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DETAILED ACTION 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.
Authorization for this examiner’s amendment was given in an interview with DANIEL NGUYEN on 02/26/2021.
The application has been amended as follows: Claims 4, 11, 19 have been canceled as the claim language has been incorporated into its parent claims 1, 9, 17 in claim amendments filed 02/22/2021.
Allowable Subject Matter The following is an examiner’s statement of reasons for allowance: Applicant’s arguments & amendments, filed 02/22/2021, have been fully considered and are persuasive. None of the cited prior art alone or in combination provides motivation to explicitly teach:
wherein selectively adjusting the operating parameters of the RF signals includes selectively modifying current induced in the antenna system based on the received temperature measurements or selectively modifying pulse width of the RF signals based on the received temperature measurements, or selectively modifying both electric current and pulse width based on the received temperature measurement, using the control unit in independent claim 9; wherein the set of instructions that cause the processor to selectively adjust the operating parameters of the transmitted RF signals causes the processor to selectively modify electric current induced in the antenna system based on the received temperature measurements or selectively modify pulse width of the RF signals based on the received temperature measurements, or selectively modify both electric current and pulse width based on the received temperature measurements in independent claim 17.
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 RAYMOND NIMOX whose telephone number is (571)270-7272. The examiner can normally be reached on Mon-Thu 9am-6pm | Fri 11am-3am. 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, JOHN BREENE can be reached on (571)272-4107. 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
RAYMOND NIMOX Primary Examiner Art Unit 2864
/RAYMOND L NIMOX/Primary Examiner, Art Unit 2864 | 2021-03-09T18:02:05 | [
"DETAILED ACTION 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. Authorization for this examiner’s amendment was given in an interview with DANIEL NGUYEN on 02/26/2021. The application has been amended as follows: Claims 4, 11, 19 have been canceled as the claim language has been incorporated into its parent claims 1, 9, 17 in claim amendments filed 02/22/2021. Allowable Subject Matter The following is an examiner’s statement of reasons for allowance: Applicant’s arguments & amendments, filed 02/22/2021, have been fully considered and are persuasive. None of the cited prior art alone or in combination provides motivation to explicitly teach: wherein selectively adjusting the operating parameters of the RF signals includes selectively modifying current induced in the antenna system based on the received temperature measurements or selectively modifying pulse width of the RF signals based on the received temperature measurements, or selectively modifying both electric current and pulse width based on the received temperature measurement, using the control unit in independent claim 9; wherein the set of instructions that cause the processor to selectively adjust the operating parameters of the transmitted RF signals causes the processor to selectively modify electric current induced in the antenna system based on the received temperature measurements or selectively modify pulse width of the RF signals based on the received temperature measurements, or selectively modify both electric current and pulse width based on the received temperature measurements in independent claim 17.",
"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 RAYMOND NIMOX whose telephone number is (571)270-7272. The examiner can normally be reached on Mon-Thu 9am-6pm | Fri 11am-3am. 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, JOHN BREENE can be reached on (571)272-4107.",
"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 RAYMOND NIMOX Primary Examiner Art Unit 2864 /RAYMOND L NIMOX/Primary Examiner, Art Unit 2864"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-07.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ORDER
GAGLIARDI, Senior District Judge. Plaintiff, Gary F. Geibels, sued Defendants, City of Cape Coral (“the City”), William Rivers (“Officer Rivers”), Bruce McNamara (“McNamara”), and Avatar Properties, Inc. (“Avatar”), on an amended complaint containing five counts. Count one alleged that Defendants were liable under 42 U.S.C. § 1983 for violating Plaintiffs constitutional rights to free speech, assembly and petition, and to be free of arrest and prosecution without probable cause. Counts two and three alleged that the City and Officer Rivers, respectively, were liable for the state law tort of false arrest. Counts four and five together alleged that all Defendants were liable for the state law tort of malicious prosecution. The case was tried to a jury on November 22, 1993. Plaintiff presented the testimony of himself, Frank Doell, who was assisting Plaintiff in soliciting petitions, and Defendants McNamara and Officer Rivers. On the fourth day of trial, prior to the close of Plaintiffs case, but after providing Plaintiff with the opportunity to make a proffer regarding the balance of his proof, Defendants’ motions for judgment as a matter of law, Fed.R.Civ.P. 50(a)(1), on all counts were granted, and the action was dismissed for the reasons that follow. *1051I. FACTUAL BACKGROUND The facts, as developed by Plaintiff, were as follow. On Saturday, March 16, 1991 Plaintiff was arrested by Defendant Officer Rivers on the grounds of Defendant Avatar’s Tarpon Point Marina (“TPM”) in Cape Coral. TPM is a private marina which maintains boating and other facilities for the use of its members and their guests. Avatar had leased a portion of the grounds of TPM to a group calling itself the Desert Storm Rally Group (“Rally Group”) for the period from noon until midnight on March 16. It was leased for the purpose of holding a rally to celebrate the return of the troops who took part in the just-concluded military action in the Persian Gulf region and to raise money for the troops. The activities at the rally included live rock and roll music and the sale of food, beverages and souvenirs. The agreement between Avatar and the Rally Group is memorialized in a “Permissive Use Agreement” (Plaintiffs Exhibit 3) which contains a legal description of the portion of TPM which was being leased to the Rally Group. Plaintiff, who at the time was a Cape Coral city councilor, attended the rally to solicit petitions for a variety of city government and utility related political initiatives. Plaintiffs activities were completely unrelated to the purpose of the rally. One the organizers of the rally, Steven Berkowitz (“Berkowitz”), had nevertheless given Plaintiff permission to solicit signatures for the petitions at the rally. The location in which Plaintiff set up his tables, however, was not within the area leased to the Rally Group by Avatar. Plaintiffs efforts were part of an ongoing effort that he and Mr. Doell and others had undertaken to gather signatures for the various initiatives. On the day in question, they had come to TPM from collecting petitions in front of Cape Coral’s city hall. They had solicited petitions at a number of other locations -in the past as well. Shortly after Plaintiff had set up his tables, a man approached Defendant McNamara, the manager of TPM, at his residence on the grounds of TPM. The man, who was crying, explained to McNamara that he was distraught because of Plaintiffs presence. The man told McNamara that he did not feel that Plaintiffs activities were appropriate at such an event. As a result, of this conversation, McNamara went to Berkowitz and asked him to have Plaintiff stop soliciting signatures. Though Berkowitz spoke to Plaintiff, Plaintiff did not leave as a result of their conversation. McNamara then spoke to Plaintiff and asked him to cease his activities and leave; Plaintiff refused. City police officers, including Defendant Rivers, arrived on the scene. As a result of the commotion, a crowd and representatives of the media, including a television crew, gathered in the area. McNamara explained to the police officers that he was the manager of the property, that he had received complaints about Plaintiffs activities and that he had asked him to leave. Over the next hour, this same information was again conveyed by McNamara and the officers, together and separately, to Plaintiff. He continued to refuse to leave. Officer Kurt Grau then issued Plaintiff a written trespass warning which Plaintiff signed. Plaintiff continued to refuse to leave, and Officer Grau arrested him for trespassing after warning in violation of Florida Statutes, § 810.09(2)(b). Plaintiff was thereafter tried and acquitted of that charge. Plaintiff also offered to prove the following: through Officer Rivers, that Officer Rivers had not ascertained whether Plaintiff had received permission from the Rally organizers to attend the rally and solicit petitions, certain aspects of police routine, and that the road accessing TPM had been dedicated to the City; through Officer Renny Wiersma, to prove certain aspects of police routine and that the public had access to the area in question; through Officer Kurt Grau, to prove that the public had access to the area and that the area was not within the exclusive control of Avatar; finally, through himself, that Plaintiff had visited TPM before and had had access to the road. II. DISCUSSION Defendants are entitled to judgment as a matter of law because no reason*1052able jury could conclude that Plaintiffs constitutional rights were violated as a result of the actions taken by the City’s police officers in arresting him or prosecuting him or that he was falsely arrested or maliciously prosecuted. Plaintiff had no First Amendment right to solicit petitions at the location at which he was arrested because that location was private property. Lloyd v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Plaintiffs offer of proof regarding the access road is irrelevant because Plaintiff was not located there and because he did not offer to prove that the road was public property. Although the First Amendment provides protection for activity undertaken on private property in limited circumstances, see id.; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), none of those circumstances was shown to have existed in this case. Plaintiffs basis for claiming that his activities were protected by the First Amendment was that the Rally Group’s activities were of a public nature. This argument has two flaws. First, Plaintiff was not on the property leased to the Rally Group; second, Plaintiffs activities were unrelated to the public purpose to which the Rally Group was putting the property, see Lloyd, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). In any event, Plaintiff had myriad alternatives which he could have, and had already, utilized to communicate his message. See Id. Plaintiffs activities did not enjoy First Amendment protection under the circumstances described by presentation of Plaintiffs evidence. Defendants, therefore, are entitled to judgment as a matter of law on Plaintiffs claim under 42 U.S.C. § 1983 that his First Amendment rights were violated. Neither were Plaintiffs constitutional rights to be free of arrest or prosecution without probable cause violated. Plaintiff was arrested for trespassing after warning in violation of Florida Statutes, chapter 810.09 (1992). That chapter reads in pertinent part as follows: (1) Whoever, without being authorized, licensed or invited, willfully enters upon or remains in any property other than a structure or conveyance ... commits the offense of trespass on property other than a structure or conveyance. (2) (a) Except as provided in this subsection, trespass on property other than a structure or conveyance is a misdemeanor of the first degree.... (b) If the offender defies an order to leave,personally communicated to him by the owner of the premises or by an authorized person ... he is guilty of a misdemeanor of the first degree____ Fla.Stat., ch. 810.09. There was probable cause to arrest and prosecute Plaintiff for trespassing after warning. The police had been informed of McNamara’s position as manager of TPM and he had informed them that Plaintiff had not been invited, authorized, or licensed to be on TPM’s property. The officers witnessed McNamara’s request that the Plaintiff leave, notified him of his trespasser status, and secured his signature on a trespass warning themselves. They then arrested him when he once again refused to comply with their order to leave. These facts comprise probable cause to arrest and prosecute for the offense of trespassing after warning. Therefore, Plaintiffs constitutional rights to be free of arrest and prosecution without probable cause were not violated, and Defendants are entitled to judgment as a matter of law on Plaintiffs claim under 42 U.S.C. § 1983. Because there was probable cause to arrest and prosecute Plaintiff, Defendants are also entitled to judgment as a matter of law on the appended state law claims of false arrest and malicious prosecution. Let the clerk enter judgment accordingly. So Ordered.
ORDER & OPINION
Plaintiff, Gary F. Geibels, moves the Court for a new trial pursuant to Fed.R.Civ.P. 59(a) or alternatively for the Court to reconsider its decision granting Defendants judgment as a matter of law on all claims. This case was dismissed on Defendants’ motion for judgment as a matter of law, Fed.R.Civ.P. 50(a)(1) (hereinafter “Rule 50(a)(1)”), at the close of Plaintiffs case, which was completed *1053through an offer of proof outside the presence of the jury. There is no basis for a new trial, therefore, the motion for a new trial is denied. The motion to reconsider the decision granting judgment as a matter of law is granted, but the Court adheres to its original decision. In his motion, Plaintiff restates substantive arguments made at trial which have previously been addressed. The only new argument he raises is a procedural one. Plaintiff argues that it was not appropriate for the Court to grant judgment as a matter of law because Plaintiff had not been “fully heard” under Rule 50(a)(1). Rule 50(a)(1) states that [i]f during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that eannot under the controlling law be maintained or defeated without a favorable finding on that issue. Federal Civil Judicial Procedure and Rules, Fed.R.Civ.P. 50(a)(1) (West Publishing Co. Ed., Supp.1993). The motion “may be made at any time before submission of the case to the jury.” Fed.R.Civ.P. 50(a)(2). The advisory committee notes for the 1991 amendment state that the rule “authorizes the court to perform its duty to enter judgment as a matter of law at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof that is essential to that party’s case.” West Publishing Co., supra, at 160. The committee notes also state that “[i]n no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact.” Id. Although courts were encouraged to delay ruling on “directed verdict” motions under the old version of Rule 50(a), 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure (1971), until the close of the evidence or thereafter, e.g., Therrell v. Georgia Marble Holdings Corp., 960 F.2d 1555 (11th Cir.1992), they were empowered to do so “at any point in the trial where it is apparent that there is a complete absence of any question to send to the jury,” United States v. Vahlco Corp., 720 F.2d 885 (5th Cir.1983) (relying on Best v. District of Columbia, 291 U.S. 411, 415, 54 S.Ct. 487, 489, 78 L.Ed. 882 (1934) (“There is no question as to the power of the trial court to direct a verdict for the defendant upon the opening statement of plaintiff’s counsel where the statement establishes that the plaintiff has no right to recover. The power of the court to act upon facts conceded by counsel is as plain as its power to act upon evidence produced.”)); 9 Wright & Miller, supra, § 2533. The amendments to Rule 50(a)(1) which altered the nomenclature from “directed verdict” to “judgment as a matter of law” do not affect the holdings in Best or Vahlco. The changes are essentially related only to terminology, Wright & Miller, supra, § 2521 (Supp.1993), and “the interpretive rules that developed with respect to directed verdicts apply with equal force to judgments as a matter of law.” Pan Am. World Airways v. Port Auth. of N.Y. & N.J., 995 F.2d 5, 8 (2d Cir.1993). In this case, it was apparent that there was no question for the jury after a significant portion of Plaintiffs case was presented and he had made a proffer of the balance of his case. Plaintiff was “apprised of the materiality of the dispositive fact[s and] afforded an opportunity to present any available evidence bearing” on them. West Publishing Co., supra, at 160. Plaintiff was repeatedly apprised of the issues the Court believed exposed him to dismissal. Prior to ruling, Plaintiff was specifically informed by the Court of the issues upon which the Court was contemplating granting Defendants’ motion for judgment as a matter of law. Plaintiffs offer of proof did not indicate that Plaintiff would present evidence which would create a question for the jury on these issues. Plaintiff argues that the ruling was premature because he was only allowed to make an offer of proof, rather than produce the corresponding evidence, prior to the Court’s ruling. Plaintiff did not have a right to use valuable judicial resources to introduce, rather than proffer, evidence. Perfit v. Perfit, 693 F.Supp. 851 (C.D.Cal.1988) (holding that *1054it was appropriate to consider and rule on the defendant’s motion for directed verdict at close of the plaintiffs case where it was completed by offer of proof) (citing Best, 291 U.S. 411, 54 S.Ct. 487 & Vahlco, 720 F.2d 885); see Payne v. Capital Transit Co., 181 F.2d 613 (D.C.Cir.1950) (holding that district court did not abuse its discretion when it ruled on a directed verdict motion prior to appearance of a proposed plaintiffs witness where it heard a proffer of the witness’s expected testimony). Plaintiff was fully apprised of the issues which exposed him to an unfavorable Rule 50(a)(1) ruling and offered the opportunity to make an offer of proof with respect to those issues. No purpose would have been served by allowing Plaintiff to produce the evidence upon which his proffer was based. Because it was apparent that Plaintiff could not carry his burden of proof on essential elements of each of his claims, Defendants’ motion for judgment as a matter of law was granted. Therefore, the Court adheres to its original decision. So Ordered. | 11-26-2022 | [
"ORDER GAGLIARDI, Senior District Judge. Plaintiff, Gary F. Geibels, sued Defendants, City of Cape Coral (“the City”), William Rivers (“Officer Rivers”), Bruce McNamara (“McNamara”), and Avatar Properties, Inc. (“Avatar”), on an amended complaint containing five counts. Count one alleged that Defendants were liable under 42 U.S.C. § 1983 for violating Plaintiffs constitutional rights to free speech, assembly and petition, and to be free of arrest and prosecution without probable cause. Counts two and three alleged that the City and Officer Rivers, respectively, were liable for the state law tort of false arrest. Counts four and five together alleged that all Defendants were liable for the state law tort of malicious prosecution. The case was tried to a jury on November 22, 1993.",
"Plaintiff presented the testimony of himself, Frank Doell, who was assisting Plaintiff in soliciting petitions, and Defendants McNamara and Officer Rivers. On the fourth day of trial, prior to the close of Plaintiffs case, but after providing Plaintiff with the opportunity to make a proffer regarding the balance of his proof, Defendants’ motions for judgment as a matter of law, Fed.R.Civ.P. 50(a)(1), on all counts were granted, and the action was dismissed for the reasons that follow. *1051I. FACTUAL BACKGROUND The facts, as developed by Plaintiff, were as follow. On Saturday, March 16, 1991 Plaintiff was arrested by Defendant Officer Rivers on the grounds of Defendant Avatar’s Tarpon Point Marina (“TPM”) in Cape Coral. TPM is a private marina which maintains boating and other facilities for the use of its members and their guests. Avatar had leased a portion of the grounds of TPM to a group calling itself the Desert Storm Rally Group (“Rally Group”) for the period from noon until midnight on March 16. It was leased for the purpose of holding a rally to celebrate the return of the troops who took part in the just-concluded military action in the Persian Gulf region and to raise money for the troops. The activities at the rally included live rock and roll music and the sale of food, beverages and souvenirs. The agreement between Avatar and the Rally Group is memorialized in a “Permissive Use Agreement” (Plaintiffs Exhibit 3) which contains a legal description of the portion of TPM which was being leased to the Rally Group. Plaintiff, who at the time was a Cape Coral city councilor, attended the rally to solicit petitions for a variety of city government and utility related political initiatives.",
"Plaintiffs activities were completely unrelated to the purpose of the rally. One the organizers of the rally, Steven Berkowitz (“Berkowitz”), had nevertheless given Plaintiff permission to solicit signatures for the petitions at the rally. The location in which Plaintiff set up his tables, however, was not within the area leased to the Rally Group by Avatar. Plaintiffs efforts were part of an ongoing effort that he and Mr. Doell and others had undertaken to gather signatures for the various initiatives. On the day in question, they had come to TPM from collecting petitions in front of Cape Coral’s city hall. They had solicited petitions at a number of other locations -in the past as well. Shortly after Plaintiff had set up his tables, a man approached Defendant McNamara, the manager of TPM, at his residence on the grounds of TPM. The man, who was crying, explained to McNamara that he was distraught because of Plaintiffs presence. The man told McNamara that he did not feel that Plaintiffs activities were appropriate at such an event. As a result, of this conversation, McNamara went to Berkowitz and asked him to have Plaintiff stop soliciting signatures.",
"Though Berkowitz spoke to Plaintiff, Plaintiff did not leave as a result of their conversation. McNamara then spoke to Plaintiff and asked him to cease his activities and leave; Plaintiff refused. City police officers, including Defendant Rivers, arrived on the scene. As a result of the commotion, a crowd and representatives of the media, including a television crew, gathered in the area. McNamara explained to the police officers that he was the manager of the property, that he had received complaints about Plaintiffs activities and that he had asked him to leave.",
"Over the next hour, this same information was again conveyed by McNamara and the officers, together and separately, to Plaintiff. He continued to refuse to leave. Officer Kurt Grau then issued Plaintiff a written trespass warning which Plaintiff signed. Plaintiff continued to refuse to leave, and Officer Grau arrested him for trespassing after warning in violation of Florida Statutes, § 810.09(2)(b). Plaintiff was thereafter tried and acquitted of that charge. Plaintiff also offered to prove the following: through Officer Rivers, that Officer Rivers had not ascertained whether Plaintiff had received permission from the Rally organizers to attend the rally and solicit petitions, certain aspects of police routine, and that the road accessing TPM had been dedicated to the City; through Officer Renny Wiersma, to prove certain aspects of police routine and that the public had access to the area in question; through Officer Kurt Grau, to prove that the public had access to the area and that the area was not within the exclusive control of Avatar; finally, through himself, that Plaintiff had visited TPM before and had had access to the road. II. DISCUSSION Defendants are entitled to judgment as a matter of law because no reason*1052able jury could conclude that Plaintiffs constitutional rights were violated as a result of the actions taken by the City’s police officers in arresting him or prosecuting him or that he was falsely arrested or maliciously prosecuted.",
"Plaintiff had no First Amendment right to solicit petitions at the location at which he was arrested because that location was private property. Lloyd v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Plaintiffs offer of proof regarding the access road is irrelevant because Plaintiff was not located there and because he did not offer to prove that the road was public property. Although the First Amendment provides protection for activity undertaken on private property in limited circumstances, see id. ; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), none of those circumstances was shown to have existed in this case. Plaintiffs basis for claiming that his activities were protected by the First Amendment was that the Rally Group’s activities were of a public nature. This argument has two flaws.",
"First, Plaintiff was not on the property leased to the Rally Group; second, Plaintiffs activities were unrelated to the public purpose to which the Rally Group was putting the property, see Lloyd, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). In any event, Plaintiff had myriad alternatives which he could have, and had already, utilized to communicate his message. See Id. Plaintiffs activities did not enjoy First Amendment protection under the circumstances described by presentation of Plaintiffs evidence. Defendants, therefore, are entitled to judgment as a matter of law on Plaintiffs claim under 42 U.S.C. § 1983 that his First Amendment rights were violated. Neither were Plaintiffs constitutional rights to be free of arrest or prosecution without probable cause violated. Plaintiff was arrested for trespassing after warning in violation of Florida Statutes, chapter 810.09 (1992). That chapter reads in pertinent part as follows: (1) Whoever, without being authorized, licensed or invited, willfully enters upon or remains in any property other than a structure or conveyance ... commits the offense of trespass on property other than a structure or conveyance. (2) (a) Except as provided in this subsection, trespass on property other than a structure or conveyance is a misdemeanor of the first degree.... (b) If the offender defies an order to leave,personally communicated to him by the owner of the premises or by an authorized person ... he is guilty of a misdemeanor of the first degree____ Fla.Stat., ch.",
"810.09. There was probable cause to arrest and prosecute Plaintiff for trespassing after warning. The police had been informed of McNamara’s position as manager of TPM and he had informed them that Plaintiff had not been invited, authorized, or licensed to be on TPM’s property. The officers witnessed McNamara’s request that the Plaintiff leave, notified him of his trespasser status, and secured his signature on a trespass warning themselves. They then arrested him when he once again refused to comply with their order to leave. These facts comprise probable cause to arrest and prosecute for the offense of trespassing after warning. Therefore, Plaintiffs constitutional rights to be free of arrest and prosecution without probable cause were not violated, and Defendants are entitled to judgment as a matter of law on Plaintiffs claim under 42 U.S.C.",
"§ 1983. Because there was probable cause to arrest and prosecute Plaintiff, Defendants are also entitled to judgment as a matter of law on the appended state law claims of false arrest and malicious prosecution. Let the clerk enter judgment accordingly. So Ordered. ORDER & OPINION Plaintiff, Gary F. Geibels, moves the Court for a new trial pursuant to Fed.R.Civ.P. 59(a) or alternatively for the Court to reconsider its decision granting Defendants judgment as a matter of law on all claims. This case was dismissed on Defendants’ motion for judgment as a matter of law, Fed.R.Civ.P. 50(a)(1) (hereinafter “Rule 50(a)(1)”), at the close of Plaintiffs case, which was completed *1053through an offer of proof outside the presence of the jury.",
"There is no basis for a new trial, therefore, the motion for a new trial is denied. The motion to reconsider the decision granting judgment as a matter of law is granted, but the Court adheres to its original decision. In his motion, Plaintiff restates substantive arguments made at trial which have previously been addressed. The only new argument he raises is a procedural one. Plaintiff argues that it was not appropriate for the Court to grant judgment as a matter of law because Plaintiff had not been “fully heard” under Rule 50(a)(1). Rule 50(a)(1) states that [i]f during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that eannot under the controlling law be maintained or defeated without a favorable finding on that issue. Federal Civil Judicial Procedure and Rules, Fed.R.Civ.P.",
"50(a)(1) (West Publishing Co. Ed., Supp.1993). The motion “may be made at any time before submission of the case to the jury.” Fed.R.Civ.P. 50(a)(2). The advisory committee notes for the 1991 amendment state that the rule “authorizes the court to perform its duty to enter judgment as a matter of law at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof that is essential to that party’s case.” West Publishing Co., supra, at 160. The committee notes also state that “[i]n no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact.” Id. Although courts were encouraged to delay ruling on “directed verdict” motions under the old version of Rule 50(a), 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure (1971), until the close of the evidence or thereafter, e.g., Therrell v. Georgia Marble Holdings Corp., 960 F.2d 1555 (11th Cir.1992), they were empowered to do so “at any point in the trial where it is apparent that there is a complete absence of any question to send to the jury,” United States v. Vahlco Corp., 720 F.2d 885 (5th Cir.1983) (relying on Best v. District of Columbia, 291 U.S. 411, 415, 54 S.Ct. 487, 489, 78 L.Ed.",
"882 (1934) (“There is no question as to the power of the trial court to direct a verdict for the defendant upon the opening statement of plaintiff’s counsel where the statement establishes that the plaintiff has no right to recover. The power of the court to act upon facts conceded by counsel is as plain as its power to act upon evidence produced.”)); 9 Wright & Miller, supra, § 2533. The amendments to Rule 50(a)(1) which altered the nomenclature from “directed verdict” to “judgment as a matter of law” do not affect the holdings in Best or Vahlco. The changes are essentially related only to terminology, Wright & Miller, supra, § 2521 (Supp.1993), and “the interpretive rules that developed with respect to directed verdicts apply with equal force to judgments as a matter of law.” Pan Am. World Airways v. Port Auth.",
"of N.Y. & N.J., 995 F.2d 5, 8 (2d Cir.1993). In this case, it was apparent that there was no question for the jury after a significant portion of Plaintiffs case was presented and he had made a proffer of the balance of his case. Plaintiff was “apprised of the materiality of the dispositive fact[s and] afforded an opportunity to present any available evidence bearing” on them. West Publishing Co., supra, at 160. Plaintiff was repeatedly apprised of the issues the Court believed exposed him to dismissal. Prior to ruling, Plaintiff was specifically informed by the Court of the issues upon which the Court was contemplating granting Defendants’ motion for judgment as a matter of law. Plaintiffs offer of proof did not indicate that Plaintiff would present evidence which would create a question for the jury on these issues. Plaintiff argues that the ruling was premature because he was only allowed to make an offer of proof, rather than produce the corresponding evidence, prior to the Court’s ruling.",
"Plaintiff did not have a right to use valuable judicial resources to introduce, rather than proffer, evidence. Perfit v. Perfit, 693 F.Supp. 851 (C.D.Cal.1988) (holding that *1054it was appropriate to consider and rule on the defendant’s motion for directed verdict at close of the plaintiffs case where it was completed by offer of proof) (citing Best, 291 U.S. 411, 54 S.Ct. 487 & Vahlco, 720 F.2d 885); see Payne v. Capital Transit Co., 181 F.2d 613 (D.C.Cir.1950) (holding that district court did not abuse its discretion when it ruled on a directed verdict motion prior to appearance of a proposed plaintiffs witness where it heard a proffer of the witness’s expected testimony). Plaintiff was fully apprised of the issues which exposed him to an unfavorable Rule 50(a)(1) ruling and offered the opportunity to make an offer of proof with respect to those issues.",
"No purpose would have been served by allowing Plaintiff to produce the evidence upon which his proffer was based. Because it was apparent that Plaintiff could not carry his burden of proof on essential elements of each of his claims, Defendants’ motion for judgment as a matter of law was granted. Therefore, the Court adheres to its original decision. So Ordered."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8709599/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Ct. App. Tex., 2d Dist. Certiorari denied. | 11-28-2022 | [
"Ct. App. Tex., 2d Dist. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9256225/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION 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 2,11,19 and 20 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 claims 2 and 11, line 5 the language “substantially constant” is indefinite, a constant velocity is non-varying and substantially constant would mean that it is variable and can read on not constant. Regarding claim 19, the claim sets forth structure which is absent and its not clear what a scope of the claim is intending to cover since it does not set forth in any way what structure further limits “ram drive assembly”, this structure already is set forth in claim 10. The terms “reduced”, “very reduced” and “exceedingly reduced” in claim 20, lines 4 and 5 are relative terms which renders the claim indefinite. The term “reduced” is not defined by the claim and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention since it not clear what reduced is in comparison to or relative to any structure.
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) 1-3,5,6,8-12,14,15 and 17-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hasselbeck et al. (3,702,559). Hasselbeck discloses a can bodymaker (Fig. 1) having a mounting assembly (housing 10) including a body with an upper, first surface (upper surface of housing 10; Fig. 1) and a ram drive assembly (16,17,18,19) comprising a cam (barrel cam 16) having a body (Fig. 1) with a number (at least one) of cooperative cam surfaces (14,15), a motor (19) having a rotating output shaft operatively coupled to said cam body (16) and structured to rotate said cam body (col. 2, lines 25-31). Hasselbeck discloses a forming system (37,38) including a number of forming assemblies (at least one) positioned on the mounting assembly, each forming assembly comprising, a stationary assembly (37) which is a die pack (col. 3, lines 8-10) defining an elongated forming passage (Figs. 1 and 2 which the rams 12,13 force a preformed cup through) having a proximal end (left side Fig. 1) and a distal end (right side Fig. 1), and a domer (38) disposed adjacent the distal end of the forming passage (Fig. 1). Hasselbeck discloses a moving assembly (12,13,12,13a) including a ram assembly (12,13) including an elongated ram body (punch 25,25; Fig. 4) having a proximal end (left side Fig. 2) and a distal end (ram punch 25,26 extending toward die by the cam follower assembly (12a,13a) between a retracted, first position, wherein the distal end of the ram body is spaced from the die pack (col. 3, lines 1-5) and an extended, second position wherein the distal end of the ram body is adjacent the domer (col. 3, lines 11-15). Regarding claims 2,3,11 and 12 Hasselbeck discloses cam surfaces (14,15) which are a plurality of drive portions (cam tracks) including forward stroke (col. 3, lines 5-8), dwell (col. 3, lines 16-17) and return (col. 3, lines 18-20 and 23-26) wherein the motor drives the cam (16) at a constant velocity (col. 2, line 30). Regarding claims 5 and 14, the cam (16) is a barrel cam. Regarding claims 6 and 15, the cam (16) is dynamic (it rotates). Regarding claims 8 and 17, the cam (16) is configured to generate a smooth ironing action of in the ram body (col. 3, lines 6-10). Regarding claims 9 and 18, the cam (16) is a direct coupling element to main shaft (17; col. 2, lines 25-27). Regarding claim 19, Hasselbeck does not disclose a crank arm or swing arm on the ram drive assembly, the only crank disclosed is a bell crank lever for the cup feed. Regarding claim 20, Hasselbeck discloses forming beverage cans (col. 1, lines 4 and 5) wherein each ram body (12,13) has a stroke length (col. 3, lines 15 and 16). 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
Claims 4 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hasselbeck in view of Lijewski et al. (4,452,103). Hasselbeck discloses that the cam surfaces are cam grooves which are a cam track and discloses that the cam can be constructed with cam lobes but does not disclose a plurality of different shaped dwell, constant velocity and acceleration cam tracks. Lijewski teaches a cam drive system (10) which drives a reciprocating, linear or rotating work apparatus (12) comprising a barrel cam assembly (26) having cam portions (32,34) which are supported on a drive shaft (36). The cam portions (32,34) have cam grooves (46,48,50,52) wherein cam groove (46) is constructed with a variable pitch (col. 3, lines 5-14) to provide a zero pitch portion with a dwell period and increasing pitch toward opposite ends (47,49) to provide acceleration portions on opposing sides of the dwell portion and a constant velocity cam groove (48; col. 5, lines 28-32). A drive motor (24) is energized to drive the cam portions (32,34) in rotation (col. 4, lines 46-51). It would have been obvious to the skilled artisan prior to the effective filing date of the present invention to modify the cam grooves of Hasselbeck to have a differing shape as taught by Leijewski in order to dwell the ram, accelerate the ram and drive the ram with constant velocity so as to provide definite sectional cam groove shapes for driving of the ram during rotation of the cam. Claims 7 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hasselbeck in view of Slater (5,076,087). Hasselbeck does not disclose that the barrel cam is stationary. Slater teaches a stationary cam (128) with a continuous cam groove (126) cooperating with a cam follower (124) for reciprocating ram driving heads (98; Fig. 11a) as the cam follower rotates around the stationary cam. It would have been .
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWARD THOMAS TOLAN whose telephone number is (571)272-4525. The examiner can normally be reached M-F 7:30-5. 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, Shelley Self can be reached on 571-272-4524. 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
/EDWARD T TOLAN/Primary Examiner, Art Unit 3725 | 2022-03-20T11:38:04 | [
"DETAILED ACTION 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 2,11,19 and 20 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 claims 2 and 11, line 5 the language “substantially constant” is indefinite, a constant velocity is non-varying and substantially constant would mean that it is variable and can read on not constant. Regarding claim 19, the claim sets forth structure which is absent and its not clear what a scope of the claim is intending to cover since it does not set forth in any way what structure further limits “ram drive assembly”, this structure already is set forth in claim 10. The terms “reduced”, “very reduced” and “exceedingly reduced” in claim 20, lines 4 and 5 are relative terms which renders the claim indefinite. The term “reduced” is not defined by the claim and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention since it not clear what reduced is in comparison to or relative to any structure. 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) 1-3,5,6,8-12,14,15 and 17-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hasselbeck et al. (3,702,559). Hasselbeck discloses a can bodymaker (Fig. 1) having a mounting assembly (housing 10) including a body with an upper, first surface (upper surface of housing 10; Fig. 1) and a ram drive assembly (16,17,18,19) comprising a cam (barrel cam 16) having a body (Fig. 1) with a number (at least one) of cooperative cam surfaces (14,15), a motor (19) having a rotating output shaft operatively coupled to said cam body (16) and structured to rotate said cam body (col. 2, lines 25-31).",
"Hasselbeck discloses a forming system (37,38) including a number of forming assemblies (at least one) positioned on the mounting assembly, each forming assembly comprising, a stationary assembly (37) which is a die pack (col. 3, lines 8-10) defining an elongated forming passage (Figs. 1 and 2 which the rams 12,13 force a preformed cup through) having a proximal end (left side Fig. 1) and a distal end (right side Fig. 1), and a domer (38) disposed adjacent the distal end of the forming passage (Fig. 1). Hasselbeck discloses a moving assembly (12,13,12,13a) including a ram assembly (12,13) including an elongated ram body (punch 25,25; Fig. 4) having a proximal end (left side Fig. 2) and a distal end (ram punch 25,26 extending toward die by the cam follower assembly (12a,13a) between a retracted, first position, wherein the distal end of the ram body is spaced from the die pack (col. 3, lines 1-5) and an extended, second position wherein the distal end of the ram body is adjacent the domer (col. 3, lines 11-15). Regarding claims 2,3,11 and 12 Hasselbeck discloses cam surfaces (14,15) which are a plurality of drive portions (cam tracks) including forward stroke (col. 3, lines 5-8), dwell (col. 3, lines 16-17) and return (col. 3, lines 18-20 and 23-26) wherein the motor drives the cam (16) at a constant velocity (col. 2, line 30).",
"Regarding claims 5 and 14, the cam (16) is a barrel cam. Regarding claims 6 and 15, the cam (16) is dynamic (it rotates). Regarding claims 8 and 17, the cam (16) is configured to generate a smooth ironing action of in the ram body (col. 3, lines 6-10). Regarding claims 9 and 18, the cam (16) is a direct coupling element to main shaft (17; col. 2, lines 25-27). Regarding claim 19, Hasselbeck does not disclose a crank arm or swing arm on the ram drive assembly, the only crank disclosed is a bell crank lever for the cup feed. Regarding claim 20, Hasselbeck discloses forming beverage cans (col. 1, lines 4 and 5) wherein each ram body (12,13) has a stroke length (col. 3, lines 15 and 16). 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 Claims 4 and 13 is/are rejected under 35 U.S.C.",
"103 as being unpatentable over Hasselbeck in view of Lijewski et al. (4,452,103). Hasselbeck discloses that the cam surfaces are cam grooves which are a cam track and discloses that the cam can be constructed with cam lobes but does not disclose a plurality of different shaped dwell, constant velocity and acceleration cam tracks. Lijewski teaches a cam drive system (10) which drives a reciprocating, linear or rotating work apparatus (12) comprising a barrel cam assembly (26) having cam portions (32,34) which are supported on a drive shaft (36). The cam portions (32,34) have cam grooves (46,48,50,52) wherein cam groove (46) is constructed with a variable pitch (col. 3, lines 5-14) to provide a zero pitch portion with a dwell period and increasing pitch toward opposite ends (47,49) to provide acceleration portions on opposing sides of the dwell portion and a constant velocity cam groove (48; col. 5, lines 28-32).",
"A drive motor (24) is energized to drive the cam portions (32,34) in rotation (col. 4, lines 46-51). It would have been obvious to the skilled artisan prior to the effective filing date of the present invention to modify the cam grooves of Hasselbeck to have a differing shape as taught by Leijewski in order to dwell the ram, accelerate the ram and drive the ram with constant velocity so as to provide definite sectional cam groove shapes for driving of the ram during rotation of the cam. Claims 7 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hasselbeck in view of Slater (5,076,087). Hasselbeck does not disclose that the barrel cam is stationary. Slater teaches a stationary cam (128) with a continuous cam groove (126) cooperating with a cam follower (124) for reciprocating ram driving heads (98; Fig.",
"11a) as the cam follower rotates around the stationary cam. It would have been . Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDWARD THOMAS TOLAN whose telephone number is (571)272-4525. The examiner can normally be reached M-F 7:30-5. 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, Shelley Self can be reached on 571-272-4524. 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 /EDWARD T TOLAN/Primary Examiner, Art Unit 3725"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-20.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION This Office Action is in response to the filing of a Continuation of Application 17/072152 which is now United States Patent 11,330,113. Applicants Preliminary Amendment filed 02/01/2022 has been entered. No Claims have been amended. Claims 1-20 have been cancelled. Claims 21-40 have been added. Claims 21-40 are still pending in this application, with Claims 21, 30 and 38 being independent.
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 .
Double Patenting The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based e-Terminal Disclaimer may be filled out completely online using web-screens. An e-Terminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about e-Terminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 21-40 are rejected on the ground of non-statutory double patenting as being unpatentable over Claims 1-20 of U.S. Patent No. 11,330,110; hereinafter referred to as Patent (‘110). Although the claims at issue are not identical, they are not patentably distinct from each other because Claim 21 of the instant application is wholly contained within Claim 1 of Patent (‘110). Claim 21 of the instant application is wholly contained Claim 1 of Patent (‘110) except that Claim 1 of Patent (‘110) recites one or more silent call connections whereas Claim 21 of the instant application recites a silent call connection. Claim 1 of Patent (‘110) recites additional steps that are not present in Claim 21 of the instant application as well. Claims 22-29 of the instant application are wholly contained Claim 2-9 of Patent (‘110). Claim 30 of the instant application is wholly contained Claim 11 of Patent (‘110) except that Claim 11 of Patent (‘110) recites one or more silent call connections whereas Claim 30 of the instant application recites a silent call connection. Claim 11 of Patent (‘110) recites additional steps that are not present in Claim 30 of the instant application as well. Claims 31-37 of the instant application are wholly contained in Claims 12-19 respectively of Patent (‘110). Claim 38 of the instant application incorporates elements from Claims 1 and 13 of Patent (‘110). Claim 39 of the instant application incorporates elements from Claims 2 and 3 of Patent (‘110). Claim 40 of the instant application incorporates elements from Claims 1 and 21 of Patent (‘110).
