light of evidentiary reference Carlson et al. (US 2004/0225423 A1) (“Carlson”) – this combination was not element-to-element mapped for the purpose of the Office action. However, this combination also provides a clear showing of obviousness. Examiner recommends that Applicant review the references in their entirety because selecting tire class/type based on the characteristics of the tire, especially including via longitudinal rigidity and other conventional parameters, is well characterized in the prior art. Regarding claim 1, Matsuura teaches, at least in figures 1-12: obtaining, at a processor (51) communicatively coupled to sensors over a vehicle data bus (all sensors are communicatively coupled to 55), a set of vehicle properties parameters determined using sensor signals received from the sensors comprised in said vehicle (figure 4 shows a plurality of vehicle property parameters determined by using the sensors of figure 1 defined below), wherein said sensors include (detailed below) one or more wheel speed sensors (31), and said sensors include one or more of wheel temperature sensors and ambient temperature sensors (35-38;col. 12 at lines 26-40, where temp sensor is used), and wherein the set of vehicle properties parameters indicate (b) at least one of ambient temperature and tire temperature (figure 4 step 430); wherein the sensor signals provide: (b) at least one of sensor data, from the one or more ambient temperature sensors, indicative of ambient temperature and sensor data, from the one or more wheel temperature sensors, indicative of individual tire temperature for at least one wheel (35-38).",
"Matsuura does not explicitly teach: wherein the set of vehicle properties parameters indicate (a) tire longitudinal stiffness; determining, using the processor, a tire class based on said set of vehicle properties parameters and a predetermined vehicle property parameter values estimation relation; and wherein the sensor signals provide: (a) at least one of sensor data, from the one or more wheel speed sensors, indicative of individual tire longitudinal stiffness for at least one wheel and sensor data, from the one or more wheel speed sensors, indicative of inverse individual tire longitudinal stiffness for at least one wheel. However, Matsuura teaches: That one can input the tire class in to element 39. Schmitt teaches: wherein the set of vehicle properties parameters indicate (a) tire longitudinal stiffness (¶ 0020-21, where wheel longitudinal rigidity is calculated by means of wheel longitudinal force and difference in wheel speed); determining, using the processor, a tire class based on said set of vehicle properties parameters and a predetermined vehicle property parameter values estimation relation (¶ 0025, where one may determine the type of wheel and its characteristics based upon predetermined curves and the sensor values) ; and It would have been obvious to one of ordinary skill in the art to add the teachings of Schmitt to Matsuura because Schmitt teaches an automatic means to calculate the tire class that is an improvement on Matsuura because one does not have to input the tire class.",
"Schmitt teaches that the one can incorporate this into the existing system. This can be done by incorporating the wheel longitudinal rigidity (Stiffness) into the calculation performed by the processor of Matsuura. By doing so one will be able to optimally control the driving behavior of the vehicle. ¶ 0027. The combination of Matsuura and Schmitt teaches transmitting, by the processor over the vehicle data bus, data indicative of the determined tire class to active control system of the driving vehicle, the data indicative of the tire class active control system based at least in part on the determined tire class while the vehicle is driving, wherein the active control system is communicatively coupled with the vehicle data bus (it would have been obvious to one of ordinary skill in the art before the effective filing that all the sensor signals and the data determined by said sensor signals over the systems data bus as the sensor signal must transmit over the data bus to get to the cpu and the data determined by the sensor signals must be transmitted back over the data bus to get to the ram and to get to the other subsystems, such as the braking system, in order for the vehicle to act on the determined data.",
"Further, the active Regarding claims 2, and 8, Matsuura teaches, at least in figures 1-12: wherein the determining is further based on one or more decision boundaries (figures 3-5, 8-9, and 11-12 all show decision boundaries, i.e. the diamond shaped decision points). Regarding claims 3, and 9, Matsuura teaches, at least in figures 1-12: wherein one or more decision boundaries are predetermined vehicle property parameter value thresholds and the determining is further based on comparing the set of estimated vehicle properties parameters to the predetermined vehicle property parameter value thresholds (this is taught throughout Matsuura for example at least figure 11 has step 510 where it is determined if the wheel speed is normal; at least figure 5, where the temp of the tire compared to a predetermined tire temp; see figure 9 elements 930, 935, and at least 950).",
"Regarding claims 4, and 10, the combination of prior art references teach: wherein said set of estimated vehicle properties parameters are determined further on the basis of at least one sensor signal providing at least one of: sensor data indicative of individual wheel/tire pressure for at least one wheel; sensor data indicative of suspension pressure and/or force acting on at least one of the at least one tire; sensor data indicative of individual wheel radius change for at least one wheel; sensor data indicative of individual wheel vibration for at least one wheel; sensor data indicative of individual wheel speeds for at least one wheel; sensor data indicative of individual wheel acceleration for at least one wheel; sensor data indicative of suspension height information related to at least one tire; sensor data indicative of at least one of current and future control measures of extension and/or height of suspension means acting on at least one tire; sensor data indicative of operation of a semi-active or active suspension control system of the driving vehicle; sensor data indicative of at least one of a lateral acceleration and a longitudinal acceleration of the vehicle; sensor data indicative of a yaw rate of the vehicle, sensor data indicative of a speed of the vehicle; sensor data indicative of a steering wheel angle of a steering wheel of the vehicle; sensor data indicative of at least one of positioning, orientation and emission direction of at least one head light of the vehicle; sensor data indicative of a driving condition of the vehicle, particularly a braking condition; sensor data indicative that a braking system of the vehicle is operating; sensor data indicative of brake pressure; sensor data indicative that at least one active control device of the vehicle is active; sensor data indicative of an engine torque of an engine of the vehicle; sensor data indicative of a torque acting on the at least one tire; sensor data indicative of wheel slip related to the at least one tire; sensor data indicative of a tractive force of at least one wheel; sensor data indicative of an engine speed of an engine of the vehicle; and sensor data indicative that a gear shift of the vehicle is in progress.",
"Regarding claim 5, Schmitt teaches: a tire class comprises data indicative of 1) a tire type selected from a group of tire types including a summer tire, an all season tire, a winter tire and a cup-tire, and/or 2) wheel rim size, and/or 3) pressure vibration sensitivity (¶ 0025, where the types of tires are created by one of ordinary skill in the art, and stored in memory, and the system then determines which tire class to use based upon the inputted sensor data and the calculated values to reference the previously stored types of tire, e.g. a lookup table). Regarding claim 6, Schmitt teaches: wherein the active control system of the driving vehicle comprises a traction control system, an electronic stability program system, an active suspension system, an anti-lock braking system and a tire pressure monitoring system comprised in said vehicle based on the determined tire class (¶ 0027, active suspension system, i.e. a wheel suspension interventions, ESP (ESP is an electronic stability program) and ASR (Anti-slip regulation) which is synonymous with a traction control system are used to determine tire class.).",
"Regarding claims 7, and 12, Claims 7 and 12 are analogous to claim 1 and appear to rise and fall with the rejection of claim 1, as they all require substantially the same structural elements. Regarding claim 11, Schmitt teaches: at least one sensors includes at least one of a rotary speed sensor located at a wheel, a common wheel speed sensor, or a wheel acceleration sensor (¶ 0015). Response to Arguments Applicant's arguments filed in their Brief on February 12, 2021, and March 29, 2021 have been fully considered. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of the prior art above. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINCENT WALL whose telephone number is (571)272-9567.",
"The examiner can normally be reached on Monday to Thursday at 7:30am to 2:30pm PST. Interviews can be scheduled on Tuesday thru Thursday at 10am PST or 2pm PST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair.",
"Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /VINCENT WALL/ Primary Examiner, Art Unit 2822 /BRETT A FEENEY/ Supervisory Patent Examiner, Art Unit 2822"
]
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Citation Nr: 1619453
Decision Date: 05/13/16 Archive Date: 05/19/16
DOCKET NO. 14-08 971 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUE
Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Sopko, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1967 to November 1968.
This matter comes to the Board of the Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran raised a claim of clear and unmistakeable error (CUE) with the RO's December 2011 rating decision at his October 2015 Board hearing before the undersigned. The Agency of Original Jurisdiction (AOJ) has not adjudicated it. Therefore, the Board does not have jurisdiction over it, and the Board refers it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015).
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.
REMAND
The CUE claim that the Board referred above may impact the Veteran's TDIU claim. Thus, the TDIU claim is remanded rating pending adjudication of the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).
The Veteran is encouraged, pursuant to his testimony with the undersigned, to refile his claim for service connection for a heart disorder if he so desires. The Veteran is advised that he will have to submit new and material evidence, pursuant to 38 C.F.R. § 3.156, to reopen his claim.
Accordingly, the case is REMANDED for the following action:
1. Adjudicate the claim of CUE in the December 2011 rating decision. This claim is summarized on p. 2 of the October 2015 Board hearing transcript. If the benefit sought is denied, provide the Veteran and his representative with appropriate notice of his appellate rights, and allow an opportunity to perfect an appeal. Return this matter to the Board only if an appeal is perfected.
2. Then, update the record with any VA treatment records pertaining to the Veteran's service-connected posttraumatic stress disorder (PTSD), which pursuant to his October 2011 claim, is the reason he believes he is unemployable.
In particular, obtain:
(a) all treatment records from the Little Rock Vet Center from April 2010 (one year prior to his PTSD increased rating claim) to present.
(b) all treatment records from the Little Rock VAMC Center from April 2010 (one year prior to his PTSD increased rating claim) to present.
3. After completing the above, schedule a VA examination to evaluate the nature and severity of his PTSD, including an assessment of the functional impact it has on his ability to obtain or maintain substantially gainful employment.
4. Readjudicate the issue of entitlement to a TDIU, including whether referral for extraschedular consideration is warranted. If the benefit sought remains denied, provide the Veteran and his representative a SUPPLEMENTAL STATEMENT OF THE CASE and an appropriate period of time for response.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). | 05-13-2016 | [
"Citation Nr: 1619453 Decision Date: 05/13/16 Archive Date: 05/19/16 DOCKET NO. 14-08 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from June 1967 to November 1968. This matter comes to the Board of the Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).",
"The Veteran raised a claim of clear and unmistakeable error (CUE) with the RO's December 2011 rating decision at his October 2015 Board hearing before the undersigned. The Agency of Original Jurisdiction (AOJ) has not adjudicated it. Therefore, the Board does not have jurisdiction over it, and the Board refers it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The CUE claim that the Board referred above may impact the Veteran's TDIU claim. Thus, the TDIU claim is remanded rating pending adjudication of the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The Veteran is encouraged, pursuant to his testimony with the undersigned, to refile his claim for service connection for a heart disorder if he so desires.",
"The Veteran is advised that he will have to submit new and material evidence, pursuant to 38 C.F.R. § 3.156, to reopen his claim. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim of CUE in the December 2011 rating decision. This claim is summarized on p. 2 of the October 2015 Board hearing transcript. If the benefit sought is denied, provide the Veteran and his representative with appropriate notice of his appellate rights, and allow an opportunity to perfect an appeal.",
"Return this matter to the Board only if an appeal is perfected. 2. Then, update the record with any VA treatment records pertaining to the Veteran's service-connected posttraumatic stress disorder (PTSD), which pursuant to his October 2011 claim, is the reason he believes he is unemployable. In particular, obtain: (a) all treatment records from the Little Rock Vet Center from April 2010 (one year prior to his PTSD increased rating claim) to present. (b) all treatment records from the Little Rock VAMC Center from April 2010 (one year prior to his PTSD increased rating claim) to present. 3. After completing the above, schedule a VA examination to evaluate the nature and severity of his PTSD, including an assessment of the functional impact it has on his ability to obtain or maintain substantially gainful employment.",
"4. Readjudicate the issue of entitlement to a TDIU, including whether referral for extraschedular consideration is warranted. If the benefit sought remains denied, provide the Veteran and his representative a SUPPLEMENTAL STATEMENT OF THE CASE and an appropriate period of time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A.",
"§§ 5109B, 7112 (West 2014). _________________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015)."
]
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Case 1:17-cv-09002-LAS Document 237 Filed 09/09/20 Page 1 of 2
In the United States Court of Federal Claims No. 17-9002 Filed: September 9, 2020
) IN RE DOWNSTREAM ADDICKS ) AND BARKER (TEXAS) ) FLOOD-CONTROL RESERVOIRS ) ) ) THIS DOCUMENT APPLIES TO: ) ) ALL CURRENTLY PENDING ) DOWNSTREAM CASES ) )
ORDER DIRECTING THE ENTRY OF JUDGMENT IN DOWNSTREAM CASES
Consistent with the Court’s February 18, 2020 Opinion and Order granting both defendant’s Motion to Dismiss and defendant’s Cross-Motion for Summary Judgment (ECF No. 203), the Court hereby ORDERS the following:
1. The Clerk of Court SHALL enter judgment dismissing each of the individual downstream cases EXCEPT for the following cases:
a. any case filed after March 13, 2020, the date upon which the Court issued its Order to Show Cause (ECF No. 208); and
b. the cases identified below, as the plaintiff(s) in each of these cases filed a response to the Court’s Order to Show Cause:
Banes, et al. v. United States, No. 17-1191 Williams, et al. v. United States, No. 17-1555 Olsen, et al. v. United States, No. 18-123 Kickerillo, et al. v. United States, No. 18-345 Travelers Excess and Surplus Lines, et al. v. United States, No. 18-1697 Asghari, et al. v. United States, No. 19-698 Abed-Stephen, et al. v. United States, No. 19-782 Alford, et al. v. United States, No. 19-807 Ashby, et al. v. United States, No. 19-1266 Darby, et al. v. United States, No. 19-1063 Allen, et al. v. United States, No. 19-1924 Case 1:17-cv-09002-LAS Document 237 Filed 09/09/20 Page 2 of 2
2. The Clerk of Court SHALL close Sub-Master Docket No. 17-9002. Any appeal of the Court’s February 18, 2020 Opinion and Order SHALL be filed in the individual dockets in which a party files an appeal.
3. Any future filings related to the cases identified above shall be made in the individual case dockets.
IT IS SO ORDERED.
s/ Loren A. Smith Loren A. Smith, Senior Judge
2 | 2020-09-09 | [
"Case 1:17-cv-09002-LAS Document 237 Filed 09/09/20 Page 1 of 2 In the United States Court of Federal Claims No. 17-9002 Filed: September 9, 2020 ) IN RE DOWNSTREAM ADDICKS ) AND BARKER (TEXAS) ) FLOOD-CONTROL RESERVOIRS ) ) ) THIS DOCUMENT APPLIES TO: ) ) ALL CURRENTLY PENDING ) DOWNSTREAM CASES ) ) ORDER DIRECTING THE ENTRY OF JUDGMENT IN DOWNSTREAM CASES Consistent with the Court’s February 18, 2020 Opinion and Order granting both defendant’s Motion to Dismiss and defendant’s Cross-Motion for Summary Judgment (ECF No.",
"203), the Court hereby ORDERS the following: 1. The Clerk of Court SHALL enter judgment dismissing each of the individual downstream cases EXCEPT for the following cases: a. any case filed after March 13, 2020, the date upon which the Court issued its Order to Show Cause (ECF No. 208); and b. the cases identified below, as the plaintiff(s) in each of these cases filed a response to the Court’s Order to Show Cause: Banes, et al. v. United States, No. 17-1191 Williams, et al. v. United States, No. 17-1555 Olsen, et al. v. United States, No. 18-123 Kickerillo, et al. v. United States, No.",
"18-345 Travelers Excess and Surplus Lines, et al. v. United States, No. 18-1697 Asghari, et al. v. United States, No. 19-698 Abed-Stephen, et al. v. United States, No. 19-782 Alford, et al. v. United States, No. 19-807 Ashby, et al. v. United States, No. 19-1266 Darby, et al. v. United States, No. 19-1063 Allen, et al. v. United States, No. 19-1924 Case 1:17-cv-09002-LAS Document 237 Filed 09/09/20 Page 2 of 2 2. The Clerk of Court SHALL close Sub-Master Docket No. 17-9002. Any appeal of the Court’s February 18, 2020 Opinion and Order SHALL be filed in the individual dockets in which a party files an appeal. 3. Any future filings related to the cases identified above shall be made in the individual case dockets. IT IS SO ORDERED. s/ Loren A. Smith Loren A. Smith, Senior Judge 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/145100915/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: From Thomas Jefferson to Simon Chaudron and John James Barralet, 1 April 1802 From: Jefferson, Thomas To: Chaudron, Jean Simon,Barralet, John James
Washington Apr. 1. 1802. Th: Jefferson presents his compliments to Messrs. Chaudron and Baralet and acknoleges the reciept of their letter of Mar. 6. and of the print of the Apotheosis of Genl. Washington which seems worthy of it’s subject. he is as sensible of the friendly offer made of this print as he could be were he at liberty to accept it gratuitously as proposed: but a rule of not permitting himself to recieve presents while in public office, obliges him to ask of Messrs. Chaudron & Barralet to fill up the measure of their kind intentions by permitting him to pay for it, on which condition alone it is in his power to retain it. he prays them therefore to forward a note of it’s amount to mr Thomas Claxton near the Capitol Washington, who is charged with business of this kind here, and who will remit to them the amount. he prays them to accept his best wishes & salutations. | 04-01-1802 | [
"Title: From Thomas Jefferson to Simon Chaudron and John James Barralet, 1 April 1802 From: Jefferson, Thomas To: Chaudron, Jean Simon,Barralet, John James Washington Apr. 1. 1802. Th: Jefferson presents his compliments to Messrs. Chaudron and Baralet and acknoleges the reciept of their letter of Mar. 6. and of the print of the Apotheosis of Genl. Washington which seems worthy of it’s subject. he is as sensible of the friendly offer made of this print as he could be were he at liberty to accept it gratuitously as proposed: but a rule of not permitting himself to recieve presents while in public office, obliges him to ask of Messrs. Chaudron & Barralet to fill up the measure of their kind intentions by permitting him to pay for it, on which condition alone it is in his power to retain it.",
"he prays them therefore to forward a note of it’s amount to mr Thomas Claxton near the Capitol Washington, who is charged with business of this kind here, and who will remit to them the amount. he prays them to accept his best wishes & salutations."
]
| https://founders.archives.gov/API/docdata/Jefferson/01-37-02-0130 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Allowed Subject Matter The following is an examiner’s statement of reasons for allowance: Claims 1,4-8,11-15 and 18-20 are allowed because the prior art of record, fails to anticipate or render obvious the features of: A computer-implemented method for predictively compensating for expected audio communication issues, the method comprising: determining conditions of a first device associated with a user; determining further conditions of a second device associated with the user; determining, based on the conditions, a first signal strength to a first network that the first device is currently connected to in which to perform a communication and a second signal strength to a second network that the first device is configured to utilize in performing the communication; determining, based on the further conditions, a third signal strength to the first network that the second device is currently connected to in which to perform the communication; as a result of each of the first signal strength and the second signal strength not satisfying a minimum threshold individually, generating an overall signal having an overall signal strength by layering the first network over the second network, the overall signal strength having a comparatively greater signal strength than the first signal strength and the second signal strength; selecting whether to perform the communication using the first device or the second device; in response to selecting the first device, performing the communication using the overall signal; and 2 of 12U.S. Application No.: 17/021,183 in response to selecting the second device, transmitting an indication to the user to utilize the second device to perform the communication. (See claims 1, 8, and 15)
2. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARISOL FIGUEROA whose telephone number is (571)272-7840. The examiner can normally be reached Mon-Thurs 8:00am-4:30pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jinsong Hu can be reached on 571-272-3965. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MARISOL FIGUEROA/ Primary Examiner Art Unit 2643 | 2022-08-30T15:06:00 | [
"DETAILED ACTION Allowed Subject Matter The following is an examiner’s statement of reasons for allowance: Claims 1,4-8,11-15 and 18-20 are allowed because the prior art of record, fails to anticipate or render obvious the features of: A computer-implemented method for predictively compensating for expected audio communication issues, the method comprising: determining conditions of a first device associated with a user; determining further conditions of a second device associated with the user; determining, based on the conditions, a first signal strength to a first network that the first device is currently connected to in which to perform a communication and a second signal strength to a second network that the first device is configured to utilize in performing the communication; determining, based on the further conditions, a third signal strength to the first network that the second device is currently connected to in which to perform the communication; as a result of each of the first signal strength and the second signal strength not satisfying a minimum threshold individually, generating an overall signal having an overall signal strength by layering the first network over the second network, the overall signal strength having a comparatively greater signal strength than the first signal strength and the second signal strength; selecting whether to perform the communication using the first device or the second device; in response to selecting the first device, performing the communication using the overall signal; and 2 of 12U.S. Application No.",
": 17/021,183 in response to selecting the second device, transmitting an indication to the user to utilize the second device to perform the communication. (See claims 1, 8, and 15) 2. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARISOL FIGUEROA whose telephone number is (571)272-7840. The examiner can normally be reached Mon-Thurs 8:00am-4:30pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jinsong Hu can be reached on 571-272-3965. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /MARISOL FIGUEROA/ Primary Examiner Art Unit 2643"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The judgment of the court below is as follows: "This cause coming on to be heard before his Honor, N. A. Sinclair, judge presiding at the August Term, 1933, of Superior Court of Bladen County, and it appearing to the court that at the April Term, 1933, of the Superior Court of Bladen County, on motion of H. H. Clark, attorney for the defendants, for a reference of this action, that the same was referred to R. J. Hester, attorney, who filed his said report in this court; and it further appearing to the court that no exceptions were filed to said report either by the defendants or plaintiffs; and a jury trial having been waived and the questions of facts involved submitted to the court for adjudication, together with the referee's report, and motion being made by attorneys for plaintiffs for adoption of said referee's report as the judgment of this court, said report adjuding [adjudging] that the plaintiffs were entitled to recover of the defendants the sum of $1,000.50 and interest thereon from 23 July, 1928, until paid. It is therefore, on motion of P. R. Hines and H. L. Williamson, attorneys for plaintiffs, ordered, adjudged and decreed by the court that the report filed by said referee to this action be and the same is hereby adopted as the judgment of this court, and that the plaintiffs recover of the defendants, Irene Davis, H. C. Bridger, Jr., E. N. Davis and D. M. Shaw, or either of them, the sum of $1,000.50 with interest thereon from 23 July, 1928, until paid, and that the costs of this action, including allowance to referee, be taxed against the defendants. It appearing to the court that plaintiffs, through their counsel, made a motion as of nonsuit as to the defendant, county of Bladen, it is further ordered and adjudged that a judgment of nonsuit be entered in this action as to the county of Bladen. It is further adjudged that the referee be allowed the sum of $100.00 in full for his services. It is further adjudged that the attorneys for the plaintiffs be allowed for their services in this action the sum of $350.00 jointly." The exceptions and assignments of error and necessary facts will be considered in the opinion. *Page 567 The only exception and assignment of error is to the judgment as signed by the court below. The defendant, Irene Davis contends that the personal judgment against her should be modified. In this we think she is correct. The record discloses that Irene Davis was the devisee under the last will and testament of W. J. Davis, clerk of the Superior Court of Bladen County, N.C. The plaintiffs in their complaint say: "The judgment against Irene Davis, the devisee under the last will and testament of W. J. Davis, should be declared by the court to be a specific and prior lien against said property according to law," etc. And in their prayer for judgment: "That in event the funds derived from a sale of the property included in said deed of trust fails to pay and satisfy any judgment rendered herein against her, then the said judgment to be declared by the court to be a specific and prior lien against any other property that may have been owned by W. J. Davis, at the time of his death." We think the judgment should be modified in accordance with the complaint and the prayer of plaintiffs. In Andres v. Powell, 97 N.C. 155 (160), we find: "Section 1528 (C. S., 59), enacts, that `all persons succeeding to the real or personal property of a decedent, by inheritance, devise, bequest, or distribution, shall be liable jointly and not separately, for the debts of such decedent.' And section 1529 (C. S., 60), provides, that `no person shall be liable under the preceding section, beyond the value of the property so acquired by him, or for any part of a debt that might by action or other due proceeding have been collected from the executor, administrator, or collector of the decedent, and it is incumbent on the creditor to show the matters herein required, to render such person liable.' All these acts are intended to limit the liability of executors, administrators, next of kin and heirs of decedents, and after reasonable time, to give quiet and repose to the estates of dead men." The defendants further contend: "Accepting the findings of the referee to be true, as we must do, and as the court has done and adopted as a part of the judgment, are defendants, Bridger, Shaw and Davis liable?" We think so. It is alleged in the complaint: "That as the plaintiffs are advised, informed and believe, the defendants H. C. Bridger, Jr., E. N. Davis, and C. M. Shaw, while acting as county commissioners of said county during the years of 1926, 1927, and 1928, failed and neglected to perform the duties of their office as required by law, in that — (a) They *Page 568 failed and neglected to lawfully induct into office on the first Monday in December, 1926, the clerk of the Superior Court of Bladen County, in that they did not require or receive a bond from said clerk as required by law." The referee finds: "It is admitted that W. J. Davis had no bond from the time he was inducted into office in 1926." It was the duty of the county commissioners: C. S., 1297 (12) — "To approve bonds of county officers and induct into office. To qualify and induct into office at the meeting of the board, on the first Monday in the month next succeeding their election or appointment, the following named county officers, to wit: clerk of the Superior Court, sheriff, coroner, treasurer, register of deeds, surveyor, and constable; and to take and approve the official bonds of such officers, which the board shall cause to be registered in the office of the register of deeds. The original bonds shall be deposited with the clerk of the Superior Court, except the bond of the said clerk, which shall be deposited with the register of deeds, for safe keeping," etc. In Hipp v. Farrell, 169 N.C. 551, the liability of a public officer is thus stated, at p. 554-5: "It is recognized in this State, supported, we think, by the weight of well considered authority in other jurisdictions, that one who holds a public office, administrative in character, and in reference to an act clearly ministerial, may be held individually liable, in a civil action, to one who has received special injuries in consequence of his failure to perform or negligence in the performance of his official duty. . . . Upon the question thus presented it must at once be conceded that there is a conflict in authority, but the very decided trend of modern decision is to hold such officers liable for acts of nonfeasance, or for the negligent performance of a duty when the duty is plain, when the means and ability to perform it are shown, and when its performance or nonperformance, or the manner of its performance involves no question of discretion. In short, where the duty is plain and certain, if it be negligently performed, or not performed at all, the officer is liable at the suit of a private individual especially injured thereby, Shearman and Redfield on Negligence (3d ed.), sec. 156, thus state the rule: "The liability of a public officer to an individual for his negligent acts or omissions in the discharge of an official duty depends altogether upon the nature of the duty to which the neglect is alleged. Where his duty is absolute, certain, and imperative, involving merely the execution of a set task — in other words, is simply ministerial — he is liable in damages to any one especially injured, either by his omitting to perform the task, or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, to be exerted or withheld according to his own judgment as to what is necessary or *Page 569 proper, he is not liable to any private person for neglect to exercise those powers, nor for the consequence of a lawful exercise of them where no corruption or malice can be imputed, and he keeps within the scope of his authority.'" See Hudson v. McArthur, 152 N.C. 445, and dissenting opinion by Brown, J., concurred in by Walker, J. In Fore v. Feimster, 171 N.C. 551 (554), we find: "In some cases the members of the board are made indictable; in others penalties are imposed. In certain specified instances, and particularly in cases of taking official bonds of sheriffs and tax collectors, the commissioners are expressly made individually liable as sureties where they knowingly take such a bond that is inadequate or inefficient, Revisal, secs. 313 (C. S., 335), and 2914; and under penalty of forfeiting his office, their clerk is required to keep a record of the vote on official bonds so that evidence may be available as to how each member of the board has voted on these questions." Hipp v. Farrell, 173 N.C. 167; Brown v. R. R., 188 N.C. 52;Noland v. Trustees, 190 N.C. 250. In the Fore case, supra, the violation of the particular act is made a misdemeanor. In the Noland case, supra (p. 254-5), is the following: "True, in a number of cases, notably Hipp v. Farrell, 169 N.C. 551, S. c.,173 N.C. 167, it was said, in substance, that one who holds a public office, administrative in character, and in reference to an act clearly ministerial, may be held individually liable in a civil action, to the extent of any special damages sustained by reason of his failure to perform his official duties; and in Holt v. McLean, 75 N.C. 347, there is a dictum to the effect that, under such conditions, he may also be liable criminally to the public. But these decisions were made in reference to other statutes, and they are not controlling here. The fact that the General Assembly has imposed personal liability in some cases and failed to do so in others is equivalent to a legislative declaration that, in the latter instances, individual liability is not to attach. Expressio uniusest exclusio alterius. Fore v. Feimster, 171 N.C. p. 555, and cases there cited." C. S., 335, is as follows: "Every commissioner who approves an official bond, which he knows to be, or which by reasonable diligence he could have discovered to have been, insufficient in the penal sum, or in the security thereof, shall be liable as if he were a surety thereto, and may be sued accordingly by any person having a cause of action on said bond." C. S., 1297 (12), above set forth is mandatory on the county commissioners. An imperative, unmistakable duty is imposed and there is no penalty or crime attached for the nonperformance of this clear ministerial duty in the act under consideration. C. S., 325, provides a *Page 570 penalty for officers acting without bond. C. S., 326, provides for condition and terms of official bonds. C. S., 1302, fixes a penalty on any county commissioner and also makes it a misdemeanor for neglect of duty. C. S., 4384, provides that wilful omissions, neglect or refusal to discharge any duties of his office — guilty of a misdemeanor and removal from office if wilful and corrupt. C. S., 335, supra, which makes the commissioners liable as surety for taking an insufficient bond, construed in pari materia with C. S., 1297 (12), necessarily takes the present case out of the decisions in the Fore and Noland cases. Public officials entrusted in so important a matter as this mandatory statute, we find from the weight of authority, are held individually liable to any one injured by their wilful failure or neglect of duty. To hold otherwise would put a premium on inefficiency and neglect. Troop, Public Officers, section 726, in part, at p. 690, thus states the principle: "But an officer owes to every individual, the duty of performing his official acts with due care; and he is consequently liable to any individual, who is injured in person or in property by reason of his negligence in performing a ministerial act. Many instances, where actions for such negligence have been sustained, against not only the officer himself, but against the sureties in his official bond, have been given in former chapters of this work." The defendants made no exception or assignment of error on the report of the referee. The referee found: "That at the time of the death of Mr. W. J. Davis (20 April, 1928), he was due the estate of L. T. Cain the sum of $2,133.33 and not $1,132.83 (the amount turned over to Newton Robinson by his widow). The estate then is entitled to the difference between $2,133.33 and $1,132.83, which is the sum of $1,000.50, and it is found that the estate is due the interest upon the sum of $1,000.50 from 23 July, 1928, until paid." It is too late now for defendants to complain. In Mfg. Co. v. LumberCo., 177 N.C. 404 (407), citing numerous authorities, it is said: "As to the referee's findings of fact, there was evidence to support them, and they were fully considered and approved by the judge. When this is the case, we do not review them here." Abbitt v. Gregory, 201 N.C. 577 (596);Thigpen v. Trust Co., 203 N.C. 291. For the reasons given, the judgment of the court below is Modified and affirmed. *Page 571 | 07-06-2016 | [