When the Claims in the pending application are broader than the ones in the patent, the broad claims in the pending application are rejected under obviousness type double patenting over previously patented narrow claims, In re Van Ornum and Stang, 214 USPQ 761.
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.
Claim(s) 21 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Reeves et al (7,571,238 B1) in view of Stahlman et al (2007/0147600 A1). As per Claim 21, Reeves teaches a method for establishing a communication, comprising: establishing a silent call connection with a call recipient before a user initiates a call connection, wherein the silent call connection comprises a predetermined parameter such that there is no incoming call indicator (Column 7, Lines 31-43). (Note: In Column 7, Lines 31-43; Reeves indicates that in route to destination terminals. The INVITE message includes a no ring (NORING) invitation [predetermined parameter so that there are no incoming call indicators associated with the one or more call recipients]) (Note: The no ring (NORING) invitation described by Reeves directs the destination terminal to initiate the connection without alerting the user of the destination terminal. [i.e. evidence of establishing one or more silent call connections with the one or more call recipients determined based on the part of the phone number before the user takes a second user action to initiate a call connection]) Reeves does not teach establishing a call connection with a call recipient determined based on a partial phone number. However, Stahlman teaches establishing a call connection with a call recipient determined based on a partial phone number (Page 2, Paragraphs [0025] and [0026]). (Note: In paragraph [0025], Stahlman describes a calling party initiating, establishing and controlling telephony calls to one or more destination terminals. In paragraph [0026], Stahlman describes a user initiating a multiple call event by dialing digits [first user action: dialing a code, alphanumeric sequence, etc.] that identifies multiple destinations to which multiple calls are places in a simultaneous fashion. The use of a SIP INVITE message is shown in Figure 5) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Reeves with the method as taught by Stahlman to authorize resource reservation for a communication session over a packet-switched network without requiring the communication server to know the identity of or significant details about the network elements providing the communication. As per Claim 30, the combination of Reeves and Stahlman teaches a method as described in Claim 1 above. Stahlman also teaches at least one non-transitory computer readable medium containing instructions (Figure 9 – Reference 28 and 30; Page 5, Paragraph [0042]); and at least one processor configured to execute the instructions (Figure 9 – Reference 26 Page 5, Paragraph [0042]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Reeves with the method, device and non-transitory computer readable medium taught by Stahlman to authorize resource reservation for a communication session over a packet-switched network without requiring the communication server to know the identity of or significant details about the network elements providing the communication.
Claim(s) 22-29 and 31-40 are rejected under 35 U.S.C. 103 as being unpatentable over Reeves et al (7,571,238 B1) in view of Stahlman et al (2007/0147600 A1) as applied to Claims 21 and 30 above, and further in view of Sorvari et al (2006/0035632 A1). As per Claims 22 and 31, the combination of Reeves and Stahlman teaches method and device of Claims 21 and 30; but does not teach receiving a user action adding a digit to the partial phone number; and determining a different call recipient based on the user action. However, Sovari teaches receiving a user action adding a digit to the partial phone number (Figure 7B – Reference 708; Figure 8A – Reference 802; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]); and determining a different call recipient based on the user action (Figure 7B – Reference 706B; Figure 8A – Reference 804; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]). The combination of Reeves, Stahlman and Sorvari teaches terminating the silent call connection (Stahlman: Page 2, Paragraph [0025]). (Note: In paragraph [0025], Stahlman indicates that the originating node operates on behalf of the calling party to initiate, establish and control telephony calls involving the originating terminal. The entry of information that determines the subset of call recipients would make any reserved resource not meeting the specified subset criteria unnecessary and it would be obvious to terminate an unnecessary connection) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus as taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 23 and 32, the combination of Reeves, Stahlman and Sorvari teaches receiving a user action for initiating the call connection; and establishing an active call connection based on the user action and the silent call connection (Stahlman: Page 2, Paragraphs [0025] and [0026]; Sorvari: Figure 7B – Reference 708; Figure 8A – Reference 802; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus as taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 24, 26, 33 and 35, the combination of Reeves, Stahlman and Sorvari teaches wherein the call recipient is further determined based on a user profile associated with the user; and wherein determining the different call recipient is based on a user profile associated with the user Sovari: Figure 1 – References 108 and 112; Page 4, Paragraph [0039]; Page 5, Paragraph [0049]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus as taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 25, 27, 34 and 36, the combination of Reeves, Stahlman and Sorvari teaches wherein the call recipient is further determined based on a machine learning algorithm; and wherein determining the different call recipient is based on a machine learning algorithm (Sovari – Adaptive List: Page 4, Paragraph [0038], [0041] and [0042]; Page 10, Paragraph [0079]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claim 28, the combination of Reeves, Stahlman and Sorvari teaches wherein the partial phone number comprises an area code (Sovari: Figure 7C – Reference 710; Page 9, Paragraph [0076]). (Note: As shown in Figure 7C, the telephone number is 1-050-483-6638; in this circumstance the area code is 050) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 29 and 37, the combination of Reeves, Stahlman and Sorvari teaches determining whether the call recipient is associated with an assigned phone number, and wherein determining the different call recipient is further based on determining whether the call recipient is associated with the assigned phone number as described in Claims 21 and 22 above. It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claim 38, the combination of Reeves and Stahlman teaches a method for establishing a communication, comprising: establishing a silent call connection with a call recipient determined based on a partial phone number before a user initiates a call connection, wherein the silent call connection comprises a predetermined parameter such that there is no incoming call indicator as described in Claim 21 above. The combination of Reeves, Stahlman and Sorvari additionally teaches converting the silent call connection into an active call connection (Stahlman: Page 2, Paragraphs [0025] and [0026]; Sorvari: Figure 7B – Reference 708; Figure 8A – Reference 802; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claim 39, the combination of Reeves, Stahlman and Sorvari teaches receiving a user action adding a digit to the partial phone number, and wherein converting the silent call connection into the active call connection is in response to receiving the user action as described in Claims 22 and 23 above. It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claim 40, the combination of Reeves, Stahlman and Sorvari teaches establishing another silent call connection with another call recipient determined based on the partial phone number before the user initiates the call connection; and terminating the other silent call connection in response to converting the silent call connection into the active call connection as described in Claims 21 and 22. (Note: In paragraph [0025], Stahlman describes a calling party initiating, establishing and controlling telephony calls to one or more destination terminals. In paragraph [0026], Stahlman describes a user initiating a multiple call event by dialing digits [first user action: dialing a code, alphanumeric sequence, etc.] that identifies multiple destinations to which multiple calls are places in a simultaneous fashion) (Note: In paragraph [0025], Stahlman indicates that the originating node operates on behalf of the calling party to initiate, establish and control telephony calls involving the originating terminal. The entry of information that determines the subset of call recipients would make any reserved resource not meeting the specified subset criteria unnecessary and it would be obvious to terminate an unnecessary connection) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Wang et al (2016/0072943 A1), Vaughn et al (2020/0389551 A1), KIM et al (2017/0085706 A1), Filiba et al (2006/0240877 A1), Geiger et al (2015/0195695 A1), Tassone et al (9,178,773 B1), Sansalone (2013/0303133 A1) and Sakaniwa (2007/0275737 A1). Each of these describes systems and methods for establishing simultaneous communication connections with multiple parties. Any inquiry concerning this communication or earlier communications from the examiner should be directed to KHARYE POPE whose telephone number is (571)270-5587. The examiner can normally be reached Monday - Friday 8AM - 4PM. 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, Ahmad Matar can be reached on (571) 272-7488. 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.
/KHARYE POPE/Primary Examiner, Art Unit 2652 | 2022-12-21T00:20:01 | [
"DETAILED ACTION This Office Action is in response to the filing of a Continuation of Application 17/072152 which is now United States Patent 11,330,113. Applicants Preliminary Amendment filed 02/01/2022 has been entered. No Claims have been amended. Claims 1-20 have been cancelled. Claims 21-40 have been added. Claims 21-40 are still pending in this application, with Claims 21, 30 and 38 being independent. 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 . Double Patenting The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees.",
"A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir.",
"1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA .",
"A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based e-Terminal Disclaimer may be filled out completely online using web-screens. An e-Terminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about e-Terminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claims 21-40 are rejected on the ground of non-statutory double patenting as being unpatentable over Claims 1-20 of U.S. Patent No. 11,330,110; hereinafter referred to as Patent (‘110). Although the claims at issue are not identical, they are not patentably distinct from each other because Claim 21 of the instant application is wholly contained within Claim 1 of Patent (‘110). Claim 21 of the instant application is wholly contained Claim 1 of Patent (‘110) except that Claim 1 of Patent (‘110) recites one or more silent call connections whereas Claim 21 of the instant application recites a silent call connection.",
"Claim 1 of Patent (‘110) recites additional steps that are not present in Claim 21 of the instant application as well. Claims 22-29 of the instant application are wholly contained Claim 2-9 of Patent (‘110). Claim 30 of the instant application is wholly contained Claim 11 of Patent (‘110) except that Claim 11 of Patent (‘110) recites one or more silent call connections whereas Claim 30 of the instant application recites a silent call connection. Claim 11 of Patent (‘110) recites additional steps that are not present in Claim 30 of the instant application as well. Claims 31-37 of the instant application are wholly contained in Claims 12-19 respectively of Patent (‘110). Claim 38 of the instant application incorporates elements from Claims 1 and 13 of Patent (‘110). Claim 39 of the instant application incorporates elements from Claims 2 and 3 of Patent (‘110). Claim 40 of the instant application incorporates elements from Claims 1 and 21 of Patent (‘110). When the Claims in the pending application are broader than the ones in the patent, the broad claims in the pending application are rejected under obviousness type double patenting over previously patented narrow claims, In re Van Ornum and Stang, 214 USPQ 761.",
"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. Claim(s) 21 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Reeves et al (7,571,238 B1) in view of Stahlman et al (2007/0147600 A1).",
"As per Claim 21, Reeves teaches a method for establishing a communication, comprising: establishing a silent call connection with a call recipient before a user initiates a call connection, wherein the silent call connection comprises a predetermined parameter such that there is no incoming call indicator (Column 7, Lines 31-43). (Note: In Column 7, Lines 31-43; Reeves indicates that in route to destination terminals. The INVITE message includes a no ring (NORING) invitation [predetermined parameter so that there are no incoming call indicators associated with the one or more call recipients]) (Note: The no ring (NORING) invitation described by Reeves directs the destination terminal to initiate the connection without alerting the user of the destination terminal.",
"[i.e. evidence of establishing one or more silent call connections with the one or more call recipients determined based on the part of the phone number before the user takes a second user action to initiate a call connection]) Reeves does not teach establishing a call connection with a call recipient determined based on a partial phone number. However, Stahlman teaches establishing a call connection with a call recipient determined based on a partial phone number (Page 2, Paragraphs [0025] and [0026]). (Note: In paragraph [0025], Stahlman describes a calling party initiating, establishing and controlling telephony calls to one or more destination terminals. In paragraph [0026], Stahlman describes a user initiating a multiple call event by dialing digits [first user action: dialing a code, alphanumeric sequence, etc.] that identifies multiple destinations to which multiple calls are places in a simultaneous fashion. The use of a SIP INVITE message is shown in Figure 5) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Reeves with the method as taught by Stahlman to authorize resource reservation for a communication session over a packet-switched network without requiring the communication server to know the identity of or significant details about the network elements providing the communication.",
"As per Claim 30, the combination of Reeves and Stahlman teaches a method as described in Claim 1 above. Stahlman also teaches at least one non-transitory computer readable medium containing instructions (Figure 9 – Reference 28 and 30; Page 5, Paragraph [0042]); and at least one processor configured to execute the instructions (Figure 9 – Reference 26 Page 5, Paragraph [0042]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Reeves with the method, device and non-transitory computer readable medium taught by Stahlman to authorize resource reservation for a communication session over a packet-switched network without requiring the communication server to know the identity of or significant details about the network elements providing the communication. Claim(s) 22-29 and 31-40 are rejected under 35 U.S.C.",
"103 as being unpatentable over Reeves et al (7,571,238 B1) in view of Stahlman et al (2007/0147600 A1) as applied to Claims 21 and 30 above, and further in view of Sorvari et al (2006/0035632 A1). As per Claims 22 and 31, the combination of Reeves and Stahlman teaches method and device of Claims 21 and 30; but does not teach receiving a user action adding a digit to the partial phone number; and determining a different call recipient based on the user action. However, Sovari teaches receiving a user action adding a digit to the partial phone number (Figure 7B – Reference 708; Figure 8A – Reference 802; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]); and determining a different call recipient based on the user action (Figure 7B – Reference 706B; Figure 8A – Reference 804; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]). The combination of Reeves, Stahlman and Sorvari teaches terminating the silent call connection (Stahlman: Page 2, Paragraph [0025]). (Note: In paragraph [0025], Stahlman indicates that the originating node operates on behalf of the calling party to initiate, establish and control telephony calls involving the originating terminal.",
"The entry of information that determines the subset of call recipients would make any reserved resource not meeting the specified subset criteria unnecessary and it would be obvious to terminate an unnecessary connection) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus as taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence.",
"As per Claims 23 and 32, the combination of Reeves, Stahlman and Sorvari teaches receiving a user action for initiating the call connection; and establishing an active call connection based on the user action and the silent call connection (Stahlman: Page 2, Paragraphs [0025] and [0026]; Sorvari: Figure 7B – Reference 708; Figure 8A – Reference 802; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus as taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 24, 26, 33 and 35, the combination of Reeves, Stahlman and Sorvari teaches wherein the call recipient is further determined based on a user profile associated with the user; and wherein determining the different call recipient is based on a user profile associated with the user Sovari: Figure 1 – References 108 and 112; Page 4, Paragraph [0039]; Page 5, Paragraph [0049]).",
"It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus as taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 25, 27, 34 and 36, the combination of Reeves, Stahlman and Sorvari teaches wherein the call recipient is further determined based on a machine learning algorithm; and wherein determining the different call recipient is based on a machine learning algorithm (Sovari – Adaptive List: Page 4, Paragraph [0038], [0041] and [0042]; Page 10, Paragraph [0079]).",
"It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claim 28, the combination of Reeves, Stahlman and Sorvari teaches wherein the partial phone number comprises an area code (Sovari: Figure 7C – Reference 710; Page 9, Paragraph [0076]). (Note: As shown in Figure 7C, the telephone number is 1-050-483-6638; in this circumstance the area code is 050) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claims 29 and 37, the combination of Reeves, Stahlman and Sorvari teaches determining whether the call recipient is associated with an assigned phone number, and wherein determining the different call recipient is further based on determining whether the call recipient is associated with the assigned phone number as described in Claims 21 and 22 above. It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method and apparatus taught by Stahlman and Reeves with the method and apparatus taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence.",
"As per Claim 38, the combination of Reeves and Stahlman teaches a method for establishing a communication, comprising: establishing a silent call connection with a call recipient determined based on a partial phone number before a user initiates a call connection, wherein the silent call connection comprises a predetermined parameter such that there is no incoming call indicator as described in Claim 21 above. The combination of Reeves, Stahlman and Sorvari additionally teaches converting the silent call connection into an active call connection (Stahlman: Page 2, Paragraphs [0025] and [0026]; Sorvari: Figure 7B – Reference 708; Figure 8A – Reference 802; Page 9, Paragraph [0075]; Page 10, Paragraph [0077]). It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence.",
"As per Claim 39, the combination of Reeves, Stahlman and Sorvari teaches receiving a user action adding a digit to the partial phone number, and wherein converting the silent call connection into the active call connection is in response to receiving the user action as described in Claims 22 and 23 above. It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence. As per Claim 40, the combination of Reeves, Stahlman and Sorvari teaches establishing another silent call connection with another call recipient determined based on the partial phone number before the user initiates the call connection; and terminating the other silent call connection in response to converting the silent call connection into the active call connection as described in Claims 21 and 22.",
"(Note: In paragraph [0025], Stahlman describes a calling party initiating, establishing and controlling telephony calls to one or more destination terminals. In paragraph [0026], Stahlman describes a user initiating a multiple call event by dialing digits [first user action: dialing a code, alphanumeric sequence, etc.] that identifies multiple destinations to which multiple calls are places in a simultaneous fashion) (Note: In paragraph [0025], Stahlman indicates that the originating node operates on behalf of the calling party to initiate, establish and control telephony calls involving the originating terminal. The entry of information that determines the subset of call recipients would make any reserved resource not meeting the specified subset criteria unnecessary and it would be obvious to terminate an unnecessary connection) It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to modify the method taught by Stahlman and Reeves with the method taught by Sovari to reduce the amount of time required to reach a targeted party in an emergency situation by reserving the communication resources ahead of time enabling rapid communication where time is of the essence.",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Wang et al (2016/0072943 A1), Vaughn et al (2020/0389551 A1), KIM et al (2017/0085706 A1), Filiba et al (2006/0240877 A1), Geiger et al (2015/0195695 A1), Tassone et al (9,178,773 B1), Sansalone (2013/0303133 A1) and Sakaniwa (2007/0275737 A1). Each of these describes systems and methods for establishing simultaneous communication connections with multiple parties. Any inquiry concerning this communication or earlier communications from the examiner should be directed to KHARYE POPE whose telephone number is (571)270-5587.",
"The examiner can normally be reached Monday - Friday 8AM - 4PM. 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, Ahmad Matar can be reached on (571) 272-7488.",
"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. /KHARYE POPE/Primary Examiner, Art Unit 2652"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-12-25.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION
KEVIN McGHEE and JENISE McGHEE,
Plaintiffs, Case No: 2:21-cv-4048
vs. Division:
ZOKHIRKUL KHALILOV, (Personal Injury/Auto – In Excess of Serve: 9926 Haldeman Ave, A101 $75,000) Philadelphia, PA 19115
and
ECO TRUCKING, LLC, JURY TRIAL DEMANDED Serve: 2613 Virginia Lane Jamison, PA 18929
Defendants.
COMPLAINT COMES NOW Plaintiffs Kevin McGhee and Jenise McGhee, by and through their
undersigned counsel, and for their Complaint against Defendants Zokhirkul Khalilov and Eco
Trucking, LLC (collectively “Defendants”) state the following:
PARTIES
1. This lawsuit concerns a tractor-trailer and pedestrian collision occurring on
December 16, 2020 when Plaintiff Kevin McGhee was struck by a tractor-trailer operated by
Defendant Zokhirkul Khalilov while being employed by Defendant Eco Trucking, LLC and acting
within the course and scope of his employment. Plaintiff Kevin McGhee suffered serious injuries
as a result of the collision.
1 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 1 of 12 2. At all times material hereto, Plaintiff Kevin McGhee is an individual who was and
is a citizen and resident of the State of Missouri.
3. At all times material hereto, Plaintiff Jenise McGhee is an individual who was and
is a citizen and resident of the State of Missouri.
4. At all times material hereto, Defendant Zokhirkul Khalilov (hereinafter “Defendant
Khalilov”) is an individual who was and is a citizen and resident of Pennsylvania.
5. At all times material hereto, Defendant Eco Trucking, LLC (hereinafter “Defendant
Eco Trucking”) is a duly organized and existing Pennsylvania corporation, with its principal place
of business located in Pennsylvania, that operates in the state of Missouri and elsewhere as an
interstate motor carrier.
6. Defendant Khalilov was at all times material hereto an employee or agent of
Defendant Eco Trucking and was acting in the course and scope of his employment and/or agency
for Defendant Eco Trucking on December 16, 2020.
7. The claim arises out of a tractor-trailer and pedestrian collision that occurred in
Callaway County, Missouri on December 16, 2020.
8. Missouri substantive law applies.
SUBJECT MATTER JURISDICTION
9. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 because there is
complete diversity and the amount in controversy exceeds, exclusive of interest and costs, the sum
of $75,000. Plaintiffs are citizens and residents of the State of Missouri, Defendant Khalilov is a
citizen and resident of the state of Pennsylvania, and Defendant Eco Trucking is a citizen of the
state of Pennsylvania.
2 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 2 of 12 PERSONAL JURISDICTION
10. Defendant Eco Trucking maintains sufficient minimum contacts with the State of
Missouri and is subject to personal jurisdiction in Missouri. Defendant Eco Trucking conducts
substantial business in Missouri as in interstate motor carrier, including the employment of
Defendant Khalilov who was working and traveling within the State of Missouri at the time of the
collision at issue in this Complaint.
11. Defendant Khalilov maintains sufficient minimum contacts with the State of
Missouri and is subject to personal jurisdiction in Missouri. Defendant Khalilov was working for
Defendant Eco Trucking as an inter-state truck driver and traveling within the State of Missouri at
the time of the collision at issue in this Complaint.
VENUE
12. Venue is proper in the United States District Court for the Western District of
Missouri, Central Division, pursuant to 28 U.S.C. § 1391 in that a substantial part of the events or
omissions giving rise to the claim occurred within this judicial district.
FACTUAL ALLEGATIONS
13. On or about December 16, 2020, Plaintiff Kevin McGhee was working as part of a
road crew on westbound Interstate-70 near Bridge A0096, in Callaway County, Missouri.
14. On or about December 16, 2020, Defendant Khalilov was driving a 2017 Volvo
Truck Tractor with One Unit, VIN# 4V4NC9EH9HN977172, (hereinafter “the subject tractor-
trailer”) westbound on Interstate-70 near Bridge A0096, in Callaway County, Missouri.
15. On or about December 16, 2020, Defendant Khalilov was, at all times, acting as an
employee and agent for Defendant Eco Trucking.
3 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 3 of 12 16. On or about December 16, 2020, and at all times relevant hereto, the subject tractor-
trailer was owned by Defendant Eco Trucking, and was being operated as part of Defendant
Khalilov’s employment for Defendant Eco Trucking.
17. On or about December 16, 2020, the road conditions were dry.
18. On or about December 16, 2020, near where Plaintiff Kevin McGhee was working
on Interstate-70 westbound, there was an Arrow Sign Board flashing and indicating to vehicles to
move to the left lane because the right lane was closed for a construction crew.
19. Plaintiff Kevin McGhee was a member of the construction crew.
20. On or about December 16, 2020, while driving westbound on Interstate-55,
Defendant Khalilov negligently drove the subject tractor-trailer while distracted, inattentive,
impaired and/or asleep when failing to heed to warning signs posted and the flashing Arrow Sign
Board indicating to Defendant Khalilov to move his vehicle to the left lane.
21. Defendant Khalilov drove the subject tractor-trailer off the right side of the
roadway, striking a guardrail.
22. Defendant Khalilov returned the subject tractor-trailer to the roadway and traveled
off to the right side of the roadway a second time, striking the bridge face of Bridge A0096.
23. Defendant Khalilov returned the subject tractor-trailer to the roadway again, and
continued westbound where he struck the flashing Arrow Sign Board with the subject tractor-
trailer.
24. After crashing through the Arrow Sign Board, Defendant Khalilov then struck
Plaintiff Kevin McGhee as he was working on the side of the road, and struck another vehicle.
25. Upon impact, Plaintiff Kevin McGhee was thrown into the guardrail and rolled
down the embankment.
4 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 4 of 12 26. Defendant Khalilov then crossed into the center of the roadway and the subject
tractor-trailer jackknifed.
27. Plaintiff Kevin McGhee was emergently taken to University Hospital via
ambulance.
28. As a result of the accident, Plaintiff Kevin McGhee suffered severe and life-
threatening injuries, including but not limited to a brain injury, broken leg, collapsed lungs, among
others, and requiring multiple surgical procedures.
COUNT I (Negligence - Defendants Khalilov and Eco Trucking) 29. Plaintiff Kevin McGhee hereby alleges and incorporates by reference every
allegation contained in all previous paragraphs of this Complaint as though fully set forth herein.
30. At all times relevant herein, Defendant Khalilov was an employee and an agent for
Defendant Eco Trucking and Defendant Khalilov was acting within the course and scope of his
employment and/or agency for Defendant Eco Trucking.
31. At all times relevant herein, Defendant Khalilov was operating the subject tractor-
trailer owned by Defendant Eco Trucking.
32. At all times mentioned herein, Defendants Khalilov and Eco Trucking owed a duty
to Plaintiff Kevin McGhee and others to exercise the highest degree of care in the operation of the
motor vehicle.
33. The automobile collision at issue was caused by the negligence and carelessness of
Defendants Khalilov and Eco Trucking in the following respects:
a. Defendants operated the subject tractor-trailer in a careless and
reckless manner;
b. Defendants failed to cease operating the subject tractor-trailer while
5 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 5 of 12 being distracted, inattentive, impaired and/or asleep;
c. Defendants failed to heed to warning signs on the road indicating to
vehicles to move to the left lane;
d. Defendants failed to heed to flashing arrow board signs on the road
indicating to vehicles to move to the left lane because the right lane
was closed for a construction crew;
e. Defendants operated the subject vehicle on the public roadways,
including highways, when they knew or should have known, that
Defendant Khalilov was unfit to operate motor vehicles;
f. Defendant Khalilov chose to continue operating the subject vehicle
when he knew, or should have known, that it was not safe to do so;
g. Defendants failed to yield the right of way;
h. Defendants failed to brake;
i. Defendants failed to stop the subject vehicle after traveling off the
right side of the roadway and striking a guardrail;
j. Defendants failed to stop the subject vehicle after traveling off the
roadway for a second time and striking the face of Bridge A0096;
k. Defendants failed to stop the subject vehicle after striking an
operational Arrow Board Sign;
l. Defendants failed to keep a careful lookout;
m. Defendants failed to attend to the roadway;
n. Defendants operated the vehicle at an excessive rate of speed under
the circumstances;
6 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 6 of 12 o. Defendants failed to comply with applicable state and federal
regulations regarding the commercial operation of tractor-trailer
units; and
p. Such further negligent and careless acts and omissions as the
evidence and discovery will reveal.
34. Due to the negligence and carelessness of Defendants Khalilov and Eco Trucking,
Plaintiff Kevin McGhee was severely injured on December 16, 2020.
35. Due to the negligence and carelessness of Defendants Khalilov and Eco Trucking,
Plaintiff Kevin McGhee personally sustained and will continue to sustain actual damages including
physical and mental injuries, lost wages and benefits, emotional distress, and has become indebted
for reasonable and necessary medical care and treatment, which will continue in the future.
36. The negligence and carelessness of Defendants Khalilov and Eco Trucking as
described above showed gross negligence, a complete indifference to or a conscious and wanton
disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an award of
punitive damages in such sum as will serve to punish Defendants and deter Defendants, and others,
from like conduct in the future.
WHEREFORE Plaintiff Kevin McGhee prays for judgment jointly and severally against
Defendants Khalilov and Eco Trucking in Count I herein in a sum in excess of seventy-five
thousand dollars ($75,000.00) together with costs herein expended, for pre- and post-judgment
interest as provided by law, for punitive damages, and for any further relief this Court deems just
and proper.
7 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 7 of 12 COUNT II (Negligence Per Se - Defendants Khalilov and Eco Trucking) 37. Plaintiff Kevin McGhee hereby alleges and incorporates by reference every
allegation contained in all previous paragraphs of this Complaint as though fully set forth herein.
38. At all times relevant herein, Defendant Khalilov was an employee and an agent for
Defendant Eco Trucking and Defendant Khalilov was acting within the course and scope of his
employment and/or agency for Defendant Eco Trucking.
39. At all times relevant herein, Defendant Khalilov was operating the subject tractor-
trailer owned by Defendant Khalilov Trucking.
40. At all times mentioned herein, Defendants Khalilov and Eco Trucking owed a duty
to Plaintiff Kevin McGhee and others to exercise the highest degree of care in the operation of the
motor vehicle.
41. The acts and omissions as set forth above constituted violations of the Missouri
Revised Statutes regarding the regulation of traffic as set forth with more specificity in Chapter
304 of the Missouri Revised Statutes, including but not limited to: MO. REV. STAT. §§ 304.010,
304.012, 304.015, 304.016, 304.017, 304.019, 304.040, 304.151, 304.271, 304.281, 304.311,
304.341, 304.351, 304.585, and 304.820.
42. The acts and omissions as set forth herein constituted violations of the Federal
Motor Carrier Safety Regulations as set forth in Title 49 of the Code of Federal Regulations,
including but not limited to: 49 C.F.R. §§ 390.11, 390.13, 391.11, 391.21, 391.23, 391.25, 391.27,
391.31, 391.41, 391.43, 391.45, 392.2, 392.3, 392.6, 392.7, 393.7, 395.3, 396.3, 396.7, 396.11,
and 396.17.
8 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 8 of 12 43. The subject statutes, codes, regulations and the above provisions, are designed to
protect Plaintiff Kevin McGhee and members of the public generally from the hazards that arise
from operations of motor vehicles.
44. Plaintiff Kevin McGhee is within the class of persons protected by the provisions
enumerated above and all were designed to prevent the injuries Plaintiff Kevin McGhee sustained.
45. As a direct and proximate result of Defendants’ violations of the provisions
enumerated above, Plaintiff Kevin McGhee was seriously injured on December 16, 2020.
46. Due to the negligence and carelessness of Defendants Khalilov and Eco Trucking,
Plaintiff Kevin McGhee personally sustained and will continue to sustain actual damages including
physical and mental injuries, lost wages and benefits, emotional distress, and has become indebted
for reasonable and necessary medical care and treatment, which will continue in the future.
47. The negligence and carelessness of Defendants Khalilov and Eco Trucking as
described above showed gross negligence, a complete indifference to or a conscious and wanton
disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an award of
punitive damages in such sum as will serve to punish Defendants and deter Defendants, and others,
from like conduct in the future.
WHEREFORE Plaintiff Kevin McGhee prays for judgment jointly and severally against
Defendants Khalilov and Eco Trucking in Count II herein in a sum in excess of seventy-five
thousand dollars ($75,000.00) together with costs herein expended, for pre- and post-judgment
interest as provided by law, for punitive damages, and for any further relief this Court deems just
and proper.
9 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 9 of 12 COUNT III (Negligence - Defendant Eco Trucking) 48. Plaintiff Kevin McGhee hereby alleges and incorporates by reference every
allegation contained in all previous paragraphs of this Complaint as though fully set forth herein.
49. At all times relevant herein, Defendant Khalilov was an employee and an agent for
Defendant Eco Trucking and Defendant Khalilov was acting within the course and scope of his
employment and/or agency for Defendant Eco Trucking.
50. At all times relevant herein, Defendant Khalilov was operating the subject tractor-
trailer owned by Defendant Eco Trucking
51. The above-mentioned collision occurred as a direct and proximate result of the
negligent and careless acts and/or omissions of Defendant Eco Trucking in the following respects:
a. Defendant Eco Trucking was negligent in its hiring of Defendant
Khalilov;
b. Defendant Eco Trucking was negligent in its retention of Defendant
Khalilov;
c. Defendant Eco Trucking was negligent in its supervision of
Defendant Khalilov;
d. Defendant Eco Trucking was negligent in its training of Defendant
Khalilov;
e. Defendant Eco Trucking was negligent in its maintenance of the
subject vehicle; and
f. Such further negligent and careless acts and omissions as the
evidence and discovery will reveal.
52. As a direct and proximate result of the negligence and recklessness of Defendant
10 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 10 of 12 Eco Trucking, Plaintiff Kevin McGhee was seriously injured on December 16, 2020.
53. Due to the negligence and carelessness of Defendant Eco Trucking, Plaintiff Kevin
McGhee personally sustained and will continue to sustain actual damages including physical and
mental injuries, lost wages and benefits, emotional distress, and has become indebted for
reasonable and necessary medical care and treatment, which will continue in the future.
54. The negligence and carelessness of Defendant Eco Trucking as described above
showed gross negligence, a complete indifference to or a conscious and wanton disregard for the
safety of Plaintiff Kevin McGhee and others, thereby justifying an award of punitive damages in
such sum as will serve to punish Defendant Eco Trucking and deter Defendant Eco Trucking, and
others, from like conduct in the future.
WHEREFORE Plaintiff Kevin McGhee prays for judgment against Defendant Eco
Trucking in Count III herein in a sum in excess of seventy-five thousand dollars ($75,000.00)
together with costs herein expended, for pre- and post-judgment interest as provided by law, for
punitive damages, and for any further relief this Court deems just and proper.
COUNT IV (Loss of Consortium - Defendants Khalilov and Eco Trucking) 55. Plaintiff Jenise McGhee alleges and incorporates all previous paragraphs by
reference as if fully set forth herein.
56. At all times relevant to this cause of action, Plaintiff Jenise McGhee was the
lawfully wedded spouse of Plaintiff Kevin McGhee.
57. As a direct and proximate result of the aforesaid negligent acts or omissions,
Plaintiff Jenise McGhee has lost the services, support, society and consortium of her husband,
Plaintiff Kevin McGhee, and shall lose the same in the future.
58. As a direct and proximate result of the aforesaid negligent acts or negligence,
11 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 11 of 12 Plaintiff Jenise McGhee has personally sustained and will continue to sustain actual damages,
including lost wages and benefits, and has become indebted for reasonable and necessary medical
care and treatment rendered to her husband, Plaintiff Kevin McGhee, and she shall incur additional
such expenses in the future.
59. The negligence and carelessness of Defendant Khalilov and Defendant Eco
Trucking as described above showed gross negligence, a complete indifference to or a conscious
and wanton disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an
award of punitive damages in such sum as will serve to punish Defendant Khalilov and Defendant
Eco Trucking and deter Defendant Khalilov and Defendant Eco Trucking, and others, from like
conduct in the future.
WHEREFORE Plaintiff Jenise McGhee prays for judgment against Defendants Khalilov
and Eco Trucking in Count IV herein in a sum in excess of seventy-five thousand dollars
($75,000.00) together with costs herein expended, for pre- and post-judgment interest as provided
by law, for punitive damages, and for any further relief this Court deems just and proper.
DATED: March 10, 2021 THE SIMON LAW FIRM, P.C.
By: /s/ Timothy M. Cronin John G. Simon, #35231 MO Timothy M. Cronin, #63383 MO Elizabeth C. McNulty, #72026 MO 800 Market Street, Suite 1700 St. Louis, Missouri 63101 P: (314) 241-2929 F: (314) 241-2020 jsimon@simonlawpc.com tcronin@simonlawpc.com emcnulty@simonlawpc.com Attorneys for Plaintiff
12 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 12 of 12 | 2021-03-10 | [
"UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION KEVIN McGHEE and JENISE McGHEE, Plaintiffs, Case No: 2:21-cv-4048 vs. Division: ZOKHIRKUL KHALILOV, (Personal Injury/Auto – In Excess of Serve: 9926 Haldeman Ave, A101 $75,000) Philadelphia, PA 19115 and ECO TRUCKING, LLC, JURY TRIAL DEMANDED Serve: 2613 Virginia Lane Jamison, PA 18929 Defendants. COMPLAINT COMES NOW Plaintiffs Kevin McGhee and Jenise McGhee, by and through their undersigned counsel, and for their Complaint against Defendants Zokhirkul Khalilov and Eco Trucking, LLC (collectively “Defendants”) state the following: PARTIES 1. This lawsuit concerns a tractor-trailer and pedestrian collision occurring on December 16, 2020 when Plaintiff Kevin McGhee was struck by a tractor-trailer operated by Defendant Zokhirkul Khalilov while being employed by Defendant Eco Trucking, LLC and acting within the course and scope of his employment. Plaintiff Kevin McGhee suffered serious injuries as a result of the collision. 1 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 1 of 12 2. At all times material hereto, Plaintiff Kevin McGhee is an individual who was and is a citizen and resident of the State of Missouri.",
"3. At all times material hereto, Plaintiff Jenise McGhee is an individual who was and is a citizen and resident of the State of Missouri. 4. At all times material hereto, Defendant Zokhirkul Khalilov (hereinafter “Defendant Khalilov”) is an individual who was and is a citizen and resident of Pennsylvania. 5. At all times material hereto, Defendant Eco Trucking, LLC (hereinafter “Defendant Eco Trucking”) is a duly organized and existing Pennsylvania corporation, with its principal place of business located in Pennsylvania, that operates in the state of Missouri and elsewhere as an interstate motor carrier. 6. Defendant Khalilov was at all times material hereto an employee or agent of Defendant Eco Trucking and was acting in the course and scope of his employment and/or agency for Defendant Eco Trucking on December 16, 2020. 7. The claim arises out of a tractor-trailer and pedestrian collision that occurred in Callaway County, Missouri on December 16, 2020. 8. Missouri substantive law applies.",
"SUBJECT MATTER JURISDICTION 9. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 because there is complete diversity and the amount in controversy exceeds, exclusive of interest and costs, the sum of $75,000. Plaintiffs are citizens and residents of the State of Missouri, Defendant Khalilov is a citizen and resident of the state of Pennsylvania, and Defendant Eco Trucking is a citizen of the state of Pennsylvania. 2 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 2 of 12 PERSONAL JURISDICTION 10. Defendant Eco Trucking maintains sufficient minimum contacts with the State of Missouri and is subject to personal jurisdiction in Missouri. Defendant Eco Trucking conducts substantial business in Missouri as in interstate motor carrier, including the employment of Defendant Khalilov who was working and traveling within the State of Missouri at the time of the collision at issue in this Complaint.",
"11. Defendant Khalilov maintains sufficient minimum contacts with the State of Missouri and is subject to personal jurisdiction in Missouri. Defendant Khalilov was working for Defendant Eco Trucking as an inter-state truck driver and traveling within the State of Missouri at the time of the collision at issue in this Complaint. VENUE 12. Venue is proper in the United States District Court for the Western District of Missouri, Central Division, pursuant to 28 U.S.C. § 1391 in that a substantial part of the events or omissions giving rise to the claim occurred within this judicial district. FACTUAL ALLEGATIONS 13. On or about December 16, 2020, Plaintiff Kevin McGhee was working as part of a road crew on westbound Interstate-70 near Bridge A0096, in Callaway County, Missouri. 14. On or about December 16, 2020, Defendant Khalilov was driving a 2017 Volvo Truck Tractor with One Unit, VIN# 4V4NC9EH9HN977172, (hereinafter “the subject tractor- trailer”) westbound on Interstate-70 near Bridge A0096, in Callaway County, Missouri.",
"15. On or about December 16, 2020, Defendant Khalilov was, at all times, acting as an employee and agent for Defendant Eco Trucking. 3 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 3 of 12 16. On or about December 16, 2020, and at all times relevant hereto, the subject tractor- trailer was owned by Defendant Eco Trucking, and was being operated as part of Defendant Khalilov’s employment for Defendant Eco Trucking. 17. On or about December 16, 2020, the road conditions were dry.",
"18. On or about December 16, 2020, near where Plaintiff Kevin McGhee was working on Interstate-70 westbound, there was an Arrow Sign Board flashing and indicating to vehicles to move to the left lane because the right lane was closed for a construction crew. 19. Plaintiff Kevin McGhee was a member of the construction crew. 20. On or about December 16, 2020, while driving westbound on Interstate-55, Defendant Khalilov negligently drove the subject tractor-trailer while distracted, inattentive, impaired and/or asleep when failing to heed to warning signs posted and the flashing Arrow Sign Board indicating to Defendant Khalilov to move his vehicle to the left lane. 21. Defendant Khalilov drove the subject tractor-trailer off the right side of the roadway, striking a guardrail.",
"22. Defendant Khalilov returned the subject tractor-trailer to the roadway and traveled off to the right side of the roadway a second time, striking the bridge face of Bridge A0096. 23. Defendant Khalilov returned the subject tractor-trailer to the roadway again, and continued westbound where he struck the flashing Arrow Sign Board with the subject tractor- trailer. 24. After crashing through the Arrow Sign Board, Defendant Khalilov then struck Plaintiff Kevin McGhee as he was working on the side of the road, and struck another vehicle. 25. Upon impact, Plaintiff Kevin McGhee was thrown into the guardrail and rolled down the embankment. 4 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 4 of 12 26.",
"Defendant Khalilov then crossed into the center of the roadway and the subject tractor-trailer jackknifed. 27. Plaintiff Kevin McGhee was emergently taken to University Hospital via ambulance. 28. As a result of the accident, Plaintiff Kevin McGhee suffered severe and life- threatening injuries, including but not limited to a brain injury, broken leg, collapsed lungs, among others, and requiring multiple surgical procedures. COUNT I (Negligence - Defendants Khalilov and Eco Trucking) 29. Plaintiff Kevin McGhee hereby alleges and incorporates by reference every allegation contained in all previous paragraphs of this Complaint as though fully set forth herein. 30. At all times relevant herein, Defendant Khalilov was an employee and an agent for Defendant Eco Trucking and Defendant Khalilov was acting within the course and scope of his employment and/or agency for Defendant Eco Trucking. 31. At all times relevant herein, Defendant Khalilov was operating the subject tractor- trailer owned by Defendant Eco Trucking. 32. At all times mentioned herein, Defendants Khalilov and Eco Trucking owed a duty to Plaintiff Kevin McGhee and others to exercise the highest degree of care in the operation of the motor vehicle. 33. The automobile collision at issue was caused by the negligence and carelessness of Defendants Khalilov and Eco Trucking in the following respects: a.",
"Defendants operated the subject tractor-trailer in a careless and reckless manner; b. Defendants failed to cease operating the subject tractor-trailer while 5 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 5 of 12 being distracted, inattentive, impaired and/or asleep; c. Defendants failed to heed to warning signs on the road indicating to vehicles to move to the left lane; d. Defendants failed to heed to flashing arrow board signs on the road indicating to vehicles to move to the left lane because the right lane was closed for a construction crew; e. Defendants operated the subject vehicle on the public roadways, including highways, when they knew or should have known, that Defendant Khalilov was unfit to operate motor vehicles; f. Defendant Khalilov chose to continue operating the subject vehicle when he knew, or should have known, that it was not safe to do so; g. Defendants failed to yield the right of way; h. Defendants failed to brake; i. Defendants failed to stop the subject vehicle after traveling off the right side of the roadway and striking a guardrail; j.",
"Defendants failed to stop the subject vehicle after traveling off the roadway for a second time and striking the face of Bridge A0096; k. Defendants failed to stop the subject vehicle after striking an operational Arrow Board Sign; l. Defendants failed to keep a careful lookout; m. Defendants failed to attend to the roadway; n. Defendants operated the vehicle at an excessive rate of speed under the circumstances; 6 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 6 of 12 o. Defendants failed to comply with applicable state and federal regulations regarding the commercial operation of tractor-trailer units; and p. Such further negligent and careless acts and omissions as the evidence and discovery will reveal. 34. Due to the negligence and carelessness of Defendants Khalilov and Eco Trucking, Plaintiff Kevin McGhee was severely injured on December 16, 2020. 35. Due to the negligence and carelessness of Defendants Khalilov and Eco Trucking, Plaintiff Kevin McGhee personally sustained and will continue to sustain actual damages including physical and mental injuries, lost wages and benefits, emotional distress, and has become indebted for reasonable and necessary medical care and treatment, which will continue in the future. 36. The negligence and carelessness of Defendants Khalilov and Eco Trucking as described above showed gross negligence, a complete indifference to or a conscious and wanton disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an award of punitive damages in such sum as will serve to punish Defendants and deter Defendants, and others, from like conduct in the future.",
"WHEREFORE Plaintiff Kevin McGhee prays for judgment jointly and severally against Defendants Khalilov and Eco Trucking in Count I herein in a sum in excess of seventy-five thousand dollars ($75,000.00) together with costs herein expended, for pre- and post-judgment interest as provided by law, for punitive damages, and for any further relief this Court deems just and proper. 7 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 7 of 12 COUNT II (Negligence Per Se - Defendants Khalilov and Eco Trucking) 37.",
"Plaintiff Kevin McGhee hereby alleges and incorporates by reference every allegation contained in all previous paragraphs of this Complaint as though fully set forth herein. 38. At all times relevant herein, Defendant Khalilov was an employee and an agent for Defendant Eco Trucking and Defendant Khalilov was acting within the course and scope of his employment and/or agency for Defendant Eco Trucking. 39. At all times relevant herein, Defendant Khalilov was operating the subject tractor- trailer owned by Defendant Khalilov Trucking. 40. At all times mentioned herein, Defendants Khalilov and Eco Trucking owed a duty to Plaintiff Kevin McGhee and others to exercise the highest degree of care in the operation of the motor vehicle. 41. The acts and omissions as set forth above constituted violations of the Missouri Revised Statutes regarding the regulation of traffic as set forth with more specificity in Chapter 304 of the Missouri Revised Statutes, including but not limited to: MO.",
"REV. STAT. §§ 304.010, 304.012, 304.015, 304.016, 304.017, 304.019, 304.040, 304.151, 304.271, 304.281, 304.311, 304.341, 304.351, 304.585, and 304.820. 42. The acts and omissions as set forth herein constituted violations of the Federal Motor Carrier Safety Regulations as set forth in Title 49 of the Code of Federal Regulations, including but not limited to: 49 C.F.R. §§ 390.11, 390.13, 391.11, 391.21, 391.23, 391.25, 391.27, 391.31, 391.41, 391.43, 391.45, 392.2, 392.3, 392.6, 392.7, 393.7, 395.3, 396.3, 396.7, 396.11, and 396.17. 8 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 8 of 12 43. The subject statutes, codes, regulations and the above provisions, are designed to protect Plaintiff Kevin McGhee and members of the public generally from the hazards that arise from operations of motor vehicles.",
"44. Plaintiff Kevin McGhee is within the class of persons protected by the provisions enumerated above and all were designed to prevent the injuries Plaintiff Kevin McGhee sustained. 45. As a direct and proximate result of Defendants’ violations of the provisions enumerated above, Plaintiff Kevin McGhee was seriously injured on December 16, 2020. 46. Due to the negligence and carelessness of Defendants Khalilov and Eco Trucking, Plaintiff Kevin McGhee personally sustained and will continue to sustain actual damages including physical and mental injuries, lost wages and benefits, emotional distress, and has become indebted for reasonable and necessary medical care and treatment, which will continue in the future. 47. The negligence and carelessness of Defendants Khalilov and Eco Trucking as described above showed gross negligence, a complete indifference to or a conscious and wanton disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an award of punitive damages in such sum as will serve to punish Defendants and deter Defendants, and others, from like conduct in the future.",
"WHEREFORE Plaintiff Kevin McGhee prays for judgment jointly and severally against Defendants Khalilov and Eco Trucking in Count II herein in a sum in excess of seventy-five thousand dollars ($75,000.00) together with costs herein expended, for pre- and post-judgment interest as provided by law, for punitive damages, and for any further relief this Court deems just and proper. 9 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 9 of 12 COUNT III (Negligence - Defendant Eco Trucking) 48. Plaintiff Kevin McGhee hereby alleges and incorporates by reference every allegation contained in all previous paragraphs of this Complaint as though fully set forth herein. 49.",
"At all times relevant herein, Defendant Khalilov was an employee and an agent for Defendant Eco Trucking and Defendant Khalilov was acting within the course and scope of his employment and/or agency for Defendant Eco Trucking. 50. At all times relevant herein, Defendant Khalilov was operating the subject tractor- trailer owned by Defendant Eco Trucking 51. The above-mentioned collision occurred as a direct and proximate result of the negligent and careless acts and/or omissions of Defendant Eco Trucking in the following respects: a. Defendant Eco Trucking was negligent in its hiring of Defendant Khalilov; b. Defendant Eco Trucking was negligent in its retention of Defendant Khalilov; c. Defendant Eco Trucking was negligent in its supervision of Defendant Khalilov; d. Defendant Eco Trucking was negligent in its training of Defendant Khalilov; e. Defendant Eco Trucking was negligent in its maintenance of the subject vehicle; and f. Such further negligent and careless acts and omissions as the evidence and discovery will reveal. 52. As a direct and proximate result of the negligence and recklessness of Defendant 10 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 10 of 12 Eco Trucking, Plaintiff Kevin McGhee was seriously injured on December 16, 2020. 53. Due to the negligence and carelessness of Defendant Eco Trucking, Plaintiff Kevin McGhee personally sustained and will continue to sustain actual damages including physical and mental injuries, lost wages and benefits, emotional distress, and has become indebted for reasonable and necessary medical care and treatment, which will continue in the future.",
"54. The negligence and carelessness of Defendant Eco Trucking as described above showed gross negligence, a complete indifference to or a conscious and wanton disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an award of punitive damages in such sum as will serve to punish Defendant Eco Trucking and deter Defendant Eco Trucking, and others, from like conduct in the future. WHEREFORE Plaintiff Kevin McGhee prays for judgment against Defendant Eco Trucking in Count III herein in a sum in excess of seventy-five thousand dollars ($75,000.00) together with costs herein expended, for pre- and post-judgment interest as provided by law, for punitive damages, and for any further relief this Court deems just and proper. COUNT IV (Loss of Consortium - Defendants Khalilov and Eco Trucking) 55.",
"Plaintiff Jenise McGhee alleges and incorporates all previous paragraphs by reference as if fully set forth herein. 56. At all times relevant to this cause of action, Plaintiff Jenise McGhee was the lawfully wedded spouse of Plaintiff Kevin McGhee. 57. As a direct and proximate result of the aforesaid negligent acts or omissions, Plaintiff Jenise McGhee has lost the services, support, society and consortium of her husband, Plaintiff Kevin McGhee, and shall lose the same in the future. 58. As a direct and proximate result of the aforesaid negligent acts or negligence, 11 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 11 of 12 Plaintiff Jenise McGhee has personally sustained and will continue to sustain actual damages, including lost wages and benefits, and has become indebted for reasonable and necessary medical care and treatment rendered to her husband, Plaintiff Kevin McGhee, and she shall incur additional such expenses in the future. 59. The negligence and carelessness of Defendant Khalilov and Defendant Eco Trucking as described above showed gross negligence, a complete indifference to or a conscious and wanton disregard for the safety of Plaintiff Kevin McGhee and others, thereby justifying an award of punitive damages in such sum as will serve to punish Defendant Khalilov and Defendant Eco Trucking and deter Defendant Khalilov and Defendant Eco Trucking, and others, from like conduct in the future.",
"WHEREFORE Plaintiff Jenise McGhee prays for judgment against Defendants Khalilov and Eco Trucking in Count IV herein in a sum in excess of seventy-five thousand dollars ($75,000.00) together with costs herein expended, for pre- and post-judgment interest as provided by law, for punitive damages, and for any further relief this Court deems just and proper. DATED: March 10, 2021 THE SIMON LAW FIRM, P.C. By: /s/ Timothy M. Cronin John G. Simon, #35231 MO Timothy M. Cronin, #63383 MO Elizabeth C. McNulty, #72026 MO 800 Market Street, Suite 1700 St. Louis, Missouri 63101 P: (314) 241-2929 F: (314) 241-2020 jsimon@simonlawpc.com tcronin@simonlawpc.com emcnulty@simonlawpc.com Attorneys for Plaintiff 12 Case 2:21-cv-04048-WJE Document 1 Filed 03/10/21 Page 12 of 12"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/163783604/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0609365
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 03-23 857 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for elevated
cholesterol levels.
ATTORNEY FOR THE BOARD
John Francis, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1970 to May 1974.
This appeal comes before the Board of Veterans' Appeals
(Board) from a June 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) that denied
service connection for hypertension and elevated cholesterol
levels.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, D.C. VA will notify the veteran
if further action is required on his part.
REMAND
The veteran contends that his diagnosed hypertension and
elevated high cholesterol levels are secondary to his
service-connected diabetes mellitus.
After the issuance of a supplemental statement of the case
(SSOC) by the RO in September 2004, the veteran underwent VA
treatment in August 2005. The examiner assessed the status
of the veteran's diabetes mellitus and other conditions that
may be associated with that disease including the two issues
on appeal before the Board. That report contains diagnoses
of "hypertension, controlled" and "hyperlipidemia,
controlled." That treatment report, and other reports of
treatment, have not been reviewed by the RO in conjunction
with the claims on appeal. Any pertinent evidence submitted
must be referred to the agency of original jurisdiction for
review and for preparation of an SSOC unless this procedural
right is waived in writing by the veteran. See Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339, 1353-54 (Fed. Cir. 2003); see also VAOPGCPREC 1-03 (May
21, 2003), 69 Fed. Reg. 25177 (May 5, 2004) (Board may
adjudicate claims where new evidence has been obtained if the
appellant waives initial consideration of the new evidence by
the agency of original jurisdiction); 38 C.F.R. § 20.1304(b)
(2005). No waiver has been received. Therefore, on remand,
the RO should review the additional evidence and prepare an
SSOC.
Accordingly, the case is REMANDED for the following action:
1. Review all the evidence received by
VA since the September 2004 supplemental
statement of the case, including the
August 2005 VA treatment report.
2. Then, readjudicate the claims for
service connection for hypertension and
elevated cholesterol levels. If either
decision remains adverse to the veteran,
provide him and his representative, if
one is appointed, with a supplemental
statement of the case and the appropriate
opportunity to respond thereto.
Thereafter, return the case to the Board
as appropriate.
The appellant has the right to submit additional evidence and
argument on the matters 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. 2005).
_________________________________________________
HARVEY P. ROBERTS
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) (2005). | 03-31-2006 | [
"Citation Nr: 0609365 Decision Date: 03/31/06 Archive Date: 04/07/06 DOCKET NO. 03-23 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for elevated cholesterol levels. ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from May 1970 to May 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for hypertension and elevated cholesterol levels. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the veteran if further action is required on his part. REMAND The veteran contends that his diagnosed hypertension and elevated high cholesterol levels are secondary to his service-connected diabetes mellitus. After the issuance of a supplemental statement of the case (SSOC) by the RO in September 2004, the veteran underwent VA treatment in August 2005. The examiner assessed the status of the veteran's diabetes mellitus and other conditions that may be associated with that disease including the two issues on appeal before the Board.",
"That report contains diagnoses of \"hypertension, controlled\" and \"hyperlipidemia, controlled.\" That treatment report, and other reports of treatment, have not been reviewed by the RO in conjunction with the claims on appeal. Any pertinent evidence submitted must be referred to the agency of original jurisdiction for review and for preparation of an SSOC unless this procedural right is waived in writing by the veteran. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1353-54 (Fed. Cir. 2003); see also VAOPGCPREC 1-03 (May 21, 2003), 69 Fed. Reg. 25177 (May 5, 2004) (Board may adjudicate claims where new evidence has been obtained if the appellant waives initial consideration of the new evidence by the agency of original jurisdiction); 38 C.F.R.",
"§ 20.1304(b) (2005). No waiver has been received. Therefore, on remand, the RO should review the additional evidence and prepare an SSOC. Accordingly, the case is REMANDED for the following action: 1. Review all the evidence received by VA since the September 2004 supplemental statement of the case, including the August 2005 VA treatment report. 2. Then, readjudicate the claims for service connection for hypertension and elevated cholesterol levels. If either decision remains adverse to the veteran, provide him and his representative, if one is appointed, with a supplemental statement of the case and the appropriate opportunity to respond thereto. Thereafter, return the case to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matters 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. 2005). _________________________________________________ HARVEY P. ROBERTS 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) (2005)."
]
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BREAUX, O. J. Plaintiff held a promissory note secured by mortgage, which he foreclosed. In, the act of mortgage, the mortgagor, C. D. Warner, waived his home-, stead right as follows; “And the said C. D. Warner hereby waives his benefit of ’the homestead exemptions created in his favor by the Oonstitution of 1898, and of all other homestead laws, and now comes Mrs. Lena Warner, wife of G. D. Warner, and consents to the above waiver.” Jones & Whitaker filed third oppositions claiming a preference, and George J. Reiley & Sons also filed opposition, claiming a privilege for lumber sold to defendant. The defendant in his answer claimed a homestead, as he is the head of a family in necessitous circumstances. To the claims of Reiley & Sons, a plea of prescription was filed. It was sustained. The court rendered judgment in favor of Franklin Hardesty, plaintiff, and decreed that he be paid by preference over all other claimants out of the proceeds of the sale; and the court ordered that the claim of C. D. Warner be paid by preference on the balance of the proceeds of the sale in part satisfaction of his homestead, being an amount remaining after payment of Hardesty. The third opponents, Jones & Whitaker, alleged that the clause waiving the homestead left it in doubt whether it was general or special. In addition, these opponents averred that the debtor left the homestead in search of means of livelihood, and, in oth*737er ways, manifested Ms intention of abandoning the homestead. The defendant, Warner, testified: “I reside on the place. It was sold in June, 1909. I had been there from 1900 or 1901. I left the 1st of September, 1909, and came back the 1st of February, 1911. I occupied that place as my bona fide home. I owned and occupied it. My occupation is that of a farmer. I have a wife and two children dependent on me for support. The debt which I incurred with Jones & Whitaker, for which they obtained judgment, was created against me while I was on the place. I never had any idea of abandoning my homestead at any time while away. From the time of my return until the seizure of the place I occupied the place with my family.” Relative to the asserted abandonment of the homestead: [1] The defendant had left his homestead and went elsewhere in order to find a better support for himself and family by working for others than for his own account on the place. It was not an abandonment. This court in several decisions recognizes that there should be some permanence in matter of the homestead; that one should feel that it is his home and that there is no danger of an invasion of that home in case of a temporary absence in search of means of livelihood. Under these circumstances, temporary absence is not cause sufficient to decree abandonment. [2] The court heretofore placed the burden of proof of abandonment on the creditor who seeks to have the homestead sold, and the court, in the same opinion, held that mere temporary absence does not create the presumption of intention to abandon. St. Mary Bank & Trust Co. v. Daigle, 128 La. 758, 55 South. 345. Judged under the terms of the cited decision, the defendant had not abandoned Ms home. The cause rests upon the intention to return, while he was away; his actual return and the fact that he was residing on the place when the third opponents sold to him on credit; and that he was a resident there when the place was seized. [3] The next question is whether the waiver was special in favor of the mortgagee, or a general waiver in favor of all creditors. The article of the Constitution ordains that: “Any person entitled to a homestead may waive the same by signing with his wife, if she be not separated a mensa et thoro, and having it recorded • in the office of the recorder of mortgages; such waiver may be either special or general.” Article 246. As the waiver was a part of an act of mortgage in favor of a creditor, it must be held to bear the imprint of the mortgage of which it forms part. We do not infer that it was the intention of the mortgagor to waive his homestead in favor of all creditors. There is nothing in the act of mortgage so indicating. No one is presumed to abandon his right without the least necessity. The following, to which our attention is called by learned counsel for plaintiff, is pertinent: “In a mortgage of real estate, the only effect of a release by the mortgagor and his wife of all rights to the homestead in a mortgaged premise is to subject the homestead, together' with the residue of the estate, to the payment of the mortgage debt.” Decennial Digest, vol. 10, p. 440, Homestead, par. 175d (Mass.). “Under the Civil Code, par. 2863, authorizing a debtor to waive exemption, a waiver of homestead rights in an application of a general line of credit is not effectual to bar the debt- or’s right to homestead against a debt thereafter contracted.” Key No. Digest, vol. 9, p. 1458, Homestead, § 175. In the act of mortgage, the first part recites that the debtor gives a mortgage to secure the amount. In another paragraph, he promises to pay, and further on, to carry out Ms obligation, he waives his homestead in favor of the mortgagees. If he had gone to the mortgage office and made a general declaration, it would be different, for then it would not be limited to the mortgage cred*739itor to whom he promises to pay the amount thus secured. The article of the Constitution gives rise to the decided impression that the waiver must be expressed as general in the act or general by repairing to the recorder’s office and having it recorded separately from any other act. [4] The next question is the preference which the waiver of homestead gives to the mortgage creditor. The plaintiff, holder of a conditional note, claims preference over the creditor with a judicial mortgage. Within recent dates that question has been passed upon by us in such terms that there can be no difference whether the first mortgage is a judicial mortgage or a conventional mortgage. The mortgagee who has the waiver of the homestead primes the first mortgage. In each of the cases cited infra, the second mortgage, with the waiver, was recognized as having the preference. No good reason is given to justify a change in the conclusion heretofore reached. Glenn v. Bresnan, 123 La. 1014, 49 South. 690; Abbott v. Heald, 128 La. 718, 55 South. 28; Lear v. Heffner, 28 La. Ann. 829. Judgment affirmed. | 07-24-2022 | [
"BREAUX, O. J. Plaintiff held a promissory note secured by mortgage, which he foreclosed. In, the act of mortgage, the mortgagor, C. D. Warner, waived his home-, stead right as follows; “And the said C. D. Warner hereby waives his benefit of ’the homestead exemptions created in his favor by the Oonstitution of 1898, and of all other homestead laws, and now comes Mrs. Lena Warner, wife of G. D. Warner, and consents to the above waiver.” Jones & Whitaker filed third oppositions claiming a preference, and George J. Reiley & Sons also filed opposition, claiming a privilege for lumber sold to defendant. The defendant in his answer claimed a homestead, as he is the head of a family in necessitous circumstances. To the claims of Reiley & Sons, a plea of prescription was filed. It was sustained.",
"The court rendered judgment in favor of Franklin Hardesty, plaintiff, and decreed that he be paid by preference over all other claimants out of the proceeds of the sale; and the court ordered that the claim of C. D. Warner be paid by preference on the balance of the proceeds of the sale in part satisfaction of his homestead, being an amount remaining after payment of Hardesty. The third opponents, Jones & Whitaker, alleged that the clause waiving the homestead left it in doubt whether it was general or special. In addition, these opponents averred that the debtor left the homestead in search of means of livelihood, and, in oth*737er ways, manifested Ms intention of abandoning the homestead.",
"The defendant, Warner, testified: “I reside on the place. It was sold in June, 1909. I had been there from 1900 or 1901. I left the 1st of September, 1909, and came back the 1st of February, 1911. I occupied that place as my bona fide home. I owned and occupied it. My occupation is that of a farmer. I have a wife and two children dependent on me for support. The debt which I incurred with Jones & Whitaker, for which they obtained judgment, was created against me while I was on the place. I never had any idea of abandoning my homestead at any time while away. From the time of my return until the seizure of the place I occupied the place with my family.” Relative to the asserted abandonment of the homestead: [1] The defendant had left his homestead and went elsewhere in order to find a better support for himself and family by working for others than for his own account on the place. It was not an abandonment. This court in several decisions recognizes that there should be some permanence in matter of the homestead; that one should feel that it is his home and that there is no danger of an invasion of that home in case of a temporary absence in search of means of livelihood.",
"Under these circumstances, temporary absence is not cause sufficient to decree abandonment. [2] The court heretofore placed the burden of proof of abandonment on the creditor who seeks to have the homestead sold, and the court, in the same opinion, held that mere temporary absence does not create the presumption of intention to abandon. St. Mary Bank & Trust Co. v. Daigle, 128 La. 758, 55 South. 345. Judged under the terms of the cited decision, the defendant had not abandoned Ms home. The cause rests upon the intention to return, while he was away; his actual return and the fact that he was residing on the place when the third opponents sold to him on credit; and that he was a resident there when the place was seized. [3] The next question is whether the waiver was special in favor of the mortgagee, or a general waiver in favor of all creditors. The article of the Constitution ordains that: “Any person entitled to a homestead may waive the same by signing with his wife, if she be not separated a mensa et thoro, and having it recorded • in the office of the recorder of mortgages; such waiver may be either special or general.” Article 246. As the waiver was a part of an act of mortgage in favor of a creditor, it must be held to bear the imprint of the mortgage of which it forms part.",
"We do not infer that it was the intention of the mortgagor to waive his homestead in favor of all creditors. There is nothing in the act of mortgage so indicating. No one is presumed to abandon his right without the least necessity. The following, to which our attention is called by learned counsel for plaintiff, is pertinent: “In a mortgage of real estate, the only effect of a release by the mortgagor and his wife of all rights to the homestead in a mortgaged premise is to subject the homestead, together' with the residue of the estate, to the payment of the mortgage debt.” Decennial Digest, vol. 10, p. 440, Homestead, par. 175d (Mass.). “Under the Civil Code, par. 2863, authorizing a debtor to waive exemption, a waiver of homestead rights in an application of a general line of credit is not effectual to bar the debt- or’s right to homestead against a debt thereafter contracted.” Key No. Digest, vol. 9, p. 1458, Homestead, § 175.",
"In the act of mortgage, the first part recites that the debtor gives a mortgage to secure the amount. In another paragraph, he promises to pay, and further on, to carry out Ms obligation, he waives his homestead in favor of the mortgagees. If he had gone to the mortgage office and made a general declaration, it would be different, for then it would not be limited to the mortgage cred*739itor to whom he promises to pay the amount thus secured. The article of the Constitution gives rise to the decided impression that the waiver must be expressed as general in the act or general by repairing to the recorder’s office and having it recorded separately from any other act. [4] The next question is the preference which the waiver of homestead gives to the mortgage creditor. The plaintiff, holder of a conditional note, claims preference over the creditor with a judicial mortgage.",
"Within recent dates that question has been passed upon by us in such terms that there can be no difference whether the first mortgage is a judicial mortgage or a conventional mortgage. The mortgagee who has the waiver of the homestead primes the first mortgage. In each of the cases cited infra, the second mortgage, with the waiver, was recognized as having the preference. No good reason is given to justify a change in the conclusion heretofore reached.",
"Glenn v. Bresnan, 123 La. 1014, 49 South. 690; Abbott v. Heald, 128 La. 718, 55 South. 28; Lear v. Heffner, 28 La. Ann. 829. Judgment affirmed."
]
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228 F. Supp. 2d 267 (2002) UNITED STATES of America, v. Richard COPELAND, Defendant No. 01-CR-1453(JBW). United States District Court, E.D. New York. October 22, 2002. *268 Steven H. Breslow, United States Attorney's Office, Criminal Division, Brooklyn, NY, for Plaintiff. Michael P. Padden, The Legal Aid Society, Federal Defender Division, Brooklyn, NY, for Defendant.
AMENDED MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge. Defendant, charged with criminal reentry into this country, moves to dismiss the indictment on the collateral grounds that his prior deportation was unlawful and so cannot be used as a predicate in this criminal case. The motion is granted because the prior deportation conflicts with the Supreme Court's decision in I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, *269 2293, 150 L. Ed. 2d 347, 378 (2001). See e.g. United States v. Perez, 213 F. Supp. 2d 229 (E.D.N.Y.2002) (dismissing criminal prosecution for reentry after deportation on ground of lack of due process in deportation); United States v. Hart, 00-CR-915, Transcript of 7/20/2001 (Dearie, J.) (same).
I Facts Richard Copeland is a citizen of Jamaica. In 1982, when he was twelve years old, he came to the United States and lived here as a lawful permanent alien until his deportation in 1998. At the time of deportation, Mr. Copeland was living with and supporting his two children, aged 11 and 4, and their mother, all United States citizens. In 1989, Mr. Copeland was arrested and charged with criminal possession of a controlled substance and criminal possession of a weapon. He failed to appear on these charges and a bench warrant was issued. In 1995 he was arrested for shooting a person. Mr. Copeland pleaded guilty to all three charges. He served concurrent sentences from October 1995 to September 1998. Based upon the attempted sale conviction, in May 1996 the Immigration and Naturalization Service ("INS") began deportation proceedings charging him with being a deportable alien. See Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Nationality Act. A deportation hearing was held in August 1996. The Immigration Judge informed Mr. Copeland of his right to an attorney and to appeal the Immigration Judge's decision. Transcript of Hearing held on August 7, 1996, attached as Exhibit A to Government's Letter of June 14, 2002 ("Government's Letter"). The Immigration Judge then adjourned the proceedings to give Mr. Copeland the opportunity to find an attorney. Still without counsel, at his deportation hearing in November, 1996, Mr. Copeland conceded deportability as charged. Transcript of Hearing held on November 27, 1996 ("November 27 Transcript") at 12, attached as Exhibit B to Government's Letter. After being told that "[t]here's no relief available to you anymore because the law changed in April," Mr. Copeland was informed of his right to appeal the Immigration Judge's decision. Id. The Immigration Judge ruled that Mr. Copeland was ineligible for a hearing and potential waiver of deportation under former section 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c), based on the then-current interpretation of changes to the INA created by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, § 304(B) (Sept. 30, 1996) and Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). IIRIRA had the effect of repealing section 1182(c) while AEDPA allowed for the retroactive denial of section 212(c) relief. This interpretation of nonavailability of section 212(c) relief was subsequently invalidated by the Supreme Court in I.N.S. v. St. Cyr. 533 U.S. at 326, 121 S. Ct. 2271, holding that section 212(c) relief is available to aliens with convictions based on pleas of guilty entered prior to the enactment of IIRIRA and AEDPA. Mr. Copeland waived his right to appeal. November 27 Transcript at 12. No evidence suggests that he ever appealed his deportation to the Board of Immigration Appeals. In 1998, now under the guidance of counsel, he moved to reopen proceedings and applied for a stay of his deportation. Motion to Reopen and Application *270 for Stay of Deportation, attached as Exhibit D to Government's Letter. This motion was denied. Order of the Immigration Judge, attached as Exhibit G to Government's Letter. Counsel filed an appeal in October 1998. Notice of Appeal, attached as Exhibit H to Government's Letter. Before this appeal could be heard, Mr. Copeland was deported. After deportation, the Board of Immigration Appeals denied the appeal as moot. Board of Immigration Appeals decision, attached as Exhibit I to Government's Letter. In the spring of 1999 the INS became aware that Mr. Copeland had returned to the United States. He was arrested and is presently charged with having been found in the United States subsequent to a deportation for an aggravated felony conviction. 8 U.S.C. § 1326.
II Law
A. Deportation and 212(c) Aliens convicted of certain crimes, labeled "aggravated felonies" in immigration law, become deportable. See 8 U.S.C. § 1227(a)(2)(A)(iii). Certain drug offenses, including defendant's, constitute aggravated felonies. 8 U.S.C. § 1101(a)(43)(B). Prior to 1996, former section 212(c) of the INA allowed aliens to apply for a discretionary waiver of deportation. See St. Cyr, 533 U.S. at 294-97, 121 S. Ct. 2271 (history of section 212(c)). When determining whether to grant a section 212(c) application, an Immigration Judge will "balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 1978 WL 36472, 16 I. & N. Dec. 581, 584 (BIA 1978). The Judge will consider positive factors such as family ties within the United States, length of residence in the United States, evidence of hardship to the alien and the alien's family in the event of deportation, employment history, property or business ties, and evidence of good character and likelihood of positive contributions to American society when deciding whether to grant 212(c) relief. Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995). Adverse factors that will be considered include the nature and circumstances of the cause for deportation; additional immigration law violations; the existence, recency, seriousness, and nature of a criminal record; and other indications of an alien's bad character or undesirability as a permanent resident. Lovell, 52 F.3d at 461, citing Marin, 1978 WL 36472, 16 I. & N. Dec. at 584-585. More than half of 212(c) applications have been approved. St. Cyr, 533 U.S. at 296 n. 5, 121 S. Ct. 2271. A weapons convictions would have barred section 212(c) relief. See Cato v. I.N.S., 84 F.3d 597, 600 (2d Cir.1996). No bar to section 212(c) relief existed in cases involving drug offenses. Montilla v. I.N.S., 926 F.2d 162, 170 (2d Cir.1991).
B. Illegal Reentry Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported or removed alien to enter, attempt to enter, or be found in the United States without the expressed consent of the Attorney General. To sustain this charge, the government must prove that the alien previously had been deported properly. If the deportation order is successfully challenged collaterally it cannot be used to establish prior deportation. A deportation order can be collaterally challenged if: (1) the alien has exhausted administrative remedies; (2) the deportation proceedings improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. *271 § 1326(d). This statute codified the Supreme Court's holding in United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S. Ct. 2148, 2155, 95 L. Ed. 2d 772, 782-83 (1987), limiting the use of deportation proceedings to prove a charge of illegal reentry. See also United States v. Perez, 213 F. Supp. 2d 229 (E.D.N.Y.2002). An alien attempting to make this kind of collateral attack must prove that prejudice resulted from the procedural errors, that is to say the alien must demonstrate that without the procedural errors, he might not have been removed. United States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002); Perez.
C. Exhaustion To exhaust administrative remedies, an alien is generally required to appeal from an Immigration Judge's order to the Board of Immigration Appeals. United States v. Johnson, No. 3:99-CR-139(EBB), 2000 WL 620324, at *7 (D.Conn. May 1, 2000), citing Mejia-Ruiz v. I.N.S., 51 F.3d 358, 364 (2d Cir.1995). This requirement does not have to be met when making such an appeal would be futile because the body being appealed to lacks power or believes that it lacks the power to resolve the matter in the applicant's favor. Sousa v. I.N.S., 226 F.3d 28, 32 (1st Cir.2000). At the time of Mr. Copeland's deportation proceedings, the right to judicial review of Board of Immigration Appeals decisions did not exist. Because the deportation proceedings began before April 1, 1997 and the deportation order became administratively final after October 30, 1996, this case is controlled by the transitional rules of IIRIRA. Henderson v. I.N.S., 157 F.3d 106, 117 (2d Cir.1998). Those rules state that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [certain sections of the code]." Id., citing IIRIRA § 309(c)(4)(G). This part of the IIRIRA was held not to preclude petitions for habeas corpus in the federal district court in Henderson, 157 F.3d at 118-122. AEDPA and IIRIRA eliminated the possibility of section 212(c) relief for aliens convicted of committing an aggravated felony. This policy was applied retroactively. In St. Cyr, the Supreme Court modified the retroactivity rules, holding that "§ 212(c) relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." 533 U.S. at 326, 121 S. Ct. 2271. If an alien entered a plea of guilty before the effective dates of AEDPA or IIRIRA, then that alien is eligible for section 212(c) relief. The effective date of AEDPA is April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996). The effective date of IIRIRA is April 1, 1997. St. Cyr, 533 U.S. at 315, 121 S. Ct. 2271. The alien needs to prove that there is a reasonable likelihood that there would have been no removal if the procedural error had not occurred. Fernandez-Antonia, 278 F.3d at 159; see also Hart, 00-CR-915, Transcript of 7/20/2001.
III Application of Law to Facts Although the defendant did not appeal to the Board of Immigration Appeals from the decision of the Immigration Judge, any attempt to do so would have been futile because at the time of his deportation, AEDPA and IIRIRA were being interpreted by INS in a manner that would have automatically precluded relief. The defendant therefore need not have engaged in a futile attempt to appeal his order of deportation. The deportation order was fundamentally unfair, as required for a collateral *272 attack, because the Immigration Judge not only failed to advise the defendant of the existence of discretionary relief, but affirmatively misled him by indicating that he was ineligible for such relief. This misadvice improperly, as it turned out, discouraged the defendant from seeking discretionary relief. As a result, no immigration judge ever determined whether the defendant was worthy of section 212(c) relief. Fundamental unfairness was prejudicial to the defendant because there is a reasonable likelihood he would have been granted 212(c) relief. Cato, a weapons case, does not adversely affect defendant. In that case, the deportation of the alien was predicated on the gun charge. In the instant case, the deportation proceedings were based upon the drug charge. Drug charges did not then have a preclusive effect on section 212(c) applications. Because the deportation proceedings were based upon the drug conviction, and because the weapons convictions were not considered by the Immigration Judge, the defendant was eligible for a section 212(c) hearing.