"The judgment of the court below is as follows: \"This cause coming on to be heard before his Honor, N. A. Sinclair, judge presiding at the August Term, 1933, of Superior Court of Bladen County, and it appearing to the court that at the April Term, 1933, of the Superior Court of Bladen County, on motion of H. H. Clark, attorney for the defendants, for a reference of this action, that the same was referred to R. J. Hester, attorney, who filed his said report in this court; and it further appearing to the court that no exceptions were filed to said report either by the defendants or plaintiffs; and a jury trial having been waived and the questions of facts involved submitted to the court for adjudication, together with the referee's report, and motion being made by attorneys for plaintiffs for adoption of said referee's report as the judgment of this court, said report adjuding [adjudging] that the plaintiffs were entitled to recover of the defendants the sum of $1,000.50 and interest thereon from 23 July, 1928, until paid.",
"It is therefore, on motion of P. R. Hines and H. L. Williamson, attorneys for plaintiffs, ordered, adjudged and decreed by the court that the report filed by said referee to this action be and the same is hereby adopted as the judgment of this court, and that the plaintiffs recover of the defendants, Irene Davis, H. C. Bridger, Jr., E. N. Davis and D. M. Shaw, or either of them, the sum of $1,000.50 with interest thereon from 23 July, 1928, until paid, and that the costs of this action, including allowance to referee, be taxed against the defendants. It appearing to the court that plaintiffs, through their counsel, made a motion as of nonsuit as to the defendant, county of Bladen, it is further ordered and adjudged that a judgment of nonsuit be entered in this action as to the county of Bladen.",
"It is further adjudged that the referee be allowed the sum of $100.00 in full for his services. It is further adjudged that the attorneys for the plaintiffs be allowed for their services in this action the sum of $350.00 jointly.\" The exceptions and assignments of error and necessary facts will be considered in the opinion. *Page 567 The only exception and assignment of error is to the judgment as signed by the court below. The defendant, Irene Davis contends that the personal judgment against her should be modified. In this we think she is correct.",
"The record discloses that Irene Davis was the devisee under the last will and testament of W. J. Davis, clerk of the Superior Court of Bladen County, N.C. The plaintiffs in their complaint say: \"The judgment against Irene Davis, the devisee under the last will and testament of W. J. Davis, should be declared by the court to be a specific and prior lien against said property according to law,\" etc. And in their prayer for judgment: \"That in event the funds derived from a sale of the property included in said deed of trust fails to pay and satisfy any judgment rendered herein against her, then the said judgment to be declared by the court to be a specific and prior lien against any other property that may have been owned by W. J. Davis, at the time of his death.\"",
"We think the judgment should be modified in accordance with the complaint and the prayer of plaintiffs. In Andres v. Powell, 97 N.C. 155 (160), we find: \"Section 1528 (C. S., 59), enacts, that `all persons succeeding to the real or personal property of a decedent, by inheritance, devise, bequest, or distribution, shall be liable jointly and not separately, for the debts of such decedent.' And section 1529 (C. S., 60), provides, that `no person shall be liable under the preceding section, beyond the value of the property so acquired by him, or for any part of a debt that might by action or other due proceeding have been collected from the executor, administrator, or collector of the decedent, and it is incumbent on the creditor to show the matters herein required, to render such person liable.' All these acts are intended to limit the liability of executors, administrators, next of kin and heirs of decedents, and after reasonable time, to give quiet and repose to the estates of dead men.\" The defendants further contend: \"Accepting the findings of the referee to be true, as we must do, and as the court has done and adopted as a part of the judgment, are defendants, Bridger, Shaw and Davis liable?\"",
"We think so. It is alleged in the complaint: \"That as the plaintiffs are advised, informed and believe, the defendants H. C. Bridger, Jr., E. N. Davis, and C. M. Shaw, while acting as county commissioners of said county during the years of 1926, 1927, and 1928, failed and neglected to perform the duties of their office as required by law, in that — (a) They *Page 568 failed and neglected to lawfully induct into office on the first Monday in December, 1926, the clerk of the Superior Court of Bladen County, in that they did not require or receive a bond from said clerk as required by law.\" The referee finds: \"It is admitted that W. J. Davis had no bond from the time he was inducted into office in 1926.\" It was the duty of the county commissioners: C. S., 1297 (12) — \"To approve bonds of county officers and induct into office.",
"To qualify and induct into office at the meeting of the board, on the first Monday in the month next succeeding their election or appointment, the following named county officers, to wit: clerk of the Superior Court, sheriff, coroner, treasurer, register of deeds, surveyor, and constable; and to take and approve the official bonds of such officers, which the board shall cause to be registered in the office of the register of deeds. The original bonds shall be deposited with the clerk of the Superior Court, except the bond of the said clerk, which shall be deposited with the register of deeds, for safe keeping,\" etc. In Hipp v. Farrell, 169 N.C. 551, the liability of a public officer is thus stated, at p. 554-5: \"It is recognized in this State, supported, we think, by the weight of well considered authority in other jurisdictions, that one who holds a public office, administrative in character, and in reference to an act clearly ministerial, may be held individually liable, in a civil action, to one who has received special injuries in consequence of his failure to perform or negligence in the performance of his official duty. . . .",
"Upon the question thus presented it must at once be conceded that there is a conflict in authority, but the very decided trend of modern decision is to hold such officers liable for acts of nonfeasance, or for the negligent performance of a duty when the duty is plain, when the means and ability to perform it are shown, and when its performance or nonperformance, or the manner of its performance involves no question of discretion. In short, where the duty is plain and certain, if it be negligently performed, or not performed at all, the officer is liable at the suit of a private individual especially injured thereby, Shearman and Redfield on Negligence (3d ed. ), sec. 156, thus state the rule: \"The liability of a public officer to an individual for his negligent acts or omissions in the discharge of an official duty depends altogether upon the nature of the duty to which the neglect is alleged. Where his duty is absolute, certain, and imperative, involving merely the execution of a set task — in other words, is simply ministerial — he is liable in damages to any one especially injured, either by his omitting to perform the task, or by performing it negligently or unskillfully.",
"On the other hand, where his powers are discretionary, to be exerted or withheld according to his own judgment as to what is necessary or *Page 569 proper, he is not liable to any private person for neglect to exercise those powers, nor for the consequence of a lawful exercise of them where no corruption or malice can be imputed, and he keeps within the scope of his authority.'\" See Hudson v. McArthur, 152 N.C. 445, and dissenting opinion by Brown, J., concurred in by Walker, J. In Fore v. Feimster, 171 N.C. 551 (554), we find: \"In some cases the members of the board are made indictable; in others penalties are imposed. In certain specified instances, and particularly in cases of taking official bonds of sheriffs and tax collectors, the commissioners are expressly made individually liable as sureties where they knowingly take such a bond that is inadequate or inefficient, Revisal, secs.",
"313 (C. S., 335), and 2914; and under penalty of forfeiting his office, their clerk is required to keep a record of the vote on official bonds so that evidence may be available as to how each member of the board has voted on these questions.\" Hipp v. Farrell, 173 N.C. 167; Brown v. R. R., 188 N.C. 52;Noland v. Trustees, 190 N.C. 250. In the Fore case, supra, the violation of the particular act is made a misdemeanor. In the Noland case, supra (p. 254-5), is the following: \"True, in a number of cases, notably Hipp v. Farrell, 169 N.C. 551, S. c.,173 N.C. 167, it was said, in substance, that one who holds a public office, administrative in character, and in reference to an act clearly ministerial, may be held individually liable in a civil action, to the extent of any special damages sustained by reason of his failure to perform his official duties; and in Holt v. McLean, 75 N.C. 347, there is a dictum to the effect that, under such conditions, he may also be liable criminally to the public.",
"But these decisions were made in reference to other statutes, and they are not controlling here. The fact that the General Assembly has imposed personal liability in some cases and failed to do so in others is equivalent to a legislative declaration that, in the latter instances, individual liability is not to attach. Expressio uniusest exclusio alterius. Fore v. Feimster, 171 N.C. p. 555, and cases there cited.\" C. S., 335, is as follows: \"Every commissioner who approves an official bond, which he knows to be, or which by reasonable diligence he could have discovered to have been, insufficient in the penal sum, or in the security thereof, shall be liable as if he were a surety thereto, and may be sued accordingly by any person having a cause of action on said bond.\" C. S., 1297 (12), above set forth is mandatory on the county commissioners. An imperative, unmistakable duty is imposed and there is no penalty or crime attached for the nonperformance of this clear ministerial duty in the act under consideration. C. S., 325, provides a *Page 570 penalty for officers acting without bond.",
"C. S., 326, provides for condition and terms of official bonds. C. S., 1302, fixes a penalty on any county commissioner and also makes it a misdemeanor for neglect of duty. C. S., 4384, provides that wilful omissions, neglect or refusal to discharge any duties of his office — guilty of a misdemeanor and removal from office if wilful and corrupt. C. S., 335, supra, which makes the commissioners liable as surety for taking an insufficient bond, construed in pari materia with C. S., 1297 (12), necessarily takes the present case out of the decisions in the Fore and Noland cases. Public officials entrusted in so important a matter as this mandatory statute, we find from the weight of authority, are held individually liable to any one injured by their wilful failure or neglect of duty. To hold otherwise would put a premium on inefficiency and neglect. Troop, Public Officers, section 726, in part, at p. 690, thus states the principle: \"But an officer owes to every individual, the duty of performing his official acts with due care; and he is consequently liable to any individual, who is injured in person or in property by reason of his negligence in performing a ministerial act. Many instances, where actions for such negligence have been sustained, against not only the officer himself, but against the sureties in his official bond, have been given in former chapters of this work.\"",
"The defendants made no exception or assignment of error on the report of the referee. The referee found: \"That at the time of the death of Mr. W. J. Davis (20 April, 1928), he was due the estate of L. T. Cain the sum of $2,133.33 and not $1,132.83 (the amount turned over to Newton Robinson by his widow). The estate then is entitled to the difference between $2,133.33 and $1,132.83, which is the sum of $1,000.50, and it is found that the estate is due the interest upon the sum of $1,000.50 from 23 July, 1928, until paid.\" It is too late now for defendants to complain.",
"In Mfg. Co. v. LumberCo., 177 N.C. 404 (407), citing numerous authorities, it is said: \"As to the referee's findings of fact, there was evidence to support them, and they were fully considered and approved by the judge. When this is the case, we do not review them here.\" Abbitt v. Gregory, 201 N.C. 577 (596);Thigpen v. Trust Co., 203 N.C. 291. For the reasons given, the judgment of the court below is Modified and affirmed. *Page 571"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3653532/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In an action to recover damages, inter alia, for malicious prosecution, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated December 29, 1993, as denied that branch of their motion which was for an order of preclusion. Ordered that the order is affirmed insofar as appealed from, with costs. Pursuant to an order dated October 6, 1992, the plaintiffs had timely served a supplemental bill of particulars which was rejected by the defendants as inadequate and not responsive. The defendants then moved for an order of preclusion. *370The plaintiffs served additional responses while the defendants’ motion for an order of preclusion was pending. The court did not err in denying the defendants’ motion, particularly as there was no evidence that the delay by the plaintiffs was willful or that the delay prejudiced the defendants (see, e.g., Bard-Rock Corp. v Corutky, 110 AD2d 611). Contrary to the defendants’ contention, the order dated October 6, 1992 was not a conditional order of preclusion which entitled them to a final order of preclusion upon the plaintiffs’ failure to timely comply with the order. The order merely required the plaintiffs to serve additional responses, and it did not provide that they would be precluded from offering evidence if the time limitation was not met (see, e.g., Oliveri v Carter, 194 AD2d 525; Dugan v Seymour, 121 AD2d 596). Sullivan, J. P., O’Brien, Ritter and Goldstein, JJ., concur. | 01-13-2022 | [
"In an action to recover damages, inter alia, for malicious prosecution, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J. ), dated December 29, 1993, as denied that branch of their motion which was for an order of preclusion. Ordered that the order is affirmed insofar as appealed from, with costs. Pursuant to an order dated October 6, 1992, the plaintiffs had timely served a supplemental bill of particulars which was rejected by the defendants as inadequate and not responsive.",
"The defendants then moved for an order of preclusion. *370The plaintiffs served additional responses while the defendants’ motion for an order of preclusion was pending. The court did not err in denying the defendants’ motion, particularly as there was no evidence that the delay by the plaintiffs was willful or that the delay prejudiced the defendants (see, e.g., Bard-Rock Corp. v Corutky, 110 AD2d 611). Contrary to the defendants’ contention, the order dated October 6, 1992 was not a conditional order of preclusion which entitled them to a final order of preclusion upon the plaintiffs’ failure to timely comply with the order. The order merely required the plaintiffs to serve additional responses, and it did not provide that they would be precluded from offering evidence if the time limitation was not met (see, e.g., Oliveri v Carter, 194 AD2d 525; Dugan v Seymour, 121 AD2d 596). Sullivan, J. P., O’Brien, Ritter and Goldstein, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5989757/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Response to Amendment Claims 8 and 18 are cancelled. Claims 1-7, 9-17 and 19-20 are amended and pending.
Allowable Subject Matter Claims 1-7, 9-17 and 19-20 are allowed. The following is an examiner’s statement of reasons for allowance: The closest prior art does not explicitly teach or render obvious the specific combination of limitations in amended Claims 1 and 11, including the weight, the motor, the oscillation of the tip assembly, and the striking the pipe to create a sound to locate the pipe (see Pages 8, Paragraph 4 to Page 9 Paragraph 2 of Arguments). Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES R HULKA whose telephone number is (571)270-7553. The examiner can normally be reached M-F: 9am-530pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Isam Alsomiri can be reached on 5712726970. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JAMES R. HULKA Primary Examiner Art Unit 3645
/JAMES R HULKA/Primary Examiner, Art Unit 3645 | 2022-03-20T15:41:19 | [
"DETAILED ACTION Response to Amendment Claims 8 and 18 are cancelled. Claims 1-7, 9-17 and 19-20 are amended and pending. Allowable Subject Matter Claims 1-7, 9-17 and 19-20 are allowed. The following is an examiner’s statement of reasons for allowance: The closest prior art does not explicitly teach or render obvious the specific combination of limitations in amended Claims 1 and 11, including the weight, the motor, the oscillation of the tip assembly, and the striking the pipe to create a sound to locate the pipe (see Pages 8, Paragraph 4 to Page 9 Paragraph 2 of Arguments). Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES R HULKA whose telephone number is (571)270-7553. The examiner can normally be reached M-F: 9am-530pm.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Isam Alsomiri can be reached on 5712726970. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.",
"JAMES R. HULKA Primary Examiner Art Unit 3645 /JAMES R HULKA/Primary Examiner, Art Unit 3645"
]
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790 P.2d 1029 (1990) STATE of New Mexico, Plaintiff-Appellant, v. Arthur R. FACTEAU, Defendant-Appellee. No. 18703. Supreme Court of New Mexico. April 18, 1990. *1030 Hal Stratton, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant. Arthur R. Facteau, Santa Fe, pro se.
OPINION BACA, Justice. This matter is before the court on an appeal by the state from an order granting defendant eleven months of presentence confinement credit against his sentence for escape from the penitentiary. Defendant was serving time on a burglary charge when he escaped. When he was captured, he was immediately incarcerated to continue to serve time on his burglary charge. He was later sentenced to an additional nine years for the escape to run consecutively to his original charge. He is therefore not entitled to presentence confinement credit. We reverse. FACTS Defendant Facteau was serving a burglary sentence at the Central New Mexico Correctional Facility when he escaped on January 7, 1985. He was apprehended and returned to jail on January 10, 1985. Defendant pled guilty to escape from the penitentiary on August 5, 1985, and was sentenced on December 10, 1985, for nine years to run consecutively to the sentence he was then serving for burglary, a sentence which he had not completed serving. Defendant then filed a pro se motion for presentence confinement credit for the period of eleven months between his apprehension and his sentencing. The district judge granted this credit. Presentence confinement was erroneously granted in this case. When defendant escaped from jail, he had not completed serving his sentence for burglary. When he was apprehended and returned to jail it was to continue serving time on that prior sentence. The eleven months of incarceration were not a direct result of defendant's escape. He was returned to jail due to the unfulfilled sentence for burglary. NMSA 1978, Section 31-20-12 (Repl. Pamp. 1987) allows for presentence confinement credit only if the sentence was a direct result of the felony committed. This was not the case for defendant Facteau. The eleven months of confinement were not "presentence" because defendant had been previously sentenced and was serving time for burglary. NMSA 1978, Section 31-18-21 (Repl. Pamp. 1987) mandates that a sentence for a felony committed while serving a sentence in a penal institution run consecutive to the prior sentence. It is impossible to grant "presentence" confinement credit concurrent with time served on the prior sentence and comply with Section 31-18-21 which requires that the sentences run consecutively. Defendant claims that because a codefendant in this case received credit for time served prior to the sentence, defendant must also be awarded credit. This is not a correct assumption. The codefendant was not incarcerated at the time of the escape, but out on parole. He was then arrested and served time as a direct result of the escape charges. Defendant was confined for a pre-existing and unrelated conviction and would have been in custody irrespective of the escape charge, serving time on the *1031 prior conviction during the contested period of time. Defendant was treated differently because his legal status was different than his codefendant. The trial court erroneously awarded presentence confinement credit to defendant, apparently based on State v. Ramzy, 98 N.M. 436, 649 P.2d 504 (Ct.App. 1982). In Ramzy, the defendant, while free on an appeal bond after being sentenced for aggravated burglary and aggravated assault (Case One), was arrested and incarcerated on a second charge (Case Two). The appeal bond in Case One was revoked because of the charges in Case Two. The court of appeals held in Ramzy that there was enough of a connection with Case Two to the ensuing incarceration that the defendant should be granted credit for presentence confinement on Case Two, despite the appearance that he was serving time on Case One because his Case One bond was revoked. Defendant's incarceration was directly attributable to both Case One and Case Two charges. In allowing presentence credit, the court in Ramzy held that the decisive factor was whether the confinement was actually related to the particular charges; the confinement need not be the exclusive result of the charges in order for a defendant to be credited for presentence time served. The court in Ramzy found a "sufficient connection" between the second case and the incarceration for presentence credit to be awarded. There is no such connection in this case. In State v. Brewton, 83 N.M. 50, 487 P.2d 1355 (Ct.App. 1971), the court of appeals held that credit was possible only if the confinement was a direct result of the offense, and not for a prior, unfulfilled sentence. In State v. Orona, 98 N.M. 668, 651 P.2d 1312 (Ct.App. 1982), the court of appeals held that, despite the precedent set in Ramzy, an inmate temporarily transferred from the penitentiary to the county jail to answer a perjury charge was not entitled to presentence confinement credit on the perjury charge. Orona distinguishes Ramzy and sets out a three-part test for determining if presentence credit is appropriate: 1) Was defendant confined in either case? 2) Did the second charge trigger the incarceration (such as the bond revocation in Ramzy)? and 3) Was bond set for the escape? 98 N.M. at 670, 651 P.2d at 1314. In this case the defendant, as in Orona, was already confined. The second charge did not trigger incarceration because the authorities returned him to jail on the burglary charge, and no bond was set on the escape. There is not a sufficient connection between the circumstances underlying defendant's incarceration on the burglary charge and those giving rise to his sentence for the escape to claim that the latter was the reason for the presentence incarceration, as in Ramzy. The facts in this case are much closer to the Orona scenario, and therefore presentence credit is inappropriate. It is also impossible to grant "presentence" credit concurrent with credit for time served on the prior sentence and follow the mandate in Section 31-18-21, which demands consecutive sentences for a felony committed while serving a sentence in the penitentiary. We therefore REVERSE. IT IS SO ORDERED. SOSA, C.J., and MONTGOMERY, J., concur. | 10-30-2013 | [
"790 P.2d 1029 (1990) STATE of New Mexico, Plaintiff-Appellant, v. Arthur R. FACTEAU, Defendant-Appellee. No. 18703. Supreme Court of New Mexico. April 18, 1990. *1030 Hal Stratton, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant. Arthur R. Facteau, Santa Fe, pro se. OPINION BACA, Justice. This matter is before the court on an appeal by the state from an order granting defendant eleven months of presentence confinement credit against his sentence for escape from the penitentiary. Defendant was serving time on a burglary charge when he escaped. When he was captured, he was immediately incarcerated to continue to serve time on his burglary charge. He was later sentenced to an additional nine years for the escape to run consecutively to his original charge. He is therefore not entitled to presentence confinement credit.",
"We reverse. FACTS Defendant Facteau was serving a burglary sentence at the Central New Mexico Correctional Facility when he escaped on January 7, 1985. He was apprehended and returned to jail on January 10, 1985. Defendant pled guilty to escape from the penitentiary on August 5, 1985, and was sentenced on December 10, 1985, for nine years to run consecutively to the sentence he was then serving for burglary, a sentence which he had not completed serving. Defendant then filed a pro se motion for presentence confinement credit for the period of eleven months between his apprehension and his sentencing. The district judge granted this credit. Presentence confinement was erroneously granted in this case. When defendant escaped from jail, he had not completed serving his sentence for burglary. When he was apprehended and returned to jail it was to continue serving time on that prior sentence. The eleven months of incarceration were not a direct result of defendant's escape.",
"He was returned to jail due to the unfulfilled sentence for burglary. NMSA 1978, Section 31-20-12 (Repl. Pamp. 1987) allows for presentence confinement credit only if the sentence was a direct result of the felony committed. This was not the case for defendant Facteau. The eleven months of confinement were not \"presentence\" because defendant had been previously sentenced and was serving time for burglary. NMSA 1978, Section 31-18-21 (Repl.",
"Pamp. 1987) mandates that a sentence for a felony committed while serving a sentence in a penal institution run consecutive to the prior sentence. It is impossible to grant \"presentence\" confinement credit concurrent with time served on the prior sentence and comply with Section 31-18-21 which requires that the sentences run consecutively. Defendant claims that because a codefendant in this case received credit for time served prior to the sentence, defendant must also be awarded credit. This is not a correct assumption. The codefendant was not incarcerated at the time of the escape, but out on parole. He was then arrested and served time as a direct result of the escape charges.",
"Defendant was confined for a pre-existing and unrelated conviction and would have been in custody irrespective of the escape charge, serving time on the *1031 prior conviction during the contested period of time. Defendant was treated differently because his legal status was different than his codefendant. The trial court erroneously awarded presentence confinement credit to defendant, apparently based on State v. Ramzy, 98 N.M. 436, 649 P.2d 504 (Ct.App. 1982). In Ramzy, the defendant, while free on an appeal bond after being sentenced for aggravated burglary and aggravated assault (Case One), was arrested and incarcerated on a second charge (Case Two). The appeal bond in Case One was revoked because of the charges in Case Two. The court of appeals held in Ramzy that there was enough of a connection with Case Two to the ensuing incarceration that the defendant should be granted credit for presentence confinement on Case Two, despite the appearance that he was serving time on Case One because his Case One bond was revoked. Defendant's incarceration was directly attributable to both Case One and Case Two charges. In allowing presentence credit, the court in Ramzy held that the decisive factor was whether the confinement was actually related to the particular charges; the confinement need not be the exclusive result of the charges in order for a defendant to be credited for presentence time served.",
"The court in Ramzy found a \"sufficient connection\" between the second case and the incarceration for presentence credit to be awarded. There is no such connection in this case. In State v. Brewton, 83 N.M. 50, 487 P.2d 1355 (Ct.App. 1971), the court of appeals held that credit was possible only if the confinement was a direct result of the offense, and not for a prior, unfulfilled sentence. In State v. Orona, 98 N.M. 668, 651 P.2d 1312 (Ct.App. 1982), the court of appeals held that, despite the precedent set in Ramzy, an inmate temporarily transferred from the penitentiary to the county jail to answer a perjury charge was not entitled to presentence confinement credit on the perjury charge.",
"Orona distinguishes Ramzy and sets out a three-part test for determining if presentence credit is appropriate: 1) Was defendant confined in either case? 2) Did the second charge trigger the incarceration (such as the bond revocation in Ramzy)? and 3) Was bond set for the escape? 98 N.M. at 670, 651 P.2d at 1314. In this case the defendant, as in Orona, was already confined.",
"The second charge did not trigger incarceration because the authorities returned him to jail on the burglary charge, and no bond was set on the escape. There is not a sufficient connection between the circumstances underlying defendant's incarceration on the burglary charge and those giving rise to his sentence for the escape to claim that the latter was the reason for the presentence incarceration, as in Ramzy. The facts in this case are much closer to the Orona scenario, and therefore presentence credit is inappropriate. It is also impossible to grant \"presentence\" credit concurrent with credit for time served on the prior sentence and follow the mandate in Section 31-18-21, which demands consecutive sentences for a felony committed while serving a sentence in the penitentiary. We therefore REVERSE.",
"IT IS SO ORDERED. SOSA, C.J., and MONTGOMERY, J., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1425916/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
27 B.R. 492 (1983) In re John Carl GIAMBITTI, Jr., Erika Giambitti, Debtors. Bankruptcy No. 381-01037. United States Bankruptcy Court, D. Oregon. February 15, 1983. *493 Wade P. Bettis, Canby, Or., for debtors.
MEMORANDUM OPINION HENRY L. HESS, Jr., Bankruptcy Judge. This case was commenced by the filing of a petition for relief under chapter 13. On July 16, 1981 an order was entered confirming the debtors' plan. On July 21, 1982 an order was entered converting the case to a case under chapter 7 upon motion of the debtors. At the time of conversion the chapter 13 trustee held the sum of $348 representing payments made to him by the debtors under the terms of the plan. Thereafter the chapter 13 trustee turned over to the chapter 7 trustee, Robert E. Ridgway, the sum of $316.36 being the funds on hand less 10% for the chapter 13 trustee's commission and expenses. The debtors, through their attorney, Wade P. Bettis, contend that they are entitled to claim exempt this sum of $316.36. There being no dispute as to the facts, the parties have submitted the matter to the court for decision without the necessity of a hearing. The court is aware of three decided cases which bear upon the question here involved. They are the cases of Resendez v. Lindquist, 691 F.2d 397 (8th Cir.1982); In re Richardson, 20 B.R. 490 (Bkrtcy.W.D.N.Y.1982); and In Re Jenison, BR No. 80-05061 (Bankr.N.Dak., May 8, 1981). No other cases have been cited by the parties. In the Richardson case the court held that wages collected by the chapter 13 trustee after confirmation during the chapter 13 case and prior to its conversion to a chapter 7 case which had not been paid to creditors were part of the chapter 7 estate and subject to any exemptions which the debtor had. In the Resendez case the majority held that such funds voluntarily paid by the debtor to the chapter 13 trustee after confirmation and prior to conversion to chapter 7 no longer belong to the debtor, become property of the chapter 7 estate and that to permit the debtor to claim an exemption therein would be unfair to the unsecured creditors. In reaching this result the majority cited with approval the Jenison case. The dissenting judge did not agree that the debtor's voluntary payments to the chapter 13 trustee extinguished the debtors' interests in the monies, but rather was of the view that the debtors should be entitled to claim an exemption in the funds which had not been distributed to creditors. The filing of a chapter 13 case can only be the voluntary act of the debtor. The Bankruptcy Code does not permit an involuntary chapter 13 case. When the plan is confirmed it becomes binding upon the debtor and the creditors. § 1327. The court cannot force the debtor to make payments under the plan since the debtor has the right at any time to dismiss his case or convert it to a chapter 7. § 1307. Thus all payments made to the trustee under the terms of the plan, whether made directly by the debtor, or indirectly through the debtor's employer, are payments voluntarily made by the debtor. In view of § 1327 which makes a confirmed plan binding on the debtor as well as the creditors, and § 1307 which permits the debtor at any time to dismiss the case or convert it to chapter 7, it would be unfair to permit the debtor to claim as exempt funds which the debtor has voluntarily committed to the plan. An analogy can be drawn to the provisions of subsections (g) and (h) of § 522. Under these subsections the debtor is given the right to avoid a preference to the extent that the debtor could claim an exemption in the recovery if the trustee elects not to attempt to avoid the preference. But the debtor cannot utilize these subsections if the transfer which resulted in a preference was a voluntary transfer by the debtor. While it makes sense to permit the trustee to recover a preference so that all unsecured creditors may share on a pro rata basis, it would not make sense to permit the debtor, for his own benefit, to recover a *494 payment voluntarily made. The same reasoning should be applicable to a payment voluntarily made by the debtor to a chapter 13 trustee. An order will be entered denying the debtors' claim of exemption in the funds held by the chapter 7 trustee. | 10-30-2013 | [
"27 B.R. 492 (1983) In re John Carl GIAMBITTI, Jr., Erika Giambitti, Debtors. Bankruptcy No. 381-01037. United States Bankruptcy Court, D. Oregon. February 15, 1983. *493 Wade P. Bettis, Canby, Or., for debtors. MEMORANDUM OPINION HENRY L. HESS, Jr., Bankruptcy Judge. This case was commenced by the filing of a petition for relief under chapter 13. On July 16, 1981 an order was entered confirming the debtors' plan. On July 21, 1982 an order was entered converting the case to a case under chapter 7 upon motion of the debtors. At the time of conversion the chapter 13 trustee held the sum of $348 representing payments made to him by the debtors under the terms of the plan. Thereafter the chapter 13 trustee turned over to the chapter 7 trustee, Robert E. Ridgway, the sum of $316.36 being the funds on hand less 10% for the chapter 13 trustee's commission and expenses. The debtors, through their attorney, Wade P. Bettis, contend that they are entitled to claim exempt this sum of $316.36. There being no dispute as to the facts, the parties have submitted the matter to the court for decision without the necessity of a hearing.",
"The court is aware of three decided cases which bear upon the question here involved. They are the cases of Resendez v. Lindquist, 691 F.2d 397 (8th Cir.1982); In re Richardson, 20 B.R. 490 (Bkrtcy.W.D.N.Y.1982); and In Re Jenison, BR No. 80-05061 (Bankr.N.Dak., May 8, 1981). No other cases have been cited by the parties. In the Richardson case the court held that wages collected by the chapter 13 trustee after confirmation during the chapter 13 case and prior to its conversion to a chapter 7 case which had not been paid to creditors were part of the chapter 7 estate and subject to any exemptions which the debtor had. In the Resendez case the majority held that such funds voluntarily paid by the debtor to the chapter 13 trustee after confirmation and prior to conversion to chapter 7 no longer belong to the debtor, become property of the chapter 7 estate and that to permit the debtor to claim an exemption therein would be unfair to the unsecured creditors. In reaching this result the majority cited with approval the Jenison case. The dissenting judge did not agree that the debtor's voluntary payments to the chapter 13 trustee extinguished the debtors' interests in the monies, but rather was of the view that the debtors should be entitled to claim an exemption in the funds which had not been distributed to creditors.",
"The filing of a chapter 13 case can only be the voluntary act of the debtor. The Bankruptcy Code does not permit an involuntary chapter 13 case. When the plan is confirmed it becomes binding upon the debtor and the creditors. § 1327. The court cannot force the debtor to make payments under the plan since the debtor has the right at any time to dismiss his case or convert it to a chapter 7. § 1307. Thus all payments made to the trustee under the terms of the plan, whether made directly by the debtor, or indirectly through the debtor's employer, are payments voluntarily made by the debtor.",
"In view of § 1327 which makes a confirmed plan binding on the debtor as well as the creditors, and § 1307 which permits the debtor at any time to dismiss the case or convert it to chapter 7, it would be unfair to permit the debtor to claim as exempt funds which the debtor has voluntarily committed to the plan. An analogy can be drawn to the provisions of subsections (g) and (h) of § 522. Under these subsections the debtor is given the right to avoid a preference to the extent that the debtor could claim an exemption in the recovery if the trustee elects not to attempt to avoid the preference. But the debtor cannot utilize these subsections if the transfer which resulted in a preference was a voluntary transfer by the debtor. While it makes sense to permit the trustee to recover a preference so that all unsecured creditors may share on a pro rata basis, it would not make sense to permit the debtor, for his own benefit, to recover a *494 payment voluntarily made. The same reasoning should be applicable to a payment voluntarily made by the debtor to a chapter 13 trustee.",
"An order will be entered denying the debtors' claim of exemption in the funds held by the chapter 7 trustee."