IV Conclusion Because the deportation order violated Mr. Copeland's Due Process rights, it cannot be relied upon to establish the prior deportation or removal needed to sustain a charge of illegal reentry. 8 U.S.C. § 1326. The Indictment is dismissed. The res judicata effect of this dismissal on any future immigration proceedings is not addressed. SO ORDERED. | 10-30-2013 | [
"228 F. Supp. 2d 267 (2002) UNITED STATES of America, v. Richard COPELAND, Defendant No. 01-CR-1453(JBW). United States District Court, E.D. New York. October 22, 2002. *268 Steven H. Breslow, United States Attorney's Office, Criminal Division, Brooklyn, NY, for Plaintiff. Michael P. Padden, The Legal Aid Society, Federal Defender Division, Brooklyn, NY, for Defendant. AMENDED MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge. Defendant, charged with criminal reentry into this country, moves to dismiss the indictment on the collateral grounds that his prior deportation was unlawful and so cannot be used as a predicate in this criminal case. The motion is granted because the prior deportation conflicts with the Supreme Court's decision in I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, *269 2293, 150 L. Ed. 2d 347, 378 (2001). See e.g. United States v. Perez, 213 F. Supp. 2d 229 (E.D.N.Y.2002) (dismissing criminal prosecution for reentry after deportation on ground of lack of due process in deportation); United States v. Hart, 00-CR-915, Transcript of 7/20/2001 (Dearie, J.)",
"(same). I Facts Richard Copeland is a citizen of Jamaica. In 1982, when he was twelve years old, he came to the United States and lived here as a lawful permanent alien until his deportation in 1998. At the time of deportation, Mr. Copeland was living with and supporting his two children, aged 11 and 4, and their mother, all United States citizens. In 1989, Mr. Copeland was arrested and charged with criminal possession of a controlled substance and criminal possession of a weapon. He failed to appear on these charges and a bench warrant was issued.",
"In 1995 he was arrested for shooting a person. Mr. Copeland pleaded guilty to all three charges. He served concurrent sentences from October 1995 to September 1998. Based upon the attempted sale conviction, in May 1996 the Immigration and Naturalization Service (\"INS\") began deportation proceedings charging him with being a deportable alien. See Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Nationality Act. A deportation hearing was held in August 1996. The Immigration Judge informed Mr. Copeland of his right to an attorney and to appeal the Immigration Judge's decision. Transcript of Hearing held on August 7, 1996, attached as Exhibit A to Government's Letter of June 14, 2002 (\"Government's Letter\").",
"The Immigration Judge then adjourned the proceedings to give Mr. Copeland the opportunity to find an attorney. Still without counsel, at his deportation hearing in November, 1996, Mr. Copeland conceded deportability as charged. Transcript of Hearing held on November 27, 1996 (\"November 27 Transcript\") at 12, attached as Exhibit B to Government's Letter. After being told that \"[t]here's no relief available to you anymore because the law changed in April,\" Mr. Copeland was informed of his right to appeal the Immigration Judge's decision. Id. The Immigration Judge ruled that Mr. Copeland was ineligible for a hearing and potential waiver of deportation under former section 212(c) of the Immigration and Naturalization Act (\"INA\"), 8 U.S.C.",
"§ 1182(c), based on the then-current interpretation of changes to the INA created by the Illegal Immigration Reform and Immigrant Responsibility Act (\"IIRIRA\"), Pub.L. No. 104-208, 110 Stat. 3009, § 304(B) (Sept. 30, 1996) and Anti-Terrorism and Effective Death Penalty Act (\"AEDPA\"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). IIRIRA had the effect of repealing section 1182(c) while AEDPA allowed for the retroactive denial of section 212(c) relief. This interpretation of nonavailability of section 212(c) relief was subsequently invalidated by the Supreme Court in I.N.S. v. St. Cyr. 533 U.S. at 326, 121 S. Ct. 2271, holding that section 212(c) relief is available to aliens with convictions based on pleas of guilty entered prior to the enactment of IIRIRA and AEDPA.",
"Mr. Copeland waived his right to appeal. November 27 Transcript at 12. No evidence suggests that he ever appealed his deportation to the Board of Immigration Appeals. In 1998, now under the guidance of counsel, he moved to reopen proceedings and applied for a stay of his deportation. Motion to Reopen and Application *270 for Stay of Deportation, attached as Exhibit D to Government's Letter. This motion was denied.",
"Order of the Immigration Judge, attached as Exhibit G to Government's Letter. Counsel filed an appeal in October 1998. Notice of Appeal, attached as Exhibit H to Government's Letter. Before this appeal could be heard, Mr. Copeland was deported. After deportation, the Board of Immigration Appeals denied the appeal as moot. Board of Immigration Appeals decision, attached as Exhibit I to Government's Letter. In the spring of 1999 the INS became aware that Mr. Copeland had returned to the United States. He was arrested and is presently charged with having been found in the United States subsequent to a deportation for an aggravated felony conviction. 8 U.S.C. § 1326.",
"II Law A. Deportation and 212(c) Aliens convicted of certain crimes, labeled \"aggravated felonies\" in immigration law, become deportable. See 8 U.S.C. § 1227(a)(2)(A)(iii). Certain drug offenses, including defendant's, constitute aggravated felonies. 8 U.S.C. § 1101(a)(43)(B). Prior to 1996, former section 212(c) of the INA allowed aliens to apply for a discretionary waiver of deportation. See St. Cyr, 533 U.S. at 294-97, 121 S. Ct. 2271 (history of section 212(c)). When determining whether to grant a section 212(c) application, an Immigration Judge will \"balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf.\" Matter of Marin, 1978 WL 36472, 16 I. & N. Dec. 581, 584 (BIA 1978).",
"The Judge will consider positive factors such as family ties within the United States, length of residence in the United States, evidence of hardship to the alien and the alien's family in the event of deportation, employment history, property or business ties, and evidence of good character and likelihood of positive contributions to American society when deciding whether to grant 212(c) relief. Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995). Adverse factors that will be considered include the nature and circumstances of the cause for deportation; additional immigration law violations; the existence, recency, seriousness, and nature of a criminal record; and other indications of an alien's bad character or undesirability as a permanent resident. Lovell, 52 F.3d at 461, citing Marin, 1978 WL 36472, 16 I.",
"& N. Dec. at 584-585. More than half of 212(c) applications have been approved. St. Cyr, 533 U.S. at 296 n. 5, 121 S. Ct. 2271. A weapons convictions would have barred section 212(c) relief. See Cato v. I.N.S., 84 F.3d 597, 600 (2d Cir.1996). No bar to section 212(c) relief existed in cases involving drug offenses. Montilla v. I.N.S., 926 F.2d 162, 170 (2d Cir.1991). B. Illegal Reentry Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported or removed alien to enter, attempt to enter, or be found in the United States without the expressed consent of the Attorney General. To sustain this charge, the government must prove that the alien previously had been deported properly. If the deportation order is successfully challenged collaterally it cannot be used to establish prior deportation. A deportation order can be collaterally challenged if: (1) the alien has exhausted administrative remedies; (2) the deportation proceedings improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.",
"8 U.S.C. *271 § 1326(d). This statute codified the Supreme Court's holding in United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S. Ct. 2148, 2155, 95 L. Ed. 2d 772, 782-83 (1987), limiting the use of deportation proceedings to prove a charge of illegal reentry. See also United States v. Perez, 213 F. Supp. 2d 229 (E.D.N.Y.2002). An alien attempting to make this kind of collateral attack must prove that prejudice resulted from the procedural errors, that is to say the alien must demonstrate that without the procedural errors, he might not have been removed.",
"United States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002); Perez. C. Exhaustion To exhaust administrative remedies, an alien is generally required to appeal from an Immigration Judge's order to the Board of Immigration Appeals. United States v. Johnson, No. 3:99-CR-139(EBB), 2000 WL 620324, at *7 (D.Conn. May 1, 2000), citing Mejia-Ruiz v. I.N.S., 51 F.3d 358, 364 (2d Cir.1995). This requirement does not have to be met when making such an appeal would be futile because the body being appealed to lacks power or believes that it lacks the power to resolve the matter in the applicant's favor.",
"Sousa v. I.N.S., 226 F.3d 28, 32 (1st Cir.2000). At the time of Mr. Copeland's deportation proceedings, the right to judicial review of Board of Immigration Appeals decisions did not exist. Because the deportation proceedings began before April 1, 1997 and the deportation order became administratively final after October 30, 1996, this case is controlled by the transitional rules of IIRIRA. Henderson v. I.N.S., 157 F.3d 106, 117 (2d Cir.1998). Those rules state that \"there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [certain sections of the code].\" Id., citing IIRIRA § 309(c)(4)(G).",
"This part of the IIRIRA was held not to preclude petitions for habeas corpus in the federal district court in Henderson, 157 F.3d at 118-122. AEDPA and IIRIRA eliminated the possibility of section 212(c) relief for aliens convicted of committing an aggravated felony. This policy was applied retroactively. In St. Cyr, the Supreme Court modified the retroactivity rules, holding that \"§ 212(c) relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.\" 533 U.S. at 326, 121 S. Ct. 2271.",
"If an alien entered a plea of guilty before the effective dates of AEDPA or IIRIRA, then that alien is eligible for section 212(c) relief. The effective date of AEDPA is April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996). The effective date of IIRIRA is April 1, 1997. St. Cyr, 533 U.S. at 315, 121 S. Ct. 2271. The alien needs to prove that there is a reasonable likelihood that there would have been no removal if the procedural error had not occurred. Fernandez-Antonia, 278 F.3d at 159; see also Hart, 00-CR-915, Transcript of 7/20/2001. III Application of Law to Facts Although the defendant did not appeal to the Board of Immigration Appeals from the decision of the Immigration Judge, any attempt to do so would have been futile because at the time of his deportation, AEDPA and IIRIRA were being interpreted by INS in a manner that would have automatically precluded relief.",
"The defendant therefore need not have engaged in a futile attempt to appeal his order of deportation. The deportation order was fundamentally unfair, as required for a collateral *272 attack, because the Immigration Judge not only failed to advise the defendant of the existence of discretionary relief, but affirmatively misled him by indicating that he was ineligible for such relief. This misadvice improperly, as it turned out, discouraged the defendant from seeking discretionary relief.",
"As a result, no immigration judge ever determined whether the defendant was worthy of section 212(c) relief. Fundamental unfairness was prejudicial to the defendant because there is a reasonable likelihood he would have been granted 212(c) relief. Cato, a weapons case, does not adversely affect defendant. In that case, the deportation of the alien was predicated on the gun charge. In the instant case, the deportation proceedings were based upon the drug charge. Drug charges did not then have a preclusive effect on section 212(c) applications. Because the deportation proceedings were based upon the drug conviction, and because the weapons convictions were not considered by the Immigration Judge, the defendant was eligible for a section 212(c) hearing. IV Conclusion Because the deportation order violated Mr. Copeland's Due Process rights, it cannot be relied upon to establish the prior deportation or removal needed to sustain a charge of illegal reentry.",
"8 U.S.C. § 1326. The Indictment is dismissed. The res judicata effect of this dismissal on any future immigration proceedings is not addressed. SO ORDERED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2413565/ | 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 . 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 Status Claims 1-23 are pending. Claims 1-23 are examined on the merits in this prosecution.
Claim Objection Claim 1 recites the abbreviation “anti-HP” in the second line. For the sake of clarity, the examiner suggests amending the claim to read “Use of a pharmaceutical composition in the preparation of medicaments of anti-Helicobacter pylori (anti-HP)….”
CLAIM REJECTIONS
Indefiniteness Rejections 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.
Claims 1-23 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 pre-AIA the applicant regards as the invention. Each of claims 1-23 are drawn to the “use” of a preparation. Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness under 35 U.S.C. 112(b). See MPEP 2173.05(q). Regarding claim 5, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Regarding claim 23, the term "sufficiently" renders the claim indefinite because a means of measuring this term of degree is not disclosed in the instant specification. See MPEP § 2173.05(b).
Obviousness Rejection 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
1) Claims 1-23 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (US 2003/0021850 A1; cited hereinafter as “Xu-A”), in view of Xu (CN1404835A; citations below refer to the English translation provided by EPO and Google; Chinese version cited on IDS dated 11-26-2019; referred hereinafter as “CN1404835”). Claim 1 is directed to “Use of a pharmaceutical composition in the preparation of medicaments of anti-HP, wherein the pharmaceutical composition is a pharmaceutical composition suitable for oral administration, comprising a homogenous mixture of edible oil, beeswax and -sitosterol, wherein the beeswax -sitosterol is 0.1 to 20% by weight based on the total weight of the composition.” Xu-A teaches a composition comprising a sterol compound, preferably -sitosterol dissolved in oil such a sesame oil at a concentration of 2-6% (pg 3, [0027]; pg 4, [0043]; pg 7, [0097]-[0098]); and a wax, preferably beeswax in an amount of 1% to 20% (pg 3, [0029] and [0030]). In each instance, the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, and a prima facie case of obviousness exists. MPEP 2144.05 (I). For the claim 1 limitation of a “homogeneous mixture,” Xu-A teaches the inventive mixture may be dissolved in a suitable liquid prior to insertion into a capsule (pg 29, [0434]). For the claim 1 limitation of “medicaments of anti-HP,” Xu-A teaches (pg 18):
PNG media_image1.png 222 333 media_image1.png Greyscale
PNG media_image2.png 678 421 media_image2.png Greyscale
PNG media_image3.png 179 417 media_image3.png Greyscale
The teachings of [0319] meet the limitations of claim 2. -sitosterol, namely 2-6%, as discussed above. For claims 8-10, Xu-A teaches beeswax in an amount of 1% to 20% (pg 3, [0029] and [0030]), overlapping or within the ranges claimed. For claim 11, Xu-A teaches sesame oil is the preferred edible oil (pg 3, [0027]). For claim 12, Xu-A teaches the composition can contain propolis, in an amount from 1-20% (pg 4, [0034]), within the claimed range. For claim 13, Xu-A teaches the composition preferably contains less than 1% water (pg 4, [0035]), the claimed range. For claim 14, Xu-A teaches the composition may be in the form of tablets, pills, capsules, emulsions, liquids, gels, syrups, suspensions and the like, for oral ingestion (pg 4, [0036]). For claim 15, Xu-A teaches the composition may comprise an extract of huangqin (Scutellaria baicalensis) in an amount of 2-60% (pg 5, [0052]), overlapping the claimed range. Xu-A teaches the extract of huangqin in the oil comprises baicalin at a concentration ranging from about 0.001 to 2% (pg 5, [0059]), overlapping the claimed range. Xu-A teaches the huangqin used may be obtained from the plant selected from one or more members of the group of Scutellaria viscidula Bge, Scutellaria amoena, Scutellaria rehderiana Diels, Scutellaria ikonnikovii Juz, Scutellaria likiangensis Diels and Scutellaria hypericifolia Levl of Labiatae Family (pg 30, [0450]). Phellodendron chinense Schneid, Phellodendron Chinense Scheid var. glabriusculum Schneid, Phellodendron chinense Schneid var. omeiense, Phellodendron Schneid var. yunnanense Huang and Phellodendron chinense Schneid var. falcutum (pg 30, [0451]). For claim 17, Xu-A teaches the composition may comprise Coptis chinensis (huanglian). For claim 20, Xu-A teaches beeswax in an amount of 1-20% (pg 43, claim 20); sterol in an amount of at least 1% (pg 43, claim 1); obaculactone in an amount of 0.001-2% (pg 43, claim 36); baicalin in an amount of from 0.001 to 2% (pg 43, claim 32); and berberine in an amount of from 0.001 to 2% (pg 5, [0057]); in each instance, the amounts taught by Xu-A overlap the claimed range. Xu-A does not teach the claim 1 limitation of “beeswax in the composition forms microcrystals”; the amount of Coptis chinensis comprising berberine recited in claim 17; the presence of Scutellaria baicalensis extract, Cortex Phellodendri extract, and Coptis chinensis in sesame oil; the elements of claim 19; or the method of formation of the beeswax composition recited in claims 22-23. CN1404835 teaches the missing elements of Xu-A.
CN1404835 teaches that the microcrystals of beeswax may be more likely to mix with mucus in the gastrointestinal tract than large particles or beeswax with a pigeon nest structure (pg 28, [0161]). For claims 1 and 3, CN1404835 teaches the wax (such as beeswax) is present in an amount of from 3-30%, within the ranges claimed in claims 1 and 3, and forms microcrystals (pg 6, [0024]). For claim 4, Xu-A teaches the method is useful for treating cancer of the gastrointestinal tract (pg 17, [0307]). For claim 5, Xu-A teaches the method is useful for treating Helicobacter pylori infection (pg 17, [0308]). For claim 17, CN1404835 teaches an extract of Coptis chinensis in an amount of 1-50% by weight of Coptis in sesame oil (pg 8, [0040], wherein the composition contains berberine in a range of 0.001%-2% (pg 8, [0041]), overlapping the claimed range. Scutellaria baicalensis, Phellodendron cortex and Coptidis in edible oil (pg 52, claim 39), wherein sesame oil is a preferred edible oil (pg 55, claim 77). For claim 21, CN1404835 teaches the length of the beeswax microcrystals is 5-70 microns (pg 53, claim 54), within the claimed range. For claim 22, CN1404835 teaches “at least two microcrystals of beeswax in the composition are polymerized to form a microcrystalline complex” (pg 53, claim 49). For claim 23, CN1404835 teaches “the beeswax microcrystals are sufficiently uniformly dispersed in the edible oil” (pg 53, claim 50). For claim 19, Xu-A teaches the composition may comprise an extract of Scutellaria baicalensis (huangqin) in an amount of 10-90% (pg 43, claim 34), comprising baicalin, at a concentration ranging from about 0.1 to 2% (pg 43, claim 32); Cortex Phellandri (huangbai) in an amount of 2-60% (pg 43, claim 38) comprising obaculactone in an amount of 0.001 to 2% (pg 5, [0053]); Coptis chinensis (huanglian) in an amount of 2-60%, comprising berberine in an amount of 0.001-2% (pg 5, [0057]); and earthworm in an amount of 2-60% (pg 44, claim 57). CN1044835 teaches the composition may include Papaviris (poppy) in an amount of 2-10% (pg 9, [0048]), while Xu-A teaches the composition may contain poppy (pg 32, [0476]) and narcotoline at a concentration of about 0.001% to 2% (pg 5, [0058]).
Regarding the amount of Coptis chinensis comprising berberine recited in claim 17 and the presence of Scutellaria baicalensis extract, Cortex Phellodendri extract, and Coptis chinensis in sesame oil recited in claim 18, the person of ordinary skill would have had a reasonable expectation of success in formulating the composition of the method of Xu-A with the amounts taught by CN1404835 because the method of CN1404835 teaches these amounts and formulation method are useful in treating damage to the mucosal tissue of the gastrointestinal tract such as ulcers that may be caused by an infectious agent, and Xu-A teaches a method comprising the claimed mixture of sesame oil, beeswax, and -sitosterol is useful in treating gastric ulcers specifically caused by the infectious agent Helicobacter pylori.
CONCLUSION Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL P COHEN whose telephone If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frederick Krass can be reached on (571)272-0580. 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.
/MICHAEL P COHEN/Primary Examiner, Art Unit 1612 | 2022-01-06T10:32:08 | [
"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 . 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 Status Claims 1-23 are pending. Claims 1-23 are examined on the merits in this prosecution. Claim Objection Claim 1 recites the abbreviation “anti-HP” in the second line. For the sake of clarity, the examiner suggests amending the claim to read “Use of a pharmaceutical composition in the preparation of medicaments of anti-Helicobacter pylori (anti-HP)….” CLAIM REJECTIONS Indefiniteness Rejections 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.",
"Claims 1-23 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 pre-AIA the applicant regards as the invention. Each of claims 1-23 are drawn to the “use” of a preparation. Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness under 35 U.S.C. 112(b). See MPEP 2173.05(q). Regarding claim 5, the phrase \"preferably\" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).",
"Regarding claim 23, the term \"sufficiently\" renders the claim indefinite because a means of measuring this term of degree is not disclosed in the instant specification. See MPEP § 2173.05(b). Obviousness Rejection 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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. 1) Claims 1-23 are rejected under 35 U.S.C.",
"103 as being unpatentable over Xu (US 2003/0021850 A1; cited hereinafter as “Xu-A”), in view of Xu (CN1404835A; citations below refer to the English translation provided by EPO and Google; Chinese version cited on IDS dated 11-26-2019; referred hereinafter as “CN1404835”). Claim 1 is directed to “Use of a pharmaceutical composition in the preparation of medicaments of anti-HP, wherein the pharmaceutical composition is a pharmaceutical composition suitable for oral administration, comprising a homogenous mixture of edible oil, beeswax and -sitosterol, wherein the beeswax -sitosterol is 0.1 to 20% by weight based on the total weight of the composition.” Xu-A teaches a composition comprising a sterol compound, preferably -sitosterol dissolved in oil such a sesame oil at a concentration of 2-6% (pg 3, [0027]; pg 4, [0043]; pg 7, [0097]-[0098]); and a wax, preferably beeswax in an amount of 1% to 20% (pg 3, [0029] and [0030]). In each instance, the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, and a prima facie case of obviousness exists. MPEP 2144.05 (I).",
"For the claim 1 limitation of a “homogeneous mixture,” Xu-A teaches the inventive mixture may be dissolved in a suitable liquid prior to insertion into a capsule (pg 29, [0434]). For the claim 1 limitation of “medicaments of anti-HP,” Xu-A teaches (pg 18): PNG media_image1.png 222 333 media_image1.png Greyscale PNG media_image2.png 678 421 media_image2.png Greyscale PNG media_image3.png 179 417 media_image3.png Greyscale The teachings of [0319] meet the limitations of claim 2. -sitosterol, namely 2-6%, as discussed above. For claims 8-10, Xu-A teaches beeswax in an amount of 1% to 20% (pg 3, [0029] and [0030]), overlapping or within the ranges claimed. For claim 11, Xu-A teaches sesame oil is the preferred edible oil (pg 3, [0027]). For claim 12, Xu-A teaches the composition can contain propolis, in an amount from 1-20% (pg 4, [0034]), within the claimed range. For claim 13, Xu-A teaches the composition preferably contains less than 1% water (pg 4, [0035]), the claimed range.",
"For claim 14, Xu-A teaches the composition may be in the form of tablets, pills, capsules, emulsions, liquids, gels, syrups, suspensions and the like, for oral ingestion (pg 4, [0036]). For claim 15, Xu-A teaches the composition may comprise an extract of huangqin (Scutellaria baicalensis) in an amount of 2-60% (pg 5, [0052]), overlapping the claimed range. Xu-A teaches the extract of huangqin in the oil comprises baicalin at a concentration ranging from about 0.001 to 2% (pg 5, [0059]), overlapping the claimed range. Xu-A teaches the huangqin used may be obtained from the plant selected from one or more members of the group of Scutellaria viscidula Bge, Scutellaria amoena, Scutellaria rehderiana Diels, Scutellaria ikonnikovii Juz, Scutellaria likiangensis Diels and Scutellaria hypericifolia Levl of Labiatae Family (pg 30, [0450]). Phellodendron chinense Schneid, Phellodendron Chinense Scheid var.",
"glabriusculum Schneid, Phellodendron chinense Schneid var. omeiense, Phellodendron Schneid var. yunnanense Huang and Phellodendron chinense Schneid var. falcutum (pg 30, [0451]). For claim 17, Xu-A teaches the composition may comprise Coptis chinensis (huanglian). For claim 20, Xu-A teaches beeswax in an amount of 1-20% (pg 43, claim 20); sterol in an amount of at least 1% (pg 43, claim 1); obaculactone in an amount of 0.001-2% (pg 43, claim 36); baicalin in an amount of from 0.001 to 2% (pg 43, claim 32); and berberine in an amount of from 0.001 to 2% (pg 5, [0057]); in each instance, the amounts taught by Xu-A overlap the claimed range. Xu-A does not teach the claim 1 limitation of “beeswax in the composition forms microcrystals”; the amount of Coptis chinensis comprising berberine recited in claim 17; the presence of Scutellaria baicalensis extract, Cortex Phellodendri extract, and Coptis chinensis in sesame oil; the elements of claim 19; or the method of formation of the beeswax composition recited in claims 22-23.",
"CN1404835 teaches the missing elements of Xu-A. CN1404835 teaches that the microcrystals of beeswax may be more likely to mix with mucus in the gastrointestinal tract than large particles or beeswax with a pigeon nest structure (pg 28, [0161]). For claims 1 and 3, CN1404835 teaches the wax (such as beeswax) is present in an amount of from 3-30%, within the ranges claimed in claims 1 and 3, and forms microcrystals (pg 6, [0024]). For claim 4, Xu-A teaches the method is useful for treating cancer of the gastrointestinal tract (pg 17, [0307]). For claim 5, Xu-A teaches the method is useful for treating Helicobacter pylori infection (pg 17, [0308]).",
"For claim 17, CN1404835 teaches an extract of Coptis chinensis in an amount of 1-50% by weight of Coptis in sesame oil (pg 8, [0040], wherein the composition contains berberine in a range of 0.001%-2% (pg 8, [0041]), overlapping the claimed range. Scutellaria baicalensis, Phellodendron cortex and Coptidis in edible oil (pg 52, claim 39), wherein sesame oil is a preferred edible oil (pg 55, claim 77). For claim 21, CN1404835 teaches the length of the beeswax microcrystals is 5-70 microns (pg 53, claim 54), within the claimed range. For claim 22, CN1404835 teaches “at least two microcrystals of beeswax in the composition are polymerized to form a microcrystalline complex” (pg 53, claim 49). For claim 23, CN1404835 teaches “the beeswax microcrystals are sufficiently uniformly dispersed in the edible oil” (pg 53, claim 50). For claim 19, Xu-A teaches the composition may comprise an extract of Scutellaria baicalensis (huangqin) in an amount of 10-90% (pg 43, claim 34), comprising baicalin, at a concentration ranging from about 0.1 to 2% (pg 43, claim 32); Cortex Phellandri (huangbai) in an amount of 2-60% (pg 43, claim 38) comprising obaculactone in an amount of 0.001 to 2% (pg 5, [0053]); Coptis chinensis (huanglian) in an amount of 2-60%, comprising berberine in an amount of 0.001-2% (pg 5, [0057]); and earthworm in an amount of 2-60% (pg 44, claim 57).",
"CN1044835 teaches the composition may include Papaviris (poppy) in an amount of 2-10% (pg 9, [0048]), while Xu-A teaches the composition may contain poppy (pg 32, [0476]) and narcotoline at a concentration of about 0.001% to 2% (pg 5, [0058]). Regarding the amount of Coptis chinensis comprising berberine recited in claim 17 and the presence of Scutellaria baicalensis extract, Cortex Phellodendri extract, and Coptis chinensis in sesame oil recited in claim 18, the person of ordinary skill would have had a reasonable expectation of success in formulating the composition of the method of Xu-A with the amounts taught by CN1404835 because the method of CN1404835 teaches these amounts and formulation method are useful in treating damage to the mucosal tissue of the gastrointestinal tract such as ulcers that may be caused by an infectious agent, and Xu-A teaches a method comprising the claimed mixture of sesame oil, beeswax, and -sitosterol is useful in treating gastric ulcers specifically caused by the infectious agent Helicobacter pylori.",
"CONCLUSION Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL P COHEN whose telephone If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frederick Krass can be reached on (571)272-0580. 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. /MICHAEL P COHEN/Primary Examiner, Art Unit 1612"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-09.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 . DETAILED ACTION
This action is in response to the claimed listing filed on 01/18/2022. Claims 1-20 are pending. Response to Arguments Applicant’s Arguments Remarks filed on 01/18/2022 have been considered. With claim 1 is amended and newly claims 2-20 are added, the Double Patenting remains applied to claims 1-20. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and
Claims 1-20 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. US 9792144 B2. For Example, see comparing table: Current claims Claims in US Patent. No. US 9792144 B2 1. (Currently Amended) A method to manage a dynamic deployment environment including virtual machines, the method comprising:
detecting removal of a service on a virtual machine;
determining that the service corresponds to a service monitoring rule; and
based on the service corresponding to the service monitoring rule,
determining whether a monitoring agent identified by the service monitoring rule to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed is monitoring other services on the virtual machine; and
based on determining whether the monitoring agent is monitoring other services on the VM, configuring the monitoring agent to discontinue monitoring the service or removing the monitoring agent from the virtual machine.
(a) automatically scanning, by executing a computer readable instruction with a processor, the virtual machines in the deployment environment to identify a service installed on any of the virtual machines;
(b) automatically determining, by executing a computer readable instruction with the processor, whether the identified service corresponds to a service monitoring rule;
(c) when the service corresponds to the service monitoring rule, automatically determining, by executing a computer readable instruction with the processor, whether a monitoring agent identified by the service monitoring rule is installed on the one or more virtual machines on which the service is installed; (d) when the monitoring agent identified by the service monitoring rule is not installed on at least one of the one or more virtual machines on which the service is installed,
(e) when the monitoring agent identified by the service monitoring rule is installed on the at least one of the virtual machines on which the service is installed,
automatically configuring the monitoring agent, by executing a computer readable instruction with the processor, to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed, wherein (a), (b), (c), (d) and (e) are repeatedly performed without human intervention. the satisfies the service monitoring rule when the service corresponds to an identifier of a service to be monitored defined in the service monitoring rule.
Claim 1..(e) when the monitoring agent identified by the service monitoring rule is installed on the at least one of the virtual machines on which the service is installed,
3. (New) The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is not monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. Claim 2. …. (f) automatically detecting, by executing a computer readable instruction with the processor, a second monitoring agent installed on at least one of the virtual machines; (g) automatically determining, by executing a computer readable instruction with the processor, whether the second monitoring agent is monitoring any service; (h) when the second monitoring agent is not monitoring any service, automatically removing, by executing a computer readable instruction with the processor, the second monitoring agent from the at least one virtual machine; and
service is removed corresponds to the virtual machine specified by nodes defined in the service monitoring rule.
3. The method as defined in claim 1, further including, when the service is not installed on any of the one or more of the virtual machines and the monitoring agent is installed on one or more virtual machines, initiating removal of the monitoring agent corresponding to the service from the one or more virtual machines without user intervention.
5. (New) The method according to claim 1, further comprising automatically scanning the virtual machines in the deployment environment to detect the service removed on any of the virtual machines, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of one or more of the virtual machines.
3. The method as defined in claim 1, further including, when the service is not installed on any of the one or more of the virtual machines and the monitoring agent is installed on one or more virtual machines, initiating removal of the monitoring agent corresponding to the service from the one or more virtual machines without user intervention. 4. The method as defined in claim 1, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of at least one of the virtual machines. 6. (New) The method as defined in claim 5, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines.
5. The method as defined in claim 4, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines. 7. (New) The method as defined in claim 5, wherein the scanning is performed by a service analyzer separate from the virtual machines.
6. The method as defined in claim 1, wherein the scanning is performed by a service analyzer separate from the virtual machines. 8. (New) The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor.
7. The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor. 9. (New) The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service.
8. The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. The system of Claims 10-17 and Medium of claim 18-20 are compared to : System claims 9-13 and Medium claims 16-18
Although the claims at issue are not identical, they are not patentably distinct from each other as seen in the table above, because the current claim functions the scope of the US patent performs in broaden manner. Therefore, it would be obvious to an ordinary of skills before the effective filing of the invention to manage a dynamic deployment environment including one or more virtual machines of the US patent in broaden manner to retain the similarity.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 10761870 B2. For Example, see comparing table: Current claims Claims in US Patent. No. US 10761870 B2 1. (Currently Amended) A method to manage a dynamic deployment environment including virtual machines, the method comprising:
detecting removal of a service on a virtual machine;
determining that the service corresponds to a service monitoring rule; and
based on the service corresponding to the service monitoring rule,
determining whether a monitoring agent identified by the service monitoring rule to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed is monitoring other services on the virtual machine; and
based on determining whether the monitoring agent is monitoring other services on the VM, configuring the monitoring agent to discontinue monitoring the service or removing the monitoring agent from the virtual machine.
detecting, by a processor, installation of a service on a virtual machine;
determining, by the processor, that one or more properties of the service match criteria provided by a service monitoring rule, wherein the criteria define conditions that cause an installation of a monitoring agent to monitor the service; and
based on the one or more properties of the service matching the criteria defined by the service monitoring rule, installing, by an installing agent, the monitoring agent; and
automatically configuring, by the installing agent, the monitoring agent to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed. (Claim 3) The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine.
the satisfies the service monitoring rule when the service corresponds to an identifier of a service to be monitored defined in the service monitoring rule.
4. The method according to claim 1, further comprising: determining that the monitoring agent identified by the service monitoring rule is not installed on the virtual machine; and based on determining that the monitoring agent identified by the service monitoring rule is not installed on the virtual machine, installing the monitoring agent on the virtual machine.
3. (New) The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is not monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. 3. The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine.
4. (New) The method according to claim 1, wherein the service satisfies the service monitoring rule when the virtual machine on which the service is removed corresponds to the virtual machine specified by nodes defined in the service monitoring rule.
detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is monitoring any service; and determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine.
automatically scanning the virtual machines in the deployment environment to detect the service removed on any of the virtual machines, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of one or more of the virtual machines.
5. The method according to claim 1, further comprising automatically scanning the virtual machines in the deployment environment to detect the service installed on any the virtual machine, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of one or more of the virtual machines. 6. (New) The method as defined in claim 5, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines.
6. The method as defined in claim 5, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines. 7. (New) The method as defined in claim 5, wherein the scanning is performed by a service analyzer separate from the virtual machines.
7. The method as defined in claim 5, wherein the scanning is performed by a service analyzer separate from the virtual machines. 8. (New) The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor. 8. The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor. 9. (New) The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. 9. The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. The system of Claims 10-17 and Medium of claim 18-20 are compared to : Claims 10-17, and Claims 18-20
Although the claims at issue are not identical, they are not patentably distinct from each other as seen in the table above, because the current claim functions the scope of the US patent performs in broaden manner.
Allowable Subject Matter Claims 1-20 are subjected to the Double Patenting as in the above issues, but would be allowable if approval terminal disclaimer filed.
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 Ted T Vo whose telephone number is (571)272-3706. The examiner can normally be reached on 8am-4:30pm ET.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Wei Y Zhen can be reached on (571) 272-3708. 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. TTV March 26, 2022 /Ted T. Vo/ Primary Examiner, Art Unit 2191 | 2022-04-01T11:53:23 | [
"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 . DETAILED ACTION This action is in response to the claimed listing filed on 01/18/2022. Claims 1-20 are pending. Response to Arguments Applicant’s Arguments Remarks filed on 01/18/2022 have been considered. With claim 1 is amended and newly claims 2-20 are added, the Double Patenting remains applied to claims 1-20. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed.",
"Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.",
"A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and Claims 1-20 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. US 9792144 B2. For Example, see comparing table: Current claims Claims in US Patent. No. US 9792144 B2 1.",
"(Currently Amended) A method to manage a dynamic deployment environment including virtual machines, the method comprising: detecting removal of a service on a virtual machine; determining that the service corresponds to a service monitoring rule; and based on the service corresponding to the service monitoring rule, determining whether a monitoring agent identified by the service monitoring rule to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed is monitoring other services on the virtual machine; and based on determining whether the monitoring agent is monitoring other services on the VM, configuring the monitoring agent to discontinue monitoring the service or removing the monitoring agent from the virtual machine. (a) automatically scanning, by executing a computer readable instruction with a processor, the virtual machines in the deployment environment to identify a service installed on any of the virtual machines; (b) automatically determining, by executing a computer readable instruction with the processor, whether the identified service corresponds to a service monitoring rule; (c) when the service corresponds to the service monitoring rule, automatically determining, by executing a computer readable instruction with the processor, whether a monitoring agent identified by the service monitoring rule is installed on the one or more virtual machines on which the service is installed; (d) when the monitoring agent identified by the service monitoring rule is not installed on at least one of the one or more virtual machines on which the service is installed, (e) when the monitoring agent identified by the service monitoring rule is installed on the at least one of the virtual machines on which the service is installed, automatically configuring the monitoring agent, by executing a computer readable instruction with the processor, to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed, wherein (a), (b), (c), (d) and (e) are repeatedly performed without human intervention.",
"the satisfies the service monitoring rule when the service corresponds to an identifier of a service to be monitored defined in the service monitoring rule. Claim 1..(e) when the monitoring agent identified by the service monitoring rule is installed on the at least one of the virtual machines on which the service is installed, 3. (New) The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is not monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. Claim 2.",
"…. (f) automatically detecting, by executing a computer readable instruction with the processor, a second monitoring agent installed on at least one of the virtual machines; (g) automatically determining, by executing a computer readable instruction with the processor, whether the second monitoring agent is monitoring any service; (h) when the second monitoring agent is not monitoring any service, automatically removing, by executing a computer readable instruction with the processor, the second monitoring agent from the at least one virtual machine; and service is removed corresponds to the virtual machine specified by nodes defined in the service monitoring rule. 3. The method as defined in claim 1, further including, when the service is not installed on any of the one or more of the virtual machines and the monitoring agent is installed on one or more virtual machines, initiating removal of the monitoring agent corresponding to the service from the one or more virtual machines without user intervention.",
"5. (New) The method according to claim 1, further comprising automatically scanning the virtual machines in the deployment environment to detect the service removed on any of the virtual machines, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of one or more of the virtual machines. 3. The method as defined in claim 1, further including, when the service is not installed on any of the one or more of the virtual machines and the monitoring agent is installed on one or more virtual machines, initiating removal of the monitoring agent corresponding to the service from the one or more virtual machines without user intervention.",
"4. The method as defined in claim 1, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of at least one of the virtual machines. 6. (New) The method as defined in claim 5, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines. 5. The method as defined in claim 4, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines. 7. (New) The method as defined in claim 5, wherein the scanning is performed by a service analyzer separate from the virtual machines. 6. The method as defined in claim 1, wherein the scanning is performed by a service analyzer separate from the virtual machines. 8. (New) The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor. 7. The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor.",
"9. (New) The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. 8. The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. The system of Claims 10-17 and Medium of claim 18-20 are compared to : System claims 9-13 and Medium claims 16-18 Although the claims at issue are not identical, they are not patentably distinct from each other as seen in the table above, because the current claim functions the scope of the US patent performs in broaden manner.",
"Therefore, it would be obvious to an ordinary of skills before the effective filing of the invention to manage a dynamic deployment environment including one or more virtual machines of the US patent in broaden manner to retain the similarity. Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 10761870 B2. For Example, see comparing table: Current claims Claims in US Patent. No. US 10761870 B2 1. (Currently Amended) A method to manage a dynamic deployment environment including virtual machines, the method comprising: detecting removal of a service on a virtual machine; determining that the service corresponds to a service monitoring rule; and based on the service corresponding to the service monitoring rule, determining whether a monitoring agent identified by the service monitoring rule to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed is monitoring other services on the virtual machine; and based on determining whether the monitoring agent is monitoring other services on the VM, configuring the monitoring agent to discontinue monitoring the service or removing the monitoring agent from the virtual machine.",
"detecting, by a processor, installation of a service on a virtual machine; determining, by the processor, that one or more properties of the service match criteria provided by a service monitoring rule, wherein the criteria define conditions that cause an installation of a monitoring agent to monitor the service; and based on the one or more properties of the service matching the criteria defined by the service monitoring rule, installing, by an installing agent, the monitoring agent; and automatically configuring, by the installing agent, the monitoring agent to monitor the service in accordance with the service monitoring rule on the at least one of the virtual machines on which the service is installed.",
"(Claim 3) The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. the satisfies the service monitoring rule when the service corresponds to an identifier of a service to be monitored defined in the service monitoring rule. 4. The method according to claim 1, further comprising: determining that the monitoring agent identified by the service monitoring rule is not installed on the virtual machine; and based on determining that the monitoring agent identified by the service monitoring rule is not installed on the virtual machine, installing the monitoring agent on the virtual machine. 3.",
"(New) The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is not monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. 3. The method according to claim 1, further comprising: detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is monitoring any service; and upon determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. 4. (New) The method according to claim 1, wherein the service satisfies the service monitoring rule when the virtual machine on which the service is removed corresponds to the virtual machine specified by nodes defined in the service monitoring rule.",
"detecting a second monitoring agent installed on the virtual machine; determining whether the second monitoring agent is monitoring any service; and determining the second monitoring agent is not monitoring any service, removing the second monitoring agent from the virtual machine. automatically scanning the virtual machines in the deployment environment to detect the service removed on any of the virtual machines, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of one or more of the virtual machines. 5. The method according to claim 1, further comprising automatically scanning the virtual machines in the deployment environment to detect the service installed on any the virtual machine, wherein the scanning of the virtual machines occurs in response to detecting a configuration change of one or more of the virtual machines. 6. (New) The method as defined in claim 5, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines. 6. The method as defined in claim 5, wherein the detecting of the configuration change includes executing a discovery script on the virtual machines. 7.",
"(New) The method as defined in claim 5, wherein the scanning is performed by a service analyzer separate from the virtual machines. 7. The method as defined in claim 5, wherein the scanning is performed by a service analyzer separate from the virtual machines. 8. (New) The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor. 8. The method as defined in claim 1, wherein the monitoring agent collects performance data for the service, tracks events generated by the service, and allows a user to start and stop the service from a virtual machine monitor. 9. (New) The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. 9. The method as defined in claim 1, wherein the service monitoring rule defines metrics used by the monitoring agent to monitor the service. The system of Claims 10-17 and Medium of claim 18-20 are compared to : Claims 10-17, and Claims 18-20 Although the claims at issue are not identical, they are not patentably distinct from each other as seen in the table above, because the current claim functions the scope of the US patent performs in broaden manner.",
"Allowable Subject Matter Claims 1-20 are subjected to the Double Patenting as in the above issues, but would be allowable if approval terminal disclaimer filed. 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 Ted T Vo whose telephone number is (571)272-3706. The examiner can normally be reached on 8am-4:30pm ET. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Wei Y Zhen can be reached on (571) 272-3708. 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. TTV March 26, 2022 /Ted T. Vo/ Primary Examiner, Art Unit 2191"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-03.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.3
GSI COMMERCE, INC.