]
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MORIARTY, C. The appellant was convicted of the crime of statutory rape, and he appeals from the judgment and from an order denying- a new trial. Appellant’s brief presents assignments of error as follows: (1) That the trial court erredi in allowing- the witness Dr. Peterson to testify that, from his knowledge of medicine and obstetrics, and from his experience along that line, the usually accepted limitations of the period of gestation is anywhere between 250 and 290 days. (2) That the trial court erred in refusing to strike out certain testimony of the prosecutrix relating to alleged acts of intercourse with the defendant at a time subsequent to that alleged in the information, and relied upon by the state. (3) That the trial court erred in giving to the jury certain instructions objected to by the defendant, and in denying defendant’s request for the giving of certain instructions. (4) That there was misconduct of the state’s attorney sufficient to entitle defendant to a new trial. (5) That the evidence is insufficient to justify the verdict. Believing that brevity and clearness will be enhanced by so doing, we will first consider the question of the sufficiency of the evidence. The prosecutrix testified as follows: On July 24, 1926, she and the defendant were both present at a barn dance which was being held in the neighborhood in which they lived. Some time between midnight and 1 o’clock on the night of the dance defendant asked the prosecutrix to take a ride with him, and she consented. *378The defendant drove up near the entrance of the dancing place in a certain Star coupe in which he had come to the dance and which he customarily drove. The prosecutrix got into the car with the defendant; he drove south about a half a anile, tuimed his car out of the load a little way, and there committed the act complained of. The parties then went back to the dancing place, and there remained until the dance ended. They had been acquainted for several years prior to this occasion, but had not “kept company” with each other. They did not come to the dance together nor go- home together. On April 3, 1927, the prosecutrix gave birth to a male child, which seemed to be a normal child at the time of its birth, and which was present at the trial. Prosecutrix testified that defendant was the only man with whom she had intercourse. One Dr. Peterson testified that he attended the prosecutrix at the time her child was born, that it appeared to be a normally developed infant, and that the usually accepted period of gestation is from 250 to 290 days. Three witnesses testified that they saw the prosecutrix get into the defendant’s car at the time and place testified to> by her, and that they saw the car return and defendant and prosecutrix get out of it 20 or 30 minutes after it was driven away. The facts that both parties wei-e at the dance on the night of July 24, 1926, that defendant came in his Star coupe, that the parties did not come together or go home together, that prosecutrix was not the wife of the defendant, that she was under the age- of consent, and that she gave birth to a child on April 3, 1927, are not disputed. Defendant denied that he took the prosecutrix riding on the night of the, dance, or that he ever had sexual intercourse with her. Several of defendant’s witnesses disputed the testimony that defendant’s car was driven away from the dancing place during the night of the dance. Some of the defendant’s witnesses testified- that the night was so dark that those who testified as to seeing defendant’s car go away and return could not have seen what they testified they had seen. A doctor called on behalf of the defendant testified that the normal period of gestation is 280 days, that, if a 'birth took place 253 days after conception, it would' be an unusual case, and that he would expect that the child would not be fully developed. *379While the record shows a sharp conflict of evidence, the state’s evidence, if believed by the jury, amply supports the verdict, and the credibility of witnesses and the weight of the evidence are questions for the jury. As to the evidence given by Dr. Peterson, this witness qualified as a graduate physician, licensed to practice in this state. Throughout the trial, defendant’s counsel conténded that the child born only 253 days after July 24, 1926, could not have resulted from intercourse had when prosecutrix testified to intercourse with the defendant. When a question of this kind is at issue, evidence such as that given by Dr. Peterson is properly admitted. Kesselring v. Hummer, 130 Iowa, 145, 106 N. W. 501; Souchek v. Karr, 78 Neb. 488, 111 N. W. 150; Masters v. Marsh, 19 Neb. 458, 27 N. W. 438; Sang v. Beers, 20 Neb. 366, 30 N. W. 258; Stoppert v. Nierle, 45 Neb. 105, 63 N. W. 382; In re McNamara’s Estate, 181 Cal. 82, 183 P. 552, 7 A. L. R. 313. As to the trial court’s refusal to strike out the evidence of the prosecutrix as to intercourse with defendant after July 24, that evidence was elicited by defendant’s counsel on cross-examination, and before the motion to strike was made defendant had testified that no such intercourse took place. Under such circumstances, the motion was properly denied. As to the instructions given by the court and objected to. by the defendant, we deem it necessary to consider only two of these instructions. The court gave the following instruction: “The Court instructs the jury in this connection that if you believe that any witness in this case has knowingly sworn falsely to any material matter in this case, you may reject all of the testimony of any such witness.” Defendant’s objection to this instruction was based upon the theory that the instruction should be qualified by stating that the jury might reject all the testimony of such witness except such portions as were corroborated by other substantial evidence. This court has established the rule in this state to be that no such qualification is required where the instruction as given limits its effect to the testimony of witnesses whom the jury believes to have “knowingly” or “willfully” testified falsely. State v. Sexton, 10 S. D. 127, 72 N. W. 84; Hurlbut v. Leper, 12 S. D. 321, 81 N. W. 631; State v. Raice, 24 S. D. 111, 123 N. W. 708. *380The court also' instructed the jury that, “as it is not disputed that Tillie Johnson was never the wife of the. defendant and that at the time of the commission of the alleged offense she was under the age of eighteen years, the sole question or issue for the jury to decide .and determine by their verdict is whether or not the defendant had sexual intercourse with the said Tillie Johnson at the time and at the place charged in the information and when you have decided this question you have decided the whole case.” This was objected to on the ground that it took from, the jury questions of fact of which the jury is the sole judge. It is error for the trial court to take from the jury any question of fact put at issue .by a plea of not guilty, but such error does not justify a reversal if it appears that the giving of the instruction could not in any manner prejudice the defendant. State v. Kramer, 49 S. D. 56, 206 N. W. 468; State v. Bjelkstrom, 20 S. D. 1, 104 N. W. 481; State v. Wright, 15 S. D. 628, 91 N. W. 311; State v. Barnes, 51 S. D. 277, 213 N. W. 504; State v. Morgan, 42 S. D. 517, 176 N. W. 35; section 5044, Revised Code of 1919. In this case there were but two other questions at issue besides the question whether the defendant committed the act at the time and place stated in the information. Those questions were: Was Tillie Johnson under 18 years of age when the act was committed; and was she the wife of defendant at that time? Both of Tillie Johnson’s parents testified that she became 15 years of age in February, 1927; this evidence was not disputed or questioned in anyway. Defendant himself testified that he married another woman on November 11, 1926. With the record showiirg this evidence, it is apparent that any error there may have been in the instruction complained of could not have prejudiced the defendant. As to the misconduct of the state’s attorney, the record shows] that in his closing argument to the jury the prosecutor, speaking of the child born to Tillie Johnson, said: “If O’scar Sjofoerg is not the father of this child then who is the father of this child?” Upon objection to this remark being interposed, the trial court admonished the jury as follows: “The Court considers the statement improper and admonishes the state’s attorney to refrain from making statements of that sort because that is not in issue in this case. The jury, of course, will disregard any such statement of the attorney.” *381At another stage of his argument, the state’s attorney referred to one Holman, an important witness for the defense, as being a drunkard and a “know nothing.” Upon defendant’s counsel taking exception to this, the trial court said: “Gentlemen of the jury, you will disregard the remarks of the attorney so .far as the witness Holman is concerned in charging him with 'being a drunkard and a ‘know-nothing’ because the Court is of the opinion there is no-evidence of that sort that warrants the conclusion and the jury will wholly disregard the statement of the attorney.” And, in the formal instruction given to the jury, the trial court instructed the jury that, while the fact that a child was born to the complaining witness was conclusive evidence that she had sexual intercourse with some man, it was not corroborative of 'her testimony that defendant is the father of the child; and further instructed them that, if counsel in their zeal “mistake or misstate the evidence given on the trial, you are to- follow the evidence and not any erroneous statement of counsel.” While it is to. be regretted that counsel should embarrass courts and juries by unwarranted statements, and the conduct of the state’s attorney in the trial of this case should be rebuked, the trial court’s admonition: was such as is generally held to be curative of the attorney’s misconduct. 16 C. J. pp. 917 and 918; State v. Julius, 29 S. D. 638, 137 N. W. 590; State v. Sonnenschein, 37 S. D. 585, 159 N. W. 101; City of Sioux Falls v. Marshall, 49 S. D. 476, 207 N. W. 475; State v. Lahman, 43 S. D. 285, 178 N. W. 984; State v. Smith, 153 La. 251, 95 So. 707; State v. Powers, 180 Iowa, 693, 163 N. W. 402; People v. Lee, 34 Cal. App. 702, 168 P. 694; State v. Pelser, 182 Iowa, 1, 163 N. W. 600; State v. Taylor, 293 Mo. 210, 238 S. W. 489; State v. Wright, 192 Iowa, 239, 182 N. W. 385. The trial court had all the facts before it when it denied defendant’s motion for a new trial, and it does not appear that there was any abuse of discretion in such denial. Under such circumstances, the action of that court should not be reversed. The judgment and order appealed from are affirmed. SHERWOOD, P. J., and POLLEY, CAMPBELL, BURCH, and BROWN, JJ., concur. | 07-20-2022 | [
"MORIARTY, C. The appellant was convicted of the crime of statutory rape, and he appeals from the judgment and from an order denying- a new trial. Appellant’s brief presents assignments of error as follows: (1) That the trial court erredi in allowing- the witness Dr. Peterson to testify that, from his knowledge of medicine and obstetrics, and from his experience along that line, the usually accepted limitations of the period of gestation is anywhere between 250 and 290 days. (2) That the trial court erred in refusing to strike out certain testimony of the prosecutrix relating to alleged acts of intercourse with the defendant at a time subsequent to that alleged in the information, and relied upon by the state. (3) That the trial court erred in giving to the jury certain instructions objected to by the defendant, and in denying defendant’s request for the giving of certain instructions. (4) That there was misconduct of the state’s attorney sufficient to entitle defendant to a new trial. (5) That the evidence is insufficient to justify the verdict.",
"Believing that brevity and clearness will be enhanced by so doing, we will first consider the question of the sufficiency of the evidence. The prosecutrix testified as follows: On July 24, 1926, she and the defendant were both present at a barn dance which was being held in the neighborhood in which they lived. Some time between midnight and 1 o’clock on the night of the dance defendant asked the prosecutrix to take a ride with him, and she consented. *378The defendant drove up near the entrance of the dancing place in a certain Star coupe in which he had come to the dance and which he customarily drove. The prosecutrix got into the car with the defendant; he drove south about a half a anile, tuimed his car out of the load a little way, and there committed the act complained of. The parties then went back to the dancing place, and there remained until the dance ended. They had been acquainted for several years prior to this occasion, but had not “kept company” with each other.",
"They did not come to the dance together nor go- home together. On April 3, 1927, the prosecutrix gave birth to a male child, which seemed to be a normal child at the time of its birth, and which was present at the trial. Prosecutrix testified that defendant was the only man with whom she had intercourse. One Dr. Peterson testified that he attended the prosecutrix at the time her child was born, that it appeared to be a normally developed infant, and that the usually accepted period of gestation is from 250 to 290 days. Three witnesses testified that they saw the prosecutrix get into the defendant’s car at the time and place testified to> by her, and that they saw the car return and defendant and prosecutrix get out of it 20 or 30 minutes after it was driven away. The facts that both parties wei-e at the dance on the night of July 24, 1926, that defendant came in his Star coupe, that the parties did not come together or go home together, that prosecutrix was not the wife of the defendant, that she was under the age- of consent, and that she gave birth to a child on April 3, 1927, are not disputed. Defendant denied that he took the prosecutrix riding on the night of the, dance, or that he ever had sexual intercourse with her.",
"Several of defendant’s witnesses disputed the testimony that defendant’s car was driven away from the dancing place during the night of the dance. Some of the defendant’s witnesses testified- that the night was so dark that those who testified as to seeing defendant’s car go away and return could not have seen what they testified they had seen. A doctor called on behalf of the defendant testified that the normal period of gestation is 280 days, that, if a 'birth took place 253 days after conception, it would' be an unusual case, and that he would expect that the child would not be fully developed.",
"*379While the record shows a sharp conflict of evidence, the state’s evidence, if believed by the jury, amply supports the verdict, and the credibility of witnesses and the weight of the evidence are questions for the jury. As to the evidence given by Dr. Peterson, this witness qualified as a graduate physician, licensed to practice in this state. Throughout the trial, defendant’s counsel conténded that the child born only 253 days after July 24, 1926, could not have resulted from intercourse had when prosecutrix testified to intercourse with the defendant. When a question of this kind is at issue, evidence such as that given by Dr. Peterson is properly admitted. Kesselring v. Hummer, 130 Iowa, 145, 106 N. W. 501; Souchek v. Karr, 78 Neb. 488, 111 N. W. 150; Masters v. Marsh, 19 Neb. 458, 27 N. W. 438; Sang v. Beers, 20 Neb. 366, 30 N. W. 258; Stoppert v. Nierle, 45 Neb.",
"105, 63 N. W. 382; In re McNamara’s Estate, 181 Cal. 82, 183 P. 552, 7 A. L. R. 313. As to the trial court’s refusal to strike out the evidence of the prosecutrix as to intercourse with defendant after July 24, that evidence was elicited by defendant’s counsel on cross-examination, and before the motion to strike was made defendant had testified that no such intercourse took place. Under such circumstances, the motion was properly denied. As to the instructions given by the court and objected to.",
"by the defendant, we deem it necessary to consider only two of these instructions. The court gave the following instruction: “The Court instructs the jury in this connection that if you believe that any witness in this case has knowingly sworn falsely to any material matter in this case, you may reject all of the testimony of any such witness.” Defendant’s objection to this instruction was based upon the theory that the instruction should be qualified by stating that the jury might reject all the testimony of such witness except such portions as were corroborated by other substantial evidence. This court has established the rule in this state to be that no such qualification is required where the instruction as given limits its effect to the testimony of witnesses whom the jury believes to have “knowingly” or “willfully” testified falsely. State v. Sexton, 10 S. D. 127, 72 N. W. 84; Hurlbut v. Leper, 12 S. D. 321, 81 N. W. 631; State v. Raice, 24 S. D. 111, 123 N. W. 708. *380The court also' instructed the jury that, “as it is not disputed that Tillie Johnson was never the wife of the. defendant and that at the time of the commission of the alleged offense she was under the age of eighteen years, the sole question or issue for the jury to decide .and determine by their verdict is whether or not the defendant had sexual intercourse with the said Tillie Johnson at the time and at the place charged in the information and when you have decided this question you have decided the whole case.” This was objected to on the ground that it took from, the jury questions of fact of which the jury is the sole judge.",
"It is error for the trial court to take from the jury any question of fact put at issue .by a plea of not guilty, but such error does not justify a reversal if it appears that the giving of the instruction could not in any manner prejudice the defendant. State v. Kramer, 49 S. D. 56, 206 N. W. 468; State v. Bjelkstrom, 20 S. D. 1, 104 N. W. 481; State v. Wright, 15 S. D. 628, 91 N. W. 311; State v. Barnes, 51 S. D. 277, 213 N. W. 504; State v. Morgan, 42 S. D. 517, 176 N. W. 35; section 5044, Revised Code of 1919. In this case there were but two other questions at issue besides the question whether the defendant committed the act at the time and place stated in the information. Those questions were: Was Tillie Johnson under 18 years of age when the act was committed; and was she the wife of defendant at that time?",
"Both of Tillie Johnson’s parents testified that she became 15 years of age in February, 1927; this evidence was not disputed or questioned in anyway. Defendant himself testified that he married another woman on November 11, 1926. With the record showiirg this evidence, it is apparent that any error there may have been in the instruction complained of could not have prejudiced the defendant. As to the misconduct of the state’s attorney, the record shows] that in his closing argument to the jury the prosecutor, speaking of the child born to Tillie Johnson, said: “If O’scar Sjofoerg is not the father of this child then who is the father of this child?” Upon objection to this remark being interposed, the trial court admonished the jury as follows: “The Court considers the statement improper and admonishes the state’s attorney to refrain from making statements of that sort because that is not in issue in this case.",
"The jury, of course, will disregard any such statement of the attorney.” *381At another stage of his argument, the state’s attorney referred to one Holman, an important witness for the defense, as being a drunkard and a “know nothing.” Upon defendant’s counsel taking exception to this, the trial court said: “Gentlemen of the jury, you will disregard the remarks of the attorney so .far as the witness Holman is concerned in charging him with 'being a drunkard and a ‘know-nothing’ because the Court is of the opinion there is no-evidence of that sort that warrants the conclusion and the jury will wholly disregard the statement of the attorney.” And, in the formal instruction given to the jury, the trial court instructed the jury that, while the fact that a child was born to the complaining witness was conclusive evidence that she had sexual intercourse with some man, it was not corroborative of 'her testimony that defendant is the father of the child; and further instructed them that, if counsel in their zeal “mistake or misstate the evidence given on the trial, you are to- follow the evidence and not any erroneous statement of counsel.” While it is to.",
"be regretted that counsel should embarrass courts and juries by unwarranted statements, and the conduct of the state’s attorney in the trial of this case should be rebuked, the trial court’s admonition: was such as is generally held to be curative of the attorney’s misconduct. 16 C. J. pp. 917 and 918; State v. Julius, 29 S. D. 638, 137 N. W. 590; State v. Sonnenschein, 37 S. D. 585, 159 N. W. 101; City of Sioux Falls v. Marshall, 49 S. D. 476, 207 N. W. 475; State v. Lahman, 43 S. D. 285, 178 N. W. 984; State v. Smith, 153 La. 251, 95 So. 707; State v. Powers, 180 Iowa, 693, 163 N. W. 402; People v. Lee, 34 Cal. App.",
"702, 168 P. 694; State v. Pelser, 182 Iowa, 1, 163 N. W. 600; State v. Taylor, 293 Mo. 210, 238 S. W. 489; State v. Wright, 192 Iowa, 239, 182 N. W. 385. The trial court had all the facts before it when it denied defendant’s motion for a new trial, and it does not appear that there was any abuse of discretion in such denial. Under such circumstances, the action of that court should not be reversed. The judgment and order appealed from are affirmed. SHERWOOD, P. J., and POLLEY, CAMPBELL, BURCH, and BROWN, JJ., concur."
]
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114 F.3d 202 19 ITRD 1210 MARUBENI AMERICA CORPORATION, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee. No. 96-1310. United States Court of Appeals,Federal Circuit. May 20, 1997.
Richard C. King, Fitch, King & Caffentzis, New York City, argued, for plaintiff-appellant. Of counsel was James Caffentzis. James A. Curley, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, New York City, argued, for defendant-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Washington, DC, and Joseph I. Liebman, Attorney in Charge, International Trade Field Office, New York City. Before MAYER, SCHALL, and BRYSON, Circuit Judges. MAYER, Circuit Judge.
1 For tariff purposes, what is a hollow, cylindrical, copper product with helical ridges and grooves internally spiraling its length? Is it a "profile" or a "tube or pipe"? Marubeni America Corporation, which imported such a product, appeals the United States Court of International Trade's summary judgment, Marubeni Am. Corp. v. United States, 905 F. Supp. 1101 (1995), interpreting Note 1(h) of chapter 74 of the Harmonized Tariff Schedule of the United States and classifying the import as a "profile." We reverse and remand.
Background
2 Subheadings 7411.10.10 and 7407.10.10 of the Harmonized Tariff Schedule of the United States (1990)* The relevant portions of the 1989 and 1990 versions of the Harmonized Schedule were identical. (Harmonized Schedule) respectively imposed a 1.5% duty on refined copper "tubes and pipes" and a 6.3% duty on refined copper "profiles." In part, Note 1(h) of chapter 74 of the Harmonized Schedule defined tubes and pipes to have "uniform wall thickness" or to be "threaded." Note 1(e) residually defined profiles as "... products ... which do not conform to ... the definitions of ... tubes or pipes," among others.
3 In 1989 and 1990, Marubeni imported a cylindrical, hollow, seamless refined copper product with uniform, circular cross sections and helical ridges and grooves internally spiraling its length. Physically, the product's grooves and ridges rendered its wall thickness non-uniform. Thermodynamically, the grooves and ridges facilitated heat transfer when the product was transformed into air conditioner coils, which carry refrigerants, such as freon. This common application did not use the product's grooves and ridges for attachment or fastening.
4 The United States Customs Service interpreted "threaded" in Note 1(h) to require not only a physical structure but also a particular function: only products with grooves and ridges used to attach or fasten could be "threaded," it asserted. Accordingly, Marubeni's product was not "threaded." Because the import also lacked uniform wall thickness, Customs deemed it a profile and assessed a 6.3% duty upon each shipment. Marubeni paid the assessments and timely filed corresponding administrative protests, which Customs denied. Consequently, the importer commenced this action in the Court of International Trade pursuant to 28 U.S.C. § 1581(a). Seeking the difference between the duty it paid and the duty it would have paid under subheading 7411.10.10, Marubeni argued that its product was a "threaded" tube. Holding that the common meaning of "threaded" connotes functional as well as physical characteristics, the court entered judgment for the United States and subsequently denied Marubeni's motion for rehearing, see 915 F. Supp. 413 (1996). Marubeni appeals.
Discussion
5 Whether Marubeni's import's helical grooves and ridges made it "threaded" necessarily depends upon the word's meaning in Note 1(h) of chapter 74 of the Harmonized Schedule, which we interpret de novo. See Guess? Inc. v. United States, 944 F.2d 855, 857 (Fed.Cir.1991). Note 1(h) defines tubes and pipes as:
6 Hollow products, coiled or not, which have a uniform cross section with only one enclosed void along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons, and which have a uniform wall thickness. Products with a rectangular (including square), equilateral triangular or regular convex polygonal cross section, which may have corners rounded along their whole length, are also to be taken to be tubes and pipes provided the inner and outer cross sections are concentric and have the same form and orientation. Tubes and pipes of the foregoing cross sections may be polished, coated, bent, threaded, drilled, waisted, expanded, cone-shaped or fitted with flanges, collars or rings.
7 (Emphasis added.)
8 The government argues that "[t]he trial court's interpretation of 'threaded' to include both structure and function comports with the common meaning of that term." In particular, the government cites three "reliable sources of lexicographic information" to support its contention. The first source, 18 McGraw-Hill Encyclopedia of Science and Technology 329 (6th ed. 1987), defines threading as:
9 The forming of a ridge and valley of uniform cross section which spiral about the inner or outer diameter of a cylinder or cone in an even and continuing manner. The work must be produced with sufficient uniformity and accuracy so that the resulting threaded part will accomplish its intended purpose of fastening, transmitting motion or power, or measuring.
10 Under the heading "Screw Threads," the second reference indicates that "[t]he principal use of threads are (1) for fastening, (2) for adjusting, and (3) for transmitting power." W.J. Luzzader, Fundamentals of Engineering Drawing 315 (9th ed. 1985). And, also under the heading "Screw Threads," Encyclopedia Britannica, vol. 20, p. 92 (14th ed. 1973) reads, in part:
11 A thread on the outside of a cylinder is an external or male thread; cut on the inside of a hole, as in a nut, it is an internal or female thread. The purpose in using threaded members may be: (1) to join two or more parts together; (2) to transmit power or force; (3) to obtain a mechanical advantage, that is, a large force from a small one; or (4) to transmit motion either rotary to linear or linear to rotary.
12 The government cautions, moreover, that "[i]f function is to be thrown to the winds ... the meaning of 'threaded' can be burlesqued to the point where it can be said that the spiral grooves of a phonograph record cause that article to be threaded."
13 Notwithstanding the government's admonition, Note 1(h) allows more than cylindrical "threaded" tubes and pipes. By definition, a product with triangular or rectangular, cross sections may be threaded. Not one of the government's sources contemplates, let alone defines, such threading. The McGraw Hill Encyclopedia of Science and Technology, which presupposes but does not necessitate an "intended purpose" for threading, solely refers to threading cylinders and cones. Fundamentals of Engineering Drawing and Encyclopedia Britannica list possible purposes of screw threads but regard only conical or cylindrical screws. Moreover, the government provides no examples of triangular or rectangular tubes or pipes with threads that fasten parts, transmit force, enhance power, or transmit motion.
14 The government's question-begging definition is untenable. It takes the narrow definition for "screw threads" and inductively applies its functional requirements to products with shapes that almost certainly preclude functioning as screws. Left without a definition or example of a screw with a triangular or rectangular body, we surmise that such products suffered the fate of the square wheel. "Threaded" in Note 1(h) refers only to physical form and aptly described Marubeni's product.
Conclusion
15 Accordingly, we reverse the judgment of the Court of International Trade and remand the case for further proceedings consistent with this opinion.
COSTS
16 Marubeni shall have its costs.
17 REVERSED AND REMANDED.
* The relevant portions of the 1989 and 1990 versions of the Harmonized Schedule were identical | 04-17-2012 | [
"114 F.3d 202 19 ITRD 1210 MARUBENI AMERICA CORPORATION, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee. No. 96-1310. United States Court of Appeals,Federal Circuit. May 20, 1997. Richard C. King, Fitch, King & Caffentzis, New York City, argued, for plaintiff-appellant. Of counsel was James Caffentzis. James A. Curley, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, New York City, argued, for defendant-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Washington, DC, and Joseph I. Liebman, Attorney in Charge, International Trade Field Office, New York City. Before MAYER, SCHALL, and BRYSON, Circuit Judges. MAYER, Circuit Judge. 1 For tariff purposes, what is a hollow, cylindrical, copper product with helical ridges and grooves internally spiraling its length? Is it a \"profile\" or a \"tube or pipe\"? Marubeni America Corporation, which imported such a product, appeals the United States Court of International Trade's summary judgment, Marubeni Am.",
"Corp. v. United States, 905 F. Supp. 1101 (1995), interpreting Note 1(h) of chapter 74 of the Harmonized Tariff Schedule of the United States and classifying the import as a \"profile.\" We reverse and remand. Background 2 Subheadings 7411.10.10 and 7407.10.10 of the Harmonized Tariff Schedule of the United States (1990)* The relevant portions of the 1989 and 1990 versions of the Harmonized Schedule were identical. (Harmonized Schedule) respectively imposed a 1.5% duty on refined copper \"tubes and pipes\" and a 6.3% duty on refined copper \"profiles.\" In part, Note 1(h) of chapter 74 of the Harmonized Schedule defined tubes and pipes to have \"uniform wall thickness\" or to be \"threaded.\"",
"Note 1(e) residually defined profiles as \"... products ... which do not conform to ... the definitions of ... tubes or pipes,\" among others. 3 In 1989 and 1990, Marubeni imported a cylindrical, hollow, seamless refined copper product with uniform, circular cross sections and helical ridges and grooves internally spiraling its length. Physically, the product's grooves and ridges rendered its wall thickness non-uniform. Thermodynamically, the grooves and ridges facilitated heat transfer when the product was transformed into air conditioner coils, which carry refrigerants, such as freon. This common application did not use the product's grooves and ridges for attachment or fastening. 4 The United States Customs Service interpreted \"threaded\" in Note 1(h) to require not only a physical structure but also a particular function: only products with grooves and ridges used to attach or fasten could be \"threaded,\" it asserted. Accordingly, Marubeni's product was not \"threaded.\"",
"Because the import also lacked uniform wall thickness, Customs deemed it a profile and assessed a 6.3% duty upon each shipment. Marubeni paid the assessments and timely filed corresponding administrative protests, which Customs denied. Consequently, the importer commenced this action in the Court of International Trade pursuant to 28 U.S.C. § 1581(a). Seeking the difference between the duty it paid and the duty it would have paid under subheading 7411.10.10, Marubeni argued that its product was a \"threaded\" tube. Holding that the common meaning of \"threaded\" connotes functional as well as physical characteristics, the court entered judgment for the United States and subsequently denied Marubeni's motion for rehearing, see 915 F. Supp. 413 (1996). Marubeni appeals. Discussion 5 Whether Marubeni's import's helical grooves and ridges made it \"threaded\" necessarily depends upon the word's meaning in Note 1(h) of chapter 74 of the Harmonized Schedule, which we interpret de novo.",
"See Guess? Inc. v. United States, 944 F.2d 855, 857 (Fed.Cir.1991). Note 1(h) defines tubes and pipes as: 6 Hollow products, coiled or not, which have a uniform cross section with only one enclosed void along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons, and which have a uniform wall thickness. Products with a rectangular (including square), equilateral triangular or regular convex polygonal cross section, which may have corners rounded along their whole length, are also to be taken to be tubes and pipes provided the inner and outer cross sections are concentric and have the same form and orientation. Tubes and pipes of the foregoing cross sections may be polished, coated, bent, threaded, drilled, waisted, expanded, cone-shaped or fitted with flanges, collars or rings. 7 (Emphasis added.) 8 The government argues that \"[t]he trial court's interpretation of 'threaded' to include both structure and function comports with the common meaning of that term.\"",
"In particular, the government cites three \"reliable sources of lexicographic information\" to support its contention. The first source, 18 McGraw-Hill Encyclopedia of Science and Technology 329 (6th ed. 1987), defines threading as: 9 The forming of a ridge and valley of uniform cross section which spiral about the inner or outer diameter of a cylinder or cone in an even and continuing manner. The work must be produced with sufficient uniformity and accuracy so that the resulting threaded part will accomplish its intended purpose of fastening, transmitting motion or power, or measuring.",
"10 Under the heading \"Screw Threads,\" the second reference indicates that \"[t]he principal use of threads are (1) for fastening, (2) for adjusting, and (3) for transmitting power.\" W.J. Luzzader, Fundamentals of Engineering Drawing 315 (9th ed. 1985). And, also under the heading \"Screw Threads,\" Encyclopedia Britannica, vol. 20, p. 92 (14th ed. 1973) reads, in part: 11 A thread on the outside of a cylinder is an external or male thread; cut on the inside of a hole, as in a nut, it is an internal or female thread. The purpose in using threaded members may be: (1) to join two or more parts together; (2) to transmit power or force; (3) to obtain a mechanical advantage, that is, a large force from a small one; or (4) to transmit motion either rotary to linear or linear to rotary. 12 The government cautions, moreover, that \"[i]f function is to be thrown to the winds ... the meaning of 'threaded' can be burlesqued to the point where it can be said that the spiral grooves of a phonograph record cause that article to be threaded.\"",
"13 Notwithstanding the government's admonition, Note 1(h) allows more than cylindrical \"threaded\" tubes and pipes. By definition, a product with triangular or rectangular, cross sections may be threaded. Not one of the government's sources contemplates, let alone defines, such threading. The McGraw Hill Encyclopedia of Science and Technology, which presupposes but does not necessitate an \"intended purpose\" for threading, solely refers to threading cylinders and cones. Fundamentals of Engineering Drawing and Encyclopedia Britannica list possible purposes of screw threads but regard only conical or cylindrical screws. Moreover, the government provides no examples of triangular or rectangular tubes or pipes with threads that fasten parts, transmit force, enhance power, or transmit motion. 14 The government's question-begging definition is untenable.",
"It takes the narrow definition for \"screw threads\" and inductively applies its functional requirements to products with shapes that almost certainly preclude functioning as screws. Left without a definition or example of a screw with a triangular or rectangular body, we surmise that such products suffered the fate of the square wheel. \"Threaded\" in Note 1(h) refers only to physical form and aptly described Marubeni's product. Conclusion 15 Accordingly, we reverse the judgment of the Court of International Trade and remand the case for further proceedings consistent with this opinion.",
"COSTS 16 Marubeni shall have its costs. 17 REVERSED AND REMANDED. * The relevant portions of the 1989 and 1990 versions of the Harmonized Schedule were identical"
]
| https://www.courtlistener.com/api/rest/v3/opinions/741047/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 03-1923
LAWRENCE M. TROPF , APPELLANT ,
V.
R. JAMES NICHOLSON , SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided April 4, 2006 )
James W. Stewart (non-attorney practitioner), Barton F. Stichman, and Nancy L. Foti, all of Washington, D.C., were on the brief for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, all of Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, and LANCE and SCHOELEN, Judges.
Lance, Judge, filed the opinion of the Court. Greene, Chief Judge, filed a concurring opinion.
LANCE, Judge: The appellant, veteran Lawrence M. Tropf, appeals, through counsel, that part of a July 1, 2003, decision of the Board of Veterans' Appeals (Board) that denied an increased disability rating for residuals of a shell fragment wound (SFW) of the back including Muscle Group (MG) XX; a compensable disability rating for an SFW of the right upper arm including MG III; and a compensable disability rating for residuals of a healed fracture of the distal end of the right fibula. Record (R.) at 1-15. The appellant makes no argument regarding the Board's denial of a compensable disability rating for the service-connected residuals of a healed fracture of the distal end of the right fibula. Accordingly, any issues on appeal concerning this claim are abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (claims not argued on appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). For the reasons that follow, the Court will affirm the Board decision in part, vacate it in part, and remand one matter for further proceedings consistent with this opinion.
I. FACTS The appellant served on active duty in the U.S. Army from April 1966 to May 1970. R. at 17. During his service, he sustained SFWs in combat in Vietnam. Id. There are no definitive service medical records indicating whether his injured muscles retain shell fragments. In May 1970, the appellant filed a claim for disability compensation for residuals of a shrapnel injury to the right side of his back. R. at 46-47. In July 1970, a VA regional office (RO) granted service connection for an SFW to the back with retained metallic fragments and assigned a 10% disability rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (disability caused by scar). R. at 56. During a VA examination in June 1975, an x-ray showed small metallic fragments in the "soft tissues" of the back to the right of the midline. R. at 61. In a June 1975 rating decision, the RO continued the 10% disability rating for the appellant's scar. R. at 64. A January 1983 rating decision confirmed the 10% disability rating for a tender scar under DC 7804. R. at 66. The claims here on appeal began in September 2001. At that time, the appellant sought an increased rating for residuals of the SFW of the back and sought service connection for residuals of an SFW of the right upper arm. R. at 68. At a December 2001 VA examination, the physical examination of the appellant's right flank revealed a barely visible scar that was "mildly tender on palpation." R. at 82. X-rays of his thoracic spine showed the presence of at least three small metallic foreign bodies within the "soft tissues" of the right lower thoracic back area. R. at 86-87. Examination of the right shoulder revealed no visible scar or evidence of residual shrapnel. There was no muscle loss, tissue loss, or muscle atrophy. R. at 82. X-rays revealed several small metallic fragments in the soft tissues surrounding the right humerus. R. at 83; Supplemental R. at 1. In February 2002, the Pittsburgh, Pennsylvania, RO granted the appellant service connection for an SFW of the right upper arm and assigned a 0% disability rating under 38 C.F.R. § 4.73, DC 5303 for MG III. R. at 94-99. The RO denied an increased rating for the SFW of the back with retained metallic fragments. R. at 96-99. That decision indicated that the appellant's previous 10%
2 disability rating for this condition was assigned under DC "7804-5320" (the DC for scars and the DC for muscle injury, respectively). R. at 99. The appellant appealed to the Board. R. at 101. On July 1, 2003, the Board issued the decision here on appeal. As to the residuals of the SFW to the appellant's back, the Board concluded that the DC 5320 criteria for a 20% disability rating were not met. R. at 9-12. As to the residuals of the SFW to the appellant's arm, the Board found that the appellant's current level of disability was not compensable. R. at 12.
II. THE PARTIES' ARGUMENTS The appellant argues for reversal of the Board's decision on his disability ratings for the residuals of his arm and back injuries. First, he argues that the Board erred as a matter of law in failing to assign a separate disability rating of at least 10% for a "moderate" injury to his back under DC 5320, in addition to the 10% disability rating for a painful scar granted under DC 7804. Appellant's Brief (Br.) at 12-15. He asserts that the RO's use of a hyphenated DC to assign a single 10% disability rating for two separate residuals was not authorized by law and that he is entitled to two separate 10% disability ratings. Id. The appellant also argues that the Board erred as a matter of law by failing to assign a 20% rating under 38 C.F.R. § 4.56 (2005), DC 5303, for a moderate injury of his arm. Appellant's Br. at 15-18. He asserts that, because his arm injury has retained metallic fragments, he is entitled to a 20% disability rating for a "moderate" muscle injury, rather than the 0% assigned for a "slight" injury. Appellant's Br. at 16-18. He also argues that the Board is required to assign like evaluations for like injuries and that the Due Process Clause of the Fifth Amendment requires the Board to treat the injury to his arm similarly to the injury to his back. Appellant's Br. at 15-16. In his brief, the Secretary does not defend the use of the hyphenated DC to rate the appellant's back injury. Secretary's Br. at 5. However, he asserts that the matter should be remanded because it is not clear that the Board made the necessary factual findings. Secretary's Br. at 5-6. Regarding the appellant's arm injury, he maintains that a remand is also necessary because there has been no clear finding of fact that the fragments–which have been described by the medical reports as located in the "soft tissue"–are in the muscle as purportedly required under the applicable regulations. Secretary's Br. at 6-7.
3 In his reply brief, the appellant argues that the Board made the factual findings necessary to enable the Court to reverse the Board's decision on his back injury and that 38 C.F.R. § 4.56(d) does not explicitly require the fragments to be retained in the muscle tissue of his arm. Appellant's Reply Br. at 5-6.
III. ANALYSIS A. Standard of Review Both of the appellant's arguments on appeal require us to review the Board's interpretation of regulations implementing title 38 regarding those claims considered by the Board. We review the interpretation of regulations de novo. Hatch v. Principi, 18 Vet.App. 527, 531 (2004). On review, if the meaning of the regulation is clear from its language, then that is "the end of the matter." Brown v. Gardner, 513 U.S. 115, 120 (1994). B. 38 C.F.R. § 4.27 and the Appellant's Back Injury Although the Secretary contests only the remedy, a brief discussion of the applicable regulation is warranted because the Court has never analyzed the portion of 38 C.F.R. § 4.27 (2005) quoted below. As to the appellant's back injury, VA's use of hyphenated ratings is directed in 38 C.F.R. § 4.27, which reads in pertinent part: With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded "5002-5289." In this way, the exact source of each rating can be easily identified. (emphasis added). On its face, the regulation allows hyphenated ratings only for "diseases," not for injuries. Furthermore, the clear purpose of a hyphenated rating is to add information to help describe the origins of a single disability when the disability is not one listed under the DC for the appropriate disease. Contrary to the plain language of the statute and the unsupported interpretation and application by the Board (R. at 9), the use of the hyphenated rating in this case did not relate to the residuals of a disease and was not strictly informational in that the MG XX injury was not an unusual residual of the scarring but rather a separate disability. In this regard, this Court has held that if an
4 injury or disease manifests with two different disabilities, then two separate ratings should be awarded. Smith v. Nicholson, 19 Vet.App. 63, 75 (2005); Esteban v. Brown, 6 Vet.App. 259, 261 (1994). Hence, the hyphenated rating was improper here because it was used for an injury, not a disease, and because it was used in violation of precedent that requires two different disabling conditions (a scar and a muscle injury) to be rated separately. See Smith and Esteban, both supra; 38 C.F.R. § 4.27. We must now address the appropriate remedy. The appellant argues that the facts necessary to support separate disability ratings have been found and that the Court should assign a 10% disability rating for the MG XX injury and continue the 10% disability rating for his scar. Appellant's Br. at 14-15. The Secretary contends that a remand is necessary for appropriate factfinding. Secretary's Br. at 6-7. We agree with the Secretary. While the Board found that the qualifications for a 20% disability rating for MG XX had not been met (R. at 12), a fair reading of the Board decision indicates that the Board did not notice or consider the implications of the improper hyphenated rating or make a factual finding on whether the appellant's MG XX injury qualifies for a separate 10% disability rating. The Board concluded: "In essence, there is no evidence of a moderately severe disability . . . . Therefore, the Board finds that a rating in excess of the currently assigned 10[%] injury to Muscle Group XX is not warranted." R. at 12. From this statement, the Board evidently believed that the appellant's preexisting 10% disability rating was for a muscle injury, when in fact it was for his scar. We decline to read purposeful factfinding into the Board's evident confusion. Accordingly, the 10% disability rating for his scar remains under DC 7804, and the Board must determine whether a separate disability rating is warranted under DC 5320 for the MG XX injury. On remand, the appellant is free to submit additional evidence and argument, and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (West Supp. 2005) (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court).
5 C. 38 C.F.R. § 4.56 and the Appellant's Arm Injury As to the appellant's right, upper arm injury, he argues that he is entitled to a higher rating "as a matter of law" because the Board misapplied 38 C.F.R. § 4.56 in failing to acknowledge the retained metallic fragments in his muscle. Appellant's Br. at 15. In making this argument, he explicitly states that the error occurred "under the facts found by the Board." Id. We observe that the third enumerated finding of fact in the Board decision is: "The [appellant]'s [SFW] of the right upper arm results in no significant residuals and is essentially asymptomatic." R. at 3. This enumerated finding was based on the Board's finding, during a December 2001 examination, that "the [appellant] himself admitted that his right arm presented no restrictions and movements and clinical findings did not demonstrate otherwise." R. at 11. Accordingly, the question is whether an appellant who has retained metallic fragments in the muscle but is essentially asymptomatic is entitled to a compensable disability under the applicable regulation as a matter of law. The appellant bases his argument on the language of 38 C.F.R. § 4.56, which reads in pertinent part: (d) Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe, as follows:
(1) Slight disability of muscles—(i) Type of injury. Simple wound of muscle without debridement or infection.
(ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section.
(iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue.
(2) Moderate disability of muscles—(i) Type of injury. Through and through or deep penetrating wound of short track from a single shell, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.
6 (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint on record from first examination forward, of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.
(iii) Objective Findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. (boldface emphasis added). The essence of the appellant's argument is that this emphasized language in § 4.56(d) is a per se bar to rating a muscle injury as "slight" (noncompensable under 38 C.F.R. § 4.73, DC 5303(2005)) where there are retained metallic fragments. The Secretary responds that it is not clear whether the fragments noted are in the muscle or the surrounding soft tissue. Secretary's Br. at 6. Both parties base their arguments exclusively on the plain language of the regulation. However, even though the parties ignore our prior caselaw in this area, we are not free to do so. See Harrison v. Derwinski, 1 Vet.App. 438 (1991) (en banc order) (noting that this Court's published opinions are binding precedent and must be respected under principle of stare decisis). The meaning of the language at issue has previously been considered by this Court in Robertson v. Brown, 5 Vet.App. 70 (1993). Absent some basis for concluding that Robertson is no longer valid, we are obligated to apply it to the extent that it controls the outcome of this case. Robertson considered the same regulatory provisions now contained in § 4.56(d) when they were previously contained in 38 C.F.R. § 4.56(c) (1995). In Robertson, the Court addressed the meaning of the provisions in a functionally identical context when the appellant argued that–regardless of actual disability–he was entitled to a "moderately severe" disability rating "simply because [his] wound included debridement." 5 Vet.App. at 73. The Court rejected this interpretation of the regulation, held that the criteria mentioned in 38 C.F.R. § 4.56(c) (1995) were merely "factors to be considered," and further held that no specific fact established entitlement to any particular rating. Robertson, 5 Vet.App. at 74. The Court concluded that "[t]he adjudicator must consider all
7 the factors set forth in the regulations and make determinations based on the facts of the particular case." Id. On its face, the appellant's argument that retained metal fragments in the muscle would entitle him to a particular rating as a matter of law is not functionally different from the argument in Robertson that the existence of debridement mandates a specific rating regardless of other facts. However, Robertson's validity is not beyond question. Our decision in Robertson was based in part on the then-extant heading of § 4.56, which read: "Factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot or other trauma." 38 C.F.R. § 4.56 (1995) (italic emphasis added). After Robertson was decided, the regulation was reorganized; a portion of 38 C.F.R. § 4.72 (1995) was merged into § 4.56; and the factors listed in paragraph (c) were moved to the newly created paragraph (d). 62 Fed.Reg. 30,235- 40 (July 3, 1997). At that time, the Secretary dropped the "factors to be considered" language from the § 4.56 heading. The Secretary also added a new paragraph (c), which is referred to in the revised language that was moved to paragraph (d). Id. The new paragraph (c) states: "For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement." 38 C.F.R. § 4.56(c). Significantly however, VA's commentary accompanying the reorganization explicitly states "we d[o] not intend to propose a substantive change." 62 Fed.Reg. at 30,236. Since the reorganization, neither of our published decisions touching on § 4.56 has suggested that the change is substantive or that Robertson is no longer good law. See Jones v. Principi, 18 Vet.App. 248 (2004); Mariano v. Principi, 17 Vet.App. 305 (2003). In the absence of any basis for finding that Robertson has been superceded, we must conclude that it remains valid. In this regard, we note that the addition of the current paragraph (c) is consistent with Robertson and the Secretary's comment that no substantive change was intended. Robertson interpreted the prior version of the regulation as creating what is, in essence, a totality-of- the-circumstances test. While the test was not explicit in the prior version or in Robertson, the new paragraph (c) merely had the effect of memorializing the practice of giving the commonly detectable manifestations of muscle disability priority in evaluating all the factors to be considered. As we held
8 in Robertson and reaffirm here, 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and no single factor is per se controlling. Thus contrary to the appellant's argument in this case, because no single fact is controlling, Robertson contradicts his contention that he was entitled to a compensable rating as a matter of law based on retained metallic fragments in the muscle. Accordingly, the Board's decision to assign a "slight" (noncompensable) rating for his arm injury based upon the uncontested finding that the appellant is "essentially asymptomatic" was not a misapplication of the regulation as a matter of law. The only other argument the appellant asserts to challenge Board's decision as to his arm injury is that the Board acted unconstitutionally in applying the muscle-injury rating criteria differently to two similar injuries. We need not address that argument here. As we are vacating the Board's decision as to the rating of the muscle injury to appellant's back and remanding that matter for readjudication, there is no final decision as to that muscle injury and it cannot be said at this time that these two muscle injuries have been treated differently. See Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (indicating there is no basis for deciding an issue that is not supported by a factual predicate).
III. CONCLUSION Accordingly, the Board's decision denying the appellant's claim for an increased rating for residuals of an SFW to the back is VACATED and that matter is REMANDED for further proceedings consistent with this opinion; the decision is otherwise AFFIRMED.
GREENE, Chief Judge, concurring: I concur with the holdings in this case. I write separately, however, because I would hold additionally that Mr. Tropf's constitutional argument is without merit and should be disposed of accordingly. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Mr. Tropf argues that treating his arm and back disabilities differently in the rating schedule is a violation of due process; he asserts that he should be awarded a compensable rating for his arm because it is essentially the same injury as his back injury. That argument is without merit because treating a veteran's own injuries differently is not unequal treatment of
9 "persons similarly situated." Cleburne, supra (emphasis added); Reeves v. West, 11 Vet.App. 255 (1998); Clarke v. Brown, 10 Vet.App. 20 (1997).
10 | 02-01-2013 | [
"UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 03-1923 LAWRENCE M. TROPF , APPELLANT , V. R. JAMES NICHOLSON , SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided April 4, 2006 ) James W. Stewart (non-attorney practitioner), Barton F. Stichman, and Nancy L. Foti, all of Washington, D.C., were on the brief for the appellant. Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, all of Washington, D.C., were on the brief for the appellee. Before GREENE, Chief Judge, and LANCE and SCHOELEN, Judges. Lance, Judge, filed the opinion of the Court. Greene, Chief Judge, filed a concurring opinion. LANCE, Judge: The appellant, veteran Lawrence M. Tropf, appeals, through counsel, that part of a July 1, 2003, decision of the Board of Veterans' Appeals (Board) that denied an increased disability rating for residuals of a shell fragment wound (SFW) of the back including Muscle Group (MG) XX; a compensable disability rating for an SFW of the right upper arm including MG III; and a compensable disability rating for residuals of a healed fracture of the distal end of the right fibula.",
"Record (R.) at 1-15. The appellant makes no argument regarding the Board's denial of a compensable disability rating for the service-connected residuals of a healed fracture of the distal end of the right fibula. Accordingly, any issues on appeal concerning this claim are abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (claims not argued on appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). For the reasons that follow, the Court will affirm the Board decision in part, vacate it in part, and remand one matter for further proceedings consistent with this opinion. I. FACTS The appellant served on active duty in the U.S. Army from April 1966 to May 1970. R. at 17. During his service, he sustained SFWs in combat in Vietnam.",
"Id. There are no definitive service medical records indicating whether his injured muscles retain shell fragments. In May 1970, the appellant filed a claim for disability compensation for residuals of a shrapnel injury to the right side of his back. R. at 46-47. In July 1970, a VA regional office (RO) granted service connection for an SFW to the back with retained metallic fragments and assigned a 10% disability rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (disability caused by scar). R. at 56. During a VA examination in June 1975, an x-ray showed small metallic fragments in the \"soft tissues\" of the back to the right of the midline. R. at 61.",
"In a June 1975 rating decision, the RO continued the 10% disability rating for the appellant's scar. R. at 64. A January 1983 rating decision confirmed the 10% disability rating for a tender scar under DC 7804. R. at 66. The claims here on appeal began in September 2001. At that time, the appellant sought an increased rating for residuals of the SFW of the back and sought service connection for residuals of an SFW of the right upper arm. R. at 68. At a December 2001 VA examination, the physical examination of the appellant's right flank revealed a barely visible scar that was \"mildly tender on palpation.\" R. at 82.",
"X-rays of his thoracic spine showed the presence of at least three small metallic foreign bodies within the \"soft tissues\" of the right lower thoracic back area. R. at 86-87. Examination of the right shoulder revealed no visible scar or evidence of residual shrapnel. There was no muscle loss, tissue loss, or muscle atrophy. R. at 82. X-rays revealed several small metallic fragments in the soft tissues surrounding the right humerus. R. at 83; Supplemental R. at 1. In February 2002, the Pittsburgh, Pennsylvania, RO granted the appellant service connection for an SFW of the right upper arm and assigned a 0% disability rating under 38 C.F.R. § 4.73, DC 5303 for MG III. R. at 94-99. The RO denied an increased rating for the SFW of the back with retained metallic fragments.",
"R. at 96-99. That decision indicated that the appellant's previous 10% 2 disability rating for this condition was assigned under DC \"7804-5320\" (the DC for scars and the DC for muscle injury, respectively). R. at 99. The appellant appealed to the Board. R. at 101. On July 1, 2003, the Board issued the decision here on appeal. As to the residuals of the SFW to the appellant's back, the Board concluded that the DC 5320 criteria for a 20% disability rating were not met. R. at 9-12. As to the residuals of the SFW to the appellant's arm, the Board found that the appellant's current level of disability was not compensable. R. at 12.",
"II. THE PARTIES' ARGUMENTS The appellant argues for reversal of the Board's decision on his disability ratings for the residuals of his arm and back injuries. First, he argues that the Board erred as a matter of law in failing to assign a separate disability rating of at least 10% for a \"moderate\" injury to his back under DC 5320, in addition to the 10% disability rating for a painful scar granted under DC 7804. Appellant's Brief (Br.) at 12-15. He asserts that the RO's use of a hyphenated DC to assign a single 10% disability rating for two separate residuals was not authorized by law and that he is entitled to two separate 10% disability ratings. Id.",
"The appellant also argues that the Board erred as a matter of law by failing to assign a 20% rating under 38 C.F.R. § 4.56 (2005), DC 5303, for a moderate injury of his arm. Appellant's Br. at 15-18. He asserts that, because his arm injury has retained metallic fragments, he is entitled to a 20% disability rating for a \"moderate\" muscle injury, rather than the 0% assigned for a \"slight\" injury. Appellant's Br. at 16-18. He also argues that the Board is required to assign like evaluations for like injuries and that the Due Process Clause of the Fifth Amendment requires the Board to treat the injury to his arm similarly to the injury to his back. Appellant's Br. at 15-16. In his brief, the Secretary does not defend the use of the hyphenated DC to rate the appellant's back injury. Secretary's Br.",
"at 5. However, he asserts that the matter should be remanded because it is not clear that the Board made the necessary factual findings. Secretary's Br. at 5-6. Regarding the appellant's arm injury, he maintains that a remand is also necessary because there has been no clear finding of fact that the fragments–which have been described by the medical reports as located in the \"soft tissue\"–are in the muscle as purportedly required under the applicable regulations. Secretary's Br. at 6-7. 3 In his reply brief, the appellant argues that the Board made the factual findings necessary to enable the Court to reverse the Board's decision on his back injury and that 38 C.F.R. § 4.56(d) does not explicitly require the fragments to be retained in the muscle tissue of his arm.",
"Appellant's Reply Br. at 5-6. III. ANALYSIS A. Standard of Review Both of the appellant's arguments on appeal require us to review the Board's interpretation of regulations implementing title 38 regarding those claims considered by the Board. We review the interpretation of regulations de novo. Hatch v. Principi, 18 Vet.App. 527, 531 (2004). On review, if the meaning of the regulation is clear from its language, then that is \"the end of the matter.\" Brown v. Gardner, 513 U.S. 115, 120 (1994).",
"B. 38 C.F.R. § 4.27 and the Appellant's Back Injury Although the Secretary contests only the remedy, a brief discussion of the applicable regulation is warranted because the Court has never analyzed the portion of 38 C.F.R. § 4.27 (2005) quoted below. As to the appellant's back injury, VA's use of hyphenated ratings is directed in 38 C.F.R. § 4.27, which reads in pertinent part: With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded \"5002-5289.\" In this way, the exact source of each rating can be easily identified.",
"(emphasis added). On its face, the regulation allows hyphenated ratings only for \"diseases,\" not for injuries. Furthermore, the clear purpose of a hyphenated rating is to add information to help describe the origins of a single disability when the disability is not one listed under the DC for the appropriate disease. Contrary to the plain language of the statute and the unsupported interpretation and application by the Board (R. at 9), the use of the hyphenated rating in this case did not relate to the residuals of a disease and was not strictly informational in that the MG XX injury was not an unusual residual of the scarring but rather a separate disability.",
"In this regard, this Court has held that if an 4 injury or disease manifests with two different disabilities, then two separate ratings should be awarded. Smith v. Nicholson, 19 Vet.App. 63, 75 (2005); Esteban v. Brown, 6 Vet.App. 259, 261 (1994). Hence, the hyphenated rating was improper here because it was used for an injury, not a disease, and because it was used in violation of precedent that requires two different disabling conditions (a scar and a muscle injury) to be rated separately. See Smith and Esteban, both supra; 38 C.F.R. § 4.27. We must now address the appropriate remedy. The appellant argues that the facts necessary to support separate disability ratings have been found and that the Court should assign a 10% disability rating for the MG XX injury and continue the 10% disability rating for his scar. Appellant's Br. at 14-15. The Secretary contends that a remand is necessary for appropriate factfinding.",
"Secretary's Br. at 6-7. We agree with the Secretary. While the Board found that the qualifications for a 20% disability rating for MG XX had not been met (R. at 12), a fair reading of the Board decision indicates that the Board did not notice or consider the implications of the improper hyphenated rating or make a factual finding on whether the appellant's MG XX injury qualifies for a separate 10% disability rating. The Board concluded: \"In essence, there is no evidence of a moderately severe disability . . .",
". Therefore, the Board finds that a rating in excess of the currently assigned 10[%] injury to Muscle Group XX is not warranted.\" R. at 12. From this statement, the Board evidently believed that the appellant's preexisting 10% disability rating was for a muscle injury, when in fact it was for his scar. We decline to read purposeful factfinding into the Board's evident confusion. Accordingly, the 10% disability rating for his scar remains under DC 7804, and the Board must determine whether a separate disability rating is warranted under DC 5320 for the MG XX injury. On remand, the appellant is free to submit additional evidence and argument, and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).",
"The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (West Supp. 2005) (requiring Secretary to provide for \"expeditious treatment\" of claims remanded by Board or Court). 5 C. 38 C.F.R. § 4.56 and the Appellant's Arm Injury As to the appellant's right, upper arm injury, he argues that he is entitled to a higher rating \"as a matter of law\" because the Board misapplied 38 C.F.R. § 4.56 in failing to acknowledge the retained metallic fragments in his muscle. Appellant's Br. at 15. In making this argument, he explicitly states that the error occurred \"under the facts found by the Board.\" Id. We observe that the third enumerated finding of fact in the Board decision is: \"The [appellant]'s [SFW] of the right upper arm results in no significant residuals and is essentially asymptomatic.\"",
"R. at 3. This enumerated finding was based on the Board's finding, during a December 2001 examination, that \"the [appellant] himself admitted that his right arm presented no restrictions and movements and clinical findings did not demonstrate otherwise.\" R. at 11. Accordingly, the question is whether an appellant who has retained metallic fragments in the muscle but is essentially asymptomatic is entitled to a compensable disability under the applicable regulation as a matter of law. The appellant bases his argument on the language of 38 C.F.R. § 4.56, which reads in pertinent part: (d) Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe, as follows: (1) Slight disability of muscles—(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty.",
"Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles—(i) Type of injury. Through and through or deep penetrating wound of short track from a single shell, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. 6 (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint on record from first examination forward, of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective Findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.",
"(boldface emphasis added). The essence of the appellant's argument is that this emphasized language in § 4.56(d) is a per se bar to rating a muscle injury as \"slight\" (noncompensable under 38 C.F.R. § 4.73, DC 5303(2005)) where there are retained metallic fragments. The Secretary responds that it is not clear whether the fragments noted are in the muscle or the surrounding soft tissue. Secretary's Br. at 6. Both parties base their arguments exclusively on the plain language of the regulation. However, even though the parties ignore our prior caselaw in this area, we are not free to do so. See Harrison v. Derwinski, 1 Vet.App. 438 (1991) (en banc order) (noting that this Court's published opinions are binding precedent and must be respected under principle of stare decisis). The meaning of the language at issue has previously been considered by this Court in Robertson v. Brown, 5 Vet.App.",
"70 (1993). Absent some basis for concluding that Robertson is no longer valid, we are obligated to apply it to the extent that it controls the outcome of this case. Robertson considered the same regulatory provisions now contained in § 4.56(d) when they were previously contained in 38 C.F.R. § 4.56(c) (1995). In Robertson, the Court addressed the meaning of the provisions in a functionally identical context when the appellant argued that–regardless of actual disability–he was entitled to a \"moderately severe\" disability rating \"simply because [his] wound included debridement.\" 5 Vet.App. at 73. The Court rejected this interpretation of the regulation, held that the criteria mentioned in 38 C.F.R.",
"§ 4.56(c) (1995) were merely \"factors to be considered,\" and further held that no specific fact established entitlement to any particular rating. Robertson, 5 Vet.App. at 74. The Court concluded that \"[t]he adjudicator must consider all 7 the factors set forth in the regulations and make determinations based on the facts of the particular case.\" Id. On its face, the appellant's argument that retained metal fragments in the muscle would entitle him to a particular rating as a matter of law is not functionally different from the argument in Robertson that the existence of debridement mandates a specific rating regardless of other facts.",
"However, Robertson's validity is not beyond question. Our decision in Robertson was based in part on the then-extant heading of § 4.56, which read: \"Factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot or other trauma.\" 38 C.F.R. § 4.56 (1995) (italic emphasis added). After Robertson was decided, the regulation was reorganized; a portion of 38 C.F.R. § 4.72 (1995) was merged into § 4.56; and the factors listed in paragraph (c) were moved to the newly created paragraph (d). 62 Fed.Reg. 30,235- 40 (July 3, 1997). At that time, the Secretary dropped the \"factors to be considered\" language from the § 4.56 heading. The Secretary also added a new paragraph (c), which is referred to in the revised language that was moved to paragraph (d). Id.",
"The new paragraph (c) states: \"For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.\" 38 C.F.R. § 4.56(c). Significantly however, VA's commentary accompanying the reorganization explicitly states \"we d[o] not intend to propose a substantive change.\" 62 Fed.Reg. at 30,236. Since the reorganization, neither of our published decisions touching on § 4.56 has suggested that the change is substantive or that Robertson is no longer good law. See Jones v. Principi, 18 Vet.App.",
"248 (2004); Mariano v. Principi, 17 Vet.App. 305 (2003). In the absence of any basis for finding that Robertson has been superceded, we must conclude that it remains valid. In this regard, we note that the addition of the current paragraph (c) is consistent with Robertson and the Secretary's comment that no substantive change was intended. Robertson interpreted the prior version of the regulation as creating what is, in essence, a totality-of- the-circumstances test. While the test was not explicit in the prior version or in Robertson, the new paragraph (c) merely had the effect of memorializing the practice of giving the commonly detectable manifestations of muscle disability priority in evaluating all the factors to be considered. As we held 8 in Robertson and reaffirm here, 38 C.F.R.",
"§ 4.56(d) is essentially a totality-of-the-circumstances test and no single factor is per se controlling. Thus contrary to the appellant's argument in this case, because no single fact is controlling, Robertson contradicts his contention that he was entitled to a compensable rating as a matter of law based on retained metallic fragments in the muscle. Accordingly, the Board's decision to assign a \"slight\" (noncompensable) rating for his arm injury based upon the uncontested finding that the appellant is \"essentially asymptomatic\" was not a misapplication of the regulation as a matter of law. The only other argument the appellant asserts to challenge Board's decision as to his arm injury is that the Board acted unconstitutionally in applying the muscle-injury rating criteria differently to two similar injuries. We need not address that argument here.",
"As we are vacating the Board's decision as to the rating of the muscle injury to appellant's back and remanding that matter for readjudication, there is no final decision as to that muscle injury and it cannot be said at this time that these two muscle injuries have been treated differently. See Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (indicating there is no basis for deciding an issue that is not supported by a factual predicate). III. CONCLUSION Accordingly, the Board's decision denying the appellant's claim for an increased rating for residuals of an SFW to the back is VACATED and that matter is REMANDED for further proceedings consistent with this opinion; the decision is otherwise AFFIRMED. GREENE, Chief Judge, concurring: I concur with the holdings in this case. I write separately, however, because I would hold additionally that Mr. Tropf's constitutional argument is without merit and should be disposed of accordingly. The Equal Protection Clause \"is essentially a direction that all persons similarly situated should be treated alike.\"",
"Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Mr. Tropf argues that treating his arm and back disabilities differently in the rating schedule is a violation of due process; he asserts that he should be awarded a compensable rating for his arm because it is essentially the same injury as his back injury. That argument is without merit because treating a veteran's own injuries differently is not unequal treatment of 9 \"persons similarly situated.\" Cleburne, supra (emphasis added); Reeves v. West, 11 Vet.App.",
"255 (1998); Clarke v. Brown, 10 Vet.App. 20 (1997). 10"
]
| https://www.courtlistener.com/api/rest/v3/opinions/817094/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition for writ of mandamus denied. | 11-27-2022 | [
"Petition for writ of mandamus denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9102725/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 10.4
GS MORTGAGE SECURITIES CORPORATION II, PURCHASER and JEFFERIES LOANCORE LLC, SELLER MORTGAGE LOAN PURCHASE AGREEMENT Dated as of November 1, 2012 Series 2012-GCJ9