1996 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD
Name:
Address:
Date:
1. Grant of Award. You are hereby granted a restricted stock award, effective as of the date hereof, to purchase shares (the “Restricted Stock”) of Common Stock, par value $.01 per share (“Common Stock”), of GSI COMMERCE, INC. (the “Company”) at a purchase price of $.01 per share pursuant to the Company’s 1996 Equity Incentive Plan (the “Plan”).
2. Shareholder Status. You shall have no rights with respect to this Award unless you accept this Award by written instrument delivered or mailed to the Company accompanied by payment in full of the specified purchase price of the shares covered by this Award. Payment may be by certified or bank check or other instrument acceptable to the Board. Subject to any terms and conditions imposed by the Plan, upon the occurrence of all of the conditions set forth in the immediately preceding sentence, you will have all the rights of a stockholder with respect to such stock, including voting and dividend rights, subject to the restrictions described in Section 3 below. Unless the Board otherwise determines, certificates evidencing shares of Restricted Stock will remain in the possession of the Company until such shares are free of all restrictions under the Plan.
3. Forfeiture of Restricted Stock. Except as otherwise specifically provided by the Plan, none of the shares of the Restricted Stock subject to this Award may be transferred, sold, assigned, exchanged, pledged, gifted or otherwise disposed of. These restrictions on transfer will lapse on the dates and with respect to the number of shares of Common Stock set forth below, unless you suffer a Status Change (as defined in the Plan) for any reason prior to the date on which the restrictions are scheduled to lapse. If you suffer a Status Change (as defined in the Plan) for any reason, all shares of Restricted Stock then held by you must be offered for sale to the Company at the price you paid for such shares. Upon the lapse of the restrictions with respect to a specified number of shares, those shares will become unrestricted (“Unrestricted Stock”).
Date on Which Restrictions Lapse
--------------------------------------------------------------------------------
Cumulative Percentage of Aggregate
Number of Shares Covered by Award
as to Which Restrictions Lapse
--------------------------------------------------------------------------------
% % % %
--------------------------------------------------------------------------------
The Board may at any time accelerate the time at which the restrictions on all or any part of the Restricted Stock will lapse.
4. Tax Matters. If you make an election under Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to Restricted Stock, you must deliver to the Company, within 10 days of the filing of such election with the Internal Revenue Service, a copy of such election. You hereby acknowledge that you fully recognize and understand the Federal, state and local income tax consequences of the receipt of the Restricted Stock by you, and forfeiture of the Restricted Stock as provided in Section 3 above, and any subsequent sale by you of the Restricted Stock, including the consequences of making (or not making) a timely election under Section 83(b) of the Code with respect to the Restricted Stock. In addition, you fully understand that, at the time that you realize any gross income taxable as compensation in respect of the Restricted Stock, the Company will be required to withhold Federal, state and local taxes on the full amount of the compensation income realized by you. Accordingly, at or prior to the time that you realize any compensation income in respect to the Restricted Stock, you hereby agree to provide the Company with cash funds equal to the total Federal, state and local taxes required to be withheld by the Company in respect of such compensation income, or make other arrangements satisfactory to the Company regarding such payment. It is understood that all matters with respect to the total amount of taxes to be withheld in respect of such compensation income shall be determined by the Company in its sole discretion.
5. Conditions to Delivery of Unrestricted Stock. Notwithstanding any other provision of the Plan or this Award, the Company will not be obligated to deliver any shares of Common Stock pursuant to this Award (i) until all conditions to this award have been satisfied, (ii) until, in the opinion of counsel to the Company, all applicable Federal and state laws and regulations have been complied with, (iii) if the outstanding Common Stock is at the time listed on any stock exchange or included for quotation on an inter-dealer system, until the shares to be delivered have been listed or included or authorized to be listed or included on such exchange or system upon official notice of notice of issuance, (iv) if it might cause the Company to issue or sell more shares of Common Stock than the Company is then legally entitled to issue or sell, and (v) until all other legal matters in connection with the issuance and delivery of such shares have been approved by counsel to the Company. If the sale of Common Stock has not been registered under the Securities Act of 1933, as amended (the “Act”), the Company may require, as a condition to exercise of this Award, such representations or agreements as counsel to the Company may consider appropriate to avoid violation of such Act and may require that the certificates evidencing such Common Stock bear an appropriate legend restricting transfer. If this Award is exercised by your legal or personal representative, the Company will be under no obligation to deliver Common Stock pursuant to such exercise until the Company is satisfied as to the authority of such representative.
--------------------------------------------------------------------------------
6. Transferability of Award. Neither this Award nor any of your rights under this Award or under the Plan may be assigned or transferred in any manner other than by will or under the laws of descent and distribution, except that this provision will not prohibit you from transferring shares of Unrestricted Stock. This Award may be exercised only by you. The foregoing will not, however, restrict the ability of your heirs, estate, beneficiaries, or personal or legal representatives to enforce the terms of the Plan with respect to this Award.
7. Miscellaneous. This Award is subject to the terms of the Plan in effect on the date this award is granted, which terms are hereby incorporated herein by reference and made a part hereof. In the event of any conflict between the terms of this Award and the terms of the plan in effect on the date of this Award, the terms of the Plan will govern. This Award constitutes the entire understanding between the Company and you with respect to the subject matter hereof, and no amendment, modification or waiver of this Award, in whole or in part, will be binding upon the Company unless in writing and signed by the Company. This Award and the performances of the parties hereunder will be construed in accordance with and governed by the laws of the State of Delaware.
Please sign the copy of this Award and return it to the Company, thereby indicating your understanding of and agreement with its terms and conditions.
GSI COMMERCE, INC.
By:
--------------------------------------------------------------------------------
Name:
Title:
I hereby acknowledge receipt of a copy of the foregoing Award and having read it hereby signify my understanding of, and my agreement with, its terms and condition.
--------------------------------------------------------------------------------
(Signature)
--------------------------------------------------------------------------------
(Print Name) | [
"Exhibit 10.3 GSI COMMERCE, INC. 1996 EQUITY INCENTIVE PLAN RESTRICTED STOCK AWARD Name: Address: Date: 1. Grant of Award. You are hereby granted a restricted stock award, effective as of the date hereof, to purchase shares (the “Restricted Stock”) of Common Stock, par value $.01 per share (“Common Stock”), of GSI COMMERCE, INC. (the “Company”) at a purchase price of $.01 per share pursuant to the Company’s 1996 Equity Incentive Plan (the “Plan”). 2. Shareholder Status. You shall have no rights with respect to this Award unless you accept this Award by written instrument delivered or mailed to the Company accompanied by payment in full of the specified purchase price of the shares covered by this Award. Payment may be by certified or bank check or other instrument acceptable to the Board. Subject to any terms and conditions imposed by the Plan, upon the occurrence of all of the conditions set forth in the immediately preceding sentence, you will have all the rights of a stockholder with respect to such stock, including voting and dividend rights, subject to the restrictions described in Section 3 below.",
"Unless the Board otherwise determines, certificates evidencing shares of Restricted Stock will remain in the possession of the Company until such shares are free of all restrictions under the Plan. 3. Forfeiture of Restricted Stock. Except as otherwise specifically provided by the Plan, none of the shares of the Restricted Stock subject to this Award may be transferred, sold, assigned, exchanged, pledged, gifted or otherwise disposed of. These restrictions on transfer will lapse on the dates and with respect to the number of shares of Common Stock set forth below, unless you suffer a Status Change (as defined in the Plan) for any reason prior to the date on which the restrictions are scheduled to lapse. If you suffer a Status Change (as defined in the Plan) for any reason, all shares of Restricted Stock then held by you must be offered for sale to the Company at the price you paid for such shares. Upon the lapse of the restrictions with respect to a specified number of shares, those shares will become unrestricted (“Unrestricted Stock”).",
"Date on Which Restrictions Lapse -------------------------------------------------------------------------------- Cumulative Percentage of Aggregate Number of Shares Covered by Award as to Which Restrictions Lapse -------------------------------------------------------------------------------- % % % % -------------------------------------------------------------------------------- The Board may at any time accelerate the time at which the restrictions on all or any part of the Restricted Stock will lapse. 4. Tax Matters. If you make an election under Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to Restricted Stock, you must deliver to the Company, within 10 days of the filing of such election with the Internal Revenue Service, a copy of such election. You hereby acknowledge that you fully recognize and understand the Federal, state and local income tax consequences of the receipt of the Restricted Stock by you, and forfeiture of the Restricted Stock as provided in Section 3 above, and any subsequent sale by you of the Restricted Stock, including the consequences of making (or not making) a timely election under Section 83(b) of the Code with respect to the Restricted Stock. In addition, you fully understand that, at the time that you realize any gross income taxable as compensation in respect of the Restricted Stock, the Company will be required to withhold Federal, state and local taxes on the full amount of the compensation income realized by you. Accordingly, at or prior to the time that you realize any compensation income in respect to the Restricted Stock, you hereby agree to provide the Company with cash funds equal to the total Federal, state and local taxes required to be withheld by the Company in respect of such compensation income, or make other arrangements satisfactory to the Company regarding such payment.",
"It is understood that all matters with respect to the total amount of taxes to be withheld in respect of such compensation income shall be determined by the Company in its sole discretion. 5. Conditions to Delivery of Unrestricted Stock. Notwithstanding any other provision of the Plan or this Award, the Company will not be obligated to deliver any shares of Common Stock pursuant to this Award (i) until all conditions to this award have been satisfied, (ii) until, in the opinion of counsel to the Company, all applicable Federal and state laws and regulations have been complied with, (iii) if the outstanding Common Stock is at the time listed on any stock exchange or included for quotation on an inter-dealer system, until the shares to be delivered have been listed or included or authorized to be listed or included on such exchange or system upon official notice of notice of issuance, (iv) if it might cause the Company to issue or sell more shares of Common Stock than the Company is then legally entitled to issue or sell, and (v) until all other legal matters in connection with the issuance and delivery of such shares have been approved by counsel to the Company. If the sale of Common Stock has not been registered under the Securities Act of 1933, as amended (the “Act”), the Company may require, as a condition to exercise of this Award, such representations or agreements as counsel to the Company may consider appropriate to avoid violation of such Act and may require that the certificates evidencing such Common Stock bear an appropriate legend restricting transfer.",
"If this Award is exercised by your legal or personal representative, the Company will be under no obligation to deliver Common Stock pursuant to such exercise until the Company is satisfied as to the authority of such representative. -------------------------------------------------------------------------------- 6. Transferability of Award. Neither this Award nor any of your rights under this Award or under the Plan may be assigned or transferred in any manner other than by will or under the laws of descent and distribution, except that this provision will not prohibit you from transferring shares of Unrestricted Stock. This Award may be exercised only by you. The foregoing will not, however, restrict the ability of your heirs, estate, beneficiaries, or personal or legal representatives to enforce the terms of the Plan with respect to this Award.",
"7. Miscellaneous. This Award is subject to the terms of the Plan in effect on the date this award is granted, which terms are hereby incorporated herein by reference and made a part hereof. In the event of any conflict between the terms of this Award and the terms of the plan in effect on the date of this Award, the terms of the Plan will govern. This Award constitutes the entire understanding between the Company and you with respect to the subject matter hereof, and no amendment, modification or waiver of this Award, in whole or in part, will be binding upon the Company unless in writing and signed by the Company. This Award and the performances of the parties hereunder will be construed in accordance with and governed by the laws of the State of Delaware. Please sign the copy of this Award and return it to the Company, thereby indicating your understanding of and agreement with its terms and conditions. GSI COMMERCE, INC. By: -------------------------------------------------------------------------------- Name: Title: I hereby acknowledge receipt of a copy of the foregoing Award and having read it hereby signify my understanding of, and my agreement with, its terms and condition. -------------------------------------------------------------------------------- (Signature) -------------------------------------------------------------------------------- (Print Name)"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
834 F.2d 67 126 L.R.R.M. (BNA) 3299, 107 Lab.Cas. P 10,238 NEW JERSEY STATE NURSES ASSOCIATION, as a Non-ProfitCorporation of the State of New Jersey, and onbehalf of members of New Jersey StateNurses Association,v.Virginia TREACY, Frances Bikoff, Esther Bediones, MaureenGettle, Barbara Biven, Margaret Allen, Addie Cheatham,Debbie Dixon, Marion Ginsberg, Joanne Sacks, Debbie Sciulloand Ann Young, Defendants-Counterclaimants.JNESO, an unincorporated labor organization, AdditionalCounterclaimant,v.Barbara WRIGHT, in her capacity as Executive Director,Muriel Shore, in her capacity as President of theNew Jersey State Nurses Association,Additional Defendants On theCounterclaim.Appeal of NEW JERSEY STATE NURSES ASSOCIATION. No. 87-5004. United States Court of Appeals,Third Circuit. Argued July 14, 1987.Decided Nov. 27, 1987.
Mark D. Schorr (argued), Sterns, Herbert, Weinroth & Petrino, Trenton, N.J., for appellant. Paul J. Linker (argued), Robinson, Wayne, Levin, Riccio & LaSala, Newark, N.J., for appellee. Before HIGGINBOTHAM, BECKER and HUNTER, Circuit Judges. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
1 The New Jersey State Nurses Association ("NJSNA") appeals from an order granting partial summary judgment in favor of defendant-appellee Jersey Nurses Economic Security Organization ("JNESO"). We hold that the district court order is not appealable under 28 U.S.C. Sec. 1292(a)(1) (1982).
I.
2 NJSNA is a professional association of approximately 5,500 registered nurses in the state of New Jersey, of which JNESO until September 1985 was the collective bargaining component. The two organizations had separate boards of directors and officers. NJSNA, however, collected membership dues for both organizations, distributing thirty dollars of each annual $195 membership fee to JNESO. Although JNESO was initially created in 1970 pursuant to NJSNA's by-laws, 1981 amendments to the by-laws of both organizations deleted all references to each other, except that JNESO continued under the official name of "Jersey Nurses Economic Security Organization of the New Jersey State Nurses Association."
3 In September 1985, the Board of Directors of JNESO voted to disaffiliate from NJSNA, subject to approval by JNESO's members. On October 18, 1985, that approval was given when JNESO-represented employees voted 615 to 92 in favor of the disaffiliation resolution.
4 Two days prior to this ballot count, NJSNA filed suit against JNESO and various individual defendants in New Jersey Superior Court, alleging, inter alia, that the prospective disaffiliation was invalid and requesting damages and injunctive relief. JNESO successfully removed the case to federal district court pursuant to 28 U.S.C. Sec. 1441 (1982). Subject matter jurisdiction was asserted pursuant to 29 U.S.C. Sec. 185 (1982), the Labor Management Relations Act.1
5 In federal court, JNESO filed an answer and counterclaim on the ground that disaffiliation was proper. NJSNA then moved to remand the matter to state court or, in the alternative, for preliminary injunctive relief. These motions were denied on November 7, 1985. JNESO in turn moved for a preliminary injunction. By opinion and order dated December 4, 1985, the district court granted JNESO's motion to the extent
6 that NJSNA be enjoined from [(1) ] interfering with JNESO's collective bargaining activities, [(2) ] from indicating to employers that JNESO is no longer a collective bargaining representative or that it remains affiliated with NJSNA; [(3) ] from attempting to conduct any collective bargaining activities in conflict with those already handled by JNESO; or [(4) ] from interfering with JNESO's mail or dues collection procedures.
7 New Jersey State Nurses Ass'n v. Treacy, No. 85-4912 (D.N.J. Dec. 4, 1985) (order granting preliminary injunction). It also granted JNESO's request for payment of certain collective bargaining expenses. The district court denied, however, JNESO's request "that any dues deduction payments it receives in excess of $25,000 shall be held in escrow pending final adjudication." Id. NJSNA appealed from this injunctive order. On August 7, 1986, this Court affirmed the judgment of the district court. New Jersey State Nurses Ass'n v. Treacy, 800 F.2d 1137 (3d Cir.1986) (order affirming preliminary injunction).
8 While the appeal from the preliminary injunction was pending before this Court, JNESO moved for partial summary judgment. The motion included a request to "convert [the] preliminary injunction in favor of JNESO into a final order." Appellant's Reply Brief at 2a. At a hearing on March 17, 1986, the district court adjourned the motion pending further discovery.
9 On September 5, 1986, a month after this Court affirmed the issuance of the preliminary injunction, JNESO renewed its motion for partial summary judgment. In its notice of motion, JNESO characterized its request as to the disaffiliation issue as "requesting that ... [the district] court convert its earlier preliminary injunction to a final injunction by declaring that JNESO is the sole collective bargaining representative of all nurses presently covered by extant collective bargaining agreements [that] it negotiated." Appellant's Reply Brief at 6a. (emphasis added). On October 28, 1986, the district court, in a letter opinion, stated that "the court now renders final earlier preliminary determinations that [JNESO's] ... right [to disaffiliation] exists." New Jersey State Nurses Ass'n v. Treacy, No. 85-4912, letter op. at 2 (D.N.J. Oct. 28, 1986). The letter opinion also noted that JNESO had "previously moved to convert the preliminary injunction to a permanent injunction...." Id. at 4. Neither this letter opinion nor the subsequent order signed on November 26, 1986,2 however, further discusses JNESO's requests for injunctive relief or for "conversion" of the preliminary injunction to a permanent one. The district court order simply states that "the Court having issued a written opinion dated October 1986, for the reasons set forth in that opinion, it is on this 26th day of November, 1986, hereby ORDERED AND ADJUDGED that JNESO's motion for summary judgment is hereby granted and its disaffiliation of October 1985 is declared to be valid and legal...." New Jersey State Nurses Ass'n v. Treacy, No. 85-4912 (D.N.J. Nov. 26, 1986) (order granting partial summary judgment).
10 NJSNA brought this appeal, asserting the existence of appellate jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982).
II.
11 It is undisputed that the November 26, 1986 order is not "final" within the meaning of 28 U.S.C. Sec. 1291 (1982). The order granted summary judgment in favor of a single defendant on only one issue, the validity of the disaffiliation. Appellant NJSNA nevertheless urges this Court to find appellate jurisdiction under 28 U.S.C. Sec. 1292(a)(1) (1982). NJSNA argues that, although the district court order did not explicitly grant a permanent injunction, "it nonetheless had the practical effect of doing so." Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981); accord Presinzano v. Hoffman La-Roche, Inc., 726 F.2d 105, 109 (3d Cir.1984). Alternatively, NJSNA argues that the district court's order "modified" the preliminary injunction by converting it into a permanent one.
12 Section 1292(a)(1) provides that "[t]he courts of appeals shall have jurisdiction of appeals from[ ] ... [i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions...." 28 U.S.C. Sec. 1292(a)(1) (1982). By defining certain "classes of interlocutory orders," Hoots v. Pennsylvania, 587 F.2d 1340, 1346 (3d Cir.1978) ("Hoots I "), that may be appealable, section 1292(a)(1) creates exceptions to the rule that a district court order ordinarily must be final before appellate jurisdiction attaches. The issue that must be resolved here is whether the partial summary judgment order, which makes no explicit mention of a final and permanent injunction, can be interpreted as falling within the ambit of section 1292(a)(1).
13 This Court has often observed that the "literal characterization of an order ... only begins the inquiry into appealability" pursuant to section 1292(a)(1). Hoots v. Pennsylvania, 639 F.2d 972, 979 (3d Cir.1981) ("Hoots II "); accord Rodgers v. United States Steel Corp., 541 F.2d 365, 372 (3d Cir.1976); Stateside Mach. Co., Ltd. v. Alperin, 526 F.2d 480, 482 (3d Cir.1975). Just as we have refused to treat automatically as injunctive those orders that are labelled as such, we have also recognized that certain orders not explicitly styled as injunctions may have injunctive effect. Indeed, this Court has looked beyond the form of partial summary judgment orders, such as this one, to ascertain whether they in effect granted or denied injunctive relief. See, e.g., Presinzano, 726 F.2d at 109 (partial summary judgment grant had "practical effect" of refusing injunction); Plantamura v. Cipolla, 617 F.2d 344, 347 (3d Cir.1980) (partial summary judgment order did not "narrow[ ] the scope of the available injunctive relief so as" to deny injunction); Murphy v. Landsburg, 490 F.2d 319, 320 (3d Cir.1973) (order granting partial summary judgment as to two counts requesting damages and injunctive relief effectively granted an injunction), cert. denied, 416 U.S. 939, 94 S.Ct. 1941, 40 L.Ed.2d 289 (1974). The fact that the district court's November 26, 1986 order on its face merely granted partial summary judgment does not, therefore, determine how it will be characterized on review.
14 In Presinzano, in Plantamura and in Murphy, however, we analyzed a summary judgment's effect upon the equitable relief requested in an underlying complaint. Here, by contrast, we are asked to find, on the basis of the district court's incompletely expressed intent, that its order had an injunctive effect. To support this position, NJSNA points to language in the moving papers and in the October 1986 letter opinion indicating that JNESO intended each of its motions for summary judgment to include a request for permanent injunctive relief. Although the district court may have understood the summary judgment motions to include such requests, it did not address these requests in its order. We decline to infer the grant of a permanent injunction from so tentative a record.
15 Similarly, we cannot accept NJSNA's characterization of the November 26, 1986 order as one "modifying ... an injunction." 28 U.S.C. Sec. 1292(a)(1) (1982). To be characterized
16 as an order modifying an injunction, two requirements appear to be necessary and must be satisfied [by the interlocutory order]: (i) the original or prior order must have been injunctive in character, and (ii) that injunction must have been modified in some respect by the order from which the appeal has been taken.
17 Hoots I, 587 F.2d at 1348; accord Bradley v. Milliken, 772 F.2d 266 (6th Cir.1985). While the original December 1985 order obviously satisfies the first prong of this test, the subsequent November 26, 1986 order does not satisfy the test's second prong. As the Court of Appeals for the Seventh Circuit has persuasively stated, "even if the motion in the case at hand were captioned a motion to 'modify' but was in fact an attempt to relitigate the original injunction, we would not have jurisdiction over it." Buckhanon v. Percy, 708 F.2d 1209, 1212 (7th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1281, 79 L.Ed.2d 684 (1984). The November 26, 1986 order did nothing more than declare that the disaffiliation was legal and valid. At no time did the court in its November 26, 1986 order use the term injunction, nor did it grant any additional relief beyond that granted in December 1985. The order does not contain the specificity one would expect in a final injunction and, on this record, we will not construe it as such. Moreover, if we accepted NJSNA's argument that the November 26, 1986 order somehow modified the December 1985 order, we would then be allowing relitigation of an injunction that we have previously reviewed, in a situation where there may be yet another appeal and review, pursuant to 28 U.S.C. Sec. 1291 (1982), after other facets of litigation are concluded. It must be noted in this regard that the merits of this disaffiliation claim have been reviewed directly or indirectly at least four times: by the National Labor Relations Board, upon JNESO's application for certification; by the district court, upon NJSNA's request for preliminary injunction, and again upon JNESO's request for preliminary injunction; and by this Court, on the earlier appeal of the preliminary injunction order. Recently, where we anticipated multiple appeals in the litigation of a single request for injunction, we noted the "general principle [that] duplicative litigation in the federal court system is to be avoided" and dismissed the appeal. Remington-Rand Corp.-Del. v. Business Systems Inc., 830 F.2d 1274, 1276 (3d Cir.1987). This principle is surely applicable here.
18 We reiterate that, in assessing whether appealability pursuant to section 1292(a)(1) exists, "[w]e must 'approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.' " United States v. RMI, 661 F.2d 279, 281 (3d Cir.1981) (quoting Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966)). We note that the district court has not yet decided the remaining issues of the proper allocation of dues collected by NJSNA, the liability of the individual defendants and of the plaintiff on the cross-claims, and the amount of damages and other relief owed to all parties. NJSNA's claim that the disaffiliation is invalid has already been reviewed a total of four times by the National Labor Relations Board and the federal courts. To grant NJSNA a fifth review by way of an interlocutory appeal would run counter to the policy against piecemeal appeals underlying the presumption against the appealability of interlocutory orders. Under these circumstances, neither the law nor reason precludes requiring the parties to postpone appeal of this issue until a final order is entered on all aspects of the litigation.
III.
19 For the foregoing reasons, we will dismiss this appeal for lack of appellate jurisdiction and remand the matter to the district court for further proceedings.
1 Section 185 provides, inter alia, that Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. * * * For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. 29 U.S.C. Secs. 185(a), 185(c) (1982) (emphases added).
2 The letter opinion requested that "JNESO ... submit an appropriate order." New Jersey State Nurses Ass'n, No. 85-4912, letter op. at 9 (D.N.J. Oct. 28, 1986). Counsel for JNESO then apparently submitted the order being appealed here | 08-23-2011 | [
"834 F.2d 67 126 L.R.R.M. (BNA) 3299, 107 Lab.Cas. P 10,238 NEW JERSEY STATE NURSES ASSOCIATION, as a Non-ProfitCorporation of the State of New Jersey, and onbehalf of members of New Jersey StateNurses Association,v.Virginia TREACY, Frances Bikoff, Esther Bediones, MaureenGettle, Barbara Biven, Margaret Allen, Addie Cheatham,Debbie Dixon, Marion Ginsberg, Joanne Sacks, Debbie Sciulloand Ann Young, Defendants-Counterclaimants.JNESO, an unincorporated labor organization, AdditionalCounterclaimant,v.Barbara WRIGHT, in her capacity as Executive Director,Muriel Shore, in her capacity as President of theNew Jersey State Nurses Association,Additional Defendants On theCounterclaim.Appeal of NEW JERSEY STATE NURSES ASSOCIATION. No. 87-5004. United States Court of Appeals,Third Circuit. Argued July 14, 1987.Decided Nov. 27, 1987. Mark D. Schorr (argued), Sterns, Herbert, Weinroth & Petrino, Trenton, N.J., for appellant. Paul J. Linker (argued), Robinson, Wayne, Levin, Riccio & LaSala, Newark, N.J., for appellee. Before HIGGINBOTHAM, BECKER and HUNTER, Circuit Judges.",
"OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. 1 The New Jersey State Nurses Association (\"NJSNA\") appeals from an order granting partial summary judgment in favor of defendant-appellee Jersey Nurses Economic Security Organization (\"JNESO\"). We hold that the district court order is not appealable under 28 U.S.C. Sec. 1292(a)(1) (1982). I. 2 NJSNA is a professional association of approximately 5,500 registered nurses in the state of New Jersey, of which JNESO until September 1985 was the collective bargaining component. The two organizations had separate boards of directors and officers. NJSNA, however, collected membership dues for both organizations, distributing thirty dollars of each annual $195 membership fee to JNESO. Although JNESO was initially created in 1970 pursuant to NJSNA's by-laws, 1981 amendments to the by-laws of both organizations deleted all references to each other, except that JNESO continued under the official name of \"Jersey Nurses Economic Security Organization of the New Jersey State Nurses Association.\" 3 In September 1985, the Board of Directors of JNESO voted to disaffiliate from NJSNA, subject to approval by JNESO's members. On October 18, 1985, that approval was given when JNESO-represented employees voted 615 to 92 in favor of the disaffiliation resolution. 4 Two days prior to this ballot count, NJSNA filed suit against JNESO and various individual defendants in New Jersey Superior Court, alleging, inter alia, that the prospective disaffiliation was invalid and requesting damages and injunctive relief. JNESO successfully removed the case to federal district court pursuant to 28 U.S.C.",
"Sec. 1441 (1982). Subject matter jurisdiction was asserted pursuant to 29 U.S.C. Sec. 185 (1982), the Labor Management Relations Act.1 5 In federal court, JNESO filed an answer and counterclaim on the ground that disaffiliation was proper. NJSNA then moved to remand the matter to state court or, in the alternative, for preliminary injunctive relief. These motions were denied on November 7, 1985. JNESO in turn moved for a preliminary injunction. By opinion and order dated December 4, 1985, the district court granted JNESO's motion to the extent 6 that NJSNA be enjoined from [(1) ] interfering with JNESO's collective bargaining activities, [(2) ] from indicating to employers that JNESO is no longer a collective bargaining representative or that it remains affiliated with NJSNA; [(3) ] from attempting to conduct any collective bargaining activities in conflict with those already handled by JNESO; or [(4) ] from interfering with JNESO's mail or dues collection procedures.",
"7 New Jersey State Nurses Ass'n v. Treacy, No. 85-4912 (D.N.J. Dec. 4, 1985) (order granting preliminary injunction). It also granted JNESO's request for payment of certain collective bargaining expenses. The district court denied, however, JNESO's request \"that any dues deduction payments it receives in excess of $25,000 shall be held in escrow pending final adjudication.\" Id. NJSNA appealed from this injunctive order. On August 7, 1986, this Court affirmed the judgment of the district court. New Jersey State Nurses Ass'n v. Treacy, 800 F.2d 1137 (3d Cir.1986) (order affirming preliminary injunction). 8 While the appeal from the preliminary injunction was pending before this Court, JNESO moved for partial summary judgment. The motion included a request to \"convert [the] preliminary injunction in favor of JNESO into a final order.\" Appellant's Reply Brief at 2a. At a hearing on March 17, 1986, the district court adjourned the motion pending further discovery. 9 On September 5, 1986, a month after this Court affirmed the issuance of the preliminary injunction, JNESO renewed its motion for partial summary judgment.",
"In its notice of motion, JNESO characterized its request as to the disaffiliation issue as \"requesting that ... [the district] court convert its earlier preliminary injunction to a final injunction by declaring that JNESO is the sole collective bargaining representative of all nurses presently covered by extant collective bargaining agreements [that] it negotiated.\" Appellant's Reply Brief at 6a. (emphasis added). On October 28, 1986, the district court, in a letter opinion, stated that \"the court now renders final earlier preliminary determinations that [JNESO's] ... right [to disaffiliation] exists.\" New Jersey State Nurses Ass'n v. Treacy, No. 85-4912, letter op. at 2 (D.N.J. Oct. 28, 1986). The letter opinion also noted that JNESO had \"previously moved to convert the preliminary injunction to a permanent injunction....\" Id. at 4. Neither this letter opinion nor the subsequent order signed on November 26, 1986,2 however, further discusses JNESO's requests for injunctive relief or for \"conversion\" of the preliminary injunction to a permanent one. The district court order simply states that \"the Court having issued a written opinion dated October 1986, for the reasons set forth in that opinion, it is on this 26th day of November, 1986, hereby ORDERED AND ADJUDGED that JNESO's motion for summary judgment is hereby granted and its disaffiliation of October 1985 is declared to be valid and legal....\" New Jersey State Nurses Ass'n v. Treacy, No.",
"85-4912 (D.N.J. Nov. 26, 1986) (order granting partial summary judgment). 10 NJSNA brought this appeal, asserting the existence of appellate jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982). II. 11 It is undisputed that the November 26, 1986 order is not \"final\" within the meaning of 28 U.S.C. Sec. 1291 (1982). The order granted summary judgment in favor of a single defendant on only one issue, the validity of the disaffiliation. Appellant NJSNA nevertheless urges this Court to find appellate jurisdiction under 28 U.S.C.",
"Sec. 1292(a)(1) (1982). NJSNA argues that, although the district court order did not explicitly grant a permanent injunction, \"it nonetheless had the practical effect of doing so.\" Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981); accord Presinzano v. Hoffman La-Roche, Inc., 726 F.2d 105, 109 (3d Cir.1984). Alternatively, NJSNA argues that the district court's order \"modified\" the preliminary injunction by converting it into a permanent one. 12 Section 1292(a)(1) provides that \"[t]he courts of appeals shall have jurisdiction of appeals from[ ] ... [i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions....\" 28 U.S.C. Sec. 1292(a)(1) (1982). By defining certain \"classes of interlocutory orders,\" Hoots v. Pennsylvania, 587 F.2d 1340, 1346 (3d Cir.1978) (\"Hoots I \"), that may be appealable, section 1292(a)(1) creates exceptions to the rule that a district court order ordinarily must be final before appellate jurisdiction attaches.",
"The issue that must be resolved here is whether the partial summary judgment order, which makes no explicit mention of a final and permanent injunction, can be interpreted as falling within the ambit of section 1292(a)(1). 13 This Court has often observed that the \"literal characterization of an order ... only begins the inquiry into appealability\" pursuant to section 1292(a)(1). Hoots v. Pennsylvania, 639 F.2d 972, 979 (3d Cir.1981) (\"Hoots II \"); accord Rodgers v. United States Steel Corp., 541 F.2d 365, 372 (3d Cir.1976); Stateside Mach. Co., Ltd. v. Alperin, 526 F.2d 480, 482 (3d Cir.1975).",
"Just as we have refused to treat automatically as injunctive those orders that are labelled as such, we have also recognized that certain orders not explicitly styled as injunctions may have injunctive effect. Indeed, this Court has looked beyond the form of partial summary judgment orders, such as this one, to ascertain whether they in effect granted or denied injunctive relief. See, e.g., Presinzano, 726 F.2d at 109 (partial summary judgment grant had \"practical effect\" of refusing injunction); Plantamura v. Cipolla, 617 F.2d 344, 347 (3d Cir.1980) (partial summary judgment order did not \"narrow[ ] the scope of the available injunctive relief so as\" to deny injunction); Murphy v. Landsburg, 490 F.2d 319, 320 (3d Cir.1973) (order granting partial summary judgment as to two counts requesting damages and injunctive relief effectively granted an injunction), cert.",
"denied, 416 U.S. 939, 94 S.Ct. 1941, 40 L.Ed.2d 289 (1974). The fact that the district court's November 26, 1986 order on its face merely granted partial summary judgment does not, therefore, determine how it will be characterized on review. 14 In Presinzano, in Plantamura and in Murphy, however, we analyzed a summary judgment's effect upon the equitable relief requested in an underlying complaint. Here, by contrast, we are asked to find, on the basis of the district court's incompletely expressed intent, that its order had an injunctive effect. To support this position, NJSNA points to language in the moving papers and in the October 1986 letter opinion indicating that JNESO intended each of its motions for summary judgment to include a request for permanent injunctive relief. Although the district court may have understood the summary judgment motions to include such requests, it did not address these requests in its order.",
"We decline to infer the grant of a permanent injunction from so tentative a record. 15 Similarly, we cannot accept NJSNA's characterization of the November 26, 1986 order as one \"modifying ... an injunction.\" 28 U.S.C. Sec. 1292(a)(1) (1982). To be characterized 16 as an order modifying an injunction, two requirements appear to be necessary and must be satisfied [by the interlocutory order]: (i) the original or prior order must have been injunctive in character, and (ii) that injunction must have been modified in some respect by the order from which the appeal has been taken. 17 Hoots I, 587 F.2d at 1348; accord Bradley v. Milliken, 772 F.2d 266 (6th Cir.1985). While the original December 1985 order obviously satisfies the first prong of this test, the subsequent November 26, 1986 order does not satisfy the test's second prong. As the Court of Appeals for the Seventh Circuit has persuasively stated, \"even if the motion in the case at hand were captioned a motion to 'modify' but was in fact an attempt to relitigate the original injunction, we would not have jurisdiction over it.\"",
"Buckhanon v. Percy, 708 F.2d 1209, 1212 (7th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1281, 79 L.Ed.2d 684 (1984). The November 26, 1986 order did nothing more than declare that the disaffiliation was legal and valid. At no time did the court in its November 26, 1986 order use the term injunction, nor did it grant any additional relief beyond that granted in December 1985. The order does not contain the specificity one would expect in a final injunction and, on this record, we will not construe it as such.",
"Moreover, if we accepted NJSNA's argument that the November 26, 1986 order somehow modified the December 1985 order, we would then be allowing relitigation of an injunction that we have previously reviewed, in a situation where there may be yet another appeal and review, pursuant to 28 U.S.C. Sec. 1291 (1982), after other facets of litigation are concluded. It must be noted in this regard that the merits of this disaffiliation claim have been reviewed directly or indirectly at least four times: by the National Labor Relations Board, upon JNESO's application for certification; by the district court, upon NJSNA's request for preliminary injunction, and again upon JNESO's request for preliminary injunction; and by this Court, on the earlier appeal of the preliminary injunction order. Recently, where we anticipated multiple appeals in the litigation of a single request for injunction, we noted the \"general principle [that] duplicative litigation in the federal court system is to be avoided\" and dismissed the appeal.",
"Remington-Rand Corp.-Del. v. Business Systems Inc., 830 F.2d 1274, 1276 (3d Cir.1987). This principle is surely applicable here. 18 We reiterate that, in assessing whether appealability pursuant to section 1292(a)(1) exists, \"[w]e must 'approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.' \" United States v. RMI, 661 F.2d 279, 281 (3d Cir.1981) (quoting Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966)). We note that the district court has not yet decided the remaining issues of the proper allocation of dues collected by NJSNA, the liability of the individual defendants and of the plaintiff on the cross-claims, and the amount of damages and other relief owed to all parties. NJSNA's claim that the disaffiliation is invalid has already been reviewed a total of four times by the National Labor Relations Board and the federal courts. To grant NJSNA a fifth review by way of an interlocutory appeal would run counter to the policy against piecemeal appeals underlying the presumption against the appealability of interlocutory orders.",
"Under these circumstances, neither the law nor reason precludes requiring the parties to postpone appeal of this issue until a final order is entered on all aspects of the litigation. III. 19 For the foregoing reasons, we will dismiss this appeal for lack of appellate jurisdiction and remand the matter to the district court for further proceedings. 1 Section 185 provides, inter alia, that Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.",
"* * * For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. 29 U.S.C. Secs. 185(a), 185(c) (1982) (emphases added). 2 The letter opinion requested that \"JNESO ... submit an appropriate order.\"",
"New Jersey State Nurses Ass'n, No. 85-4912, letter op. at 9 (D.N.J. Oct. 28, 1986). Counsel for JNESO then apparently submitted the order being appealed here"
]
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HERSEY, Chief Judge. This is an appeal from a directed verdict absolving appellee, Sony, from liability for damages to a vessel caused by a fire of unknown origin. The issue on appeal is whether there was sufficient evidence of a defective product to take the case to the jury. The theories pled were strict liability in tort, negligence and implied warranty. Our task is to answer the question whether, viewing the evidence in the light most favorable to appellant, there is any reasonable view of the evidence that could sustain a verdict in favor of appellant (and thus adverse to appellee, Sony). If that answer is in the affirmative, then reversal is required. See Tesher & Tesher, P.A. v. Rothfield, 392 So.2d 1000 (Fla. 4th DCA 1981). The admissible evidence in this case would permit a jury to find that the fire started within or in close proximity to a Sony AM/FM receiver with stereo speakers located in the salon of the vessel. With the aid of the Greco inference, this evidence enables plaintiffs case to go to the jury. That is The Greco1 inference aids the plaintiff in meeting his burden by creating a légal inference that the product was defective both at the time of the injury and at the time it was within the control of the supplier. The inference arises from the occurrence of the accident itself. When a product malfunctions during normal operations, a legal inference arises that the product is defective, and the injured plaintiff thereby establishes a prima facie case for jury consideration. Cassissi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981). Marcus v. Anderson/Gore Homes, Inc., 498 So.2d 1051, 1052 (Fla. 4th DCA 1986). It will then be up to the jury to consider the product’s age and other factors in determining the likelihood that the product was defective at the time of its manufacture. We find no error in the court’s refusal to admit certain reports into evidence. Holding that the directed verdict was erroneous, we reverse and remand for a new trial. REVERSED AND REMANDED. WARNER and GARRETT, JJ., concur.