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This Mortgage Loan Purchase Agreement (“Agreement”), dated as of November 1, 2012, is between GS Mortgage Securities Corporation II, a Delaware corporation, as purchaser (the “Purchaser”), and Jefferies LoanCore LLC, a Delaware limited liability company, as seller (the “Seller”). Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement, dated as of November 1, 2012 (the “Pooling and Servicing Agreement”), among the Purchaser, as depositor, Wells Fargo Bank, National Association, as master servicer (the “Master Servicer”), Rialto Capital Advisors, LLC, as special servicer (the “Special Servicer”), Pentalpha Surveillance LLC, as operating advisor, U.S. Bank National Association, as certificate administrator (in such capacity, the “Certificate Administrator”) and as trustee (in such capacity, the “Trustee”), pursuant to which the Purchaser will transfer the Mortgage Loans (as defined herein) to a trust fund and certificates representing ownership interests in the Mortgage Loans will be issued by the trust fund (the “Trust Fund”). In exchange for the Mortgage Loans, the Trust Fund will issue to or at the direction of the Depositor certificates to be known as GS Mortgage Securities Trust 2012-GCJ9, Commercial Mortgage Pass-Through Certificates, Series 2012-GCJ9 (collectively, the “Certificates”). For purposes of this Agreement, “Mortgage Loans” refers to the mortgage loans listed on Exhibit A and “Mortgaged Properties” refers to the properties securing such Mortgage Loans. The Purchaser and the Seller wish to prescribe the manner of sale of the Mortgage Loans from the Seller to the Purchaser and in consideration of the premises and the mutual agreements hereinafter set forth, agree as follows: SECTION 1 Sale and Conveyance of Mortgages; Possession of Mortgage File. The Seller does hereby sell, transfer, assign, set over and convey to the Purchaser, without recourse (except as otherwise specifically set forth herein), subject to the rights of the holders of interests in a Companion Loan, all of its right, title and interest in and to the Mortgage Loans identified on Exhibit A to this Agreement (the “Mortgage Loan Schedule”) including all interest and principal received on or with respect to the Mortgage Loans after the Cut-Off Date (and, in any event, notwithstanding anything herein to the contrary, excluding payments of principal and interest first due on the Mortgage Loans on or before the Cut-Off Date and excluding any Loan Seller Defeasance Rights and Obligations with respect to the Mortgage Loans). In addition, with respect to the Mortgage Loans sold by the Seller to the Purchaser, the Initial Interest Shortfall Deposit shall be $28,337.00. Upon the sale of the Mortgage Loans, the ownership of each related Note, the Seller’s interest in the related Mortgage represented by the Note and the other contents of the related Mortgage File (all subject to the rights of the holders of interests in a Companion Loan) will be vested in the Purchaser and immediately thereafter the Trustee, and the ownership of records and documents with respect to each Mortgage Loan (other than a Non-Serviced Companion Loan) prepared by or which come into the possession of the Seller shall (subject to the rights of the holders of interests in a Companion Loan) immediately vest in the Purchaser and immediately thereafter the Trustee. In connection with the transfer of the Green Exchange Loan pursuant to this Section 1, the Seller does hereby assign all of its right, title and interest (solely in its capacity as the holder of the subject Mortgage Loan) in, to and under the related Intercreditor Agreement. The Purchaser will sell certain of the Certificates (the “Public Certificates”) to the underwriters (the “Underwriters”) specified in the Underwriting Agreement, dated as of November 16, 2012 (the “Underwriting Agreement”), between the Purchaser and the Underwriters, and the Purchaser will sell certain of the Certificates (the “Private Certificates”) to the initial purchasers (the “Initial Purchasers” and,
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collectively with the Underwriters, the “Dealers”) specified in the Purchase Agreement, dated as of November 16, 2012 (the “Certificate Purchase Agreement”), between the Purchaser and Initial Purchasers. The sale and conveyance of the Mortgage Loans is being conducted on an arms-length basis and upon commercially reasonable terms. As the purchase price for the Mortgage Loans, the Purchaser shall pay, by wire transfer of immediately available funds, to the Seller or at the Seller’s direction $574,213,688.83, plus accrued interest on the Mortgage Loans from and including November 1, 2012 to but excluding the Closing Date (but subject to certain post-settlement adjustment for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible). The purchase and sale of the Mortgage Loans shall take place on the Closing Date. SECTION 2 Books and Records; Certain Funds Received After the Cut-Off Date. From and after the sale of the Mortgage Loans to the Purchaser, record title to each Mortgage (other than with respect to a Non-Serviced Loan) and each Note shall be transferred to the Trustee subject to and in accordance with this Agreement. Any funds due after the Cut-Off Date in connection with a Mortgage Loan received by the Seller shall be held in trust on behalf of the Trustee (for the benefit of the Certificateholders) as the owner of such Mortgage Loan and shall be transferred promptly to the Certificate Administrator. All scheduled payments of principal and interest due on or before the Cut-Off Date but collected after the Cut-Off Date, and all recoveries and payments of principal and interest collected on or before the Cut-Off Date (only in respect of principal and interest on the Mortgage Loans due on or before the Cut-Off Date and principal prepayments thereon), shall belong to, and shall be promptly remitted to, the Seller. The transfer of each Mortgage Loan shall be reflected on the Seller’s balance sheets and other financial statements as the sale of such Mortgage Loan by the Seller to the Purchaser. The Seller intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes. Following the transfer of the Mortgage Loans by the Seller to the Purchaser, the Seller shall not take any actions inconsistent with the ownership of the Mortgage Loans by the Purchaser and its assignees. The transfer of each Mortgage Loan shall be reflected on the Purchaser’s balance sheets and other financial statements as the purchase of such Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat the transfer of each Mortgage Loan from the Seller as a purchase for tax purposes. The Purchaser shall be responsible for maintaining, and shall maintain, a set of records for each Mortgage Loan which shall be clearly marked to reflect the transfer of ownership of each Mortgage Loan by the Seller to the Purchaser pursuant to this Agreement. SECTION 3 Delivery of Mortgage Loan Documents; Additional Costs and Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby agrees, such agreement effective upon the transfer of the Mortgage Loans contemplated herein, to deliver or cause to be delivered to the Custodian (on behalf of the Trustee), the Master Servicer and the -2-
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Special Servicer, respectively, on the dates set forth in Section 2.01 of the Pooling and Servicing Agreement, all documents, instruments and agreements required to be delivered by the Purchaser, or contemplated to be delivered by the Seller (whether at the direction of the Purchaser or otherwise), to the Custodian, the Master Servicer and the Special Servicer, as applicable, with respect to the Mortgage Loans under Section 2.01 of the Pooling and Servicing Agreement, and meeting all the requirements of such Section 2.01 of the Pooling and Servicing Agreement; provided that the Seller shall not be required to deliver any draft documents, privileged communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations. (b) Except with respect to a Non-Serviced Loan, the Seller shall deliver to and deposit with (or cause to be delivered to and deposited with) the Master Servicer within five (5) Business Days after the Closing Date a copy of the Mortgage File and documents and records not otherwise required to be contained in the Mortgage File that (i) relate to the origination and/or servicing and administration of the Mortgage Loans or any related Companion Loans, (ii) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans (including any asset summaries related to the Mortgage Loans that were delivered to the Rating Agencies in connection with the rating of the Certificates) or any related Companion Loans or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans or any related Companion Loans or holders of interests therein and (iii) are in the possession or under the control of the Seller, together with (x) the Initial Interest Shortfall Deposit, (y) all unapplied Escrow Payments and reserve funds in the possession or under control of the Seller that relate to the Mortgage Loans or any related Companion Loans and (z) a statement indicating which Escrow Payments and reserve funds are allocable to each Mortgage Loan or any related Companion Loans, provided that copies of any document in the Mortgage File and any other document, record or item referred to above in this sentence that constitutes a Designated Servicing Document shall be delivered to the Master Servicer on or before the Closing Date; provided that the Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations. SECTION 4 Treatment as a Security Agreement. Pursuant to Section 1 hereof, the Seller has conveyed to the Purchaser all of its right, title and interest in and to the Mortgage Loans. The parties intend that such conveyance of the Seller’s right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall constitute a purchase and sale and not a loan. If such conveyance is deemed to be a pledge and not a sale, then the parties also intend and agree that the Seller shall be deemed to have granted, and in such event does hereby grant, to the Purchaser, a first priority security interest in all of its right, title and interest in, to and under the Mortgage Loans, all payments of principal or interest on such Mortgage Loans due after the Cut-Off Date, all other payments made in respect of such Mortgage Loans after the Cut-Off Date (and, in any event, excluding scheduled payments of principal and interest due on or before the Cut-Off Date) and all proceeds thereof, and that this Agreement shall constitute a security agreement under applicable law. If such conveyance is deemed to be a pledge and not a sale, the Seller consents to the Purchaser hypothecating and transferring such security interest in favor of the Trustee and transferring the obligation secured thereby to the Trustee. -3-
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SECTION 5 Covenants of the Seller. The Seller covenants with the Purchaser as follows: (a) except with respect to a Non-Serviced Loan, it shall record and file or cause a third party to record and file in the appropriate public recording office for real property records or UCC financing statements, as appropriate (or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver to the Custodian for such purpose and cause the Custodianr to record and file), the assignments of assignment of leases, rents and profits and the assignments of Mortgage and each related UCC-2 and UCC-3 financing statement referred to in the definition of Mortgage File from the Seller to the Trustee as and to the extent contemplated under Section 2.01(c) of the Pooling and Servicing Agreement. All out of pocket costs and expenses relating to the recordation or filing of such assignments, assignments of Mortgage and financing statements shall be paid by the Seller. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, then the Seller shall prepare or cause the preparation of a substitute therefor or cure such defect or cause such defect to be cured, as the case may be, and the Seller shall record or file, or cause the recording or filing of, such substitute or corrected document or instrument or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver such substitute or corrected document or instrument to the Custodian (or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing Agreement, the then holder of such Mortgage Loan); (b) as to each Mortgage Loan (except with respect to a Non-Serviced Loan), if the Seller cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (2), (3) and (6) (if recorded) and (15) of the definition of “Mortgage File” in the Pooling and Servicing Agreement solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, as applicable, it shall forward to the Custodian a copy of the original certified by the Seller to be a true and complete copy of the original thereof submitted for recording. The Seller shall cause each assignment referred to in Section (5)(a) above that is recorded and the file copy of each UCC-2 and UCC-3 assignment referred to in Section (5)(a) above to reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the Seller or its designee, in which case the Seller shall deliver or cause the delivery of the recorded original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or assignment of Assignment of Leases, the Custodian shall obtain therefrom a certified copy of the recorded original. On a monthly basis, at the expense of the Seller, the Custodian shall forward to the Master Servicer a copy of each of the aforementioned assignments following the Custodian’s receipt thereof; (c) it shall take any action reasonably required by the Purchaser, the Certificate Administrator, the Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans to the Master Servicer, including effectuating the transfer of any letters of credit with respect to any Mortgage Loan to the Master Servicer on behalf of the Trustee for the benefit of Certificateholders and the holders of any related -4-
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Companion Loans. Prior to the date that a letter of credit with respect to any Mortgage Loan is transferred to the Master Servicer, the Seller will cooperate with the reasonable requests of the Master Servicer or Special Servicer, as applicable, in connection with effectuating a draw under such letter of credit as required under the terms of the related Loan Documents. Notwithstanding the foregoing, this Section 5(c) shall not apply with respect to a Non-Serviced Loan; (d) the Seller shall provide the Master Servicer the initial data with respect to each Mortgage Loan for the CREFC Financial File and the CREFC Loan Periodic Update File that are required to be prepared by the Master Servicer pursuant to the Pooling and Servicing Agreement and the Supplemental Servicer Schedule; (e) if (during the period of time that the Underwriters are required, under applicable law, to deliver a prospectus related to the Public Certificates in connection with sales of the Public Certificates by an Underwriter or a dealer) the Seller has obtained actual knowledge of undisclosed or corrected information related to an event that occurred prior to the Closing Date, which event causes there to be an untrue statement of a material fact with respect to the Seller Information in the Prospectus Supplement dated November 16, 2012 relating to the Public Certificates, the annexes and exhibits thereto and the DVD delivered therewith, or the Offering Circular dated November 16, 2012 relating to the Private Certificates, the annexes and exhibits thereto and the DVD delivered therewith (collectively, the “Offering Documents”), or causes there to be an omission to state therein a material fact with respect to the Seller Information required to be stated therein or necessary to make the statements therein with respect to the Seller Information, in the light of the circumstances under which they were made, not misleading, then the Seller shall promptly notify the Dealers and the Depositor. If as a result of any such event the Dealers’ legal counsel determines that it is necessary to amend or supplement the Offering Documents in order to correct the untrue statement, or to make the statements therein, in the light of the circumstances when the Offering Documents are delivered to a purchaser, not misleading, or to make the Offering Documents in compliance with applicable law, the Seller shall (to the extent that such amendment or supplement solely relates to the Seller Information) at the expense of the Seller, do all things reasonably necessary to assist the Depositor to prepare and furnish to the Dealers, such amendments or supplements to the Offering Documents as may be necessary so that the Seller Information in the Offering Documents, as so amended or supplemented, will not contain an untrue statement, will not, in the light of the circumstances when the Offering Documents are delivered to a purchaser, be misleading and will comply with applicable law. (All terms under this clause (d) and not otherwise defined in this Agreement shall have the meanings set forth in the Indemnification Agreement, dated as of November 16, 2012, among the Underwriters, the Initial Purchasers, the Seller and the Purchaser (the “Indemnification Agreement” and, together with this Agreement, the “Operative Documents”)); and (f) for so long as the Trust Fund is subject to the reporting requirements of the Exchange Act, the Seller shall provide the Depositor (or with respect to any Serviced Companion Loan that is deposited into another securitization, the depositor of such securitization) and the Certificate Administrator with any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on Exhibit U, Exhibit V and Exhibit Z to the Pooling and Servicing Agreement within the time periods set forth in the Pooling and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Seller’s reporting obligations under Item 1119 of Regulation AB, upon -5-
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reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant. SECTION 6 Representations and Warranties. (a) The Seller represents and warrants to the Purchaser as of the date hereof and as of the Closing Date that: (i) The Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware with full power and authority to own its assets and conduct its business, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and the Seller has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute, deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby, including, but not limited to, the power and authority to sell, assign, transfer, set over and convey the Mortgage Loans in accordance with this Agreement; (ii) Assuming the due authorization, execution and delivery of this Agreement by the Purchaser, this Agreement will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification for securities laws liabilities; (iii) The execution and delivery of each Operative Document by the Seller and the performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which the Seller is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Seller’s organizational documents or any agreement or instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or imposition of any lien on any of the Seller’s assets or property, in each case, which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by the Operative Documents; (iv) There is no action, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the -6-
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validity of the Mortgage Loans or the ability of the Seller to carry out the transactions contemplated by each Operative Document; (v) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect its performance under any Operative Document; (vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by the Seller; and (vii) The transfer, assignment and conveyance of the Mortgage Loans by the Seller to the Purchaser is not subject to bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction. (b) The Purchaser represents and warrants to the Seller as of the Closing Date that: (i) The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to own its assets and conduct its business, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and the Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has duly executed and delivered this Agreement, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby; (ii) Assuming the due authorization, execution and delivery of this Agreement by the Seller, this Agreement will constitute a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (iii) The execution and delivery of this Agreement by the Purchaser and the performance of its obligations hereunder will not conflict with any provision of any law or regulation to which the Purchaser is subject, or conflict with, result in a breach of, or -7-
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constitute a default under, any of the terms, conditions or provisions of any of the Purchaser’s organizational documents or any agreement or instrument to which the Purchaser is a party or by which it is bound, or any order or decree applicable to the Purchaser, or result in the creation or imposition of any lien on any of the Purchaser’s assets or property, in each case which would materially and adversely affect the ability of the Purchaser to carry out the transactions contemplated by this Agreement; (iv) There is no action, suit, proceeding or investigation pending or, to the Purchaser’s knowledge, threatened against the Purchaser in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of this Agreement or any action taken in connection with the obligations of the Purchaser contemplated herein, or which would be likely to impair materially the ability of the Purchaser to perform under the terms of this Agreement; (v) The Purchaser is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Purchaser or its properties or might have consequences that would materially and adversely affect its performance under any Operative Document; and (vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Purchaser of or compliance by the Purchaser with this Agreement or the consummation of the transactions contemplated by this Agreement other than those that have been obtained by the Purchaser. (c) The Seller further makes the representations and warranties as to the Mortgage Loans set forth in Exhibit B to this Agreement as of the Cut-Off Date or such other date set forth in Exhibit B to this Agreement, which representations and warranties are subject to the exceptions thereto set forth in Exhibit C to this Agreement. (d) Pursuant to the Pooling and Servicing Agreement, if (i) any party thereto discovers or receives notice alleging that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or does not appear to be regular on its face (each, a “Document Defect”), or discovers or receives notice alleging a breach of any representation or warranty of the Seller made pursuant to Section 6(c) of this Agreement with respect to any Mortgage Loan (a “Breach”) or (ii) the Special Servicer or the Purchaser receives a Repurchase Request, such party is required to give prompt written notice thereof to the Seller. (e) Pursuant to the Pooling and Servicing Agreement, the Special Servicer is required to determine whether any such Document Defect or Breach with respect to any Mortgage Loan materially and adversely affects, or such Document Defect is deemed in accordance with Section 2.03 of the Pooling and Servicing Agreement to materially and adversely affect, the value of the Mortgage Loan or any related REO Property or the interests of -8-
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the Certificateholders therein, or causes the related Mortgage Loan to be other than a Qualified Mortgage (any such Document Defect shall constitute a “Material Document Defect” and any such Breach shall constitute a “Material Breach”). If such Document Defect or Breach has been determined to be a Material Document Defect or Material Breach, then the Special Servicer will be required to give prompt written notice thereof to the Seller. Promptly upon becoming aware of any such Material Document Defect or Material Breach (including through a written notice given by any party hereto, as provided above if the Document Defect or Breach identified therein is a Material Document Defect or Material Breach, as the case may be), the Seller shall, not later than 90 days from the earlier of the Seller’s discovery or receipt of notice of, and receipt of a demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be (or, in the case of a Material Document Defect or Material Breach relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of the REMIC Provisions, not later than 90 days from any party discovering such Material Document Defect or Material Breach, provided that, if such discovery is by any party other than the Seller, the Seller receives notice thereof in a timely manner), cure the same in all material respects (which cure shall include payment of any losses and Additional Trust Fund Expenses associated therewith) or, if such Material Document Defect or Material Breach, as the case may be, cannot be cured within such 90 day period, the Seller shall either (i) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (provided that in no event shall any such substitution occur later than the second anniversary of the Closing Date) and pay the Master Servicer, for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith or (ii) repurchase the affected Mortgage Loan or any related REO Property (or the Trust Fund’s interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Collection Account; provided, however, that if (i) such Material Document Defect or Material Breach is capable of being cured but not within such 90 day period, (ii) such Material Document Defect or Material Breach is not related to any Mortgage Loan’s not being a “qualified mortgage” within the meaning of the REMIC Provisions and (iii) the Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within such 90 day period, then the Seller shall have an additional 90 days to complete such cure (or, in the event of a failure to so cure, to complete such repurchase of the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described above) it being understood and agreed that, in connection with the Seller’s receiving such additional 90 day period, the Seller shall deliver an Officer’s Certificate to the Trustee, the Special Servicer and the Certificate Administrator setting forth the reasons such Material Document Defect or Material Breach is not capable of being cured within the initial 90 day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Material Document Defect or Material Breach will be cured within such additional 90 day period; and provided, further, that, if any such Material Document Defect is still not cured after the initial 90 day period and any such additional 90 day period solely due to the failure of the Seller to have received the recorded document, then the Seller shall be entitled to continue to defer its cure, substitution or repurchase obligations in respect of such Document Defect so long as the Seller certifies to the Trustee, the Special Servicer and the Certificate Administrator every 30 days thereafter that the Document Defect is still in effect solely because of its failure to have received the recorded document and that the Seller is diligently pursuing the cure of such defect (specifying the actions being taken), except that no such deferral of cure, substitution or repurchase may continue beyond the date that is 18 months following the Closing Date. Any -9-
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such repurchase of a Mortgage Loan shall be on a servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Breach or a Document Defect, but if the Seller discovers a Material Breach or Material Document Defect with respect to a Mortgage Loan, it will notify the Purchaser. Subject to the Seller’s right to cure set forth above in this Section 6(e), and further subject to Sections 2.01(b) and 2.01(c) of the Pooling and Servicing Agreement, failure of the Seller to deliver the documents referred to in clauses (1), (2), (7), (8), (18) and (19) in the definition of “Mortgage File” in the Pooling and Servicing Agreement in accordance with this Agreement and the Pooling and Servicing Agreement for any Mortgage Loan shall be deemed a Material Document Defect; provided, however, that no Document Defect (except such deemed Material Document Defect described above) shall be considered to be a Material Document Defect unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate significant servicing obligation. (f) In connection with any repurchase or substitution of one or more Mortgage Loans pursuant to this Section 6, the Pooling and Servicing Agreement shall provide that the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the repurchasing entity, upon delivery to each of them of a receipt executed by the repurchasing entity, all portions of the Mortgage File and other documents and all Escrow Payments and reserve funds pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the repurchasing or substituting entity or its designee in the same manner, but only if the respective documents have been previously assigned or endorsed to the Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously assigned to the Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security therefor to the Seller or its designee; provided that such tender by the Trustee shall be conditioned upon its receipt from the Master Servicer of a Request for Release and an Officer’s Certificate to the effect that the requirements for repurchase or substitution have been satisfied. (g) The representations and warranties of the parties hereto shall survive the execution and delivery and any termination of this Agreement and shall inure to the benefit of the respective parties, notwithstanding any restrictive or qualified endorsement on the Notes or Assignment of Mortgage or the examination of the Mortgage Files. (h) Each party hereto agrees to promptly notify the other party of any breach of a representation or warranty contained in Section 6(c) of this Agreement. The Seller’s obligation to cure any Material Breach or Material Document Defect or to repurchase or substitute any affected Mortgage Loan pursuant to this Section 6 shall constitute the sole remedy available to the Purchaser in connection with a breach of any of the Seller’s representations or warranties contained in Section 6(c) of this Agreement or a Document Defect with respect to any Mortgage Loan. -10-
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(i) The Seller shall promptly notify the Depositor if (i) the Seller receives a Repurchase Communication of a Repurchase Request (other than from the Depositor), (ii) the Seller repurchases or replaces a Mortgage Loan, (iii) the Seller receives a Repurchase Communication of a Repurchase Request Withdrawal (other than from the Depositor) or (iv) the Seller rejects or disputes any Repurchase Request. Each such notice shall be given no later than the tenth (10th) Business Day after (A) with respect to clauses (i) and (iii) of the preceding sentence, receipt of a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, as applicable, and (B) with respect to clauses (ii) and (iv) of the preceding sentence, the occurrence of the event giving rise to the requirement for such notice, and shall include (1) the identity of the related Mortgage Loan, (2) the date (x) such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal was received, (y) the related Mortgage Loan was repurchased or replaced or (z) the Repurchase Request was rejected or disputed, as applicable, and (3) if known, the basis for (x) the Repurchase Request (as asserted in the Repurchase Request) or (y) any rejection or dispute of a Repurchase Request, as applicable. The Seller shall provide to the Depositor and the Certificate Administrator the Seller’s “Central Index Key” number assigned by the Securities and Exchange Commission and a true, correct and complete copy of the relevant portions of any Form ABS-15G that the Seller is required to file with the Securities and Exchange Commission with respect to the Mortgage Loans on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Securities and Exchange Commission. In addition, the Seller shall provide the Depositor, upon request, such other information in its possession as would permit the Depositor to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase requests. Any such information requested shall be provided as promptly as practicable after such request is made. The Seller agrees that no 15Ga-1 Notice Provider will be required to provide information in a 15Ga-1 Notice that is protected by the attorney-client privilege or attorney work product doctrines. In addition, the Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement is so provided only to assist the Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no action taken by, or inaction of, a 15Ga-1 Notice Provider and (B) no information provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement by a 15Ga-1 Notice Provider shall be deemed to constitute a waiver or defense to the exercise of any legal right the 15Ga-1 Notice Provider may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a 15Ga-1 Notice. Each party hereto agrees that the receipt of a 15Ga-1 Notice or the delivery of any notice required to be delivered pursuant to this Section 6(i) shall not, in and of itself, constitute delivery of notice of, receipt of notice of, or knowledge of the Seller of, any Material Document Defect or Material Breach. -11-
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Each party hereto agrees and acknowledges that, as of the date of this Agreement, the “Central Index Key” number of the Trust Fund is 0001548266. “Repurchase Communication” means, for purposes of this Section 6(i) only, any communication, whether oral or written, which need not be in any specific form. SECTION 7 Review of Mortgage File. The Purchaser shall require the Certificate Administrator pursuant to the Pooling and Servicing Agreement to review the Mortgage Files pursuant to Section 2.02 of the Pooling and Servicing Agreement and if it finds any document or documents not to have been properly executed, or to be missing or to be defective on its face in any material respect, to notify the Purchaser, which shall promptly notify the Seller. SECTION 8 Conditions to Closing. The obligation of the Seller to sell the Mortgage Loans shall be subject to the Seller having received the purchase price for the Mortgage Loans as contemplated by Section 1 of this Agreement. The obligations of the Purchaser to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior to the Closing Date, of the following conditions: (a) Each of the obligations of the Seller required to be performed by it at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with and all of the representations and warranties of the Seller under this Agreement shall, subject to any applicable exceptions set forth on Exhibit C to this Agreement, be true and correct in all material respects as of the Closing Date or as of such other date as of which such representation is made under the terms of Exhibit B to this Agreement, and no event shall have occurred as of the Closing Date which would constitute a default on the part of the Seller under this Agreement, and the Purchaser shall have received a certificate to the foregoing effect signed by an authorized officer of the Seller substantially in the form of Exhibit D to this Agreement. (b) The Pooling and Servicing Agreement (to the extent it affects the obligations of the Seller hereunder), in such form as is agreed upon and acceptable to the Purchaser, the Seller, the Underwriters, the Initial Purchasers and their respective counsel in their reasonable discretion, shall be duly executed and delivered by all signatories as required pursuant to the terms thereof. (c) The Purchaser shall have received the following additional closing documents: (i) copies of the Seller’s Articles of Association, charter, by-laws or other organizational documents and all amendments, revisions, restatements and supplements thereof, certified as of a recent date by the Secretary of the Seller; (ii) a certificate as of a recent date of the Secretary of State of the State of Delaware to the effect that the Seller is duly organized, existing and in good standing in the State of Delaware; -12-
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(iii) an officer’s certificate of the Seller in form reasonably acceptable to the Underwriters, the Initial Purchasers and each Rating Agency; (iv) an opinion of counsel of the Seller, subject to customary exceptions and carve-outs, in form reasonably acceptable to the Underwriters, the Initial Purchasers and each Rating Agency; and (v) a letter from counsel of the Seller substantially to the effect that (a) nothing has come to such counsel’s attention that would lead such counsel to believe that the agreed upon sections of the Primary Free Writing Prospectus, the Prospectus Supplement, the Preliminary Offering Circular or the Final Offering Circular (each as defined in the Indemnification Agreement), as of the date thereof or as of the Closing Date (or, in the case of the Primary Free Writing Prospectus or the Preliminary Offering Circular, solely as of the time of sale) contained or contain, as applicable, with respect to the Seller or the Mortgage Loans, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) the Seller Information (as defined in the Indemnification Agreement) in the Prospectus Supplement appears to be appropriately responsive in all material respects to the applicable requirements of Regulation AB. (d) The Public Certificates shall have been concurrently issued and sold pursuant to the terms of the Underwriting Agreement. The Private Certificates shall have been concurrently issued and sold pursuant to the terms of the Certificate Purchase Agreement. (e) The Seller shall have executed and delivered concurrently herewith the Indemnification Agreement. (f) The Seller shall furnish the Purchaser, the Underwriters and the Initial Purchasers with such other certificates of its officers or others and such other documents and opinions to evidence fulfillment of the conditions set forth in this Agreement as the Purchaser and its counsel may reasonably request. SECTION 9 Closing. The closing for the purchase and sale of the Mortgage Loans shall take place at the office of Cadwalader, Wickersham & Taft LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place and time as the parties shall agree. SECTION 10 Expenses. The Seller will pay its pro rata share (the Seller’s pro rata portion to be determined according to the percentage that the aggregate principal balance as of the Cut-Off Date of all the Mortgage Loans represents as to the aggregate principal balance as of the Cut-Off Date of all the mortgage loans to be included in the Trust Fund) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of a firm -13-
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of certified public accountants selected by the Purchaser and the Seller with respect to numerical information in respect of the Mortgage Loans and the Certificates included in the Prospectus, Preliminary Free Writing Prospectus, the Prospectus Supplement, the Preliminary Offering Circular, the Final Offering Circular and any related disclosure for the initial Form 8-K, including the cost of obtaining any “comfort letters” with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering the Registration Statement, Prospectus, Preliminary Free Writing Prospectus, Prospectus Supplement, Preliminary Offering Circular and Final Offering Circular and the reproducing and delivery of this Agreement and the furnishing to the Underwriters of such copies of the Registration Statement, Prospectus, Preliminary Free Writing Prospectus, Prospectus Supplement, Preliminary Offering Circular, Final Offering Circular and this Agreement as the Underwriters may reasonably request; (viii) the fees of the rating agency or agencies requested to rate the Certificates; (ix) the reasonable fees and expenses of Cadwalader, Wickersham & Taft LLP, as counsel to the Purchaser; and (x) the reasonable fees and expenses of Mayer Brown LLP, as counsel to the Underwriters and the Initial Purchasers. SECTION 11 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement. Furthermore, the parties shall in good faith endeavor to replace any provision held to be invalid or unenforceable with a valid and enforceable provision which most closely resembles, and which has the same economic effect as, the provision held to be invalid or unenforceable. SECTION 12 Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. SECTION 13 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. -14-
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SECTION 14 Submission to Jurisdiction. EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER. SECTION 15 No Third-Party Beneficiaries. The parties do not intend the benefits of this Agreement to inure to any third party except as expressly set forth in Section 16. SECTION 16 Assignment. The Seller hereby acknowledges that the Purchaser has, concurrently with the execution hereof, executed and delivered the Pooling and Servicing Agreement and that, in connection therewith, it has assigned its rights hereunder to the Trustee for the benefit of the Certificateholders. The Seller hereby acknowledges its obligations pursuant to Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser and their permitted successors and assigns. Any Person into which the Seller may be merged or consolidated, or any Person resulting from any merger, conversion or consolidation to which the Seller may become a party, or any Person succeeding to all or substantially all of the business of the Seller, shall be the successor to the Seller hereunder without any further act. The warranties and representations and the agreements made by the Seller herein shall survive delivery of the Mortgage Loans to the Trustee until the termination of the Pooling and Servicing Agreement, but shall not be further assigned by the Trustee to any Person. SECTION 17 Notices. All communications hereunder shall be in writing and effective only upon receipt and (i) if sent to the Purchaser, will be mailed, hand delivered, couriered or sent by facsimile transmission to it at 200 West Street, New York, New York 10282, to the attention of Leah Nivison, fax number (212) 428-1439, with a copy to Gary Silber, fax number (212) 493-9003, (ii) if sent to the Seller, will be mailed, hand delivered, couriered or sent by facsimile transmission or electronic mail and confirmed to it at Jefferies LoanCore LLC, c/o LoanCore Capital, 80 Field Point Road, Greenwich, Connecticut 06830, Attention: Perry Gershon, fax number: (203) 861-6006, with copies to Kaye Scholer LLP, 425 Park Avenue, New York, New York 10022, Attention: Stephen Gliatta, Esq., fax number: (212) 836-8689, and (iii) in the case of any of the preceding parties, such other address as may hereafter be furnished to the other party in writing by such parties. SECTION 18 Amendment. This Agreement may be amended only by a written instrument which specifically refers to this Agreement and is executed by the Purchaser and the Seller. This Agreement shall not be deemed to be amended orally or by virtue of any continuing custom or practice. No amendment to the Pooling and Servicing Agreement which relates to -15-
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defined terms contained therein or to any obligations or rights of the Seller whatsoever shall be effective against the Seller unless the Seller shall have agreed to such amendment in writing. SECTION 19 Counterparts. This Agreement may be executed in any number of counterparts, and by the parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement. SECTION 20 Exercise of Rights. No failure or delay on the part of any party to exercise any right, power or privilege under this Agreement and no course of dealing between the Seller and the Purchaser shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as set forth in Section 6(h) of this Agreement, the rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which any party would otherwise have pursuant to law or equity. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other circumstances, or constitute a waiver of the right of either party to any other or further action in any circumstances without notice or demand. SECTION 21 No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the parties hereto. Nothing herein contained shall be deemed or construed as creating an agency relationship between the Purchaser and the Seller and neither party shall take any action which could reasonably lead a third party to assume that it has the authority to bind the other party or make commitments on such party’s behalf. SECTION 22 Miscellaneous. This Agreement supersedes all prior agreements and understandings relating to the subject matter hereof. Neither this Agreement nor any term hereof may be waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the waiver, discharge or termination is sought. SECTION 23 Further Assurances. The Seller and Purchaser each agree to execute and deliver such instruments and take such further actions as any party hereto may, from time to time, reasonably request in order to effectuate the purposes and carry out the terms of this Agreement. * * * * * * -16-
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORPORATION II By: /s/ J. Theodore Borter Name: J. Theodore Borter Title: President JEFFERIES LOANCORE LLC By: /s/ Angelyn Sorenson Name: Angelyn Sorenson Title: Secretary
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EXHIBIT A MORTGAGE LOAN SCHEDULE A-1
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GSMS 2012-GCJ9 JLC Mortgage Loan Schedule
Original Control Loan Cut-Off Date Mortgage Number Footnotes Number Property Name Address City State Zip Code Balance ($) Loan Rate (%) 2 1 Pinnacle I 3400 West Olive Avenue Burbank California 91505 129,000,000 3.95400% 4 2 Jamaica Center 15902 Jamaica Avenue Jamaica New York 11432 81,000,000 4.27000% 5 3 9201 Sunset 9201 Sunset Boulevard West Hollywood California 90069 70,000,000 3.95000% 8 4 North Street Portfolio 50,954,089 5.68000% 8.01 4.01 The Highlands 100 Lincoln Highlands Drive Coraopolis Pennsylvania 15108 8.02 4.02 Park Towers 3905 Tower Drive Richton Park Illinois 60471 12 5 Green Exchange 2545 West Diversey Avenue Chicago Illinois 60647 26,500,000 4.75000% 14 6 Signature Place Office 3200 Northline Avenue Greensboro North Carolina 27408 24,979,279 6.00000% 16 7 Abbott’s Properties 20,230,453 5.40000% 16.01 7.01 Abbott’s Park 6320 Abbott’s Park Road Fayetteville North Carolina 28311 16.02 7.02 Abbott’s Landing 581 Abbott’s Landing Circle Fayetteville North Carolina 28314 18 8 First State Plaza 1600-1800 West Newport Pike Stanton Delaware 19804 19,456,146 6.70000% 21 9 Parkview Independent Living 17,984,082 5.75000% 21.01 9.01 Parkview West 10914 Kingston Pike Knoxville Tennessee 37934 21.02 9.02 Parkview Fountain City 5405 Colonial Circle Knoxville Tennessee 37918 23 10 Barrett Summit 1990 Vaughn Road Northwest Kennesaw Georgia 30144 15,963,690 5.00000% 25 11 Bakersfield Multifamily Portfolio 14,448,808 5.97400% 25.01 11.01 Autumn Glen 4025-4407 & 4100-4412 McCray Street Bakersfield California 93308 25.02 11.02 Serena Vista 1000 Pacheco Road Bakersfield California 93307 27 12 The Village Shoppes of Madison 12050-12120 County Line Road Madison Alabama 35756 13,984,806 4.91000% 29 13 Mansell Commons 993-1011 Mansell Road Roswell Georgia 30076 11,651,784 6.40000% 32 14 San Antonio Self Storage Portfolio 9,650,000 5.43000% 32.01 14.01 1st American Storage (San Antonio) 25300 and 28730 Interstate Highway 10 West San Antonio Texas 78257 32.02 14.02 1st American Storage (Floresville) 512 10th Street Floresville Texas 78114 47 15 Holiday Inn Express Hotel & Suites Lancaster - Lititz 101 Crosswinds Drive Lititz Pennsylvania 17543 6,200,000 4.94000% 51 16 A-1 Personal Self Storage Portfolio 5,494,238 5.06000% 51.01 16.01 A-1 Star Road (Wake Forest) 10880 Star Road Wake Forest North Carolina 27587 51.02 16.02 A-1 Durant II 10104 Durant Road Raleigh North Carolina 27614 52 17 Woodridge Plaza 2401-2501 75th Street and 7520-7546 Janes Avenue Woodridge Illinois 60517 5,429,545 5.24000% 62 18 Tribune Press Building 1205 Franklin Street Oakland California 94612 4,192,402 6.05000%
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GSMS 2012-GCJ9 JLC Mortgage Loan Schedule
Remaining Remaining Crossed With Control Loan Term To Amortization Term Subservicing Servicing Mortgage Other Loans Number Footnotes Number Property Name Maturity (Mos.) Maturity Date (Mos.) Fee Rate (%) Fee Rate (%) Loan Seller (Crossed Group) 2 1 Pinnacle I 120 11/6/2022 360 0.00000% 0.02000% JLC NAP 4 2 Jamaica Center 120 11/6/2022 360 0.00000% 0.02000% JLC NAP 5 3 9201 Sunset 120 11/6/2022 0 0.00000% 0.02000% JLC NAP 8 4 North Street Portfolio 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 8.01 4.01 The Highlands 8.02 4.02 Park Towers 12 5 Green Exchange 120 11/6/2022 360 0.00000% 0.02000% JLC NAP 14 6 Signature Place Office 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 16 7 Abbott’s Properties 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 16.01 7.01 Abbott’s Park 16.02 7.02 Abbott’s Landing 18 8 First State Plaza 117 8/6/2022 357 0.00000% 0.02000% JLC NAP 21 9 Parkview Independent Living 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 21.01 9.01 Parkview West 21.02 9.02 Parkview Fountain City 23 10 Barrett Summit 118 9/6/2022 358 0.00000% 0.02000% JLC NAP 25 11 Bakersfield Multifamily Portfolio 56 7/6/2017 356 0.00000% 0.02000% JLC NAP 25.01 11.01 Autumn Glen 25.02 11.02 Serena Vista 27 12 The Village Shoppes of Madison 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 29 13 Mansell Commons 55 6/6/2017 355 0.00000% 0.02000% JLC NAP 32 14 San Antonio Self Storage Portfolio 120 11/6/2022 300 0.00000% 0.02000% JLC NAP 32.01 14.01 1st American Storage (San Antonio) 32.02 14.02 1st American Storage (Floresville) 47 15 Holiday Inn Express Hotel & Suites Lancaster - Lititz 120 11/6/2022 240 0.00000% 0.02000% JLC NAP 51 16 A-1 Personal Self Storage Portfolio 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 51.01 16.01 A-1 Star Road (Wake Forest) 51.02 16.02 A-1 Durant II 52 17 Woodridge Plaza 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 62 18 Tribune Press Building 118 9/6/2022 358 0.00000% 0.02000% JLC NAP
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EXHIBIT B MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES B-1
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MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES (1) Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan. Each Mortgage Loan that is part of a Whole Loan is a senior or pari passu portion of a whole loan evidenced by a senior or pari passu note. At the time of the sale, transfer and assignment to Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Seller), participation or pledge, and the Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment, the Other Pooling and Servicing Agreement or similar agreement and rights of the holder of a related Companion Loan pursuant to an Intercreditor Agreement. Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan other than the rights of the holder of a related Companion Loan pursuant to an Intercreditor Agreement.
(2) Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except (i) as such enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (ii) that certain provisions in such Loan Documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i) above) such limitations or unenforceability will not render such Loan Documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).
Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Mortgage Loan, B-2
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that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Loan Documents. (3) Mortgage Provisions. The Loan Documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications.
(4) Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File (a) the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty, and related Loan Documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Mortgage Loan.
(5) Lien; Valid Assignment. Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases to the Trust Fund constitutes a legal, valid and binding assignment to the Trust Fund. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth on Exhibit C (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-Off Date, to the Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to the Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below). Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required in order to effect such perfection.
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(6) Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy with escrow instructions or a “marked up” commitment, in each case binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments due and payable but not yet delinquent; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; (f) if the related Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Cross-Collateralized Group; and (g) if the related Mortgage Loan is part of a Whole Loan, the rights of the holder of the related Companion Loan pursuant to an Intercreditor Agreement; provided that none of which items (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f) of the preceding sentence, none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.
(7) Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, there are no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics and materialmens liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing). Except as set forth on Exhibit C, the Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor.
(8) Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related
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Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law, provides that, upon an event of default under the Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee. (9) UCC Filings. If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, have been submitted in proper form for filing and/or recording), UCC financing statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such Mortgagor and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale and leaseback financing arrangement as permitted under the terms of the related Mortgage Loan documents or any other personal property leases applicable to such personal property), to the extent perfection may be effected pursuant to applicable law by recording or filing, as the case may be. Subject to the Standard Qualifications, each related Mortgage (or equivalent document) creates a valid and enforceable lien and security interest on the items of personalty described above. No representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements are required in order to effect such perfection.
(10) Condition of Property. Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within thirteen months of the Cut-Off Date.
An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than thirteen months prior to the Cut-Off Date. To the Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than deferred maintenance for which escrows were established at origination) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan. (11) Taxes and Assessments. All taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges), or
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installments thereof, which could be a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the Mortgage and that prior to the Cut-Off Date have become delinquent in respect of each related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to cover such payments and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, real estate taxes and governmental assessments and other outstanding governmental charges and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority. (12) Condemnation. As of the date of origination and to the Seller’s knowledge as of the Cut-Off Date, there is no proceeding pending, and, to the Seller’s knowledge as of the date of origination and as of the Cut-Off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.
(13) Actions Concerning Mortgage Loan. As of the date of origination and to the Seller’s knowledge as of the Cut-Off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents or (f) the current principal use of the Mortgaged Property.
(14) Escrow Deposits. All escrow deposits and payments required to be escrowed with Mortgagee pursuant to each Mortgage Loan are in the possession, or under the control, of the Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with Mortgagee under the related Loan Documents are being conveyed by the Seller to Depositor or its servicer.
(15) No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by Seller to merit such holdback).
(16) Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form”
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that includes replacement cost valuation issued by an insurer meeting the requirements of the related Loan Documents and having a claims-paying or financial strength rating of at least “A-:VIII” from A.M. Best Company or “A3” (or the equivalent) from Moody’s Investors Service, Inc. or “A-” from Standard & Poor’s Ratings Service (collectively the “Insurance Rating Requirements”), in an amount (subject to a customary deductible) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property. Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Loan Documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months). If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as “a Special Flood Hazard Area”, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program. If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms. The Mortgaged Property is covered, and required to be covered pursuant to the related Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by prudent institutional commercial mortgage lenders, and in any event not less than $1 million per occurrence and $2 million in the aggregate. An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the scenario expected limit (“SEL”) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the SEL would exceed 20% of the amount of the replacement costs of the improvements, B-7
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earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Moody’s Investors Service, Inc. or “A-” by Standard & Poor’s Ratings Service in an amount not less than 100% of the SEL. The Loan Documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then outstanding principal amount of the related Mortgage Loan, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon. All premiums on all insurance policies referred to in this section required to be paid as of the Cut-Off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee. Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s reasonable cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller. (17) Access; Utilities; Separate Tax Lots. Each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been, or will be, made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax lots are created.
(18) No Encroachments. To Seller’s knowledge based solely on surveys obtained in connection with origination and the Mortgagee’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title policy with escrow instructions or a “marked up” commitment) obtained in connection with the origination of each Mortgage Loan, all material improvements that were included for the purpose of determining the
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appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements encroach upon any easements except for encroachments the removal of which would not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements obtained with respect to the Title Policy. (19) No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature or an equity participation by Seller.
(20) REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including buildings and structural components thereof, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. Any prepayment premium and yield maintenance charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.
(21) Compliance with Usury Laws. The Mortgage Rate (exclusive of any default interest, late charges, yield maintenance charge, or prepayment premiums) of such Mortgage Loan
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complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury. (22) Authorized to do Business. To the extent required under applicable law, as of the Cut-Off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to originate, acquire and/or hold (as applicable) the Mortgage Note in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.
(23) Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.
(24) Local Law Compliance. To the Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan (or related Whole Loan, as applicable) and as of the Cut-Off Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively “Zoning Regulations”) other than those which (i) are insured by the Title Policy or a law and ordinance insurance policy or (ii) would not have a material adverse effect on the value, operation or net operating income of the Mortgaged Property. The terms of the Loan Documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws.
(25) Licenses and Permits. Each Mortgagor covenants in the Loan Documents that it shall keep all material licenses, permits and applicable governmental authorizations necessary for its operation of the Mortgaged Property in full force and effect, and to the Seller’s knowledge based upon any of a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multifamily mortgage loans intended for securitization, all such material licenses, permits and applicable governmental authorizations are in effect. The Mortgage Loan requires the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.
(26) Recourse Obligations. The Loan Documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated
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with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events: (i) if any voluntary petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by the Mortgagor; (ii) Mortgagor or guarantor shall have colluded with (or, alternatively, solicited or caused to be solicited) other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Loan Documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained by reason of Mortgagor’s (i) misappropriation of rents after the occurrence of an event of default under the Mortgage Loan, (ii) misappropriation of (A) insurance proceeds or condemnation awards or (B) security deposits or, alternatively, the failure of any security deposits to be delivered to Mortgagee upon foreclosure or action in lieu thereof (except to the extent applied in accordance with leases prior to a Mortgage Loan event of default); (iii) fraud or intentional material misrepresentation; (iv) breaches of the environmental covenants in the Loan Documents; or (v) commission of intentional material physical waste at the Mortgaged Property. (27) Mortgage Releases. The terms of the related Mortgage or related Loan Documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial Defeasance (as defined in paragraph (32)), of not less than a specified percentage at least equal to the lesser of (i) 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding principal balance of the Mortgage Loan, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance defined in (32) below, (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation or taking by a State or any political subdivision or authority thereof. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Loan Documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), for all Mortgage Loans originated after December 6, 2010, if the fair market value of the real property constituting such Mortgaged Property after the release is not equal to at least 80% of the principal balance of the Mortgage Loan outstanding after the release, the Mortgagor is required to make a
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payment of principal in an amount not less than the amount required by the REMIC Provisions. With respect to any partial release under the preceding clause (e), for all Mortgage Loans originated after December 6, 2010, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan in an amount not less than the amount required by the REMIC Provisions and, to such extent, may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining principal balance of the Mortgage Loan. No Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties, other than in compliance with the REMIC Provisions. (28) Financial Reporting and Rent Rolls. Each Mortgage requires the Mortgagor to provide the owner or holder of the Mortgage with quarterly (other than for single-tenant properties) and annual operating statements, and quarterly (other than for single-tenant properties) rent rolls for properties that have leases contributing more than 5% of the in-place base rent and annual financial statements, which annual financial statements with respect to each Mortgage Loan with more than one Mortgagor are in the form of an annual combined balance sheet of the Mortgagor entities (and no other entities), together with the related combined statements of operations, members’ capital and cash flows, including a combining balance sheet and statement of income for the Mortgaged Properties on a combined basis.
(29) Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (collectively referred to as “TRIA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each other Mortgage Loan, the related special all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Mortgage Loan, and, to Seller’s knowledge, do not, as of the Cut-Off Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Loan Documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto; provided, however, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor
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shall not be required to spend more than the Terrorism Cap Amount on terrorism insurance coverage, and if the cost of terrorism insurance exceeds the Terrorism Cap Amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to the Terrorism Cap Amount. The “Terrorism Cap Amount” is the specified percentage (which is at least equal to 200%) of the amount of the insurance premium that is payable at such time in respect of the property and business interruption/rental loss insurance required under the related Loan Documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance). (30) Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due on sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Loan Documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Mortgaged Property, including, without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Loan Documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Loan Documents, (iii) transfers of less than, or other than, a controlling interest in the related Mortgagor, (iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Loan Documents or a Person satisfying specific criteria identified in the related Loan Documents, such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly traded companies or (vi) a substitution or release of collateral within the parameters of paragraphs (27) and (32) herein or the exceptions thereto set forth on Exhibit C, or (vii) as set forth on Exhibit B-30-1 by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt as set forth on Exhibit B-30-2 or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt that existed at origination and is permitted under the related Loan Documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as set forth on Exhibit B-30-3 or (iv) Permitted Encumbrances. The Mortgage or other Loan Documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable out-of-pocket fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
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(31) Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Both the Loan Documents and the organizational documents of the Mortgagor with respect to each Mortgage Loan with a Cut-Off Date Principal Balance in excess of $5 million provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-Off Date Principal Balance of $20 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-Off Date Principal Balance equal to $5 million or less, its organizational documents or the related Loan Documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or Properties, and whose organizational documents further provide, or which entity represented in the related Loan Documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Loan Documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.
(32) Defeasance. With respect to any Mortgage Loan that, pursuant to the Loan Documents, can be defeased (a “Defeasance”), (i) the Loan Documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Loan Documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will, in the case of a full Defeasance, be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment penalty), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to the lesser of (i) 110% of the allocated loan amount for the real property to be released and (ii) the outstanding principal balance of the Mortgage Loan; (iv) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in (iii) above, (v) if the Mortgagor would continue to own assets in addition to the defeasance collateral, the portion of the Mortgage Loan secured by defeasance collateral is required to be assumed (or the Mortgagee may require such assumption) by a Single-Purpose Entity; (vi) the Mortgagor is required to provide an opinion of counsel that the Mortgagee has a perfected security interest in such collateral prior to any other claim or interest; and (vii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other
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reasonable out-of-pocket expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel. (33) Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in situations where default interest is imposed.
(34) Ground Leases. For purposes of this Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (IDA) or similar leases for purposes of conferring a tax abatement or other benefit.
With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that: (a) The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease had occurred since the origination of the Mortgage Loan, except as reflected in any written instruments which are included in the related Mortgage File;
(b) The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and lessee, without the prior written consent of the Mortgagee;
(c) The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
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(d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances, or (ii) is subject to a subordination, non-disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Mortgaged Property is subject;
(e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor;
(f) The Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(g) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any default, and provides that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;
(h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender;
(j) Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
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(k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.
(35) Servicing. The servicing and collection practices used by the Seller with respect to the Mortgage Loan have been, in all respects, legal and have met customary industry standards for servicing of commercial loans for conduit loan programs.
(36) Origination and Underwriting. The origination practices of the Seller (or the related originator if the Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan (or the related Whole Loan, as applicable) and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit B.
(37) No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required debt service payments since origination, and as of the date hereof, no Mortgage Loan is more than 30 days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date. To the Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either (a) or (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property, provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Seller in this Exhibit B (including, but not limited to, the prior sentence). No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Loan Documents.
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(38) Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Seller’s knowledge as of the Cut-Off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.
(39) Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan (or related Whole Loan, as applicable), the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Mortgage Loan that is cross-collateralized and cross defaulted with another Mortgage Loan, no Mortgage Loan has a Mortgagor that is an affiliate of another Mortgagor.
(40) Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that, based on the ESA, can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated in all material respects prior to the date hereof, and, if and as appropriate, a no further action or closure letter was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy meeting the requirements set forth below that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than A- (or the equivalent) by Moody’s, S&P and/or Fitch; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having
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financial resources reasonably estimated to be adequate to address the situation is required to take action. To Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-05 or its successor) at the related Mortgaged Property. (41) Appraisal. The Mortgage File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Closing Date. The appraisal is signed by an appraiser who is a Member of the Appraisal Institute (“MAI”) and, to the Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.
(42) Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-Off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.
(43) Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Mortgage Pool, except as set forth on Exhibit B-30-3.
(44) Advance of Funds by the Seller. After origination, no advance of funds has been made by Seller to the related Mortgagor other than in accordance with the Loan Documents, and, to Seller’s knowledge, no funds have been received from any person other than the related Mortgagor or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Loan Documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s) into a Mortgagee-controlled lockbox if required or contemplated under the related lease or Loan Documents). Neither Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof.
(45) Compliance with Anti-Money Laundering Laws. Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.
For purposes of these representations and warranties, “Mortgagee” shall mean the mortgagee, grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any Mortgage Loan or, if applicable, any agent or servicer on behalf of such party. B-19
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For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. B-20
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Exhibit B-30-1 List of Mortgage Loans with Current Mezzanine Debt
Loan # Mortgage Loan 8 North Street Portfolio 18 First State Plaza
B-30-1-1
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Exhibit B-30-2 List of Mortgage Loans with Permitted Mezzanine Debt
Loan # Mortgage Loan 2 Pinnacle I
B-30-2-1
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Exhibit B-30-3 List of Cross-Collateralized and Cross-Defaulted Mortgage Loans None. B-30-3-1
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EXHIBIT C EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES Representation Mortgage Loan Description of Exception (7) Junior Liens Green Exchange (No. 12) There is a subordinate lien evidenced by that certain Junior Mortgage, Security Agreement and Financing Statement dated December 27, 2010 and recorded January 10, 2011 as Document No. 1101033194 made by GX Chicago, LLC to the City of Chicago to secure a Note for $15,000,000 which note was given by the mortgagor in connection with obtaining a HUD Section 108 Loan. (7) Junior Liens Mansell Commons (No. 29) The following notes are outstanding: (1) a note in the amount of $3.15 million, held by MC Lender, LLC (comprised of partners of Rodbell Properties, LLLP), secured by a pledge of the partnership interests in Rodbell Properties, LLLP, the sole member of the borrower, which note is subject to a Consent, Subordination and Standstill Agreement dated May 9, 2012; and (2) notes to third parties and partners of Rodbell Properties, LLLP, totaling $2.8 million, also secured by pledges of partnership interests in Rodbell Properties, LLLP, which notes are subject to a Consent, Subordination and Standstill Agreement dated May 9, 2012. (16) Insurance Jamaica Center (No. 4) The Loan Agreement insurance provisions are subject to the related Ground Lease, which provides that the mortgagee may act as the trustee of the restoration proceeds if the ground lessor reasonably approves of such mortgagee as the trustee. (26) Recourse Obligations Jamaica Center (No. 4) Certain of the non-recourse carveouts are capped at $10,000,000 in the aggregate, including bankruptcy related items. Other customary non-recourse carevouts are uncapped, except that the interference with lender’s remedies related carveout is subject to a separate $10,000,000 cap which is in addition to the aggregate cap described above. (26) Recourse Obligations Pinnacle I (No. 2) The primary guarantor’s only asset is currently its interest in the related mortgage borrower. The secondary guarantor’s liability is capped at $20,000,000 which secondary guarantor will be released at such time as the primary guarantor acquires a certain additional asset. (31) Single Purpose Entity Abbott’s Properties (No. 16) No counsel’s opinion regarding non-consolidation of the Mortgagor. (31) Single Purpose Entity Signature Place Office (No. 14) Mortgagor did not provide a non-consolidation opinion. (34) Ground Lease Jamaica Center (No. 4) (j) The Loan Agreement insurance provisions are subject to the related Ground Lease, which provides that the mortgagee may only act as the trustee of the restoration proceeds if the ground lessor reasonably approves of such mortgagee as the trustee. (39) Organization of Mortgagor Green Exchange (No. 12) The mortgagor under the subject Mortgage Loan is affiliated with the mortgagor under the mortgage loan identified on Annex A to the Prospectus Supplement as Barry Plaza.
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EXHIBIT D FORM OF OFFICER’S CERTIFICATE
JEFFERIES LOANCORE LLC (“Seller”) hereby certifies as follows: 1. All of the representations and warranties (except as set forth on Exhibit C) of the Seller under the Mortgage Loan Purchase Agreement, dated as of November 1, 2012 (the “Agreement”), between GS Mortgage Securities Corporation II and Seller, are true and correct in all material respects on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement) with the same force and effect as if made on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement). 2. The Seller has complied in all material respects with all the covenants and satisfied all the conditions on its part to be performed or satisfied under the Agreement on or prior to the date hereof, and no event has occurred which would constitute a default on the part of the Seller under the Agreement. 3. Neither the Prospectus, dated November 8, 2012, as supplemented by the Prospectus Supplement, dated November 16, 2012 (collectively, the “Prospectus”), relating to the offering of the Class A-1, Class A-2, Class A-3, Class A-AB, Class X-A and Class A-S, Certificates, nor the Offering Circular, dated November 16, 2012 (the “Offering Circular”), relating to the offering of the Class X-B, Class B, Class C, Class D, Class E, Class F, Class G and Class R Certificates, in the case of the Prospectus and the Prospectus Supplement, as of the date of the Prospectus Supplement or as of the date hereof, or the Offering Circular, as of the date thereof or as of the date hereof, included or includes any untrue statement of a material fact relating to the Mortgage Loans and/or the Seller or omitted or omits to state therein a material fact relating to the Mortgage Loans, the related Mortgaged Properties and/or the Seller required to be stated therein or necessary in order to make the statements therein relating to the Mortgage Loans and/or the Seller, in the light of the circumstances under which they were made, not misleading. Capitalized terms used herein without definition have the meanings given them in the Agreement or, if not defined therein, in the Indemnification Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE] D-1
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Certified this [ ] day of November, 2012.