. Greco v. Bucciconi Engineering Co., 283 F.Supp. 978 (W.D.Pa.1967), aff'd, 407 F.2d 87 (3d Cir.1969). | 07-29-2022 | [
"HERSEY, Chief Judge. This is an appeal from a directed verdict absolving appellee, Sony, from liability for damages to a vessel caused by a fire of unknown origin. The issue on appeal is whether there was sufficient evidence of a defective product to take the case to the jury. The theories pled were strict liability in tort, negligence and implied warranty. Our task is to answer the question whether, viewing the evidence in the light most favorable to appellant, there is any reasonable view of the evidence that could sustain a verdict in favor of appellant (and thus adverse to appellee, Sony). If that answer is in the affirmative, then reversal is required.",
"See Tesher & Tesher, P.A. v. Rothfield, 392 So.2d 1000 (Fla. 4th DCA 1981). The admissible evidence in this case would permit a jury to find that the fire started within or in close proximity to a Sony AM/FM receiver with stereo speakers located in the salon of the vessel. With the aid of the Greco inference, this evidence enables plaintiffs case to go to the jury. That is The Greco1 inference aids the plaintiff in meeting his burden by creating a légal inference that the product was defective both at the time of the injury and at the time it was within the control of the supplier.",
"The inference arises from the occurrence of the accident itself. When a product malfunctions during normal operations, a legal inference arises that the product is defective, and the injured plaintiff thereby establishes a prima facie case for jury consideration. Cassissi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981). Marcus v. Anderson/Gore Homes, Inc., 498 So.2d 1051, 1052 (Fla. 4th DCA 1986). It will then be up to the jury to consider the product’s age and other factors in determining the likelihood that the product was defective at the time of its manufacture. We find no error in the court’s refusal to admit certain reports into evidence. Holding that the directed verdict was erroneous, we reverse and remand for a new trial. REVERSED AND REMANDED. WARNER and GARRETT, JJ., concur.",
". Greco v. Bucciconi Engineering Co., 283 F.Supp. 978 (W.D.Pa.1967), aff'd, 407 F.2d 87 (3d Cir.1969)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7582439/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.14
UNITRIN, INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
As Amended and Restated Effective January 1, 2008
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TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS 1 ARTICLE II ELIGIBILITY 4 ARTICLE III DEFERRALS 5 ARTICLE IV FUNDING 6 ARTICLE V INVESTMENT OF FUNDS, ACCOUNT MAINTENANCE AND VESTING 8 ARTICLE VI PAYMENT OF BENEFITS 9 ARTICLE VII PAYMENTS UPON DEATH 10 ARTICLE VIII ADMINISTRATION OF THE PLAN 11 ARTICLE IX AMENDMENT OR TERMINATION 12 ARTICLE X GENERAL PROVISIONS 13
-i-
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UNITRIN, INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
The Unitrin, Inc. Non-Qualified Deferred Compensation Plan (the “Plan”) was adopted effective January 1, 2002 and hereby is amended and restated effective January 1, 2008 to comply with Section 409A of the Internal Revenue Code. The purpose of the Plan is to provide a benefit to directors who are not employees of Unitrin, Inc. and select executives of Unitrin, Inc. or one of its subsidiaries. Plan Participants are allowed the opportunity to elect to defer a portion of their Eligible Compensation (as defined in Section 1.13) to some future period. The Plan is intended to be an unfunded “top hat plan” exempt from certain provisions of ERISA.
ARTICLE I
DEFINITIONS
1.1 General. For purposes of the Plan, the following terms, when capitalized, will have the following meanings. The masculine pronoun wherever used herein will include the feminine gender, the singular number will include the plural, and the plural will include the singular, unless the context clearly indicates a different meaning.
1.2 “Account” means the aggregate of a Participant’s bookkeeping sub-accounts established pursuant to Section 5.1 of the Plan.
1.3 “Affiliated Company” or “Affiliate” means any corporation, trade or business entity which is a member of a controlled group of corporations, trades or businesses of which the Company is also a member, as provided in Code Sections 414(b) or (c).
1.4 “Beneficiary Designation Form” means a written document, the form of which the Plan Administrator shall determine from time to time, on which a Participant shall have the right to designate a beneficiary.
1.5 “Board” means the Board of Directors of the Company.
1.6 “Bonus Compensation” means the annual formula and annual discretionary management bonuses earned in a given year and generally paid in the following year. Bonus Compensation does not include other bonuses such as a relocation bonus, a hiring bonus or other periodic bonuses.
1.7 “Change of Control” means Change of Control as defined in Section 4.3 of the Plan.
1.8 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any regulations relating thereto.
1.9 “Committee” means the Compensation Committee of the Board.
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1.10 “Company” means Unitrin, Inc., a Delaware corporation, or, to the extent provided in Section 10.9 below, any successor corporation or other entity resulting from a reorganization, merger or consolidation into or with the Company, or a transfer or sale of substantially all of the assets of the Company.
1.11 “Deferral Election” means the following: (a) for Employee Participants, an election to defer all or part of such Participant’s Regular Base Salary or such Participant’s Bonus Compensation, all pursuant to Section 3.1, and (b) for Outside Director Participants, an election to defer Director Fees pursuant to Section 3.1. A Participant’s Deferral Election shall also include an election by the Participant specifying the calendar year in which payments shall commence and the method of payment with respect to the payout of all future benefits attributable to deferrals for the Plan Year.
1.12 “Director Fees” means the cash fees Outside Directors earn.
1.13 “Eligible Compensation” means Regular Base Salary, Bonus Compensation or Director Fees.
1.14 “Eligible Employees” means a select group of management employees of the Company or an Affiliate.
1.15 “Employee Participant” means with respect to any Plan Year, an Eligible Employee who has been designated in writing as a Participant pursuant to Section 2.1 of the Plan.
1.16 “Employer” means the Company and its Affiliates.
1.17 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.
1.18 “401(a)(17) Limit” means the amount of compensation which may be considered by a plan sponsor for purposes of determining benefits under a qualified retirement plan. This amount is automatically adjusted annually by the Secretary of the Treasury for increases in the cost-of-living and such adjustment shall automatically be taken into account by the Plan.
1.19 “Investment Preference Form” means a written document, the form of which the Plan Administrator shall determine from time to time, on which a Participant shall communicate his or her investment preference.
1.20 “Outside Directors” mean the directors of the Board who are not employees of the Company.
1.21 “Outside Director Participant” means with respect to any Plan Year, a Participant who is an Outside Director for that Plan Year.
1.22 “Participation Date” means the date on which an Eligible Employee or an Outside Director is eligible to participate in the Plan, as set forth in Section 2.2 of the Plan.
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1.23 “Participant” means an Employee Participant or an Outside Director Participant.
1.24 “Plan” means the Unitrin, Inc. Non-Qualified Deferred Compensation Plan.
1.25 “Plan Administrator” means the Committee.
1.26 “Plan Year” means any calendar year during which the Plan is in effect.
1.27 “Regular Base Salary” means the annual scheduled base salary, excluding, without limitation, stock option income, severance pay, and income included in pay due to fringe benefits.
1.28 “Regulations” means the regulations, as amended from time to time, which are issued under Code Section 409A.
1.29 “Separation from Service” means the Participant’s termination from employment from the Employer for reasons other than death or Disability, subject to the following:
(a) The employment relationship is treated as continuing intact while the Participant is on military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the individual retains a right to reemployment with the service recipient under an applicable statute or by contract. A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Participant will return to perform services for the Employer. If the period of leave exceeds six months and the Participant does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first day immediately following such six-month period.
(b) In determining whether a Separation from Service has occurred, the following presumptions, which may be rebutted as provided in the Regulations, shall apply:
(i) A Participant is presumed to have separated from service where the level of bona fide services performed decreases to a level equal to 20% or less of the average level of services performed by the Participant during the immediately preceding 36-month period.
(ii) A Participant will be presumed not to have separated from service where the level of bona fide services performed continues at a level that is 50% or more of the average level of service performed by the Participant during the immediately preceding 36-month period.
No presumption applies to a decrease in the level of bona fide services performed to a level that is more than 20% but less than 50% of the average level of bona fide services performed during the immediately preceding 36-month period. If a Participant had not performed services for the Employer for 36 months, the full period that the Participant has performed services for the Employer shall be substituted for 36 months.
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(c) For purposes of this Section, the term “Employer” has the meaning set forth in Section 1.16 provided that the following shall apply in determining whether a person is an Affiliate as defined in Section 1.3:
(i) In applying Section 1563(a)(1), (2) and (3) of the Code for purposes of determining a controlled group of corporations under Section 414(b) of the Code, the phrase “at least 50 percent” shall be used instead of “at least 80 percent” each place it appears in Section 1563(a)(1), (2) and (3) of the Code; and
(ii) In applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Section 414(c) of the Code, “at least 50 percent” is used instead of “at least 80 percent” each place it appears in Treasury Regulation Section 1.414(c)-2.
(d) In the event of the sale or other disposition of assets by the Company or an Affiliate (the “Seller”) to an unrelated service recipient (the “Buyer”), the Seller and the Buyer may specify whether a Separation from Service has occurred for a Participant who would otherwise experience a Separation from Service with the Seller, in accordance with the rules set forth in Section 1.409A-1(h)(4) of the Regulations.
1.30 “Trust” means a so-called “rabbi trust,” the assets of which shall remain, for all purposes, a part of the general unrestricted assets of the Company.
ARTICLE II
ELIGIBILITY
2.1 Eligibility. The Board may, in its discretion, or an Affiliate may, in its discretion and subject to the approval of the Board, designate in writing any Eligible Employee as a Participant who is eligible to participate in the Plan. An Outside Director is automatically eligible to participate in the Plan.
2.2 Participation Date and Notice. An Eligible Employee designated as a Participant pursuant to Section 2.1 shall become a Participant as of the first day of the Plan Year following such designation. An Outside Director shall become a Participant as of the date he or she is elected a director of the Board. The date that an Eligible Employee or Outside Director is eligible to participate in the Plan shall be known as the Participation Date. The Plan Administrator will provide the Participant with notice of the Participant’s Participation Date and the forms needed to make an election pursuant to Section 3.2 of the Plan as soon as reasonably practicable after the Plan Administrator is informed of a Participant’s Participation Date.
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ARTICLE III
DEFERRALS
3.1 Deferral Amounts. Participants may elect to defer Eligible Compensation subject to the limits described below. A separate election for Regular Base Salary, Bonus Compensation and Director Fees must be made. Outside Director Participants may elect to defer up to 100% of their Director Fees. Employee Participants may elect to defer up to 100% of their Regular Base Salary in excess of the 401(a)(17) Limit in effect for the year of payment. Employee Participants may also elect to defer up to 100% of their Bonus Compensation to the extent that Bonus Compensation plus non-deferred Regular Base Salary is in excess of the 401(a)(17) Limit in effect for the year in which such bonus is earned, instead of for the year of payment.
3.2 Deferral Election. The Plan Administrator shall provide each Participant, upon becoming a Participant and thereafter annually, with a Deferral Election to be filed by the Participant, as described below.
(a) An Employee Participant desiring to participate in the Plan must file with the Plan Administrator a Deferral Election prior to the beginning of the Plan Year to which it pertains, at which time the election shall become irrevocable. Such Deferral Election shall be effective on the first day of the Plan Year following the filing thereof.
(b) A Director Participant desiring to participate in the Plan must file with the Plan Administrator an initial Deferral Election within 30 days (or such lesser number of days as the Plan Administrator shall determine) following such Participant’s Participation Date at which time the election shall become irrevocable. Such initial election shall be effective commencing with the first day of the first month following such filing. Thereafter, a Deferral Election must be filed by a Director Participant within 30 days (or such lesser number of days as the Plan Administrator shall determine) prior to the beginning of the Plan Year to which it pertains, at which time the election shall become irrevocable. Such Deferral Election shall be effective on the first day of the Plan Year following the filing thereof.
(c) In no event shall a Participant be permitted to defer Eligible Compensation for any period that has commenced prior to the date on which the Plan is effective or the date on which a Deferral Election is signed by the Participant and accepted by the Plan Administrator.
(d) Upon receipt of a properly completed and executed Deferral Election, the Plan Administrator shall notify the payroll department of the Participant’s Employer to withhold that portion of the Participant’s Eligible Compensation specified in the agreement. All amounts shall be withheld ratably throughout the Plan Year except for any bonus amounts which shall be withheld in a single lump sum. In no event shall the Participant be permitted to defer more than the amount specified by the Plan.
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ARTICLE IV
FUNDING
4.1 Unsecured Obligation. Individual Participant deferrals of Eligible Compensation and the hypothetical investment earnings/losses thereon shall be reflected in book entries maintained by or on behalf of the Company, as set forth in Section 5.1 of the Plan. The existence of such book entries shall not create a trust of any kind, or a fiduciary relationship between the Company, any third party record keeper and the Participant, his or her designated beneficiary, or other beneficiaries provided for under the Plan. The bookkeeping entries represent an unsecured obligation of the Company to pay deferred Eligible Compensation and the investment earnings/losses thereon to a Participant at a future date.
4.2 Discretionary Rabbi Trust. If the Company so determines, in its sole discretion, payments to a Participant or his or her designated beneficiary or any other beneficiary hereunder may be made from assets held in a Trust. No person shall have any interest in such assets by virtue of the Plan. The Company’s obligations hereunder shall be an unfunded and unsecured promise to pay money in the future. Any Participant having a right to receive payments pursuant to the provisions of the Plan shall have no greater rights than any unsecured general creditor of the Company in the event of the Company’s insolvency or bankruptcy, and no person shall have nor acquire any legal or equitable right, claim or interest in or to any property or assets of the Company. In no event shall the assets accumulated in the Trust be construed as creating a funded plan under the applicable provisions of ERISA, or under the Code, or under the provisions of any other applicable statute or regulation.
4.3 Change in Control.
(a) Upon a Change of Control the Company shall, as soon as possible, but in no event longer than 30 days following the Change of Control, make an irrevocable contribution to the Trust in an amount that is sufficient to pay each Participant or beneficiary the benefits to which such Participant(s) or their beneficiaries would be entitled pursuant to the terms of the Plan as of the date on which the Change of Control occurred. For purposes of the Plan “Change of Control” shall mean the occurrence of any of the following events:
(i) any “Person” (defined below) is or becomes the “Beneficial Owner,” (defined below) directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its “Affiliate” (defined below)) representing 25% or more of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (i) of subparagraph (iii) below; or
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(ii) the following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on December 31, 2005, constituted the Board of Directors and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of directors of the Company) whose appointment or election by the Board of Directors or nomination for election by the Company’s shareholders was approved or recommended by a vote of at least two-thirds of the directors still in office who either were directors on December 31, 2005 or whose appointment, election or nomination for election was previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (i) a merger or consolidation which results in the directors of the Company immediately prior to such merger or consolidation continuing to constitute at least a majority of the board of directors of the surviving entity or any parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliate) representing 25% or more of the combined voting power of the Company’s then outstanding securities; or
(iv) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition by the Company of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board of Directors immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or any parent thereof.
(b) As used in this Change of Control section:
(i) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(ii) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act; and
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(iii) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified in Sections 13(d)(3) and 14(d)(2) thereof, except that such term shall not include (1) the Company or any entity, more than 50% of the voting securities of which are Beneficially Owned by the Company, (2) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (3) an underwriter temporarily holding securities pursuant to an offering of such securities, (4) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, (5) any individual, entity or group whose ownership of securities of the Company is reported on Schedule 13G pursuant to Rule 13d-1 promulgated under the Exchange Act (but only for so long as such ownership is so reported) or (6) Singleton Group LLC or any successor in interest to such entity.
ARTICLE V
INVESTMENT OF FUNDS, ACCOUNT MAINTENANCE AND VESTING
5.1 Record Keeper. The Plan Administrator shall appoint a Plan record keeper which shall establish and maintain an individual bookkeeping Account on behalf of each Participant for purposes of determining each Participant’s benefits under the Plan. Separate sub-accounts shall be established for each Participant with respect to each year’s Deferral Election and for which a different form of payment or payment start date has been elected.
5.2 Account Adjustments.
(a) The Plan record keeper shall adjust each Participant’s Account for amounts representing:
(i) Participant deferrals,
(ii) Hypothetical investment earnings/losses,
(iii) Expenses, and
(iv) Distributions paid to the Participant or beneficiaries.
(b) Each Participant electing to defer Eligible Compensation pursuant to the Plan shall also specify at the time the Deferral Election is made, the hypothetical measure(s) of investment performance. The Participant’s bookkeeping account shall be deemed to be invested in the hypothetical investment choice(s) made available from time to time by the Committee. Investment preferences selected by the Participant are used only to determine the value of a Participant’s Account and in no event is the Company required to follow these investment preferences for actual plan investments. A Participant’s investment preference shall be communicated to the Plan Administrator by completion and delivery to the Plan Administrator of
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an Investment Preference Form in such form as the Plan Administrator shall determine from time to time. Participants shall indicate their initial investment preferences by filing an Investment Preference Form with the Plan Administrator prior to the date on which deferrals commence under the terms of the Participant’s Deferral Election. Once elected, investment preferences shall be valid until revoked by filing a new Investment Preference Form. Participants shall have the opportunity to change their investment preferences with respect to (a) new deferrals (b) their entire existing balances or (c) deferrals made for a specific Plan Year upon notice to the Plan Administrator once per calendar quarter.
(c) The Plan record keeper shall determine the value of all Accounts maintained under the terms of the Plan on the close of each business day. The Plan record keeper shall provide each Participant with a statement of his or her individual bookkeeping Account reflecting adjustments to such Account during the period from the last statement date. Such statement shall be provided to Participants as soon as administratively feasible following the end of each calendar quarter.
ARTICLE VI
PAYMENT OF BENEFITS
6.1 Distributions. A Participant’s or beneficiary’s benefit payable under the Plan shall be determined by reference to the value of each bookkeeping sub-account balance at the time of distribution. Sub-accounts shall be maintained for each Plan Year’s deferrals. Benefit payments from the Plan shall be payable from the general assets of the Company which includes any assets held in the Trust.
6.2 Timing of Payments. Subject to Section 6.4 through Section 6.8, each of a Participant’s subaccounts shall be paid or payment shall begin within 30 days following the specific date elected on the Participant’s applicable Deferral Election. Except as set forth in Sections 6.7 and 6.8, no Participant or beneficiary shall have any right to receive payment of his or her benefit under the Plan prior to the specific date elected on the applicable Deferral Election.
6.3 Form of Payments. Each of a Participant’s subaccounts shall be paid as a lump sum or in installments as elected in the applicable Deferral Election. A different form of payment, as to amount and timing, may be elected with respect to each year’s Deferral Election. Except as otherwise provided in Sections 6.4 and 6.5, once a Deferral Election is made with respect to amounts deferred for a Plan Year, it cannot be altered and is irrevocable. A Participant’s account balance shall be distributed to the Participant or his or her beneficiary in the form of cash only.
6.4 Subsequent Deferral. A Participant may elect to delay payment or change the form of payment of any of his or her sub-accounts if all of the following conditions are met with respect to such sub-account:
(a) Such election shall not take effect until at least 12 months after the date on which the election is made;
(b) Payment must be deferred for a period of not less than five years from the date such payment would otherwise have been paid; and
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(c) Any election must be made not less than 12 months before the first day of the calendar year in which payment of such sub-account would otherwise be made or commence.
The right to a series of installment payments, as defined in the Regulations, shall be treated as a right to a single payment.
6.5 Transitional Relief. Prior to January 1, 2009, a Participant may change the specific date for payment and the form of payment for one or more of his or her subaccounts to the extent permitted by IRS Notice 2007-86.
6.6 Payments in Violation of Federal Securities Laws. Notwithstanding Section 6.2 and to the extent permitted by the Regulations, a benefit payment may be delayed where the Plan Administrator reasonably anticipates that the making of the payment will violate Federal securities laws or other applicable law. Such a benefit payment shall be made at the earliest date at which the Plan Administrator reasonably anticipates that the making of the benefit payment will not cause such violation. Notwithstanding the foregoing, if a benefit payment to a Participant is delayed until the Participant’s Separation from Service, then the benefit payment shall not be made before the date that is six months after the date of the Participant’s Separation from Service or, if earlier, the date of death of the Participant.
6.7 Accelerated Payment for Domestic Relations Orders. Notwithstanding Section 6.2 and to the extent permitted by the Regulations, in the Plan Administrator’s sole discretion, to the extent necessary to fulfill a domestic relations order (as defined in Code Section 414(p)(1)(B)), either the time or schedule of a benefit payment under the Plan to an individual other than the Participant may be accelerated, or a benefit payment under the Plan may be made to an individual other than the Participant.
6.8 Accelerated Payment for Failure to Comply with Code Section 409A. Notwithstanding Section 6.2 and to the extent permitted by the Regulations, at any time the Plan fails to meet the requirements of Code Section 409A and the regulations promulgated thereunder, the time or schedule of a payment may be accelerated, or a payment under the Plan may be made; provided, however, that such payment shall not exceed the amount required to be included in income as a result of the failure to comply with the requirements of Code Section 409A and the regulations promulgated thereunder.
ARTICLE VII
PAYMENTS UPON DEATH
7.1 Payment to Beneficiary. Any benefit which a deceased Participant is entitled to receive under the Plan shall be paid to such Participant’s beneficiary. Such death benefit shall be paid in the form and at the time elected in accordance with the Participant’s Deferral Elections.
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7.2 Designation of Beneficiary. A Participant shall have the right to designate a beneficiary on the Beneficiary Designation Form and to amend or revoke such designation at any time in writing. Such designation, amendment or revocation shall be effective only when filed with the Plan Administrator. Any beneficiary designation, amendment or revocation shall apply to all past and present Deferral Elections.
If no Beneficiary Designation Form is filed with the Plan Administrator, or if the Beneficiary Designation Form is held invalid, or if no beneficiary survives the Participant and benefits remain payable following the Participant’s death, the Plan Administrator shall direct that payment of benefits be made to the person or persons in the first category in which there is a survivor. The categories of successor beneficiaries, in order, are (1) the Participant’s spouse and (2) the Participant’s estate.
ARTICLE VIII
ADMINISTRATION OF THE PLAN
8.1 Plan Administration. The Plan Administrator is the Committee. The Committee has complete authority to interpret and administer the Plan. The Committee’s responsibilities and obligations may be delegated as deemed necessary by the Committee from time to time. The Committee may establish administrative practices as necessary for the establishment and ongoing maintenance of the Plan. The Committee may delegate to one or more of its members or to one or more agents such administrative duties as it may deem advisable, and the Committee or any person to whom it has delegated duties as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan. The decisions made by and the actions taken by the Plan Administrator in the administration and interpretation of the Plan shall be final and conclusive for all persons. If, after reading the Plan, Participants have questions about the Plan, such questions should be directed to the designated contact at the Company.
8.2 Claims.
Any Participant or beneficiary who believes that there was an error in the calculation of his or her account balance or in the payment of benefits under the Plan shall file a claim with the Plan Administrator. The claim must be filed, signed and dated within 90 days of the date on which the claimant learned of the facts from which such claim arises. The claim must be sent by certified mail or presented in person to the Plan Administrator.
The Plan Administrator shall respond in writing to the claimant within a reasonable period of time but not later than 90 days after receipt of the claim unless special circumstances require an extension of time for processing. If such extension of time is required, the Plan Administrator shall furnish written notice of the extension to the claimant prior to the termination of the initial 90 day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a final decision. In no event shall such extension exceed a period of 90 days from the end of the initial period.
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8.3 Appeals.
Any claimant not satisfied with the Plan Administrator’s decision of a claim shall have the right to appeal to the Plan Administrator. The appeal must be signed and dated by the claimant and include a copy of the claim submitted to the Plan Administrator as well as a copy of the Plan Administrator’s decision. The appeal should explain why the claimant does not agree with the Plan Administrator’s decision. The appeal must be filed within 60 days of the receipt of the Plan Administrator’s decision. The appeal must be sent by certified mail or presented in person to the Plan Administrator.
The Plan Administrator shall promptly advise the claimant of its decision on the claimant’s appeal. Such decision shall be written in layman’s terms, shall include specific reasons for the decision and shall contain specific references to pertinent Plan provisions upon which the decision is based. The decision on appeal shall be made no later than 60 days after the Plan Administrator’s receipt of the appeal, unless special circumstances require an extension of the time for processing. If such an extension of time is required, the Plan Administrator shall furnish written notice of the extension to the claimant prior to the termination of the 60 day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a final decision. If an extension of time is required, a decision shall be rendered as soon as possible, but not later than 120 days following receipt of the appeal.
ARTICLE IX
AMENDMENT OR TERMINATION
9.1 Amendment or Termination. The Company intends the Plan to be permanent but reserves the right, subject to Section 9.2, to amend or terminate the Plan when, in the sole opinion of the Company, such amendment or termination is advisable. However, no amendment shall deprive a Participant or beneficiary of any of the benefits which he or she has accrued under the Plan or otherwise adversely affect the Participant’s Account with respect to amounts credited thereto prior to the date such amendment is made. The Administrative Committee of the Unitrin, Inc. 401(k) Savings Plan (the “Administrative Committee”) shall have the authority, on behalf of the Company, to amend the Plan in any manner permitted by Article IX of the Plan as the Administrative Committee considers desirable, appropriate or necessary, provided that no such amendments, either individually or in the aggregate, have a material adverse financial impact on the Company and the Employers. The Board reserves the authority to make any other amendments to the Plan, including, but not limited to, amendments that the Administrative Committee deems desirable, appropriate or necessary which would have a material adverse financial impact on the Company and the Employers.
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9.2 Effect of Amendment or Termination. No amendment or termination of the Plan shall, without the express written consent of the affected current or former Participant or Beneficiary, reduce or alter any benefit entitlement of such Participant or Beneficiary. Upon Plan termination, no further deferrals shall be made. In such event, the Participant or his or her beneficiary, as the case may be, shall be entitled to receive any benefit attributable to the deferrals accrued as of the day preceding the effective date of termination, plus hypothetical investment earnings and less hypothetical investment losses, taxes and expenses chargeable to the Participant’s Account up to the benefit distribution date. The Plan Administrator shall make distributions of the Participant’s benefit (1) in accordance with the Participant elections then in effect, or (2) if permitted by the Regulations and elected by the Company, in a single lump sum payment as soon as practicable after termination of the Plan.
ARTICLE X
GENERAL PROVISIONS
10.1 Taxes. The Company shall have the right to (a) require any Participant or beneficiary to pay the Company the amount of any taxes which the Company may be required to withhold with respect to such distributions or (b) deduct from all amounts paid the amount of any taxes which the Company may be required to withhold with respect to any such distributions.
10.2 Entire Agreement. The Plan document along with the Deferral Election, Investment Preference Form, Beneficiary Designation Form and other administration forms required of Participants, and made known to them by the Plan Administrator, shall constitute the entire agreement or contract between the Company and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant or any other person claiming through or under the Participant.
10.3 Employment Rights. Neither the establishment of the Plan nor any modification thereof, nor the creation of any Trust or account, nor the payment of any benefits, shall be construed as conferring upon a Participant the right to continue to be employed by the Company in his or her present capacity, or in any capacity, or the right to continue to serve as an Outside Director. The Plan relates to the payment of deferred compensation as provided herein, and is not intended to be an employment contract.
10.4 Benefit Transfers. Neither the Participant nor his or her designated or other beneficiary under the Plan shall have any right to transfer, assign, anticipate, hypothecate or otherwise encumber all or any part of the amounts payable under the Plan. No such amounts shall be subject to seizure by any creditor of any such Participant or beneficiary, by a proceeding at law or in equity, nor shall any such amounts be transferable by operation of law in the event of bankruptcy, insolvency or death of the Participant, his or her designated beneficiary or any other beneficiary hereunder. Any attempted assignment or transfer in contravention of this provision shall be void.
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10.5 Governing Law. Construction, validity and administration of the Plan shall be governed by applicable Federal law and the laws of the State of Illinois.
10.6 Inurement. The Plan shall be binding upon and inure to the benefit of the Company and its successors and assigns, and the Participant, his or her successors, heirs, executors, administrators and beneficiaries.
10.7 Notices. Any notice (other than pursuant to enrollment materials) required or permitted to be given pursuant to the Plan shall be in writing, and shall be signed by the person giving the notice. If such notice is mailed, it shall be sent by United States first class mail, postage prepaid, addressed to such person’s last known address as shown on the records of the Company. The date of such mailing shall be deemed to be the date of notice, but the notice shall not be effective until actually received. The Company or the Participant may change the address to which notice is sent by giving notice of such change in the manner above.
10.8 Small Benefits. If, upon the sixth (6th) month anniversary of a Participant’s Separation from Service, a Participant’s Account is less than or equal to the applicable dollar limit under Section 402(g)(1)(B) and results in the determination and liquidation of the entirety of the Participant’s interest under all agreements, methods, programs or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Section 1.409A-1(c)(2) of the Regulations, the Company may pay such Account to the Participant or his or her Beneficiary in a single lump sum in lieu of any further benefit payments hereunder within thirty (30) days after such sixth month anniversary. Such payment shall be made no later than the later of (a) December 31 following the Participant’s Separation from Service or (b) the 15th day of the third month following the Participant’s Separation from Service.
10.9 Corporate Successor. The Plan shall not be automatically terminated by a Change of Control event, but the Plan shall be continued after such Change of Control event only if and to the extent that the transferee, purchaser or successor entity agrees to continue the Plan. In the event that the Plan is not continued by the transferee, purchaser or successor entity, then the Plan shall terminate subject to the provisions of Section 9.2.
10.10 Unclaimed Benefit. Each Participant shall keep the Company informed of his or her current address and the current address of his or her beneficiary. The Company shall not be obligated to search for the whereabouts of any person. If the location of a Participant is not made known to the Company within three years after the date on which payment of the Participant’s Account is scheduled to be made, payment may be made as though the Participant had died at the end of the three-year period. If, within one additional year after such three-year period has elapsed, or, within three years after the actual death of a Participant, the Company is unable to locate any beneficiary for the Participant, then the Company shall have no further obligation to pay any benefit hereunder to such Participant or beneficiary or any other person and such benefit shall be irrevocably forfeited.
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10.11 Limitations on Liability. Notwithstanding any of the preceding provisions of the Plan, neither the Company nor any individual acting as an employee or agent of the Company shall be liable to any Participant, former Participant, beneficiary or any other person for any claim, loss, liability or expense incurred in connection with the Plan.
10.12 No Guaranty of Benefits. Nothing contained in the Plan shall constitute a guaranty by the Company or any other entity or person that the assets of the Company will be sufficient to pay any benefit hereunder.
10.13 409A Compliance. The Plan is intended to be a nonqualified deferred compensation plan that complies with the provisions of Section 409A of the Code and the Regulations, and shall be interpreted and operated consistent with such intent. If any ambiguity exists in the terms of the Plan, it shall be interpreted to be consistent with this purpose.
The Company has executed the Unitrin, Inc. Non-Qualified Deferred Compensation Plan on November 12, 2007.