JEFFERIES LOANCORE LLC By: Name: Title:
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"EXHIBIT 10.4 GS MORTGAGE SECURITIES CORPORATION II, PURCHASER and JEFFERIES LOANCORE LLC, SELLER MORTGAGE LOAN PURCHASE AGREEMENT Dated as of November 1, 2012 Series 2012-GCJ9 -------------------------------------------------------------------------------- This Mortgage Loan Purchase Agreement (“Agreement”), dated as of November 1, 2012, is between GS Mortgage Securities Corporation II, a Delaware corporation, as purchaser (the “Purchaser”), and Jefferies LoanCore LLC, a Delaware limited liability company, as seller (the “Seller”). Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement, dated as of November 1, 2012 (the “Pooling and Servicing Agreement”), among the Purchaser, as depositor, Wells Fargo Bank, National Association, as master servicer (the “Master Servicer”), Rialto Capital Advisors, LLC, as special servicer (the “Special Servicer”), Pentalpha Surveillance LLC, as operating advisor, U.S. Bank National Association, as certificate administrator (in such capacity, the “Certificate Administrator”) and as trustee (in such capacity, the “Trustee”), pursuant to which the Purchaser will transfer the Mortgage Loans (as defined herein) to a trust fund and certificates representing ownership interests in the Mortgage Loans will be issued by the trust fund (the “Trust Fund”).",
"In exchange for the Mortgage Loans, the Trust Fund will issue to or at the direction of the Depositor certificates to be known as GS Mortgage Securities Trust 2012-GCJ9, Commercial Mortgage Pass-Through Certificates, Series 2012-GCJ9 (collectively, the “Certificates”). For purposes of this Agreement, “Mortgage Loans” refers to the mortgage loans listed on Exhibit A and “Mortgaged Properties” refers to the properties securing such Mortgage Loans. The Purchaser and the Seller wish to prescribe the manner of sale of the Mortgage Loans from the Seller to the Purchaser and in consideration of the premises and the mutual agreements hereinafter set forth, agree as follows: SECTION 1 Sale and Conveyance of Mortgages; Possession of Mortgage File. The Seller does hereby sell, transfer, assign, set over and convey to the Purchaser, without recourse (except as otherwise specifically set forth herein), subject to the rights of the holders of interests in a Companion Loan, all of its right, title and interest in and to the Mortgage Loans identified on Exhibit A to this Agreement (the “Mortgage Loan Schedule”) including all interest and principal received on or with respect to the Mortgage Loans after the Cut-Off Date (and, in any event, notwithstanding anything herein to the contrary, excluding payments of principal and interest first due on the Mortgage Loans on or before the Cut-Off Date and excluding any Loan Seller Defeasance Rights and Obligations with respect to the Mortgage Loans). In addition, with respect to the Mortgage Loans sold by the Seller to the Purchaser, the Initial Interest Shortfall Deposit shall be $28,337.00.",
"Upon the sale of the Mortgage Loans, the ownership of each related Note, the Seller’s interest in the related Mortgage represented by the Note and the other contents of the related Mortgage File (all subject to the rights of the holders of interests in a Companion Loan) will be vested in the Purchaser and immediately thereafter the Trustee, and the ownership of records and documents with respect to each Mortgage Loan (other than a Non-Serviced Companion Loan) prepared by or which come into the possession of the Seller shall (subject to the rights of the holders of interests in a Companion Loan) immediately vest in the Purchaser and immediately thereafter the Trustee. In connection with the transfer of the Green Exchange Loan pursuant to this Section 1, the Seller does hereby assign all of its right, title and interest (solely in its capacity as the holder of the subject Mortgage Loan) in, to and under the related Intercreditor Agreement.",
"The Purchaser will sell certain of the Certificates (the “Public Certificates”) to the underwriters (the “Underwriters”) specified in the Underwriting Agreement, dated as of November 16, 2012 (the “Underwriting Agreement”), between the Purchaser and the Underwriters, and the Purchaser will sell certain of the Certificates (the “Private Certificates”) to the initial purchasers (the “Initial Purchasers” and, -------------------------------------------------------------------------------- collectively with the Underwriters, the “Dealers”) specified in the Purchase Agreement, dated as of November 16, 2012 (the “Certificate Purchase Agreement”), between the Purchaser and Initial Purchasers. The sale and conveyance of the Mortgage Loans is being conducted on an arms-length basis and upon commercially reasonable terms.",
"As the purchase price for the Mortgage Loans, the Purchaser shall pay, by wire transfer of immediately available funds, to the Seller or at the Seller’s direction $574,213,688.83, plus accrued interest on the Mortgage Loans from and including November 1, 2012 to but excluding the Closing Date (but subject to certain post-settlement adjustment for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible). The purchase and sale of the Mortgage Loans shall take place on the Closing Date. SECTION 2 Books and Records; Certain Funds Received After the Cut-Off Date. From and after the sale of the Mortgage Loans to the Purchaser, record title to each Mortgage (other than with respect to a Non-Serviced Loan) and each Note shall be transferred to the Trustee subject to and in accordance with this Agreement.",
"Any funds due after the Cut-Off Date in connection with a Mortgage Loan received by the Seller shall be held in trust on behalf of the Trustee (for the benefit of the Certificateholders) as the owner of such Mortgage Loan and shall be transferred promptly to the Certificate Administrator. All scheduled payments of principal and interest due on or before the Cut-Off Date but collected after the Cut-Off Date, and all recoveries and payments of principal and interest collected on or before the Cut-Off Date (only in respect of principal and interest on the Mortgage Loans due on or before the Cut-Off Date and principal prepayments thereon), shall belong to, and shall be promptly remitted to, the Seller. The transfer of each Mortgage Loan shall be reflected on the Seller’s balance sheets and other financial statements as the sale of such Mortgage Loan by the Seller to the Purchaser.",
"The Seller intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes. Following the transfer of the Mortgage Loans by the Seller to the Purchaser, the Seller shall not take any actions inconsistent with the ownership of the Mortgage Loans by the Purchaser and its assignees. The transfer of each Mortgage Loan shall be reflected on the Purchaser’s balance sheets and other financial statements as the purchase of such Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat the transfer of each Mortgage Loan from the Seller as a purchase for tax purposes. The Purchaser shall be responsible for maintaining, and shall maintain, a set of records for each Mortgage Loan which shall be clearly marked to reflect the transfer of ownership of each Mortgage Loan by the Seller to the Purchaser pursuant to this Agreement.",
"SECTION 3 Delivery of Mortgage Loan Documents; Additional Costs and Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby agrees, such agreement effective upon the transfer of the Mortgage Loans contemplated herein, to deliver or cause to be delivered to the Custodian (on behalf of the Trustee), the Master Servicer and the -2- -------------------------------------------------------------------------------- Special Servicer, respectively, on the dates set forth in Section 2.01 of the Pooling and Servicing Agreement, all documents, instruments and agreements required to be delivered by the Purchaser, or contemplated to be delivered by the Seller (whether at the direction of the Purchaser or otherwise), to the Custodian, the Master Servicer and the Special Servicer, as applicable, with respect to the Mortgage Loans under Section 2.01 of the Pooling and Servicing Agreement, and meeting all the requirements of such Section 2.01 of the Pooling and Servicing Agreement; provided that the Seller shall not be required to deliver any draft documents, privileged communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations.",
"(b) Except with respect to a Non-Serviced Loan, the Seller shall deliver to and deposit with (or cause to be delivered to and deposited with) the Master Servicer within five (5) Business Days after the Closing Date a copy of the Mortgage File and documents and records not otherwise required to be contained in the Mortgage File that (i) relate to the origination and/or servicing and administration of the Mortgage Loans or any related Companion Loans, (ii) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans (including any asset summaries related to the Mortgage Loans that were delivered to the Rating Agencies in connection with the rating of the Certificates) or any related Companion Loans or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans or any related Companion Loans or holders of interests therein and (iii) are in the possession or under the control of the Seller, together with (x) the Initial Interest Shortfall Deposit, (y) all unapplied Escrow Payments and reserve funds in the possession or under control of the Seller that relate to the Mortgage Loans or any related Companion Loans and (z) a statement indicating which Escrow Payments and reserve funds are allocable to each Mortgage Loan or any related Companion Loans, provided that copies of any document in the Mortgage File and any other document, record or item referred to above in this sentence that constitutes a Designated Servicing Document shall be delivered to the Master Servicer on or before the Closing Date; provided that the Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations. SECTION 4 Treatment as a Security Agreement.",
"Pursuant to Section 1 hereof, the Seller has conveyed to the Purchaser all of its right, title and interest in and to the Mortgage Loans. The parties intend that such conveyance of the Seller’s right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall constitute a purchase and sale and not a loan. If such conveyance is deemed to be a pledge and not a sale, then the parties also intend and agree that the Seller shall be deemed to have granted, and in such event does hereby grant, to the Purchaser, a first priority security interest in all of its right, title and interest in, to and under the Mortgage Loans, all payments of principal or interest on such Mortgage Loans due after the Cut-Off Date, all other payments made in respect of such Mortgage Loans after the Cut-Off Date (and, in any event, excluding scheduled payments of principal and interest due on or before the Cut-Off Date) and all proceeds thereof, and that this Agreement shall constitute a security agreement under applicable law.",
"If such conveyance is deemed to be a pledge and not a sale, the Seller consents to the Purchaser hypothecating and transferring such security interest in favor of the Trustee and transferring the obligation secured thereby to the Trustee. -3- -------------------------------------------------------------------------------- SECTION 5 Covenants of the Seller. The Seller covenants with the Purchaser as follows: (a) except with respect to a Non-Serviced Loan, it shall record and file or cause a third party to record and file in the appropriate public recording office for real property records or UCC financing statements, as appropriate (or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver to the Custodian for such purpose and cause the Custodianr to record and file), the assignments of assignment of leases, rents and profits and the assignments of Mortgage and each related UCC-2 and UCC-3 financing statement referred to in the definition of Mortgage File from the Seller to the Trustee as and to the extent contemplated under Section 2.01(c) of the Pooling and Servicing Agreement. All out of pocket costs and expenses relating to the recordation or filing of such assignments, assignments of Mortgage and financing statements shall be paid by the Seller.",
"If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, then the Seller shall prepare or cause the preparation of a substitute therefor or cure such defect or cause such defect to be cured, as the case may be, and the Seller shall record or file, or cause the recording or filing of, such substitute or corrected document or instrument or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver such substitute or corrected document or instrument to the Custodian (or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing Agreement, the then holder of such Mortgage Loan); (b) as to each Mortgage Loan (except with respect to a Non-Serviced Loan), if the Seller cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (2), (3) and (6) (if recorded) and (15) of the definition of “Mortgage File” in the Pooling and Servicing Agreement solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, as applicable, it shall forward to the Custodian a copy of the original certified by the Seller to be a true and complete copy of the original thereof submitted for recording.",
"The Seller shall cause each assignment referred to in Section (5)(a) above that is recorded and the file copy of each UCC-2 and UCC-3 assignment referred to in Section (5)(a) above to reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the Seller or its designee, in which case the Seller shall deliver or cause the delivery of the recorded original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or assignment of Assignment of Leases, the Custodian shall obtain therefrom a certified copy of the recorded original. On a monthly basis, at the expense of the Seller, the Custodian shall forward to the Master Servicer a copy of each of the aforementioned assignments following the Custodian’s receipt thereof; (c) it shall take any action reasonably required by the Purchaser, the Certificate Administrator, the Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans to the Master Servicer, including effectuating the transfer of any letters of credit with respect to any Mortgage Loan to the Master Servicer on behalf of the Trustee for the benefit of Certificateholders and the holders of any related -4- -------------------------------------------------------------------------------- Companion Loans. Prior to the date that a letter of credit with respect to any Mortgage Loan is transferred to the Master Servicer, the Seller will cooperate with the reasonable requests of the Master Servicer or Special Servicer, as applicable, in connection with effectuating a draw under such letter of credit as required under the terms of the related Loan Documents.",
"Notwithstanding the foregoing, this Section 5(c) shall not apply with respect to a Non-Serviced Loan; (d) the Seller shall provide the Master Servicer the initial data with respect to each Mortgage Loan for the CREFC Financial File and the CREFC Loan Periodic Update File that are required to be prepared by the Master Servicer pursuant to the Pooling and Servicing Agreement and the Supplemental Servicer Schedule; (e) if (during the period of time that the Underwriters are required, under applicable law, to deliver a prospectus related to the Public Certificates in connection with sales of the Public Certificates by an Underwriter or a dealer) the Seller has obtained actual knowledge of undisclosed or corrected information related to an event that occurred prior to the Closing Date, which event causes there to be an untrue statement of a material fact with respect to the Seller Information in the Prospectus Supplement dated November 16, 2012 relating to the Public Certificates, the annexes and exhibits thereto and the DVD delivered therewith, or the Offering Circular dated November 16, 2012 relating to the Private Certificates, the annexes and exhibits thereto and the DVD delivered therewith (collectively, the “Offering Documents”), or causes there to be an omission to state therein a material fact with respect to the Seller Information required to be stated therein or necessary to make the statements therein with respect to the Seller Information, in the light of the circumstances under which they were made, not misleading, then the Seller shall promptly notify the Dealers and the Depositor.",
"If as a result of any such event the Dealers’ legal counsel determines that it is necessary to amend or supplement the Offering Documents in order to correct the untrue statement, or to make the statements therein, in the light of the circumstances when the Offering Documents are delivered to a purchaser, not misleading, or to make the Offering Documents in compliance with applicable law, the Seller shall (to the extent that such amendment or supplement solely relates to the Seller Information) at the expense of the Seller, do all things reasonably necessary to assist the Depositor to prepare and furnish to the Dealers, such amendments or supplements to the Offering Documents as may be necessary so that the Seller Information in the Offering Documents, as so amended or supplemented, will not contain an untrue statement, will not, in the light of the circumstances when the Offering Documents are delivered to a purchaser, be misleading and will comply with applicable law. (All terms under this clause (d) and not otherwise defined in this Agreement shall have the meanings set forth in the Indemnification Agreement, dated as of November 16, 2012, among the Underwriters, the Initial Purchasers, the Seller and the Purchaser (the “Indemnification Agreement” and, together with this Agreement, the “Operative Documents”)); and (f) for so long as the Trust Fund is subject to the reporting requirements of the Exchange Act, the Seller shall provide the Depositor (or with respect to any Serviced Companion Loan that is deposited into another securitization, the depositor of such securitization) and the Certificate Administrator with any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on Exhibit U, Exhibit V and Exhibit Z to the Pooling and Servicing Agreement within the time periods set forth in the Pooling and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Seller’s reporting obligations under Item 1119 of Regulation AB, upon -5- -------------------------------------------------------------------------------- reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant.",
"SECTION 6 Representations and Warranties.",
"(a) The Seller represents and warrants to the Purchaser as of the date hereof and as of the Closing Date that: (i) The Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware with full power and authority to own its assets and conduct its business, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and the Seller has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute, deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby, including, but not limited to, the power and authority to sell, assign, transfer, set over and convey the Mortgage Loans in accordance with this Agreement; (ii) Assuming the due authorization, execution and delivery of this Agreement by the Purchaser, this Agreement will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification for securities laws liabilities; (iii) The execution and delivery of each Operative Document by the Seller and the performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which the Seller is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Seller’s organizational documents or any agreement or instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or imposition of any lien on any of the Seller’s assets or property, in each case, which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by the Operative Documents; (iv) There is no action, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the -6- -------------------------------------------------------------------------------- validity of the Mortgage Loans or the ability of the Seller to carry out the transactions contemplated by each Operative Document; (v) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect its performance under any Operative Document; (vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by the Seller; and (vii) The transfer, assignment and conveyance of the Mortgage Loans by the Seller to the Purchaser is not subject to bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction.",
"(b) The Purchaser represents and warrants to the Seller as of the Closing Date that: (i) The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to own its assets and conduct its business, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and the Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has duly executed and delivered this Agreement, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby; (ii) Assuming the due authorization, execution and delivery of this Agreement by the Seller, this Agreement will constitute a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (iii) The execution and delivery of this Agreement by the Purchaser and the performance of its obligations hereunder will not conflict with any provision of any law or regulation to which the Purchaser is subject, or conflict with, result in a breach of, or -7- -------------------------------------------------------------------------------- constitute a default under, any of the terms, conditions or provisions of any of the Purchaser’s organizational documents or any agreement or instrument to which the Purchaser is a party or by which it is bound, or any order or decree applicable to the Purchaser, or result in the creation or imposition of any lien on any of the Purchaser’s assets or property, in each case which would materially and adversely affect the ability of the Purchaser to carry out the transactions contemplated by this Agreement; (iv) There is no action, suit, proceeding or investigation pending or, to the Purchaser’s knowledge, threatened against the Purchaser in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of this Agreement or any action taken in connection with the obligations of the Purchaser contemplated herein, or which would be likely to impair materially the ability of the Purchaser to perform under the terms of this Agreement; (v) The Purchaser is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Purchaser or its properties or might have consequences that would materially and adversely affect its performance under any Operative Document; and (vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Purchaser of or compliance by the Purchaser with this Agreement or the consummation of the transactions contemplated by this Agreement other than those that have been obtained by the Purchaser.",
"(c) The Seller further makes the representations and warranties as to the Mortgage Loans set forth in Exhibit B to this Agreement as of the Cut-Off Date or such other date set forth in Exhibit B to this Agreement, which representations and warranties are subject to the exceptions thereto set forth in Exhibit C to this Agreement. (d) Pursuant to the Pooling and Servicing Agreement, if (i) any party thereto discovers or receives notice alleging that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or does not appear to be regular on its face (each, a “Document Defect”), or discovers or receives notice alleging a breach of any representation or warranty of the Seller made pursuant to Section 6(c) of this Agreement with respect to any Mortgage Loan (a “Breach”) or (ii) the Special Servicer or the Purchaser receives a Repurchase Request, such party is required to give prompt written notice thereof to the Seller. (e) Pursuant to the Pooling and Servicing Agreement, the Special Servicer is required to determine whether any such Document Defect or Breach with respect to any Mortgage Loan materially and adversely affects, or such Document Defect is deemed in accordance with Section 2.03 of the Pooling and Servicing Agreement to materially and adversely affect, the value of the Mortgage Loan or any related REO Property or the interests of -8- -------------------------------------------------------------------------------- the Certificateholders therein, or causes the related Mortgage Loan to be other than a Qualified Mortgage (any such Document Defect shall constitute a “Material Document Defect” and any such Breach shall constitute a “Material Breach”).",
"If such Document Defect or Breach has been determined to be a Material Document Defect or Material Breach, then the Special Servicer will be required to give prompt written notice thereof to the Seller.",
"Promptly upon becoming aware of any such Material Document Defect or Material Breach (including through a written notice given by any party hereto, as provided above if the Document Defect or Breach identified therein is a Material Document Defect or Material Breach, as the case may be), the Seller shall, not later than 90 days from the earlier of the Seller’s discovery or receipt of notice of, and receipt of a demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be (or, in the case of a Material Document Defect or Material Breach relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of the REMIC Provisions, not later than 90 days from any party discovering such Material Document Defect or Material Breach, provided that, if such discovery is by any party other than the Seller, the Seller receives notice thereof in a timely manner), cure the same in all material respects (which cure shall include payment of any losses and Additional Trust Fund Expenses associated therewith) or, if such Material Document Defect or Material Breach, as the case may be, cannot be cured within such 90 day period, the Seller shall either (i) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (provided that in no event shall any such substitution occur later than the second anniversary of the Closing Date) and pay the Master Servicer, for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith or (ii) repurchase the affected Mortgage Loan or any related REO Property (or the Trust Fund’s interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Collection Account; provided, however, that if (i) such Material Document Defect or Material Breach is capable of being cured but not within such 90 day period, (ii) such Material Document Defect or Material Breach is not related to any Mortgage Loan’s not being a “qualified mortgage” within the meaning of the REMIC Provisions and (iii) the Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within such 90 day period, then the Seller shall have an additional 90 days to complete such cure (or, in the event of a failure to so cure, to complete such repurchase of the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described above) it being understood and agreed that, in connection with the Seller’s receiving such additional 90 day period, the Seller shall deliver an Officer’s Certificate to the Trustee, the Special Servicer and the Certificate Administrator setting forth the reasons such Material Document Defect or Material Breach is not capable of being cured within the initial 90 day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Material Document Defect or Material Breach will be cured within such additional 90 day period; and provided, further, that, if any such Material Document Defect is still not cured after the initial 90 day period and any such additional 90 day period solely due to the failure of the Seller to have received the recorded document, then the Seller shall be entitled to continue to defer its cure, substitution or repurchase obligations in respect of such Document Defect so long as the Seller certifies to the Trustee, the Special Servicer and the Certificate Administrator every 30 days thereafter that the Document Defect is still in effect solely because of its failure to have received the recorded document and that the Seller is diligently pursuing the cure of such defect (specifying the actions being taken), except that no such deferral of cure, substitution or repurchase may continue beyond the date that is 18 months following the Closing Date.",
"Any -9- -------------------------------------------------------------------------------- such repurchase of a Mortgage Loan shall be on a servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Breach or a Document Defect, but if the Seller discovers a Material Breach or Material Document Defect with respect to a Mortgage Loan, it will notify the Purchaser. Subject to the Seller’s right to cure set forth above in this Section 6(e), and further subject to Sections 2.01(b) and 2.01(c) of the Pooling and Servicing Agreement, failure of the Seller to deliver the documents referred to in clauses (1), (2), (7), (8), (18) and (19) in the definition of “Mortgage File” in the Pooling and Servicing Agreement in accordance with this Agreement and the Pooling and Servicing Agreement for any Mortgage Loan shall be deemed a Material Document Defect; provided, however, that no Document Defect (except such deemed Material Document Defect described above) shall be considered to be a Material Document Defect unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate significant servicing obligation.",
"(f) In connection with any repurchase or substitution of one or more Mortgage Loans pursuant to this Section 6, the Pooling and Servicing Agreement shall provide that the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the repurchasing entity, upon delivery to each of them of a receipt executed by the repurchasing entity, all portions of the Mortgage File and other documents and all Escrow Payments and reserve funds pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the repurchasing or substituting entity or its designee in the same manner, but only if the respective documents have been previously assigned or endorsed to the Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously assigned to the Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security therefor to the Seller or its designee; provided that such tender by the Trustee shall be conditioned upon its receipt from the Master Servicer of a Request for Release and an Officer’s Certificate to the effect that the requirements for repurchase or substitution have been satisfied. (g) The representations and warranties of the parties hereto shall survive the execution and delivery and any termination of this Agreement and shall inure to the benefit of the respective parties, notwithstanding any restrictive or qualified endorsement on the Notes or Assignment of Mortgage or the examination of the Mortgage Files.",
"(h) Each party hereto agrees to promptly notify the other party of any breach of a representation or warranty contained in Section 6(c) of this Agreement. The Seller’s obligation to cure any Material Breach or Material Document Defect or to repurchase or substitute any affected Mortgage Loan pursuant to this Section 6 shall constitute the sole remedy available to the Purchaser in connection with a breach of any of the Seller’s representations or warranties contained in Section 6(c) of this Agreement or a Document Defect with respect to any Mortgage Loan. -10- -------------------------------------------------------------------------------- (i) The Seller shall promptly notify the Depositor if (i) the Seller receives a Repurchase Communication of a Repurchase Request (other than from the Depositor), (ii) the Seller repurchases or replaces a Mortgage Loan, (iii) the Seller receives a Repurchase Communication of a Repurchase Request Withdrawal (other than from the Depositor) or (iv) the Seller rejects or disputes any Repurchase Request. Each such notice shall be given no later than the tenth (10th) Business Day after (A) with respect to clauses (i) and (iii) of the preceding sentence, receipt of a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, as applicable, and (B) with respect to clauses (ii) and (iv) of the preceding sentence, the occurrence of the event giving rise to the requirement for such notice, and shall include (1) the identity of the related Mortgage Loan, (2) the date (x) such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal was received, (y) the related Mortgage Loan was repurchased or replaced or (z) the Repurchase Request was rejected or disputed, as applicable, and (3) if known, the basis for (x) the Repurchase Request (as asserted in the Repurchase Request) or (y) any rejection or dispute of a Repurchase Request, as applicable.",
"The Seller shall provide to the Depositor and the Certificate Administrator the Seller’s “Central Index Key” number assigned by the Securities and Exchange Commission and a true, correct and complete copy of the relevant portions of any Form ABS-15G that the Seller is required to file with the Securities and Exchange Commission with respect to the Mortgage Loans on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Securities and Exchange Commission. In addition, the Seller shall provide the Depositor, upon request, such other information in its possession as would permit the Depositor to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase requests. Any such information requested shall be provided as promptly as practicable after such request is made.",
"The Seller agrees that no 15Ga-1 Notice Provider will be required to provide information in a 15Ga-1 Notice that is protected by the attorney-client privilege or attorney work product doctrines. In addition, the Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement is so provided only to assist the Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no action taken by, or inaction of, a 15Ga-1 Notice Provider and (B) no information provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement by a 15Ga-1 Notice Provider shall be deemed to constitute a waiver or defense to the exercise of any legal right the 15Ga-1 Notice Provider may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a 15Ga-1 Notice.",
"Each party hereto agrees that the receipt of a 15Ga-1 Notice or the delivery of any notice required to be delivered pursuant to this Section 6(i) shall not, in and of itself, constitute delivery of notice of, receipt of notice of, or knowledge of the Seller of, any Material Document Defect or Material Breach. -11- -------------------------------------------------------------------------------- Each party hereto agrees and acknowledges that, as of the date of this Agreement, the “Central Index Key” number of the Trust Fund is 0001548266. “Repurchase Communication” means, for purposes of this Section 6(i) only, any communication, whether oral or written, which need not be in any specific form. SECTION 7 Review of Mortgage File. The Purchaser shall require the Certificate Administrator pursuant to the Pooling and Servicing Agreement to review the Mortgage Files pursuant to Section 2.02 of the Pooling and Servicing Agreement and if it finds any document or documents not to have been properly executed, or to be missing or to be defective on its face in any material respect, to notify the Purchaser, which shall promptly notify the Seller.",
"SECTION 8 Conditions to Closing. The obligation of the Seller to sell the Mortgage Loans shall be subject to the Seller having received the purchase price for the Mortgage Loans as contemplated by Section 1 of this Agreement. The obligations of the Purchaser to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior to the Closing Date, of the following conditions: (a) Each of the obligations of the Seller required to be performed by it at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with and all of the representations and warranties of the Seller under this Agreement shall, subject to any applicable exceptions set forth on Exhibit C to this Agreement, be true and correct in all material respects as of the Closing Date or as of such other date as of which such representation is made under the terms of Exhibit B to this Agreement, and no event shall have occurred as of the Closing Date which would constitute a default on the part of the Seller under this Agreement, and the Purchaser shall have received a certificate to the foregoing effect signed by an authorized officer of the Seller substantially in the form of Exhibit D to this Agreement.",
"(b) The Pooling and Servicing Agreement (to the extent it affects the obligations of the Seller hereunder), in such form as is agreed upon and acceptable to the Purchaser, the Seller, the Underwriters, the Initial Purchasers and their respective counsel in their reasonable discretion, shall be duly executed and delivered by all signatories as required pursuant to the terms thereof. (c) The Purchaser shall have received the following additional closing documents: (i) copies of the Seller’s Articles of Association, charter, by-laws or other organizational documents and all amendments, revisions, restatements and supplements thereof, certified as of a recent date by the Secretary of the Seller; (ii) a certificate as of a recent date of the Secretary of State of the State of Delaware to the effect that the Seller is duly organized, existing and in good standing in the State of Delaware; -12- -------------------------------------------------------------------------------- (iii) an officer’s certificate of the Seller in form reasonably acceptable to the Underwriters, the Initial Purchasers and each Rating Agency; (iv) an opinion of counsel of the Seller, subject to customary exceptions and carve-outs, in form reasonably acceptable to the Underwriters, the Initial Purchasers and each Rating Agency; and (v) a letter from counsel of the Seller substantially to the effect that (a) nothing has come to such counsel’s attention that would lead such counsel to believe that the agreed upon sections of the Primary Free Writing Prospectus, the Prospectus Supplement, the Preliminary Offering Circular or the Final Offering Circular (each as defined in the Indemnification Agreement), as of the date thereof or as of the Closing Date (or, in the case of the Primary Free Writing Prospectus or the Preliminary Offering Circular, solely as of the time of sale) contained or contain, as applicable, with respect to the Seller or the Mortgage Loans, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) the Seller Information (as defined in the Indemnification Agreement) in the Prospectus Supplement appears to be appropriately responsive in all material respects to the applicable requirements of Regulation AB.",
"(d) The Public Certificates shall have been concurrently issued and sold pursuant to the terms of the Underwriting Agreement. The Private Certificates shall have been concurrently issued and sold pursuant to the terms of the Certificate Purchase Agreement. (e) The Seller shall have executed and delivered concurrently herewith the Indemnification Agreement. (f) The Seller shall furnish the Purchaser, the Underwriters and the Initial Purchasers with such other certificates of its officers or others and such other documents and opinions to evidence fulfillment of the conditions set forth in this Agreement as the Purchaser and its counsel may reasonably request. SECTION 9 Closing.",
"The closing for the purchase and sale of the Mortgage Loans shall take place at the office of Cadwalader, Wickersham & Taft LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place and time as the parties shall agree. SECTION 10 Expenses.",
"The Seller will pay its pro rata share (the Seller’s pro rata portion to be determined according to the percentage that the aggregate principal balance as of the Cut-Off Date of all the Mortgage Loans represents as to the aggregate principal balance as of the Cut-Off Date of all the mortgage loans to be included in the Trust Fund) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of a firm -13- -------------------------------------------------------------------------------- of certified public accountants selected by the Purchaser and the Seller with respect to numerical information in respect of the Mortgage Loans and the Certificates included in the Prospectus, Preliminary Free Writing Prospectus, the Prospectus Supplement, the Preliminary Offering Circular, the Final Offering Circular and any related disclosure for the initial Form 8-K, including the cost of obtaining any “comfort letters” with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering the Registration Statement, Prospectus, Preliminary Free Writing Prospectus, Prospectus Supplement, Preliminary Offering Circular and Final Offering Circular and the reproducing and delivery of this Agreement and the furnishing to the Underwriters of such copies of the Registration Statement, Prospectus, Preliminary Free Writing Prospectus, Prospectus Supplement, Preliminary Offering Circular, Final Offering Circular and this Agreement as the Underwriters may reasonably request; (viii) the fees of the rating agency or agencies requested to rate the Certificates; (ix) the reasonable fees and expenses of Cadwalader, Wickersham & Taft LLP, as counsel to the Purchaser; and (x) the reasonable fees and expenses of Mayer Brown LLP, as counsel to the Underwriters and the Initial Purchasers.",
"SECTION 11 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement. Furthermore, the parties shall in good faith endeavor to replace any provision held to be invalid or unenforceable with a valid and enforceable provision which most closely resembles, and which has the same economic effect as, the provision held to be invalid or unenforceable. SECTION 12 Governing Law.",
"THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. SECTION 13 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.",
"-14- -------------------------------------------------------------------------------- SECTION 14 Submission to Jurisdiction. EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.",
"SECTION 15 No Third-Party Beneficiaries. The parties do not intend the benefits of this Agreement to inure to any third party except as expressly set forth in Section 16. SECTION 16 Assignment. The Seller hereby acknowledges that the Purchaser has, concurrently with the execution hereof, executed and delivered the Pooling and Servicing Agreement and that, in connection therewith, it has assigned its rights hereunder to the Trustee for the benefit of the Certificateholders. The Seller hereby acknowledges its obligations pursuant to Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser and their permitted successors and assigns.",