UNITRIN, INC. By:
/s/ Dave Bengston
Title:
Vice President
15 | [
"Exhibit 10.14 UNITRIN, INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN As Amended and Restated Effective January 1, 2008 -------------------------------------------------------------------------------- TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 1 ARTICLE II ELIGIBILITY 4 ARTICLE III DEFERRALS 5 ARTICLE IV FUNDING 6 ARTICLE V INVESTMENT OF FUNDS, ACCOUNT MAINTENANCE AND VESTING 8 ARTICLE VI PAYMENT OF BENEFITS 9 ARTICLE VII PAYMENTS UPON DEATH 10 ARTICLE VIII ADMINISTRATION OF THE PLAN 11 ARTICLE IX AMENDMENT OR TERMINATION 12 ARTICLE X GENERAL PROVISIONS 13 -i- -------------------------------------------------------------------------------- UNITRIN, INC. NON-QUALIFIED DEFERRED COMPENSATION PLAN The Unitrin, Inc. Non-Qualified Deferred Compensation Plan (the “Plan”) was adopted effective January 1, 2002 and hereby is amended and restated effective January 1, 2008 to comply with Section 409A of the Internal Revenue Code. The purpose of the Plan is to provide a benefit to directors who are not employees of Unitrin, Inc. and select executives of Unitrin, Inc. or one of its subsidiaries. Plan Participants are allowed the opportunity to elect to defer a portion of their Eligible Compensation (as defined in Section 1.13) to some future period.",
"The Plan is intended to be an unfunded “top hat plan” exempt from certain provisions of ERISA. ARTICLE I DEFINITIONS 1.1 General. For purposes of the Plan, the following terms, when capitalized, will have the following meanings. The masculine pronoun wherever used herein will include the feminine gender, the singular number will include the plural, and the plural will include the singular, unless the context clearly indicates a different meaning. 1.2 “Account” means the aggregate of a Participant’s bookkeeping sub-accounts established pursuant to Section 5.1 of the Plan. 1.3 “Affiliated Company” or “Affiliate” means any corporation, trade or business entity which is a member of a controlled group of corporations, trades or businesses of which the Company is also a member, as provided in Code Sections 414(b) or (c). 1.4 “Beneficiary Designation Form” means a written document, the form of which the Plan Administrator shall determine from time to time, on which a Participant shall have the right to designate a beneficiary. 1.5 “Board” means the Board of Directors of the Company.",
"1.6 “Bonus Compensation” means the annual formula and annual discretionary management bonuses earned in a given year and generally paid in the following year. Bonus Compensation does not include other bonuses such as a relocation bonus, a hiring bonus or other periodic bonuses. 1.7 “Change of Control” means Change of Control as defined in Section 4.3 of the Plan. 1.8 “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any regulations relating thereto. 1.9 “Committee” means the Compensation Committee of the Board. 1 -------------------------------------------------------------------------------- 1.10 “Company” means Unitrin, Inc., a Delaware corporation, or, to the extent provided in Section 10.9 below, any successor corporation or other entity resulting from a reorganization, merger or consolidation into or with the Company, or a transfer or sale of substantially all of the assets of the Company. 1.11 “Deferral Election” means the following: (a) for Employee Participants, an election to defer all or part of such Participant’s Regular Base Salary or such Participant’s Bonus Compensation, all pursuant to Section 3.1, and (b) for Outside Director Participants, an election to defer Director Fees pursuant to Section 3.1. A Participant’s Deferral Election shall also include an election by the Participant specifying the calendar year in which payments shall commence and the method of payment with respect to the payout of all future benefits attributable to deferrals for the Plan Year.",
"1.12 “Director Fees” means the cash fees Outside Directors earn. 1.13 “Eligible Compensation” means Regular Base Salary, Bonus Compensation or Director Fees. 1.14 “Eligible Employees” means a select group of management employees of the Company or an Affiliate. 1.15 “Employee Participant” means with respect to any Plan Year, an Eligible Employee who has been designated in writing as a Participant pursuant to Section 2.1 of the Plan. 1.16 “Employer” means the Company and its Affiliates. 1.17 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder. 1.18 “401(a)(17) Limit” means the amount of compensation which may be considered by a plan sponsor for purposes of determining benefits under a qualified retirement plan. This amount is automatically adjusted annually by the Secretary of the Treasury for increases in the cost-of-living and such adjustment shall automatically be taken into account by the Plan. 1.19 “Investment Preference Form” means a written document, the form of which the Plan Administrator shall determine from time to time, on which a Participant shall communicate his or her investment preference. 1.20 “Outside Directors” mean the directors of the Board who are not employees of the Company. 1.21 “Outside Director Participant” means with respect to any Plan Year, a Participant who is an Outside Director for that Plan Year.",
"1.22 “Participation Date” means the date on which an Eligible Employee or an Outside Director is eligible to participate in the Plan, as set forth in Section 2.2 of the Plan. 2 -------------------------------------------------------------------------------- 1.23 “Participant” means an Employee Participant or an Outside Director Participant. 1.24 “Plan” means the Unitrin, Inc. Non-Qualified Deferred Compensation Plan. 1.25 “Plan Administrator” means the Committee. 1.26 “Plan Year” means any calendar year during which the Plan is in effect. 1.27 “Regular Base Salary” means the annual scheduled base salary, excluding, without limitation, stock option income, severance pay, and income included in pay due to fringe benefits.",
"1.28 “Regulations” means the regulations, as amended from time to time, which are issued under Code Section 409A. 1.29 “Separation from Service” means the Participant’s termination from employment from the Employer for reasons other than death or Disability, subject to the following: (a) The employment relationship is treated as continuing intact while the Participant is on military leave, sick leave, or other bona fide leave of absence if the period of such leave does not exceed six months, or if longer, so long as the individual retains a right to reemployment with the service recipient under an applicable statute or by contract.",
"A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Participant will return to perform services for the Employer. If the period of leave exceeds six months and the Participant does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first day immediately following such six-month period. (b) In determining whether a Separation from Service has occurred, the following presumptions, which may be rebutted as provided in the Regulations, shall apply: (i) A Participant is presumed to have separated from service where the level of bona fide services performed decreases to a level equal to 20% or less of the average level of services performed by the Participant during the immediately preceding 36-month period. (ii) A Participant will be presumed not to have separated from service where the level of bona fide services performed continues at a level that is 50% or more of the average level of service performed by the Participant during the immediately preceding 36-month period. No presumption applies to a decrease in the level of bona fide services performed to a level that is more than 20% but less than 50% of the average level of bona fide services performed during the immediately preceding 36-month period.",
"If a Participant had not performed services for the Employer for 36 months, the full period that the Participant has performed services for the Employer shall be substituted for 36 months. 3 -------------------------------------------------------------------------------- (c) For purposes of this Section, the term “Employer” has the meaning set forth in Section 1.16 provided that the following shall apply in determining whether a person is an Affiliate as defined in Section 1.3: (i) In applying Section 1563(a)(1), (2) and (3) of the Code for purposes of determining a controlled group of corporations under Section 414(b) of the Code, the phrase “at least 50 percent” shall be used instead of “at least 80 percent” each place it appears in Section 1563(a)(1), (2) and (3) of the Code; and (ii) In applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Section 414(c) of the Code, “at least 50 percent” is used instead of “at least 80 percent” each place it appears in Treasury Regulation Section 1.414(c)-2. (d) In the event of the sale or other disposition of assets by the Company or an Affiliate (the “Seller”) to an unrelated service recipient (the “Buyer”), the Seller and the Buyer may specify whether a Separation from Service has occurred for a Participant who would otherwise experience a Separation from Service with the Seller, in accordance with the rules set forth in Section 1.409A-1(h)(4) of the Regulations.",
"1.30 “Trust” means a so-called “rabbi trust,” the assets of which shall remain, for all purposes, a part of the general unrestricted assets of the Company. ARTICLE II ELIGIBILITY 2.1 Eligibility. The Board may, in its discretion, or an Affiliate may, in its discretion and subject to the approval of the Board, designate in writing any Eligible Employee as a Participant who is eligible to participate in the Plan. An Outside Director is automatically eligible to participate in the Plan. 2.2 Participation Date and Notice. An Eligible Employee designated as a Participant pursuant to Section 2.1 shall become a Participant as of the first day of the Plan Year following such designation. An Outside Director shall become a Participant as of the date he or she is elected a director of the Board.",
"The date that an Eligible Employee or Outside Director is eligible to participate in the Plan shall be known as the Participation Date. The Plan Administrator will provide the Participant with notice of the Participant’s Participation Date and the forms needed to make an election pursuant to Section 3.2 of the Plan as soon as reasonably practicable after the Plan Administrator is informed of a Participant’s Participation Date. 4 -------------------------------------------------------------------------------- ARTICLE III DEFERRALS 3.1 Deferral Amounts. Participants may elect to defer Eligible Compensation subject to the limits described below. A separate election for Regular Base Salary, Bonus Compensation and Director Fees must be made. Outside Director Participants may elect to defer up to 100% of their Director Fees. Employee Participants may elect to defer up to 100% of their Regular Base Salary in excess of the 401(a)(17) Limit in effect for the year of payment. Employee Participants may also elect to defer up to 100% of their Bonus Compensation to the extent that Bonus Compensation plus non-deferred Regular Base Salary is in excess of the 401(a)(17) Limit in effect for the year in which such bonus is earned, instead of for the year of payment.",
"3.2 Deferral Election. The Plan Administrator shall provide each Participant, upon becoming a Participant and thereafter annually, with a Deferral Election to be filed by the Participant, as described below. (a) An Employee Participant desiring to participate in the Plan must file with the Plan Administrator a Deferral Election prior to the beginning of the Plan Year to which it pertains, at which time the election shall become irrevocable. Such Deferral Election shall be effective on the first day of the Plan Year following the filing thereof. (b) A Director Participant desiring to participate in the Plan must file with the Plan Administrator an initial Deferral Election within 30 days (or such lesser number of days as the Plan Administrator shall determine) following such Participant’s Participation Date at which time the election shall become irrevocable.",
"Such initial election shall be effective commencing with the first day of the first month following such filing. Thereafter, a Deferral Election must be filed by a Director Participant within 30 days (or such lesser number of days as the Plan Administrator shall determine) prior to the beginning of the Plan Year to which it pertains, at which time the election shall become irrevocable. Such Deferral Election shall be effective on the first day of the Plan Year following the filing thereof. (c) In no event shall a Participant be permitted to defer Eligible Compensation for any period that has commenced prior to the date on which the Plan is effective or the date on which a Deferral Election is signed by the Participant and accepted by the Plan Administrator.",
"(d) Upon receipt of a properly completed and executed Deferral Election, the Plan Administrator shall notify the payroll department of the Participant’s Employer to withhold that portion of the Participant’s Eligible Compensation specified in the agreement. All amounts shall be withheld ratably throughout the Plan Year except for any bonus amounts which shall be withheld in a single lump sum. In no event shall the Participant be permitted to defer more than the amount specified by the Plan. 5 -------------------------------------------------------------------------------- ARTICLE IV FUNDING 4.1 Unsecured Obligation. Individual Participant deferrals of Eligible Compensation and the hypothetical investment earnings/losses thereon shall be reflected in book entries maintained by or on behalf of the Company, as set forth in Section 5.1 of the Plan.",
"The existence of such book entries shall not create a trust of any kind, or a fiduciary relationship between the Company, any third party record keeper and the Participant, his or her designated beneficiary, or other beneficiaries provided for under the Plan. The bookkeeping entries represent an unsecured obligation of the Company to pay deferred Eligible Compensation and the investment earnings/losses thereon to a Participant at a future date. 4.2 Discretionary Rabbi Trust. If the Company so determines, in its sole discretion, payments to a Participant or his or her designated beneficiary or any other beneficiary hereunder may be made from assets held in a Trust. No person shall have any interest in such assets by virtue of the Plan. The Company’s obligations hereunder shall be an unfunded and unsecured promise to pay money in the future. Any Participant having a right to receive payments pursuant to the provisions of the Plan shall have no greater rights than any unsecured general creditor of the Company in the event of the Company’s insolvency or bankruptcy, and no person shall have nor acquire any legal or equitable right, claim or interest in or to any property or assets of the Company.",
"In no event shall the assets accumulated in the Trust be construed as creating a funded plan under the applicable provisions of ERISA, or under the Code, or under the provisions of any other applicable statute or regulation. 4.3 Change in Control. (a) Upon a Change of Control the Company shall, as soon as possible, but in no event longer than 30 days following the Change of Control, make an irrevocable contribution to the Trust in an amount that is sufficient to pay each Participant or beneficiary the benefits to which such Participant(s) or their beneficiaries would be entitled pursuant to the terms of the Plan as of the date on which the Change of Control occurred.",
"For purposes of the Plan “Change of Control” shall mean the occurrence of any of the following events: (i) any “Person” (defined below) is or becomes the “Beneficial Owner,” (defined below) directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its “Affiliate” (defined below)) representing 25% or more of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (i) of subparagraph (iii) below; or 6 -------------------------------------------------------------------------------- (ii) the following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on December 31, 2005, constituted the Board of Directors and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of directors of the Company) whose appointment or election by the Board of Directors or nomination for election by the Company’s shareholders was approved or recommended by a vote of at least two-thirds of the directors still in office who either were directors on December 31, 2005 or whose appointment, election or nomination for election was previously so approved or recommended; or (iii) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than (i) a merger or consolidation which results in the directors of the Company immediately prior to such merger or consolidation continuing to constitute at least a majority of the board of directors of the surviving entity or any parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliate) representing 25% or more of the combined voting power of the Company’s then outstanding securities; or (iv) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition by the Company of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board of Directors immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or any parent thereof.",
"(b) As used in this Change of Control section: (i) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); (ii) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act; and 7 -------------------------------------------------------------------------------- (iii) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified in Sections 13(d)(3) and 14(d)(2) thereof, except that such term shall not include (1) the Company or any entity, more than 50% of the voting securities of which are Beneficially Owned by the Company, (2) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (3) an underwriter temporarily holding securities pursuant to an offering of such securities, (4) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, (5) any individual, entity or group whose ownership of securities of the Company is reported on Schedule 13G pursuant to Rule 13d-1 promulgated under the Exchange Act (but only for so long as such ownership is so reported) or (6) Singleton Group LLC or any successor in interest to such entity. ARTICLE V INVESTMENT OF FUNDS, ACCOUNT MAINTENANCE AND VESTING 5.1 Record Keeper.",
"The Plan Administrator shall appoint a Plan record keeper which shall establish and maintain an individual bookkeeping Account on behalf of each Participant for purposes of determining each Participant’s benefits under the Plan. Separate sub-accounts shall be established for each Participant with respect to each year’s Deferral Election and for which a different form of payment or payment start date has been elected. 5.2 Account Adjustments. (a) The Plan record keeper shall adjust each Participant’s Account for amounts representing: (i) Participant deferrals, (ii) Hypothetical investment earnings/losses, (iii) Expenses, and (iv) Distributions paid to the Participant or beneficiaries. (b) Each Participant electing to defer Eligible Compensation pursuant to the Plan shall also specify at the time the Deferral Election is made, the hypothetical measure(s) of investment performance.",
"The Participant’s bookkeeping account shall be deemed to be invested in the hypothetical investment choice(s) made available from time to time by the Committee. Investment preferences selected by the Participant are used only to determine the value of a Participant’s Account and in no event is the Company required to follow these investment preferences for actual plan investments. A Participant’s investment preference shall be communicated to the Plan Administrator by completion and delivery to the Plan Administrator of 8 -------------------------------------------------------------------------------- an Investment Preference Form in such form as the Plan Administrator shall determine from time to time. Participants shall indicate their initial investment preferences by filing an Investment Preference Form with the Plan Administrator prior to the date on which deferrals commence under the terms of the Participant’s Deferral Election. Once elected, investment preferences shall be valid until revoked by filing a new Investment Preference Form. Participants shall have the opportunity to change their investment preferences with respect to (a) new deferrals (b) their entire existing balances or (c) deferrals made for a specific Plan Year upon notice to the Plan Administrator once per calendar quarter. (c) The Plan record keeper shall determine the value of all Accounts maintained under the terms of the Plan on the close of each business day.",
"The Plan record keeper shall provide each Participant with a statement of his or her individual bookkeeping Account reflecting adjustments to such Account during the period from the last statement date. Such statement shall be provided to Participants as soon as administratively feasible following the end of each calendar quarter. ARTICLE VI PAYMENT OF BENEFITS 6.1 Distributions. A Participant’s or beneficiary’s benefit payable under the Plan shall be determined by reference to the value of each bookkeeping sub-account balance at the time of distribution. Sub-accounts shall be maintained for each Plan Year’s deferrals. Benefit payments from the Plan shall be payable from the general assets of the Company which includes any assets held in the Trust. 6.2 Timing of Payments. Subject to Section 6.4 through Section 6.8, each of a Participant’s subaccounts shall be paid or payment shall begin within 30 days following the specific date elected on the Participant’s applicable Deferral Election. Except as set forth in Sections 6.7 and 6.8, no Participant or beneficiary shall have any right to receive payment of his or her benefit under the Plan prior to the specific date elected on the applicable Deferral Election.",
"6.3 Form of Payments. Each of a Participant’s subaccounts shall be paid as a lump sum or in installments as elected in the applicable Deferral Election. A different form of payment, as to amount and timing, may be elected with respect to each year’s Deferral Election. Except as otherwise provided in Sections 6.4 and 6.5, once a Deferral Election is made with respect to amounts deferred for a Plan Year, it cannot be altered and is irrevocable.",
"A Participant’s account balance shall be distributed to the Participant or his or her beneficiary in the form of cash only. 6.4 Subsequent Deferral. A Participant may elect to delay payment or change the form of payment of any of his or her sub-accounts if all of the following conditions are met with respect to such sub-account: (a) Such election shall not take effect until at least 12 months after the date on which the election is made; (b) Payment must be deferred for a period of not less than five years from the date such payment would otherwise have been paid; and 9 -------------------------------------------------------------------------------- (c) Any election must be made not less than 12 months before the first day of the calendar year in which payment of such sub-account would otherwise be made or commence. The right to a series of installment payments, as defined in the Regulations, shall be treated as a right to a single payment. 6.5 Transitional Relief. Prior to January 1, 2009, a Participant may change the specific date for payment and the form of payment for one or more of his or her subaccounts to the extent permitted by IRS Notice 2007-86. 6.6 Payments in Violation of Federal Securities Laws. Notwithstanding Section 6.2 and to the extent permitted by the Regulations, a benefit payment may be delayed where the Plan Administrator reasonably anticipates that the making of the payment will violate Federal securities laws or other applicable law.",
"Such a benefit payment shall be made at the earliest date at which the Plan Administrator reasonably anticipates that the making of the benefit payment will not cause such violation. Notwithstanding the foregoing, if a benefit payment to a Participant is delayed until the Participant’s Separation from Service, then the benefit payment shall not be made before the date that is six months after the date of the Participant’s Separation from Service or, if earlier, the date of death of the Participant. 6.7 Accelerated Payment for Domestic Relations Orders. Notwithstanding Section 6.2 and to the extent permitted by the Regulations, in the Plan Administrator’s sole discretion, to the extent necessary to fulfill a domestic relations order (as defined in Code Section 414(p)(1)(B)), either the time or schedule of a benefit payment under the Plan to an individual other than the Participant may be accelerated, or a benefit payment under the Plan may be made to an individual other than the Participant. 6.8 Accelerated Payment for Failure to Comply with Code Section 409A.",
"Notwithstanding Section 6.2 and to the extent permitted by the Regulations, at any time the Plan fails to meet the requirements of Code Section 409A and the regulations promulgated thereunder, the time or schedule of a payment may be accelerated, or a payment under the Plan may be made; provided, however, that such payment shall not exceed the amount required to be included in income as a result of the failure to comply with the requirements of Code Section 409A and the regulations promulgated thereunder. ARTICLE VII PAYMENTS UPON DEATH 7.1 Payment to Beneficiary. Any benefit which a deceased Participant is entitled to receive under the Plan shall be paid to such Participant’s beneficiary. Such death benefit shall be paid in the form and at the time elected in accordance with the Participant’s Deferral Elections. 10 -------------------------------------------------------------------------------- 7.2 Designation of Beneficiary.",
"A Participant shall have the right to designate a beneficiary on the Beneficiary Designation Form and to amend or revoke such designation at any time in writing. Such designation, amendment or revocation shall be effective only when filed with the Plan Administrator. Any beneficiary designation, amendment or revocation shall apply to all past and present Deferral Elections. If no Beneficiary Designation Form is filed with the Plan Administrator, or if the Beneficiary Designation Form is held invalid, or if no beneficiary survives the Participant and benefits remain payable following the Participant’s death, the Plan Administrator shall direct that payment of benefits be made to the person or persons in the first category in which there is a survivor. The categories of successor beneficiaries, in order, are (1) the Participant’s spouse and (2) the Participant’s estate. ARTICLE VIII ADMINISTRATION OF THE PLAN 8.1 Plan Administration. The Plan Administrator is the Committee. The Committee has complete authority to interpret and administer the Plan.",
"The Committee’s responsibilities and obligations may be delegated as deemed necessary by the Committee from time to time. The Committee may establish administrative practices as necessary for the establishment and ongoing maintenance of the Plan. The Committee may delegate to one or more of its members or to one or more agents such administrative duties as it may deem advisable, and the Committee or any person to whom it has delegated duties as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan.",
"The decisions made by and the actions taken by the Plan Administrator in the administration and interpretation of the Plan shall be final and conclusive for all persons. If, after reading the Plan, Participants have questions about the Plan, such questions should be directed to the designated contact at the Company. 8.2 Claims. Any Participant or beneficiary who believes that there was an error in the calculation of his or her account balance or in the payment of benefits under the Plan shall file a claim with the Plan Administrator.",
"The claim must be filed, signed and dated within 90 days of the date on which the claimant learned of the facts from which such claim arises. The claim must be sent by certified mail or presented in person to the Plan Administrator. The Plan Administrator shall respond in writing to the claimant within a reasonable period of time but not later than 90 days after receipt of the claim unless special circumstances require an extension of time for processing. If such extension of time is required, the Plan Administrator shall furnish written notice of the extension to the claimant prior to the termination of the initial 90 day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a final decision. In no event shall such extension exceed a period of 90 days from the end of the initial period. 11 -------------------------------------------------------------------------------- 8.3 Appeals.",
"Any claimant not satisfied with the Plan Administrator’s decision of a claim shall have the right to appeal to the Plan Administrator. The appeal must be signed and dated by the claimant and include a copy of the claim submitted to the Plan Administrator as well as a copy of the Plan Administrator’s decision. The appeal should explain why the claimant does not agree with the Plan Administrator’s decision. The appeal must be filed within 60 days of the receipt of the Plan Administrator’s decision. The appeal must be sent by certified mail or presented in person to the Plan Administrator. The Plan Administrator shall promptly advise the claimant of its decision on the claimant’s appeal. Such decision shall be written in layman’s terms, shall include specific reasons for the decision and shall contain specific references to pertinent Plan provisions upon which the decision is based.",
"The decision on appeal shall be made no later than 60 days after the Plan Administrator’s receipt of the appeal, unless special circumstances require an extension of the time for processing. If such an extension of time is required, the Plan Administrator shall furnish written notice of the extension to the claimant prior to the termination of the 60 day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a final decision. If an extension of time is required, a decision shall be rendered as soon as possible, but not later than 120 days following receipt of the appeal. ARTICLE IX AMENDMENT OR TERMINATION 9.1 Amendment or Termination.",
"The Company intends the Plan to be permanent but reserves the right, subject to Section 9.2, to amend or terminate the Plan when, in the sole opinion of the Company, such amendment or termination is advisable. However, no amendment shall deprive a Participant or beneficiary of any of the benefits which he or she has accrued under the Plan or otherwise adversely affect the Participant’s Account with respect to amounts credited thereto prior to the date such amendment is made. The Administrative Committee of the Unitrin, Inc. 401(k) Savings Plan (the “Administrative Committee”) shall have the authority, on behalf of the Company, to amend the Plan in any manner permitted by Article IX of the Plan as the Administrative Committee considers desirable, appropriate or necessary, provided that no such amendments, either individually or in the aggregate, have a material adverse financial impact on the Company and the Employers. The Board reserves the authority to make any other amendments to the Plan, including, but not limited to, amendments that the Administrative Committee deems desirable, appropriate or necessary which would have a material adverse financial impact on the Company and the Employers. 12 -------------------------------------------------------------------------------- 9.2 Effect of Amendment or Termination.",
"No amendment or termination of the Plan shall, without the express written consent of the affected current or former Participant or Beneficiary, reduce or alter any benefit entitlement of such Participant or Beneficiary. Upon Plan termination, no further deferrals shall be made. In such event, the Participant or his or her beneficiary, as the case may be, shall be entitled to receive any benefit attributable to the deferrals accrued as of the day preceding the effective date of termination, plus hypothetical investment earnings and less hypothetical investment losses, taxes and expenses chargeable to the Participant’s Account up to the benefit distribution date.",
"The Plan Administrator shall make distributions of the Participant’s benefit (1) in accordance with the Participant elections then in effect, or (2) if permitted by the Regulations and elected by the Company, in a single lump sum payment as soon as practicable after termination of the Plan. ARTICLE X GENERAL PROVISIONS 10.1 Taxes. The Company shall have the right to (a) require any Participant or beneficiary to pay the Company the amount of any taxes which the Company may be required to withhold with respect to such distributions or (b) deduct from all amounts paid the amount of any taxes which the Company may be required to withhold with respect to any such distributions.",
"10.2 Entire Agreement. The Plan document along with the Deferral Election, Investment Preference Form, Beneficiary Designation Form and other administration forms required of Participants, and made known to them by the Plan Administrator, shall constitute the entire agreement or contract between the Company and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant or any other person claiming through or under the Participant. 10.3 Employment Rights. Neither the establishment of the Plan nor any modification thereof, nor the creation of any Trust or account, nor the payment of any benefits, shall be construed as conferring upon a Participant the right to continue to be employed by the Company in his or her present capacity, or in any capacity, or the right to continue to serve as an Outside Director. The Plan relates to the payment of deferred compensation as provided herein, and is not intended to be an employment contract. 10.4 Benefit Transfers.",
"Neither the Participant nor his or her designated or other beneficiary under the Plan shall have any right to transfer, assign, anticipate, hypothecate or otherwise encumber all or any part of the amounts payable under the Plan. No such amounts shall be subject to seizure by any creditor of any such Participant or beneficiary, by a proceeding at law or in equity, nor shall any such amounts be transferable by operation of law in the event of bankruptcy, insolvency or death of the Participant, his or her designated beneficiary or any other beneficiary hereunder.",
"Any attempted assignment or transfer in contravention of this provision shall be void. 13 -------------------------------------------------------------------------------- 10.5 Governing Law. Construction, validity and administration of the Plan shall be governed by applicable Federal law and the laws of the State of Illinois. 10.6 Inurement. The Plan shall be binding upon and inure to the benefit of the Company and its successors and assigns, and the Participant, his or her successors, heirs, executors, administrators and beneficiaries. 10.7 Notices. Any notice (other than pursuant to enrollment materials) required or permitted to be given pursuant to the Plan shall be in writing, and shall be signed by the person giving the notice. If such notice is mailed, it shall be sent by United States first class mail, postage prepaid, addressed to such person’s last known address as shown on the records of the Company. The date of such mailing shall be deemed to be the date of notice, but the notice shall not be effective until actually received.",
"The Company or the Participant may change the address to which notice is sent by giving notice of such change in the manner above. 10.8 Small Benefits. If, upon the sixth (6th) month anniversary of a Participant’s Separation from Service, a Participant’s Account is less than or equal to the applicable dollar limit under Section 402(g)(1)(B) and results in the determination and liquidation of the entirety of the Participant’s interest under all agreements, methods, programs or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Section 1.409A-1(c)(2) of the Regulations, the Company may pay such Account to the Participant or his or her Beneficiary in a single lump sum in lieu of any further benefit payments hereunder within thirty (30) days after such sixth month anniversary. Such payment shall be made no later than the later of (a) December 31 following the Participant’s Separation from Service or (b) the 15th day of the third month following the Participant’s Separation from Service.",
"10.9 Corporate Successor. The Plan shall not be automatically terminated by a Change of Control event, but the Plan shall be continued after such Change of Control event only if and to the extent that the transferee, purchaser or successor entity agrees to continue the Plan. In the event that the Plan is not continued by the transferee, purchaser or successor entity, then the Plan shall terminate subject to the provisions of Section 9.2. 10.10 Unclaimed Benefit. Each Participant shall keep the Company informed of his or her current address and the current address of his or her beneficiary. The Company shall not be obligated to search for the whereabouts of any person. If the location of a Participant is not made known to the Company within three years after the date on which payment of the Participant’s Account is scheduled to be made, payment may be made as though the Participant had died at the end of the three-year period.",
"If, within one additional year after such three-year period has elapsed, or, within three years after the actual death of a Participant, the Company is unable to locate any beneficiary for the Participant, then the Company shall have no further obligation to pay any benefit hereunder to such Participant or beneficiary or any other person and such benefit shall be irrevocably forfeited. 14 -------------------------------------------------------------------------------- 10.11 Limitations on Liability. Notwithstanding any of the preceding provisions of the Plan, neither the Company nor any individual acting as an employee or agent of the Company shall be liable to any Participant, former Participant, beneficiary or any other person for any claim, loss, liability or expense incurred in connection with the Plan. 10.12 No Guaranty of Benefits. Nothing contained in the Plan shall constitute a guaranty by the Company or any other entity or person that the assets of the Company will be sufficient to pay any benefit hereunder.",
"10.13 409A Compliance. The Plan is intended to be a nonqualified deferred compensation plan that complies with the provisions of Section 409A of the Code and the Regulations, and shall be interpreted and operated consistent with such intent. If any ambiguity exists in the terms of the Plan, it shall be interpreted to be consistent with this purpose. The Company has executed the Unitrin, Inc. Non-Qualified Deferred Compensation Plan on November 12, 2007. UNITRIN, INC. By: /s/ Dave Bengston Title: Vice President 15"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Title: Thomas Jefferson to Charles Simms, 27 October 1818 From: Jefferson, Thomas To: Simms, Charles
Dear Sir Monticello Oct. 27. 18. After a long absence from home, and a longer spell of sickness following it and from which I am but recovering, my first attentions have been to the remittance of duties and charges for the 9. boxes of wine & 1. of Maccaroni, which you were so kind as to recieve and forward to me. the exact amount was 48.33 for which I now inclose 50.D. in bills of the US. bank, which is as near as I can make out in bills. the fractional difference need not be regarded. I expect daily other shipments of books & wines from Havre and Marseilles. should they come to your port I will ask the favor of you to reship them immediately to mr Gibson at Richmond, noting to me the duties & charges which shall always be faithfully remitted. Accept the assurance of my great esteem & respect Th: Jefferson | 10-27-1818 | [
"Title: Thomas Jefferson to Charles Simms, 27 October 1818 From: Jefferson, Thomas To: Simms, Charles Dear Sir Monticello Oct. 27. 18. After a long absence from home, and a longer spell of sickness following it and from which I am but recovering, my first attentions have been to the remittance of duties and charges for the 9. boxes of wine & 1. of Maccaroni, which you were so kind as to recieve and forward to me. the exact amount was 48.33 for which I now inclose 50.D. in bills of the US. bank, which is as near as I can make out in bills.",
"the fractional difference need not be regarded. I expect daily other shipments of books & wines from Havre and Marseilles. should they come to your port I will ask the favor of you to reship them immediately to mr Gibson at Richmond, noting to me the duties & charges which shall always be faithfully remitted. Accept the assurance of my great esteem & respect Th: Jefferson"
]
| https://founders.archives.gov/API/docdata/Jefferson/03-13-02-0315 | 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 . Continued Examination Under 37 CFR 1.114 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 12/23/2020 has been entered. Applicants' arguments, filed 12/23/2020, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph 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 the first paragraph of pre-AIA 35 U.S.C. 112: 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
Claim 22 is 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. Claim 22 recites the phrase “wherein the composition is dispensed from a single compartment dispenser”. The phrase constitutes new matter insofar as it was not supported by the disclosure as originally filed.
Claim Rejections - 35 USC § 103--Previous 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.
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 1) Claims 2-7, 10-22 are rejected under 35 U.S.C. 103 as being unpatentable over O’Malley (US 2015/0030546) in view of Herrmann et al., (US 2008/0095719). O’Malley teaches a two-part oral care system comprising an oxidative composition having an ozonated oil and a reductant composition (Abstract). The system includes “first and second vessels” which “isolate the oxidative and reductant compositions from reacting with one another during storage” but dispensed “for combining to result in a final composition for use” (p. 1, para. [0008]). Since the ozonated oil is present in the oxidative composition, enzymes would not have been present, as per claim 1. O’Malley teaches “Another embodiment” comprising “ozonated oil . . . with Aloe vera” without enzymes (p. 5, para. [0066]). Whitening agents, per se, are not taught therein, thus it would have been obvious to exclude them, as per claims 16-17. The invention is taught to be formulated as a “mouthwash” (p. 2, para. [0024]). The ozonated oil is ozone “infused into oil which acts as a carrier”, where a preferred oil is “hempseed oil” (Id., para. [0023]). The oil comprises “0.01% to 5.0% per mass of the final composition” (p. 2, para. [0027]). The oxidative composition also comprises a surfactant (orally acceptable base) (p. 1, para. [0009]), as per claim 10. Embodiments also include “Xylitol” (humectant) “at about 33.25% with a possible range at or between 0.1%-60%”and “Deionized water” (p. 5,para. [0063]), as per claims 17-18. Abrasives are not required, as per claim 21. aloe vera is taught to be present “with a possible range at or between 0.01%-9%” (p. 5, para. [0064]), as per claims 4-5. Note: the aloe vera may be combined with the ozonated oil without enzymes (see p. 5,para. [0066]). The compositions may also comprise vitamins, i.e. Vitamin E (p. 5, para. [0067]), as per claim 11. Mouthwashes, in particular, are taught to be useful for killing “bacterial plaque which causes cavities, gingivitis, and bad breath”, which addresses reducing or inhibiting formation of dental caries, as per claim 15. Concerning claim 22, O’Malley teaches “the toothpaste, spray, mouthwash or irrigation solution can be combined right before use” (p. 2, para. [0025]). Accordingly, it would have been obvious to dispense from a single compartment dispenser.
O’Malley does not teach caprylyl glycol.
Herrmann et al. teaches compositions including “oral hygiene products” such as “ tooth creams, toothpastes, tooth gels, mouth washes, mouth rinses, gargle liquids . . .” (p. 7, para. [0060]). The oral hygiene products are taught to comprise “moisture-retaining substances” (Id., para. [0062]), where moisture-retaining substances include “1,2-octanediol” (caprylyl glycol) and “hyaluronic acid” “sorbitol, glycerol” [glycerin] (p. 12, para. [0102]), as per claims 19-20. The amount of caprylyl glycol or hyaluronic acid for the oral hygiene compositions is not taught. However, given its function as a moisture retention aid, it In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)).
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use (see MPEP 2144.07). Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function (see 2144.06). It would have been obvious to a person having ordinary skill in the art at the time of applicant’s invention to add capprylyl glycol (including hyaluronic acid) to the composition of O’Malley for the advantage of adding a moisture retention property, as taught by Hermann et al. Since it would have been obvious to add caprylyl glycol, a moisture retention aid, to the compositions of O’Malley, the property of having a moisture retention capacity of at least 4.8 would have been implicit.
2) Claims 2-7, 10-22 are rejected under 35 U.S.C. 103 as being unpatentable over Jeong (KR2011-0112498, cited in IDS) in view of Wallace (Hemp Out, 4,2/2014, cited in IDS) and Herrmann et al., (US 2008/0095719). Jeong teaches an oral care composition comprising 0.1-4.0% hempseed oil (Abstract), "with an excellent treatment of periodontal disease, and the effect in the treatment of tooth-decay" (Technical field at p. 1). The preferred embodiment in Jeong toothpaste; however, Jeong teaches, “The invention may not be restricted to the above-described embodiment” (p. 4, lines 21-23). Jeong does not require enzymes, abrasives, or whitening agents, as per claims 1, 12, 16, 17, 21. Jeong also teaches, “the present invention contains the glycerine, the sorbitol liquid, and the amorphous sorbitol liquid as the wetting agent” (Tech Solution, lines 6-7) and sodium alkyl sulfate (surfactant) (Id. lines 8-9); “purified water” (p. 3, 12th paragraph). No specific amounts have been provided; however, it would have been obvious to optimize a range for each.
In regard to use of hempseed oil as mouth rinse, the Examiner additionally cites Wallace, teaching “Hemp Seed Oil Pulling" a technique whereby hemp seed oil is gargled “slowly swished in the mouth and drawn through the teeth" and subsequently expectorated (see p. 2 at How to do your home base oil pulling). The technique alleged to be useful for treating “bad breath, bleeding gums, cavities, or tooth pain” (line 1 at p. 1) and suggests treatment of dry mouth or xerostomia insofar as it is described as “an oil-mouth-message soothes and stimulates the key meridians where taste meets the organ. Simultaneously, as in any skin message, the inner skin and lining of the mouth, plate and tongue become warm and supple and the lubrication prevents dryness” [emphasis added] (p. 2. 4th paragraph).
Jeong does not teach caprylyl glycol.
The oral hygiene products are taught to comprise “moisture-retaining substances” “vitamins” (Id., para. [0062]), where moisture-retaining substances include “1,2-octanediol” (caprylyl glycol) and “hyaluronic acid” “hyaluronic acid” “sorbitol, glycerol” (humectants)(p. 12, para. [0102]), and anti-inflammatory plant extracts such as “aloe vera” (p. 9, para. [0079]).
The amount of caprylyl glycol, hyaluronic acid or aloe vera for the oral hygiene compositions is not taught. However, given their function, it would have been obvious to modify a range. Accordingly, "where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." (see MPEP 2144.05, II. A, quoting In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)).
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use (see MPEP 2144.07). Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function (see 2144.06).
It would have been obvious to a person having ordinary skill in the art at the time of applicant’s invention to add capprylyl glycol, including hyaluronic acid, aloe vera, to Since it would have been obvious to add caprylyl glycol, a moisture retention aid, to the compositions of Jeong, the property of having a moisture retention capacity of at least 4.8 would have been implicit. Concerning claim 22, it would have been obvious to dispense the compositions from a single compartment dispenser as a matter of convenience for applying and storing the compositions.
Response to Arguments i) Applicant argues that the claims are not obvious over O’Malley and Hermann, insofar as “Hermann makes no other teaching for what caprylyl glycol is used for, and the Examiner has pointed to no express teaching in Hermann that would motivate the skilled artisan to use caprylyl glycol in an oral care composition, as opposed to a cosmetic composition” (p. 13). The Examiner disagrees. The test of obviousness under 35 U.S.C. §103 is not the express suggestion of the claimed invention in any or all of the references, but what the references taken collectively would suggest to those of ordinary skill in the art presumed to be familiar with them. Note In Re Rosselet, 347 F.2d 847, 146 USPQ 183 (CCPA 1965) and In Re Simon, 461 F.2d 1387, 174 USPQ 114 (CCPA 1972). One skilled in this art would have understood that the various features of the references could be combined to obtain the expected additive results, i.e. moisture retention or moisture regulation.
The Examiner disagrees. The prior art use of caprylyl glycol for moisture retention or moisture regulation parallels applicants use insofar as the instant specification states, “caprylyl glycol retained a superior moisture level” (p. 33, para. [000108]). The artisan would have reasonably been expected to provide enough caprylyl glycol to retain or regulate moisture in the oral cavity. Further, “it is not inventive to discover the optimum or workable ranges by routine experimentation" (see MPEP 2144.05 IIA quoting In re Aller, 220 F.2d 454, 456 (105 USPQ 233)).