"Any Person into which the Seller may be merged or consolidated, or any Person resulting from any merger, conversion or consolidation to which the Seller may become a party, or any Person succeeding to all or substantially all of the business of the Seller, shall be the successor to the Seller hereunder without any further act. The warranties and representations and the agreements made by the Seller herein shall survive delivery of the Mortgage Loans to the Trustee until the termination of the Pooling and Servicing Agreement, but shall not be further assigned by the Trustee to any Person. SECTION 17 Notices. All communications hereunder shall be in writing and effective only upon receipt and (i) if sent to the Purchaser, will be mailed, hand delivered, couriered or sent by facsimile transmission to it at 200 West Street, New York, New York 10282, to the attention of Leah Nivison, fax number (212) 428-1439, with a copy to Gary Silber, fax number (212) 493-9003, (ii) if sent to the Seller, will be mailed, hand delivered, couriered or sent by facsimile transmission or electronic mail and confirmed to it at Jefferies LoanCore LLC, c/o LoanCore Capital, 80 Field Point Road, Greenwich, Connecticut 06830, Attention: Perry Gershon, fax number: (203) 861-6006, with copies to Kaye Scholer LLP, 425 Park Avenue, New York, New York 10022, Attention: Stephen Gliatta, Esq., fax number: (212) 836-8689, and (iii) in the case of any of the preceding parties, such other address as may hereafter be furnished to the other party in writing by such parties.",
"SECTION 18 Amendment. This Agreement may be amended only by a written instrument which specifically refers to this Agreement and is executed by the Purchaser and the Seller. This Agreement shall not be deemed to be amended orally or by virtue of any continuing custom or practice. No amendment to the Pooling and Servicing Agreement which relates to -15- -------------------------------------------------------------------------------- defined terms contained therein or to any obligations or rights of the Seller whatsoever shall be effective against the Seller unless the Seller shall have agreed to such amendment in writing. SECTION 19 Counterparts. This Agreement may be executed in any number of counterparts, and by the parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.",
"Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement. SECTION 20 Exercise of Rights. No failure or delay on the part of any party to exercise any right, power or privilege under this Agreement and no course of dealing between the Seller and the Purchaser shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as set forth in Section 6(h) of this Agreement, the rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which any party would otherwise have pursuant to law or equity. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other circumstances, or constitute a waiver of the right of either party to any other or further action in any circumstances without notice or demand.",
"SECTION 21 No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the parties hereto. Nothing herein contained shall be deemed or construed as creating an agency relationship between the Purchaser and the Seller and neither party shall take any action which could reasonably lead a third party to assume that it has the authority to bind the other party or make commitments on such party’s behalf.",
"SECTION 22 Miscellaneous. This Agreement supersedes all prior agreements and understandings relating to the subject matter hereof. Neither this Agreement nor any term hereof may be waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the waiver, discharge or termination is sought. SECTION 23 Further Assurances. The Seller and Purchaser each agree to execute and deliver such instruments and take such further actions as any party hereto may, from time to time, reasonably request in order to effectuate the purposes and carry out the terms of this Agreement. * * * * * * -16- -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.",
"GS MORTGAGE SECURITIES CORPORATION II By: /s/ J. Theodore Borter Name: J.",
"Theodore Borter Title: President JEFFERIES LOANCORE LLC By: /s/ Angelyn Sorenson Name: Angelyn Sorenson Title: Secretary -------------------------------------------------------------------------------- EXHIBIT A MORTGAGE LOAN SCHEDULE A-1 -------------------------------------------------------------------------------- GSMS 2012-GCJ9 JLC Mortgage Loan Schedule Original Control Loan Cut-Off Date Mortgage Number Footnotes Number Property Name Address City State Zip Code Balance ($) Loan Rate (%) 2 1 Pinnacle I 3400 West Olive Avenue Burbank California 91505 129,000,000 3.95400% 4 2 Jamaica Center 15902 Jamaica Avenue Jamaica New York 11432 81,000,000 4.27000% 5 3 9201 Sunset 9201 Sunset Boulevard West Hollywood California 90069 70,000,000 3.95000% 8 4 North Street Portfolio 50,954,089 5.68000% 8.01 4.01 The Highlands 100 Lincoln Highlands Drive Coraopolis Pennsylvania 15108 8.02 4.02 Park Towers 3905 Tower Drive Richton Park Illinois 60471 12 5 Green Exchange 2545 West Diversey Avenue Chicago Illinois 60647 26,500,000 4.75000% 14 6 Signature Place Office 3200 Northline Avenue Greensboro North Carolina 27408 24,979,279 6.00000% 16 7 Abbott’s Properties 20,230,453 5.40000% 16.01 7.01 Abbott’s Park 6320 Abbott’s Park Road Fayetteville North Carolina 28311 16.02 7.02 Abbott’s Landing 581 Abbott’s Landing Circle Fayetteville North Carolina 28314 18 8 First State Plaza 1600-1800 West Newport Pike Stanton Delaware 19804 19,456,146 6.70000% 21 9 Parkview Independent Living 17,984,082 5.75000% 21.01 9.01 Parkview West 10914 Kingston Pike Knoxville Tennessee 37934 21.02 9.02 Parkview Fountain City 5405 Colonial Circle Knoxville Tennessee 37918 23 10 Barrett Summit",
"1990 Vaughn Road Northwest Kennesaw Georgia 30144 15,963,690 5.00000% 25 11 Bakersfield Multifamily Portfolio 14,448,808 5.97400% 25.01 11.01 Autumn Glen 4025-4407 & 4100-4412 McCray Street Bakersfield California 93308 25.02 11.02 Serena Vista 1000 Pacheco Road Bakersfield California 93307 27 12 The Village Shoppes of Madison 12050-12120 County Line Road Madison Alabama 35756 13,984,806 4.91000% 29 13 Mansell Commons 993-1011 Mansell Road Roswell Georgia 30076 11,651,784 6.40000% 32 14 San Antonio Self Storage Portfolio 9,650,000 5.43000% 32.01 14.01 1st American Storage (San Antonio) 25300 and 28730 Interstate Highway 10 West San Antonio Texas 78257 32.02 14.02 1st American Storage (Floresville) 512 10th Street Floresville Texas 78114 47 15 Holiday Inn Express Hotel & Suites Lancaster - Lititz 101 Crosswinds Drive Lititz Pennsylvania 17543 6,200,000 4.94000% 51 16 A-1 Personal Self Storage Portfolio 5,494,238 5.06000% 51.01 16.01 A-1 Star Road (Wake Forest) 10880 Star Road Wake Forest North Carolina 27587 51.02 16.02 A-1 Durant II 10104 Durant Road Raleigh North Carolina 27614 52 17 Woodridge Plaza 2401-2501 75th Street and 7520-7546 Janes Avenue Woodridge Illinois 60517 5,429,545 5.24000% 62 18 Tribune Press Building 1205 Franklin Street Oakland California 94612 4,192,402 6.05000% -------------------------------------------------------------------------------- GSMS 2012-GCJ9 JLC Mortgage Loan Schedule Remaining Remaining Crossed With Control Loan Term To Amortization Term Subservicing Servicing Mortgage Other Loans Number Footnotes Number Property Name Maturity (Mos.) Maturity Date (Mos.) Fee Rate (%) Fee Rate (%) Loan Seller (Crossed Group) 2 1 Pinnacle I 120 11/6/2022 360 0.00000% 0.02000% JLC NAP 4 2 Jamaica Center 120 11/6/2022 360 0.00000% 0.02000% JLC NAP 5 3 9201 Sunset 120 11/6/2022 0 0.00000% 0.02000% JLC NAP 8 4 North Street Portfolio 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 8.01 4.01 The Highlands 8.02 4.02 Park Towers 12 5 Green Exchange 120 11/6/2022 360 0.00000% 0.02000% JLC NAP 14 6 Signature Place Office 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 16 7 Abbott’s Properties 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 16.01 7.01 Abbott’s Park 16.02 7.02 Abbott’s Landing 18 8 First State Plaza 117 8/6/2022 357 0.00000% 0.02000% JLC NAP 21 9 Parkview Independent Living 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 21.01 9.01 Parkview West 21.02 9.02 Parkview Fountain City 23 10 Barrett Summit 118 9/6/2022 358 0.00000% 0.02000% JLC NAP 25 11 Bakersfield Multifamily Portfolio 56 7/6/2017 356 0.00000% 0.02000% JLC NAP 25.01 11.01 Autumn Glen 25.02 11.02 Serena Vista 27 12 The Village Shoppes of Madison 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 29 13 Mansell Commons 55 6/6/2017 355 0.00000% 0.02000% JLC NAP 32 14 San Antonio Self Storage Portfolio 120 11/6/2022 300 0.00000% 0.02000% JLC NAP 32.01 14.01 1st American Storage (San Antonio) 32.02 14.02 1st American Storage (Floresville) 47 15 Holiday Inn Express Hotel & Suites Lancaster - Lititz 120 11/6/2022 240 0.00000% 0.02000% JLC NAP 51 16 A-1 Personal Self Storage Portfolio 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 51.01 16.01 A-1 Star Road (Wake Forest) 51.02 16.02 A-1 Durant II 52 17 Woodridge Plaza 119 10/6/2022 359 0.00000% 0.02000% JLC NAP 62 18 Tribune Press Building 118 9/6/2022 358 0.00000% 0.02000% JLC NAP -------------------------------------------------------------------------------- EXHIBIT B MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES B-1 -------------------------------------------------------------------------------- MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES (1) Whole Loan; Ownership of Mortgage Loans.",
"Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan. Each Mortgage Loan that is part of a Whole Loan is a senior or pari passu portion of a whole loan evidenced by a senior or pari passu note. At the time of the sale, transfer and assignment to Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Seller), participation or pledge, and the Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment, the Other Pooling and Servicing Agreement or similar agreement and rights of the holder of a related Companion Loan pursuant to an Intercreditor Agreement. Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan other than the rights of the holder of a related Companion Loan pursuant to an Intercreditor Agreement.",
"(2) Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except (i) as such enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (ii) that certain provisions in such Loan Documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i) above) such limitations or unenforceability will not render such Loan Documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).",
"Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Mortgage Loan, B-2 -------------------------------------------------------------------------------- that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Loan Documents. (3) Mortgage Provisions. The Loan Documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications. (4) Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File (a) the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty, and related Loan Documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Mortgage Loan.",
"(5) Lien; Valid Assignment. Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases to the Trust Fund constitutes a legal, valid and binding assignment to the Trust Fund. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth on Exhibit C (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-Off Date, to the Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to the Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below).",
"Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required in order to effect such perfection. B-3 -------------------------------------------------------------------------------- (6) Permitted Liens; Title Insurance.",
"Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy with escrow instructions or a “marked up” commitment, in each case binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments due and payable but not yet delinquent; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; (f) if the related Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Cross-Collateralized Group; and (g) if the related Mortgage Loan is part of a Whole Loan, the rights of the holder of the related Companion Loan pursuant to an Intercreditor Agreement; provided that none of which items (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f) of the preceding sentence, none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage.",
"Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.",
"(7) Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, there are no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics and materialmens liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing). Except as set forth on Exhibit C, the Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor. (8) Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related B-4 -------------------------------------------------------------------------------- Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law, provides that, upon an event of default under the Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.",
"(9) UCC Filings. If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, have been submitted in proper form for filing and/or recording), UCC financing statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such Mortgagor and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale and leaseback financing arrangement as permitted under the terms of the related Mortgage Loan documents or any other personal property leases applicable to such personal property), to the extent perfection may be effected pursuant to applicable law by recording or filing, as the case may be.",
"Subject to the Standard Qualifications, each related Mortgage (or equivalent document) creates a valid and enforceable lien and security interest on the items of personalty described above. No representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements are required in order to effect such perfection. (10) Condition of Property. Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within thirteen months of the Cut-Off Date.",
"An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than thirteen months prior to the Cut-Off Date. To the Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than deferred maintenance for which escrows were established at origination) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan. (11) Taxes and Assessments. All taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges), or B-5 -------------------------------------------------------------------------------- installments thereof, which could be a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the Mortgage and that prior to the Cut-Off Date have become delinquent in respect of each related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to cover such payments and reasonably estimated interest and penalties, if any, thereon.",
"For purposes of this representation and warranty, real estate taxes and governmental assessments and other outstanding governmental charges and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority. (12) Condemnation. As of the date of origination and to the Seller’s knowledge as of the Cut-Off Date, there is no proceeding pending, and, to the Seller’s knowledge as of the date of origination and as of the Cut-Off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property. (13) Actions Concerning Mortgage Loan. As of the date of origination and to the Seller’s knowledge as of the Cut-Off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents or (f) the current principal use of the Mortgaged Property.",
"(14) Escrow Deposits. All escrow deposits and payments required to be escrowed with Mortgagee pursuant to each Mortgage Loan are in the possession, or under the control, of the Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with Mortgagee under the related Loan Documents are being conveyed by the Seller to Depositor or its servicer. (15) No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by Seller to merit such holdback). (16) Insurance.",
"Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” B-6 -------------------------------------------------------------------------------- that includes replacement cost valuation issued by an insurer meeting the requirements of the related Loan Documents and having a claims-paying or financial strength rating of at least “A-:VIII” from A.M. Best Company or “A3” (or the equivalent) from Moody’s Investors Service, Inc. or “A-” from Standard & Poor’s Ratings Service (collectively the “Insurance Rating Requirements”), in an amount (subject to a customary deductible) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.",
"Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Loan Documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months). If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as “a Special Flood Hazard Area”, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program. If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms. The Mortgaged Property is covered, and required to be covered pursuant to the related Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by prudent institutional commercial mortgage lenders, and in any event not less than $1 million per occurrence and $2 million in the aggregate.",
"An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the scenario expected limit (“SEL”) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the SEL would exceed 20% of the amount of the replacement costs of the improvements, B-7 -------------------------------------------------------------------------------- earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Moody’s Investors Service, Inc. or “A-” by Standard & Poor’s Ratings Service in an amount not less than 100% of the SEL. The Loan Documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then outstanding principal amount of the related Mortgage Loan, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.",
"All premiums on all insurance policies referred to in this section required to be paid as of the Cut-Off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee. Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s reasonable cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller.",
"(17) Access; Utilities; Separate Tax Lots. Each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been, or will be, made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax lots are created.",
"(18) No Encroachments. To Seller’s knowledge based solely on surveys obtained in connection with origination and the Mortgagee’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title policy with escrow instructions or a “marked up” commitment) obtained in connection with the origination of each Mortgage Loan, all material improvements that were included for the purpose of determining the B-8 -------------------------------------------------------------------------------- appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy.",
"No improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy. No improvements encroach upon any easements except for encroachments the removal of which would not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements obtained with respect to the Title Policy. (19) No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature or an equity participation by Seller. (20) REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including buildings and structural components thereof, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)).",
"If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. Any prepayment premium and yield maintenance charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations. (21) Compliance with Usury Laws. The Mortgage Rate (exclusive of any default interest, late charges, yield maintenance charge, or prepayment premiums) of such Mortgage Loan B-9 -------------------------------------------------------------------------------- complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury. (22) Authorized to do Business. To the extent required under applicable law, as of the Cut-Off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to originate, acquire and/or hold (as applicable) the Mortgage Note in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust. (23) Trustee under Deed of Trust.",
"With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee. (24) Local Law Compliance. To the Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan (or related Whole Loan, as applicable) and as of the Cut-Off Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively “Zoning Regulations”) other than those which (i) are insured by the Title Policy or a law and ordinance insurance policy or (ii) would not have a material adverse effect on the value, operation or net operating income of the Mortgaged Property.",
"The terms of the Loan Documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws. (25) Licenses and Permits. Each Mortgagor covenants in the Loan Documents that it shall keep all material licenses, permits and applicable governmental authorizations necessary for its operation of the Mortgaged Property in full force and effect, and to the Seller’s knowledge based upon any of a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multifamily mortgage loans intended for securitization, all such material licenses, permits and applicable governmental authorizations are in effect. The Mortgage Loan requires the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located. (26) Recourse Obligations.",
"The Loan Documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated B-10 -------------------------------------------------------------------------------- with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events: (i) if any voluntary petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by the Mortgagor; (ii) Mortgagor or guarantor shall have colluded with (or, alternatively, solicited or caused to be solicited) other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Loan Documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained by reason of Mortgagor’s (i) misappropriation of rents after the occurrence of an event of default under the Mortgage Loan, (ii) misappropriation of (A) insurance proceeds or condemnation awards or (B) security deposits or, alternatively, the failure of any security deposits to be delivered to Mortgagee upon foreclosure or action in lieu thereof (except to the extent applied in accordance with leases prior to a Mortgage Loan event of default); (iii) fraud or intentional material misrepresentation; (iv) breaches of the environmental covenants in the Loan Documents; or (v) commission of intentional material physical waste at the Mortgaged Property.",
"(27) Mortgage Releases. The terms of the related Mortgage or related Loan Documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial Defeasance (as defined in paragraph (32)), of not less than a specified percentage at least equal to the lesser of (i) 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding principal balance of the Mortgage Loan, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance defined in (32) below, (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation or taking by a State or any political subdivision or authority thereof.",
"With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Loan Documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), for all Mortgage Loans originated after December 6, 2010, if the fair market value of the real property constituting such Mortgaged Property after the release is not equal to at least 80% of the principal balance of the Mortgage Loan outstanding after the release, the Mortgagor is required to make a B-11 -------------------------------------------------------------------------------- payment of principal in an amount not less than the amount required by the REMIC Provisions. With respect to any partial release under the preceding clause (e), for all Mortgage Loans originated after December 6, 2010, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan in an amount not less than the amount required by the REMIC Provisions and, to such extent, may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining principal balance of the Mortgage Loan.",
"No Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties, other than in compliance with the REMIC Provisions. (28) Financial Reporting and Rent Rolls. Each Mortgage requires the Mortgagor to provide the owner or holder of the Mortgage with quarterly (other than for single-tenant properties) and annual operating statements, and quarterly (other than for single-tenant properties) rent rolls for properties that have leases contributing more than 5% of the in-place base rent and annual financial statements, which annual financial statements with respect to each Mortgage Loan with more than one Mortgagor are in the form of an annual combined balance sheet of the Mortgagor entities (and no other entities), together with the related combined statements of operations, members’ capital and cash flows, including a combining balance sheet and statement of income for the Mortgaged Properties on a combined basis. (29) Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (collectively referred to as “TRIA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.",
"With respect to each other Mortgage Loan, the related special all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Mortgage Loan, and, to Seller’s knowledge, do not, as of the Cut-Off Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Loan Documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto; provided, however, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor B-12 -------------------------------------------------------------------------------- shall not be required to spend more than the Terrorism Cap Amount on terrorism insurance coverage, and if the cost of terrorism insurance exceeds the Terrorism Cap Amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to the Terrorism Cap Amount.",
"The “Terrorism Cap Amount” is the specified percentage (which is at least equal to 200%) of the amount of the insurance premium that is payable at such time in respect of the property and business interruption/rental loss insurance required under the related Loan Documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance). (30) Due on Sale or Encumbrance.",
"Subject to specific exceptions set forth below, each Mortgage Loan contains a “due on sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Loan Documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Mortgaged Property, including, without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Loan Documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Loan Documents, (iii) transfers of less than, or other than, a controlling interest in the related Mortgagor, (iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Loan Documents or a Person satisfying specific criteria identified in the related Loan Documents, such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly traded companies or (vi) a substitution or release of collateral within the parameters of paragraphs (27) and (32) herein or the exceptions thereto set forth on Exhibit C, or (vii) as set forth on Exhibit B-30-1 by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt as set forth on Exhibit B-30-2 or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt that existed at origination and is permitted under the related Loan Documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as set forth on Exhibit B-30-3 or (iv) Permitted Encumbrances.",
"The Mortgage or other Loan Documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable out-of-pocket fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance. B-13 -------------------------------------------------------------------------------- (31) Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding.",
"Both the Loan Documents and the organizational documents of the Mortgagor with respect to each Mortgage Loan with a Cut-Off Date Principal Balance in excess of $5 million provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-Off Date Principal Balance of $20 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-Off Date Principal Balance equal to $5 million or less, its organizational documents or the related Loan Documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or Properties, and whose organizational documents further provide, or which entity represented in the related Loan Documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Loan Documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity. (32) Defeasance.",
"With respect to any Mortgage Loan that, pursuant to the Loan Documents, can be defeased (a “Defeasance”), (i) the Loan Documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Loan Documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will, in the case of a full Defeasance, be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment penalty), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to the lesser of (i) 110% of the allocated loan amount for the real property to be released and (ii) the outstanding principal balance of the Mortgage Loan; (iv) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in (iii) above, (v) if the Mortgagor would continue to own assets in addition to the defeasance collateral, the portion of the Mortgage Loan secured by defeasance collateral is required to be assumed (or the Mortgagee may require such assumption) by a Single-Purpose Entity; (vi) the Mortgagor is required to provide an opinion of counsel that the Mortgagee has a perfected security interest in such collateral prior to any other claim or interest; and (vii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other B-14 -------------------------------------------------------------------------------- reasonable out-of-pocket expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.",
"(33) Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in situations where default interest is imposed. (34) Ground Leases. For purposes of this Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (IDA) or similar leases for purposes of conferring a tax abatement or other benefit.",
"With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that: (a) The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage.",
"No material change in the terms of the Ground Lease had occurred since the origination of the Mortgage Loan, except as reflected in any written instruments which are included in the related Mortgage File; (b) The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and lessee, without the prior written consent of the Mortgagee; (c) The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes); B-15 -------------------------------------------------------------------------------- (d) The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances, or (ii) is subject to a subordination, non-disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Mortgaged Property is subject; (e) The Ground Lease does not place commercially unreasonably restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (provided that proper notice is delivered to the extent required in accordance with the Ground Lease), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of (but with prior notice to) the lessor; (f) The Seller has not received any written notice of material default under or notice of termination of such Ground Lease.",
"To the Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date; (g) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the Mortgagee written notice of any default, and provides that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee; (h) The Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease; (i) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender; (j) Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; B-16 -------------------------------------------------------------------------------- (k) In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and (l) Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.",
"(35) Servicing. The servicing and collection practices used by the Seller with respect to the Mortgage Loan have been, in all respects, legal and have met customary industry standards for servicing of commercial loans for conduit loan programs. (36) Origination and Underwriting. The origination practices of the Seller (or the related originator if the Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan (or the related Whole Loan, as applicable) and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit B.",
"(37) No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required debt service payments since origination, and as of the date hereof, no Mortgage Loan is more than 30 days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date. To the Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either (a) or (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property, provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Seller in this Exhibit B (including, but not limited to, the prior sentence). No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Loan Documents.",
"B-17 -------------------------------------------------------------------------------- (38) Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Seller’s knowledge as of the Cut-Off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding. (39) Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan (or related Whole Loan, as applicable), the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico.",
"Except with respect to any Mortgage Loan that is cross-collateralized and cross defaulted with another Mortgage Loan, no Mortgage Loan has a Mortgagor that is an affiliate of another Mortgagor. (40) Environmental Conditions.",
"A Phase I environmental site assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that, based on the ESA, can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated in all material respects prior to the date hereof, and, if and as appropriate, a no further action or closure letter was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy meeting the requirements set forth below that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than A- (or the equivalent) by Moody’s, S&P and/or Fitch; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having B-18 -------------------------------------------------------------------------------- financial resources reasonably estimated to be adequate to address the situation is required to take action.",
"To Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-05 or its successor) at the related Mortgaged Property. (41) Appraisal. The Mortgage File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Closing Date. The appraisal is signed by an appraiser who is a Member of the Appraisal Institute (“MAI”) and, to the Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation. (42) Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-Off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.",
"(43) Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Mortgage Pool, except as set forth on Exhibit B-30-3. (44) Advance of Funds by the Seller. After origination, no advance of funds has been made by Seller to the related Mortgagor other than in accordance with the Loan Documents, and, to Seller’s knowledge, no funds have been received from any person other than the related Mortgagor or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Loan Documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s) into a Mortgagee-controlled lockbox if required or contemplated under the related lease or Loan Documents). Neither Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof.",
"(45) Compliance with Anti-Money Laundering Laws. Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan. For purposes of these representations and warranties, “Mortgagee” shall mean the mortgagee, grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any Mortgage Loan or, if applicable, any agent or servicer on behalf of such party. B-19 -------------------------------------------------------------------------------- For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. B-20 -------------------------------------------------------------------------------- Exhibit B-30-1 List of Mortgage Loans with Current Mezzanine Debt Loan # Mortgage Loan 8 North Street Portfolio 18 First State Plaza B-30-1-1 -------------------------------------------------------------------------------- Exhibit B-30-2 List of Mortgage Loans with Permitted Mezzanine Debt Loan # Mortgage Loan 2 Pinnacle I B-30-2-1 -------------------------------------------------------------------------------- Exhibit B-30-3 List of Cross-Collateralized and Cross-Defaulted Mortgage Loans None. B-30-3-1 -------------------------------------------------------------------------------- EXHIBIT C EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES Representation Mortgage Loan Description of Exception (7) Junior Liens Green Exchange (No.",
"12) There is a subordinate lien evidenced by that certain Junior Mortgage, Security Agreement and Financing Statement dated December 27, 2010 and recorded January 10, 2011 as Document No. 1101033194 made by GX Chicago, LLC to the City of Chicago to secure a Note for $15,000,000 which note was given by the mortgagor in connection with obtaining a HUD Section 108 Loan. (7) Junior Liens Mansell Commons (No. 29) The following notes are outstanding: (1) a note in the amount of $3.15 million, held by MC Lender, LLC (comprised of partners of Rodbell Properties, LLLP), secured by a pledge of the partnership interests in Rodbell Properties, LLLP, the sole member of the borrower, which note is subject to a Consent, Subordination and Standstill Agreement dated May 9, 2012; and (2) notes to third parties and partners of Rodbell Properties, LLLP, totaling $2.8 million, also secured by pledges of partnership interests in Rodbell Properties, LLLP, which notes are subject to a Consent, Subordination and Standstill Agreement dated May 9, 2012.",
"(16) Insurance Jamaica Center (No. 4) The Loan Agreement insurance provisions are subject to the related Ground Lease, which provides that the mortgagee may act as the trustee of the restoration proceeds if the ground lessor reasonably approves of such mortgagee as the trustee. (26) Recourse Obligations Jamaica Center (No. 4) Certain of the non-recourse carveouts are capped at $10,000,000 in the aggregate, including bankruptcy related items. Other customary non-recourse carevouts are uncapped, except that the interference with lender’s remedies related carveout is subject to a separate $10,000,000 cap which is in addition to the aggregate cap described above. (26) Recourse Obligations Pinnacle I (No.",
"2) The primary guarantor’s only asset is currently its interest in the related mortgage borrower. The secondary guarantor’s liability is capped at $20,000,000 which secondary guarantor will be released at such time as the primary guarantor acquires a certain additional asset. (31) Single Purpose Entity Abbott’s Properties (No. 16) No counsel’s opinion regarding non-consolidation of the Mortgagor. (31) Single Purpose Entity Signature Place Office (No. 14) Mortgagor did not provide a non-consolidation opinion. (34) Ground Lease Jamaica Center (No. 4) (j) The Loan Agreement insurance provisions are subject to the related Ground Lease, which provides that the mortgagee may only act as the trustee of the restoration proceeds if the ground lessor reasonably approves of such mortgagee as the trustee. (39) Organization of Mortgagor Green Exchange (No. 12) The mortgagor under the subject Mortgage Loan is affiliated with the mortgagor under the mortgage loan identified on Annex A to the Prospectus Supplement as Barry Plaza. C-1 -------------------------------------------------------------------------------- EXHIBIT D FORM OF OFFICER’S CERTIFICATE JEFFERIES LOANCORE LLC (“Seller”) hereby certifies as follows: 1.",
"All of the representations and warranties (except as set forth on Exhibit C) of the Seller under the Mortgage Loan Purchase Agreement, dated as of November 1, 2012 (the “Agreement”), between GS Mortgage Securities Corporation II and Seller, are true and correct in all material respects on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement) with the same force and effect as if made on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement). 2. The Seller has complied in all material respects with all the covenants and satisfied all the conditions on its part to be performed or satisfied under the Agreement on or prior to the date hereof, and no event has occurred which would constitute a default on the part of the Seller under the Agreement.",
"3. Neither the Prospectus, dated November 8, 2012, as supplemented by the Prospectus Supplement, dated November 16, 2012 (collectively, the “Prospectus”), relating to the offering of the Class A-1, Class A-2, Class A-3, Class A-AB, Class X-A and Class A-S, Certificates, nor the Offering Circular, dated November 16, 2012 (the “Offering Circular”), relating to the offering of the Class X-B, Class B, Class C, Class D, Class E, Class F, Class G and Class R Certificates, in the case of the Prospectus and the Prospectus Supplement, as of the date of the Prospectus Supplement or as of the date hereof, or the Offering Circular, as of the date thereof or as of the date hereof, included or includes any untrue statement of a material fact relating to the Mortgage Loans and/or the Seller or omitted or omits to state therein a material fact relating to the Mortgage Loans, the related Mortgaged Properties and/or the Seller required to be stated therein or necessary in order to make the statements therein relating to the Mortgage Loans and/or the Seller, in the light of the circumstances under which they were made, not misleading. Capitalized terms used herein without definition have the meanings given them in the Agreement or, if not defined therein, in the Indemnification Agreement.",
"[SIGNATURE APPEARS ON THE FOLLOWING PAGE] D-1 -------------------------------------------------------------------------------- Certified this [ ] day of November, 2012. JEFFERIES LOANCORE LLC By: Name: Title: D-2 --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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