iii) Applicant argues that the instant specification provides unexpected results to overcome the 103 rejections, i.e. “data shows a much lower coefficient of friction” (p. 15). However, where the unexpected properties of a claimed invention are not shown to have a significance equal to or greater than the expected properties, the evidence of unexpected properties may not be sufficient to rebut the evidence of obviousness. In re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977) (MPEP 716.02(c)). Here, the lower coefficient of friction was correlated to “a distinct sensation of smoothness (oral comfort) while maintaining a sensation of hydration (high moisture level)” (Instant Specification p. 32, para. [000105]). These results are not surprising Applicant’s results are also consistent with the teaching in Wallace where gargling with hempseed oil was described as “an oil-mouth-message soothes and stimulates the key meridians where taste meets the organ. Simultaneously, as in any skin message, the inner skin and lining of the mouth, plate and tongue become warm and supple and the lubrication prevents dryness” [emphasis added] (p. 2. 4th paragraph). Conclusion 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. Any inquiry concerning this communication or earlier communications from the examiner should be directed to WALTER E WEBB whose telephone number is (571)270-3287 and fax number is (571) 270-4287. The examiner can normally be reached from Mon-Fri 7-3:30. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frederick F. Krass can be reached (571) 272-0580. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Walter E. Webb /WALTER E WEBB/Primary Examiner, Art Unit 1612 | 2021-02-01T05:42:01 | [
"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 . Continued Examination Under 37 CFR 1.114 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 12/23/2020 has been entered.",
"Applicants' arguments, filed 12/23/2020, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph 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 the first paragraph of pre-AIA 35 U.S.C.",
"112: 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 Claim 22 is 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. Claim 22 recites the phrase “wherein the composition is dispensed from a single compartment dispenser”. The phrase constitutes new matter insofar as it was not supported by the disclosure as originally filed.",
"Claim Rejections - 35 USC § 103--Previous 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. 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 1) Claims 2-7, 10-22 are rejected under 35 U.S.C. 103 as being unpatentable over O’Malley (US 2015/0030546) in view of Herrmann et al., (US 2008/0095719). O’Malley teaches a two-part oral care system comprising an oxidative composition having an ozonated oil and a reductant composition (Abstract).",
"The system includes “first and second vessels” which “isolate the oxidative and reductant compositions from reacting with one another during storage” but dispensed “for combining to result in a final composition for use” (p. 1, para. [0008]). Since the ozonated oil is present in the oxidative composition, enzymes would not have been present, as per claim 1. O’Malley teaches “Another embodiment” comprising “ozonated oil . . . with Aloe vera” without enzymes (p. 5, para. [0066]). Whitening agents, per se, are not taught therein, thus it would have been obvious to exclude them, as per claims 16-17. The invention is taught to be formulated as a “mouthwash” (p. 2, para. [0024]). The ozonated oil is ozone “infused into oil which acts as a carrier”, where a preferred oil is “hempseed oil” (Id., para.",
"[0023]). The oil comprises “0.01% to 5.0% per mass of the final composition” (p. 2, para. [0027]). The oxidative composition also comprises a surfactant (orally acceptable base) (p. 1, para. [0009]), as per claim 10. Embodiments also include “Xylitol” (humectant) “at about 33.25% with a possible range at or between 0.1%-60%”and “Deionized water” (p. 5,para. [0063]), as per claims 17-18. Abrasives are not required, as per claim 21. aloe vera is taught to be present “with a possible range at or between 0.01%-9%” (p. 5, para.",
"[0064]), as per claims 4-5. Note: the aloe vera may be combined with the ozonated oil without enzymes (see p. 5,para. [0066]). The compositions may also comprise vitamins, i.e. Vitamin E (p. 5, para. [0067]), as per claim 11. Mouthwashes, in particular, are taught to be useful for killing “bacterial plaque which causes cavities, gingivitis, and bad breath”, which addresses reducing or inhibiting formation of dental caries, as per claim 15. Concerning claim 22, O’Malley teaches “the toothpaste, spray, mouthwash or irrigation solution can be combined right before use” (p. 2, para. [0025]).",
"Accordingly, it would have been obvious to dispense from a single compartment dispenser. O’Malley does not teach caprylyl glycol. Herrmann et al. teaches compositions including “oral hygiene products” such as “ tooth creams, toothpastes, tooth gels, mouth washes, mouth rinses, gargle liquids . . .” (p. 7, para. [0060]). The oral hygiene products are taught to comprise “moisture-retaining substances” (Id., para. [0062]), where moisture-retaining substances include “1,2-octanediol” (caprylyl glycol) and “hyaluronic acid” “sorbitol, glycerol” [glycerin] (p. 12, para. [0102]), as per claims 19-20. The amount of caprylyl glycol or hyaluronic acid for the oral hygiene compositions is not taught. However, given its function as a moisture retention aid, it In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)). Generally, it is prima facie obvious to select a known material based on its suitability for its intended use (see MPEP 2144.07).",
"Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function (see 2144.06). It would have been obvious to a person having ordinary skill in the art at the time of applicant’s invention to add capprylyl glycol (including hyaluronic acid) to the composition of O’Malley for the advantage of adding a moisture retention property, as taught by Hermann et al. Since it would have been obvious to add caprylyl glycol, a moisture retention aid, to the compositions of O’Malley, the property of having a moisture retention capacity of at least 4.8 would have been implicit. 2) Claims 2-7, 10-22 are rejected under 35 U.S.C. 103 as being unpatentable over Jeong (KR2011-0112498, cited in IDS) in view of Wallace (Hemp Out, 4,2/2014, cited in IDS) and Herrmann et al., (US 2008/0095719). Jeong teaches an oral care composition comprising 0.1-4.0% hempseed oil (Abstract), \"with an excellent treatment of periodontal disease, and the effect in the treatment of tooth-decay\" (Technical field at p. 1). The preferred embodiment in Jeong toothpaste; however, Jeong teaches, “The invention may not be restricted to the above-described embodiment” (p. 4, lines 21-23). Jeong does not require enzymes, abrasives, or whitening agents, as per claims 1, 12, 16, 17, 21.",
"Jeong also teaches, “the present invention contains the glycerine, the sorbitol liquid, and the amorphous sorbitol liquid as the wetting agent” (Tech Solution, lines 6-7) and sodium alkyl sulfate (surfactant) (Id. lines 8-9); “purified water” (p. 3, 12th paragraph). No specific amounts have been provided; however, it would have been obvious to optimize a range for each. In regard to use of hempseed oil as mouth rinse, the Examiner additionally cites Wallace, teaching “Hemp Seed Oil Pulling\" a technique whereby hemp seed oil is gargled “slowly swished in the mouth and drawn through the teeth\" and subsequently expectorated (see p. 2 at How to do your home base oil pulling). The technique alleged to be useful for treating “bad breath, bleeding gums, cavities, or tooth pain” (line 1 at p. 1) and suggests treatment of dry mouth or xerostomia insofar as it is described as “an oil-mouth-message soothes and stimulates the key meridians where taste meets the organ. Simultaneously, as in any skin message, the inner skin and lining of the mouth, plate and tongue become warm and supple and the lubrication prevents dryness” [emphasis added] (p. 2. 4th paragraph).",
"Jeong does not teach caprylyl glycol. The oral hygiene products are taught to comprise “moisture-retaining substances” “vitamins” (Id., para. [0062]), where moisture-retaining substances include “1,2-octanediol” (caprylyl glycol) and “hyaluronic acid” “hyaluronic acid” “sorbitol, glycerol” (humectants)(p. 12, para. [0102]), and anti-inflammatory plant extracts such as “aloe vera” (p. 9, para. [0079]). The amount of caprylyl glycol, hyaluronic acid or aloe vera for the oral hygiene compositions is not taught. However, given their function, it would have been obvious to modify a range. Accordingly, \"where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.\" (see MPEP 2144.05, II. A, quoting In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)). Generally, it is prima facie obvious to select a known material based on its suitability for its intended use (see MPEP 2144.07). Also, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function (see 2144.06). It would have been obvious to a person having ordinary skill in the art at the time of applicant’s invention to add capprylyl glycol, including hyaluronic acid, aloe vera, to Since it would have been obvious to add caprylyl glycol, a moisture retention aid, to the compositions of Jeong, the property of having a moisture retention capacity of at least 4.8 would have been implicit. Concerning claim 22, it would have been obvious to dispense the compositions from a single compartment dispenser as a matter of convenience for applying and storing the compositions. Response to Arguments i) Applicant argues that the claims are not obvious over O’Malley and Hermann, insofar as “Hermann makes no other teaching for what caprylyl glycol is used for, and the Examiner has pointed to no express teaching in Hermann that would motivate the skilled artisan to use caprylyl glycol in an oral care composition, as opposed to a cosmetic composition” (p. 13).",
"The Examiner disagrees. The test of obviousness under 35 U.S.C. §103 is not the express suggestion of the claimed invention in any or all of the references, but what the references taken collectively would suggest to those of ordinary skill in the art presumed to be familiar with them. Note In Re Rosselet, 347 F.2d 847, 146 USPQ 183 (CCPA 1965) and In Re Simon, 461 F.2d 1387, 174 USPQ 114 (CCPA 1972). One skilled in this art would have understood that the various features of the references could be combined to obtain the expected additive results, i.e. moisture retention or moisture regulation.",
"The Examiner disagrees. The prior art use of caprylyl glycol for moisture retention or moisture regulation parallels applicants use insofar as the instant specification states, “caprylyl glycol retained a superior moisture level” (p. 33, para. [000108]). The artisan would have reasonably been expected to provide enough caprylyl glycol to retain or regulate moisture in the oral cavity. Further, “it is not inventive to discover the optimum or workable ranges by routine experimentation\" (see MPEP 2144.05 IIA quoting In re Aller, 220 F.2d 454, 456 (105 USPQ 233)). iii) Applicant argues that the instant specification provides unexpected results to overcome the 103 rejections, i.e.",
"“data shows a much lower coefficient of friction” (p. 15). However, where the unexpected properties of a claimed invention are not shown to have a significance equal to or greater than the expected properties, the evidence of unexpected properties may not be sufficient to rebut the evidence of obviousness. In re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977) (MPEP 716.02(c)). Here, the lower coefficient of friction was correlated to “a distinct sensation of smoothness (oral comfort) while maintaining a sensation of hydration (high moisture level)” (Instant Specification p. 32, para. [000105]). These results are not surprising Applicant’s results are also consistent with the teaching in Wallace where gargling with hempseed oil was described as “an oil-mouth-message soothes and stimulates the key meridians where taste meets the organ. Simultaneously, as in any skin message, the inner skin and lining of the mouth, plate and tongue become warm and supple and the lubrication prevents dryness” [emphasis added] (p. 2. 4th paragraph).",
"Conclusion 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. Any inquiry concerning this communication or earlier communications from the examiner should be directed to WALTER E WEBB whose telephone number is (571)270-3287 and fax number is (571) 270-4287. The examiner can normally be reached from Mon-Fri 7-3:30. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frederick F. Krass can be reached (571) 272-0580. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.",
"Walter E. Webb /WALTER E WEBB/Primary Examiner, Art Unit 1612"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-02-07.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
HALE, District Judge. This suit is brought for infringement of United States letters patent No. 667,916, dated February 12, 1902, issued to the complainant in this case, on the invention of Eugene R. Leighton, for a new and useful improvement in couch-beds. Claims 5, 6, 7, and 8 of this patent are brought in issue in this suit, and are alleged to be infringed. These claims are as follows: “(5) An interconvertible couch-bed, comprising two complete interlocking laterally sliding sections, each having all of its parts, including the mattress support, permanently connected, the sections being relatively constructed, and arranged to permit their separation into two independent beds without dismantling either of them. “(6) An interconvertible couch-bed, comprising two complete, interlocking sections, adapted to be nested one within the other, each section having sidebars, end-bars and legs, all permanently connected together, and each section being separable from the other into an independent bed. “(7) An interconvertible couch-bed, comprising two complete, independent metallic beds, adapted to be arranged in interlocking relation with the legs of one bed between the side-bars of the other bed, and the end-bars of the first-mentioned bed above the side-bars of the second-mentioned bed, all without disconnecting any of the parts of either of said beds. “(8) An interconvertible couch-bed, comprising two complete, independent beds, each having side-bars, legs, end-bars, and a mattress stretched between *88said end-bars, all of said parts being permanently connected together, said beds being adapted to he arranged in telescoping, interlocking relation, with the legs and the end-bars of one bed located respectively between the sidebars and the side-bar and the mattress of the other bed, whereby one bed may be moved laterally a limited distance relatively to the other bed, or may be completely separated therefrom, without dismantling any of the parts of either.” The object of the invention is shown by the specification to be: “To provide an article which can be converted from a bed to a couch, and vice versa, without the employment of operating mechanism, or other power-transmitting devices, whereby said article may be greatly simplified in construction.” The inventor further describes his invention as follows: “Referring to the drawings, it will be seen that the couch-beds are constructed in two sections, one of which telescopes within the other, and X shall refer to them as the ‘main section’ and the ‘sliding section,’ respectively. * * * As thus far described, the main frame is capable of use by itself without the addition of the sliding frame. The sliding frame is also capable of use by itself, and it may be disconnected from the main frame. * * * By tilting the inner sides of the two sections, the sections may he separated without dismantling either of them; being each a complete bed without further additions. This is a new feature with me, for, as far as I am aware, I am the first to have provided an interconvertible couch-bed, comprising two interlocking nesting sections, which may he separated without dismantling either of them, and each of which, when separated, forms an independent bed. * * * From this description, it will be seen that the article described may be converted from a bed to a couch, and vice versa, by simply moving the sliding section laterally; and, as each section is supported independently of the other, little or no effort is required to move the sliding section upon its own casters. One of the wire mattresses is on a plane a little below the other, but the hair or cotton mattress which is placed upon them may be thicker upon one side than the other, to compensate for the difference in height of the two spring mattresses.” Upon careful examination of the specification and claims, the court finds sufficient in them to constitute invention. The defendant has not filed a brief, nor appeared in court to argue the case. The answer sets up many defenses. The only defenses, however', about which any contest would, we think, be likely to arise, under the evidence, are noninfringement and anticipation. In the matter of noninfringement, the testimony shows that the bed produced in court as the infringing bed was bought of the defendant. Upon an examination of it, it is found to be ruder in its construction than the beds made under the patent in suit, and it is clear that it does not infringe some of the claims in the patent. But it is clear, also, from an examination of it, that it is an “interconvertible couch-bed, comprising two complete, interlocking, laterally sliding sections, each having all its parts, including the mattress support, permanently connected, the sections being relatively constructed and arranged to permit their separation into two independent beds without dismantling either of them.” Upon an examination of the bed, we think that in the sale of this bed the defendant did infringe claims 5, 6, 7, and 8 of the patent in suit. To be sure, slight use by the defendant of the patent is shown; but the courts have said that complainants are at liberty to sue a wrongdoer, whether he be manufacturer, seller, or user. Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244, 28 L. Ed. 768; Tuttle v. Matthews (C. C.) 28 Fed. 98. *89Anticipation is the leading defense upon which testimony is offered. It is set up that this invention was in public use many years ago, in the shape of certain trundle-beds that ran under and were stored under full-sized beds. The witness Soule describes such a trundle-bed seen by him 25 years ago, when he was a boy of 15. The witness Rafferty also testifies to a similar trundle-bed seen by him 45 years ago. This bed pulled out at the foot, so that the two beds stood end to end. The witness Ford also testifies to another bed, used by his mother, pulling out from the foot, and standing foot to foot with the larger bed. The witness Brown testifies to a bed in Russia, seen by him when a boy, about which he testifies vaguely and from distant recollection. This bed was a combined bench and bed, and, if distinct' and accurate description could have been furnished, it might have been found to have involved much that is covered by this patent. But there is not sufficient proof from recollection about any of the beds claimed to be anticipatory to show that they were “interconvertible couch-beds,” or that they comprised two “complete, interlocking, laterally sliding sections.” We find, however, that this case is disposed of on the question of anticipation by the principle announced by the Supreme Court in the Barbed Wire Patent Case, 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed. 154. Mr. Justice Brown commented very fully and clearly upon certain unpatented devices claimed to be anticipatory of the patent in suit in that case, the existence of which was proved only by oral testimony. He says: “In view of the unsatisfactory character of such testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would, have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt. Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information. The very fact, which courts, as well as the public, have not failed to recognize, that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of. witnesses who imagined that they had made similar discoveries long before the patentee had claimed to have invented his device, has tended to throw a certain amount of discredit upon all that class of evidence.” Another leading case upon this subj’ect is Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821, in which the court holds that the burden of proof rests upon the party setting up an unpatented article as proving prior use, and holds that “every reasonable doubt should be resolved against him.” Applying the rule of these cases to the case at bar, the court reaches the conclusion that the evidence offered is of too vague a character to establish anticipation. The court finds, upon the evidence offered, that the patent is valid, and has been infringed by the defendant. Decree for complainant. | 11-26-2022 | [
"HALE, District Judge. This suit is brought for infringement of United States letters patent No. 667,916, dated February 12, 1902, issued to the complainant in this case, on the invention of Eugene R. Leighton, for a new and useful improvement in couch-beds. Claims 5, 6, 7, and 8 of this patent are brought in issue in this suit, and are alleged to be infringed. These claims are as follows: “(5) An interconvertible couch-bed, comprising two complete interlocking laterally sliding sections, each having all of its parts, including the mattress support, permanently connected, the sections being relatively constructed, and arranged to permit their separation into two independent beds without dismantling either of them. “(6) An interconvertible couch-bed, comprising two complete, interlocking sections, adapted to be nested one within the other, each section having sidebars, end-bars and legs, all permanently connected together, and each section being separable from the other into an independent bed. “(7) An interconvertible couch-bed, comprising two complete, independent metallic beds, adapted to be arranged in interlocking relation with the legs of one bed between the side-bars of the other bed, and the end-bars of the first-mentioned bed above the side-bars of the second-mentioned bed, all without disconnecting any of the parts of either of said beds. “(8) An interconvertible couch-bed, comprising two complete, independent beds, each having side-bars, legs, end-bars, and a mattress stretched between *88said end-bars, all of said parts being permanently connected together, said beds being adapted to he arranged in telescoping, interlocking relation, with the legs and the end-bars of one bed located respectively between the sidebars and the side-bar and the mattress of the other bed, whereby one bed may be moved laterally a limited distance relatively to the other bed, or may be completely separated therefrom, without dismantling any of the parts of either.” The object of the invention is shown by the specification to be: “To provide an article which can be converted from a bed to a couch, and vice versa, without the employment of operating mechanism, or other power-transmitting devices, whereby said article may be greatly simplified in construction.” The inventor further describes his invention as follows: “Referring to the drawings, it will be seen that the couch-beds are constructed in two sections, one of which telescopes within the other, and X shall refer to them as the ‘main section’ and the ‘sliding section,’ respectively.",
"* * * As thus far described, the main frame is capable of use by itself without the addition of the sliding frame. The sliding frame is also capable of use by itself, and it may be disconnected from the main frame. * * * By tilting the inner sides of the two sections, the sections may he separated without dismantling either of them; being each a complete bed without further additions. This is a new feature with me, for, as far as I am aware, I am the first to have provided an interconvertible couch-bed, comprising two interlocking nesting sections, which may he separated without dismantling either of them, and each of which, when separated, forms an independent bed. * * * From this description, it will be seen that the article described may be converted from a bed to a couch, and vice versa, by simply moving the sliding section laterally; and, as each section is supported independently of the other, little or no effort is required to move the sliding section upon its own casters. One of the wire mattresses is on a plane a little below the other, but the hair or cotton mattress which is placed upon them may be thicker upon one side than the other, to compensate for the difference in height of the two spring mattresses.” Upon careful examination of the specification and claims, the court finds sufficient in them to constitute invention.",
"The defendant has not filed a brief, nor appeared in court to argue the case. The answer sets up many defenses. The only defenses, however', about which any contest would, we think, be likely to arise, under the evidence, are noninfringement and anticipation. In the matter of noninfringement, the testimony shows that the bed produced in court as the infringing bed was bought of the defendant. Upon an examination of it, it is found to be ruder in its construction than the beds made under the patent in suit, and it is clear that it does not infringe some of the claims in the patent. But it is clear, also, from an examination of it, that it is an “interconvertible couch-bed, comprising two complete, interlocking, laterally sliding sections, each having all its parts, including the mattress support, permanently connected, the sections being relatively constructed and arranged to permit their separation into two independent beds without dismantling either of them.” Upon an examination of the bed, we think that in the sale of this bed the defendant did infringe claims 5, 6, 7, and 8 of the patent in suit.",
"To be sure, slight use by the defendant of the patent is shown; but the courts have said that complainants are at liberty to sue a wrongdoer, whether he be manufacturer, seller, or user. Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244, 28 L. Ed. 768; Tuttle v. Matthews (C. C.) 28 Fed. 98. *89Anticipation is the leading defense upon which testimony is offered. It is set up that this invention was in public use many years ago, in the shape of certain trundle-beds that ran under and were stored under full-sized beds. The witness Soule describes such a trundle-bed seen by him 25 years ago, when he was a boy of 15. The witness Rafferty also testifies to a similar trundle-bed seen by him 45 years ago. This bed pulled out at the foot, so that the two beds stood end to end. The witness Ford also testifies to another bed, used by his mother, pulling out from the foot, and standing foot to foot with the larger bed. The witness Brown testifies to a bed in Russia, seen by him when a boy, about which he testifies vaguely and from distant recollection. This bed was a combined bench and bed, and, if distinct' and accurate description could have been furnished, it might have been found to have involved much that is covered by this patent.",
"But there is not sufficient proof from recollection about any of the beds claimed to be anticipatory to show that they were “interconvertible couch-beds,” or that they comprised two “complete, interlocking, laterally sliding sections.” We find, however, that this case is disposed of on the question of anticipation by the principle announced by the Supreme Court in the Barbed Wire Patent Case, 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed.",
"154. Mr. Justice Brown commented very fully and clearly upon certain unpatented devices claimed to be anticipatory of the patent in suit in that case, the existence of which was proved only by oral testimony. He says: “In view of the unsatisfactory character of such testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would, have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt.",
"Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information. The very fact, which courts, as well as the public, have not failed to recognize, that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of. witnesses who imagined that they had made similar discoveries long before the patentee had claimed to have invented his device, has tended to throw a certain amount of discredit upon all that class of evidence.” Another leading case upon this subj’ect is Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821, in which the court holds that the burden of proof rests upon the party setting up an unpatented article as proving prior use, and holds that “every reasonable doubt should be resolved against him.” Applying the rule of these cases to the case at bar, the court reaches the conclusion that the evidence offered is of too vague a character to establish anticipation. The court finds, upon the evidence offered, that the patent is valid, and has been infringed by the defendant. Decree for complainant."
]
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McKUSICK, Chief Justice. Plaintiff Town of Farmington brought this action pursuant to 36 M.R.S.A. § 10321 against defendant Hardy’s Trailer Sales, Inc., a Maine corporation, for personal property taxes assessed against defendant for the year 1971. Plaintiff sought $3,315.03 for taxes and interest based upon the average value of certain house trailers, part of defendant’s stock in trade, located at defendant’s sales office in Farmington during the year preceding April 1, 1971. The Superior Court (Franklin County) entered judgment against plaintiff, ruling that the town did not have jurisdiction over defendant’s property because house trailers held as stock in trade were to be taxed in the place where the owner resided. The defendant’s residence was deemed to be in the city of Brewer where it maintained its principal place of business. See City of Portland v. Union Mutual Life Ins. Co., 79 Me. 231, 9 A. 613 (1887). On appeal, plaintiff contends that the Superior Court committed error in its interpretation of the pertinent statutes. We agree, and therefore sustain the appeal, vacate the judgment for defendant, and direct entry of judgment for plaintiff Town of Farmington. The general rule as to tax situs for personal property is found in 36 M.R.S.A. § 602 (1978), which states that such property will be taxed to the owner “where he resides” except “in cases enumerated in section 603.” Section 603(2) gives that enumeration and provides: “Personal property enumerated in this subsection shall be taxed in the place where situated.” At the time of the assessment in question, one of the items enumerated in subsection (2) was the following: “G. All house and camp trailers, as defined in section 1481,2 except those taxed as stock in trade.” 3 Subsection 2(G) thus took house trailers out of the general residency rule of section 602 and, except for those house trailers taxed as stock in trade, placed their tax situs in the place where situated. Defendant admitted by affidavit that it maintained in Farmington a sales *223office from which house trailers were “for sale to the general public and were stock in trade or were special order units for customers in the Farmington area.” The question thus became what rule was to govern the taxation of that stock in trade. We conclude that house trailers held for sale were to be taxed pursuant to the rule in section 603(1) that all “personal property employed in trade” shall be taxed in the municipality where so employed provided the owner maintains a store or shop “therein for the purpose of such employment.”4 From the enactment of the original predecessor of section 603(1) to the present, goods held for sale in a store or shop have been taxable, if at all, as personal property in the town where the goods are situated. R.S. 1857, ch. 6, § 11 clearly addressed the question of tax situs of all stock in trade and merchandise: All goods, wares and merchandize, all logs, timber, boards and other lumber, and all stock in trade, including stock employed in the business of any of the mechanic arts, in any town within this state, other than where the owners reside, shall be taxed in such town, if the owners occupy any store, shop, mill, or wharf therein, and shall not be taxable where the owners reside. In the 1883 Revised Statutes, the modern-day language of “personal property employed” in trade was substituted for “stock” in trade and for “goods, wares and merchandize”: I. All personal property employed in trade, in the erection of buildings or vessels, or in the mechanic arts, shall be taxed in the town where so employed on the first day of each April; provided, that the owner, his servant, sub-contractor or agent, so employing it, occupies any store; shop, mill, wharf, landing place or ship yard therein for the purpose of such employment. R.S. 1883, ch. 6, § 14(1) (emphasis in original). Cases interpreting that 1883 language of “personal property employed in trade” have held that it includes merchandise or goods held for sale or traffic — a basic definition of “stock in trade,” Black’s Law Dictionary 1588 (4th ed. rev. 1968). See, e. g., Gower v. Inhabitants of Jonesboro, 83 Me. 142, 21 A. 846 (1891) (1100 cords of cut and split firewood, ready for sale, taxed at landing place where situated); Inhabitants of Farmingdale v. Berlin Mills Co., 93 Me. 333, 45 A. 39 (1899) (finished logs ready for sale taxable where situated). Amendments subsequent to April 1,1971, confirm that defendant’s house trailers held for sale were to be taxed where situated. Effective September 23, 1971 (after the date of the assessment here at issue), “house trailers” were deleted from subsection 2(G); concomitantly, 36 M.R.S.A. § 551, which defines real estate for the purpose of real property taxes, was amended to provide that “[h]ouse trailers, except stock in trade, shall be considered real estate for purposes of taxation.” P.L. 1971, ch. 235, §§ 1, 2. Thus, just as 36 M.R.S.A. § 603(2)(G) did prior to April 1,1971, section 551 took house trailers out of the general residency rule of section 602 and, except for those house trailers taxed as stock in trade, taxed them in the place where situated. In 1973, section 603(1)(B), which had provided for the taxation of manufactured *224merchandise where situated if it was not merely in transit or was intended for manufacture into other merchandise,5 was repealed, P.L. 1973, ch. 592, § 7; and the same legislation repealed and replaced 36 M.R. S.A. § 655(1), so that now among the personal property exempt from taxation was stock in trade defined to include “inventory held for resale by a distributor, wholesaler, •retail merchant or service establishment.” Id., § 13; 36 M.R.S.A. § 655(1)(B) (1978). The legislature has thus continued to treat stock in trade as manufactured merchandise held for sale by the owner; the only change is that instead of such personal property being taxed where it is situated, it is now exempt from taxation entirely. Because defendant’s house trailers were finished products kept at its sales office in Farmington for sale to the general public, their taxation was to be governed by the tax situs rule of section 603(1), in effect April 1,1971. Since defendant on that date occupied a “store” or “shop” in Farmington, its trailer inventory or stock in trade located there was taxable in that town. The assessors of the plaintiff town therefore did have jurisdiction over defendant’s property, and the property was subject to taxation— two of the factual prerequisites for recovery of a tax by a municipality. The other essential elements, as set forth in Inhabitants of Athens v. Whittier, 122 Me. 86, 90, 118 A. 897, 898 (1922), are 1) duly elected and qualified assessors, 2) taxation of property belonging to the defendant, and 3) a written order of the selectmen that the suit be brought in the name of the municipality. Here, there is no genuine issue of material fact relating to those three factual prerequisites to relief. Plaintiff was therefore entitled to recover the tax, costs, and interest prayed for in its complaint pursuant to 36 M.R.S.A. § 1032. The entry must be: Appeal sustained. Judgment for defendant vacated. Case remanded to the Superior Court for entry of judgment for plaintiff. Costs on appeal allowed to plaintiff. NICHOLS, J., did not sit.
. 36 M.R.S.A. § 1032 (1978) reads: § 1032. Action may be brought in name of municipality In addition to other provisions for the collection of taxes, the municipal officers of any municipality to which a tax is due may in writing direct a civil action to be commenced in the name of such municipality against the party liable; but no such defendant is liable for any costs of the action, unless it appears by the declaration and by proof that payment of said tax had been duly demanded before the action.
. 36 M.R.S.A. § 1481 (1965) defined “house trailer”: 1. House trailer. “House trailer” not including camp trailer means: A. A trailer or semi-trailer which is designed, constructed and equipped as a permanent or temporary dwelling place, living abode or sleeping place and is equipped for use as a conveyance on highways, or B. A trailer or semi-trailer whose chassis and exterior shell is designed and constructed for use as a house trailer, as defined in paragraph A, but which is used instead permanently or temporarily for the advertising, sales, display or promotion of merchandise or services, or for any other commercial purpose except the transportation of property for hire or the transportation of property for distribution by a private carrier. Pursuant to P.L. 1975, ch. 252, § 15, “house trailer” was redefined as “mobile home.” See 36 M.R.S.A. § 1481(1) (1978).
.Other items listed under subsection (2) were: A. Portable mills, logs in any place to be manufactured therein, and all manufactured lumber excepting lumber in the possession of a transportation company and in transit. B. All potatoes stored awaiting sale or shipment, except as otherwise provided in section 655, subsection 1, paragraph B. C. All store fixtures, office furniture, furnishings, fixtures and equipment. D. Professional libraries, apparatus, implements and supplies. E. Coin-operated vending or amusement devices. F. Repealed. 1967, c. 480, § 1.
H. Television and radio transmitting equipment. »
. As of April 1, 1971, section 603(1) provided: The excepted cases referred to in section 602 are the following: 1. Personal property employed in trade. All personal property employed in trade, in the erection of buildings or vessels, or in the mechanic arts shall be taxed in the place where so employed, except as otherwise provided for in this subsection; provided the owner, his servant, subcontractor or agent occupies any store, storehouse, shop, mill, wharf, landing place or shipyard therein for the purpose of such employment. A. For the purposes of this subsection, “personal property employed in trade” shall include liquefied petroleum gas installations together with tanks or other containers used in connection therewith. . B. All manufactured merchandise, except products either intended for manufacture into other merchandise or used or for use in connection therewith and except merchandise in the possession of a transportation company or other carrier for the purpose of transporting the same, shall be taxed in the place where situated.
. See note 4 above. | 09-24-2021 | [
"McKUSICK, Chief Justice. Plaintiff Town of Farmington brought this action pursuant to 36 M.R.S.A. § 10321 against defendant Hardy’s Trailer Sales, Inc., a Maine corporation, for personal property taxes assessed against defendant for the year 1971. Plaintiff sought $3,315.03 for taxes and interest based upon the average value of certain house trailers, part of defendant’s stock in trade, located at defendant’s sales office in Farmington during the year preceding April 1, 1971. The Superior Court (Franklin County) entered judgment against plaintiff, ruling that the town did not have jurisdiction over defendant’s property because house trailers held as stock in trade were to be taxed in the place where the owner resided. The defendant’s residence was deemed to be in the city of Brewer where it maintained its principal place of business. See City of Portland v. Union Mutual Life Ins. Co., 79 Me.",
"231, 9 A. 613 (1887). On appeal, plaintiff contends that the Superior Court committed error in its interpretation of the pertinent statutes. We agree, and therefore sustain the appeal, vacate the judgment for defendant, and direct entry of judgment for plaintiff Town of Farmington. The general rule as to tax situs for personal property is found in 36 M.R.S.A. § 602 (1978), which states that such property will be taxed to the owner “where he resides” except “in cases enumerated in section 603.” Section 603(2) gives that enumeration and provides: “Personal property enumerated in this subsection shall be taxed in the place where situated.” At the time of the assessment in question, one of the items enumerated in subsection (2) was the following: “G. All house and camp trailers, as defined in section 1481,2 except those taxed as stock in trade.” 3 Subsection 2(G) thus took house trailers out of the general residency rule of section 602 and, except for those house trailers taxed as stock in trade, placed their tax situs in the place where situated. Defendant admitted by affidavit that it maintained in Farmington a sales *223office from which house trailers were “for sale to the general public and were stock in trade or were special order units for customers in the Farmington area.” The question thus became what rule was to govern the taxation of that stock in trade.",
"We conclude that house trailers held for sale were to be taxed pursuant to the rule in section 603(1) that all “personal property employed in trade” shall be taxed in the municipality where so employed provided the owner maintains a store or shop “therein for the purpose of such employment.”4 From the enactment of the original predecessor of section 603(1) to the present, goods held for sale in a store or shop have been taxable, if at all, as personal property in the town where the goods are situated. R.S.",
"1857, ch. 6, § 11 clearly addressed the question of tax situs of all stock in trade and merchandise: All goods, wares and merchandize, all logs, timber, boards and other lumber, and all stock in trade, including stock employed in the business of any of the mechanic arts, in any town within this state, other than where the owners reside, shall be taxed in such town, if the owners occupy any store, shop, mill, or wharf therein, and shall not be taxable where the owners reside. In the 1883 Revised Statutes, the modern-day language of “personal property employed” in trade was substituted for “stock” in trade and for “goods, wares and merchandize”: I. All personal property employed in trade, in the erection of buildings or vessels, or in the mechanic arts, shall be taxed in the town where so employed on the first day of each April; provided, that the owner, his servant, sub-contractor or agent, so employing it, occupies any store; shop, mill, wharf, landing place or ship yard therein for the purpose of such employment.",
"R.S. 1883, ch. 6, § 14(1) (emphasis in original). Cases interpreting that 1883 language of “personal property employed in trade” have held that it includes merchandise or goods held for sale or traffic — a basic definition of “stock in trade,” Black’s Law Dictionary 1588 (4th ed. rev. 1968). See, e. g., Gower v. Inhabitants of Jonesboro, 83 Me. 142, 21 A. 846 (1891) (1100 cords of cut and split firewood, ready for sale, taxed at landing place where situated); Inhabitants of Farmingdale v. Berlin Mills Co., 93 Me. 333, 45 A. 39 (1899) (finished logs ready for sale taxable where situated). Amendments subsequent to April 1,1971, confirm that defendant’s house trailers held for sale were to be taxed where situated. Effective September 23, 1971 (after the date of the assessment here at issue), “house trailers” were deleted from subsection 2(G); concomitantly, 36 M.R.S.A. § 551, which defines real estate for the purpose of real property taxes, was amended to provide that “[h]ouse trailers, except stock in trade, shall be considered real estate for purposes of taxation.” P.L. 1971, ch. 235, §§ 1, 2.",
"Thus, just as 36 M.R.S.A. § 603(2)(G) did prior to April 1,1971, section 551 took house trailers out of the general residency rule of section 602 and, except for those house trailers taxed as stock in trade, taxed them in the place where situated. In 1973, section 603(1)(B), which had provided for the taxation of manufactured *224merchandise where situated if it was not merely in transit or was intended for manufacture into other merchandise,5 was repealed, P.L. 1973, ch. 592, § 7; and the same legislation repealed and replaced 36 M.R. S.A. § 655(1), so that now among the personal property exempt from taxation was stock in trade defined to include “inventory held for resale by a distributor, wholesaler, •retail merchant or service establishment.” Id., § 13; 36 M.R.S.A. § 655(1)(B) (1978). The legislature has thus continued to treat stock in trade as manufactured merchandise held for sale by the owner; the only change is that instead of such personal property being taxed where it is situated, it is now exempt from taxation entirely. Because defendant’s house trailers were finished products kept at its sales office in Farmington for sale to the general public, their taxation was to be governed by the tax situs rule of section 603(1), in effect April 1,1971. Since defendant on that date occupied a “store” or “shop” in Farmington, its trailer inventory or stock in trade located there was taxable in that town.",
"The assessors of the plaintiff town therefore did have jurisdiction over defendant’s property, and the property was subject to taxation— two of the factual prerequisites for recovery of a tax by a municipality. The other essential elements, as set forth in Inhabitants of Athens v. Whittier, 122 Me. 86, 90, 118 A. 897, 898 (1922), are 1) duly elected and qualified assessors, 2) taxation of property belonging to the defendant, and 3) a written order of the selectmen that the suit be brought in the name of the municipality. Here, there is no genuine issue of material fact relating to those three factual prerequisites to relief. Plaintiff was therefore entitled to recover the tax, costs, and interest prayed for in its complaint pursuant to 36 M.R.S.A.",
"§ 1032. The entry must be: Appeal sustained. Judgment for defendant vacated. Case remanded to the Superior Court for entry of judgment for plaintiff. Costs on appeal allowed to plaintiff. NICHOLS, J., did not sit. . 36 M.R.S.A. § 1032 (1978) reads: § 1032. Action may be brought in name of municipality In addition to other provisions for the collection of taxes, the municipal officers of any municipality to which a tax is due may in writing direct a civil action to be commenced in the name of such municipality against the party liable; but no such defendant is liable for any costs of the action, unless it appears by the declaration and by proof that payment of said tax had been duly demanded before the action. . 36 M.R.S.A. § 1481 (1965) defined “house trailer”: 1. House trailer. “House trailer” not including camp trailer means: A. A trailer or semi-trailer which is designed, constructed and equipped as a permanent or temporary dwelling place, living abode or sleeping place and is equipped for use as a conveyance on highways, or B. A trailer or semi-trailer whose chassis and exterior shell is designed and constructed for use as a house trailer, as defined in paragraph A, but which is used instead permanently or temporarily for the advertising, sales, display or promotion of merchandise or services, or for any other commercial purpose except the transportation of property for hire or the transportation of property for distribution by a private carrier.",
"Pursuant to P.L. 1975, ch. 252, § 15, “house trailer” was redefined as “mobile home.” See 36 M.R.S.A. § 1481(1) (1978). .Other items listed under subsection (2) were: A. Portable mills, logs in any place to be manufactured therein, and all manufactured lumber excepting lumber in the possession of a transportation company and in transit. B. All potatoes stored awaiting sale or shipment, except as otherwise provided in section 655, subsection 1, paragraph B. C. All store fixtures, office furniture, furnishings, fixtures and equipment. D. Professional libraries, apparatus, implements and supplies. E. Coin-operated vending or amusement devices. F. Repealed. 1967, c. 480, § 1. H. Television and radio transmitting equipment.",
"» . As of April 1, 1971, section 603(1) provided: The excepted cases referred to in section 602 are the following: 1. Personal property employed in trade. All personal property employed in trade, in the erection of buildings or vessels, or in the mechanic arts shall be taxed in the place where so employed, except as otherwise provided for in this subsection; provided the owner, his servant, subcontractor or agent occupies any store, storehouse, shop, mill, wharf, landing place or shipyard therein for the purpose of such employment. A. For the purposes of this subsection, “personal property employed in trade” shall include liquefied petroleum gas installations together with tanks or other containers used in connection therewith. .",
"B. All manufactured merchandise, except products either intended for manufacture into other merchandise or used or for use in connection therewith and except merchandise in the possession of a transportation company or other carrier for the purpose of transporting the same, shall be taxed in the place where situated. . See note 4 above."
]
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Caroline K. Simon, J. On August 30, 1961, claimant duly filed a notice of intention to file a claim predicated upon personal injuries suffered by him on June 3, 1961, while a patron of defendant’s Bear Mountain Roller Skating Rink, alleging negligence and breach of warranty in regard to defendant’s issuance, adjustment and maintenance of skates rented to him by defendant on that day. A claim based thereon was thereafter duly filed on April 7,1962. *324On August 12, 1964, defendant served a notice on claimant’s counsel to produce claimant for examination before trial on August 21,1964. By letter dated August 12,1964, also addressed to claimant’s counsel, claimant was requested to submit to a physical examination and to execute an authorization to review the hospital records of the institutions at which he was treated for the injuries giving rise to the within claim. Numerous adjournments, necessitated by the illness of the children of claimant’s counsel and because of the actual engagement on trial of claimant’s counsel, were had. To date no examination before trial or physical examination of the claimant has been held nor has claimant executed the hospital authorization requested by defendant. By order to show cause dated January 28, 1965 defendant moved pursuant to CPLB, 3126 to strike claimant’s pleadings herein and to dismiss the claim, or, in the alternative, to obtain an order directing claimant to appear for examination before trial and for physical examination on a date to be fixed by the court, asserting that the claim had been assigned for trial and that defendant would be prejudiced unless these examinations are had. By notice of cross motion dated January 29, 1965, claimant cross-moved to obtain the production of a written statement obtained by the rink management from claimant immediately subsequent to the accident, the production of claimant’s first-aid records and the roller skates rented by claimant, and an examination before trial of the rink attendant who issued and adjusted claimant’s skates. Claimant further sought the production of the aforesaid items on the same day as that fixed by the court for the examination of claimant heretofore noted, but prior to claimant’s examination. On the argument of the within motion and cross motion, defendant did not stress that portion of its show cause order which sought relief by way of striking claimant’s pleadings and the dismissal of the claim, but urged that claimant be directed to appear for examination on a day certain. Defendant also indicated its willingness to make available for examination those persons and items listed in claimant’s cross motion on the day to be fixed by the court for claimant’s examination, but objected to the production of claimant’s statement prior to claimant’s examination on the ground that it would provide claimant with the opportunity to conform his testimony to that given immediately after the accident. Claimant did not oppose the alternative relief sought, but argued that claimant should be permitted to examine his own statement prior to being examined by the defendant in the interest of justice. *325Defendant conceded that the broad disclosure provisions of article 31 of the CPLR are available to claimants in this court (Di Santo v. State of New York, 22 A D 2d 289, affg. 41 Misc 2d 601), and that, by virtue of CPLR 3101 (subd. [e]) thereof, claimant may generally obtain a copy of his own statement without the need of showing special circumstances such as fraud or overreaching. The court recognizes the recent judicial trend sanctioning the statutory purpose of eliminating the requirement that a party show special circumstances in order to obtain his own statement. (Briggs v. Spencerport Road Plaza, 19 A D 2d 943; Sacks v. Greyhound Corp., 18 A D 2d 747.) The court finds untenable defendant’s assertion that if claimant is provided with his own statement prior to his examination he will alter his own testimony to fit the factual recitals contained in his statement. This very argument was rejected by the Appellate Division, Third Department, in Sacks v. Greyhound Corp. {supra, p. 748), where a unanimous Bench reasoned that a party could not conceal major discrepancies in such fashion and that avoidance of minor discrepancies “must be balanced against the effect of allowing liberal discovery on the speedy and efficient disposition of cases.” Although the subject for review was an order granting plaintiff’s motion to produce plaintiff’s own statement pursuant to section 324 of the Civil Practice Act, a practice provision not available in this court, the court recognizes the applicability of the rationale of that decision which the court perceives to be an expression of belief that dispensation of justice may best be achieved by means of implementing full and fair disclosure of all evidentiary facts and that such a just policy must not be frustrated by parties who place too high a value upon concealment and entrapment as litigation devices. Defendant’s motion to strike claimant’s pleadings and to dismiss the within claim is denied. Defendant’s motion is otherwise granted as provided hereafter. Claimant’s cross motion is granted in all respects. The court directs that claimant be produced for examination before trial as an adverse party under oath, before a person authorized by CPLR 3113 (subd. [a]) on February 26, 1965, at the office of the Attorney-G-eneral, Boom 1001, 270 Broadway, City and State of New York at 10:00 a.m. in the morning and that he submit to a physical examination by a duly licensed physician designated by the defendant and that he authorize defendant to obtain and make copies of claimant’s hospital records in connection with this claim. The court further directs *326defendant to produce those relevant papers and items designated in claimant’s notice of cross motion dated January 29, 1965, for inspection by claimant prior to the examination of claimant by defendant as herein recited and directs that defendant designate and produce its employee having knowledge of the facts herein as set forth in the aforesaid notice of cross motion for examination before trial as an adverse party under oath, said examination to follow claimant’s examination on February 26, 1965 and to be held at the office of the Attorney-G-cneral, Room 1001, 270 Broadway, City and St'ate of New York, under the same terms and conditions governing claimant’s examination. The court further directs that all proceedings in connection with the trial of the claim be stayed pending the completion of the examinations and the production of relevant documents and items in connection therewith, said stay to remain in effect until the receipt, execution and exchange of the transcripts thereof by the respective parties. Movant and cross movant are directed to submit an appropriate order incorporating the provisions heretofore set forth by the court as applicable to the relief sought by each of them, said orders to be submitted on three days’ notice of settlement. | 02-05-2022 | [
"Caroline K. Simon, J. On August 30, 1961, claimant duly filed a notice of intention to file a claim predicated upon personal injuries suffered by him on June 3, 1961, while a patron of defendant’s Bear Mountain Roller Skating Rink, alleging negligence and breach of warranty in regard to defendant’s issuance, adjustment and maintenance of skates rented to him by defendant on that day. A claim based thereon was thereafter duly filed on April 7,1962. *324On August 12, 1964, defendant served a notice on claimant’s counsel to produce claimant for examination before trial on August 21,1964.",
"By letter dated August 12,1964, also addressed to claimant’s counsel, claimant was requested to submit to a physical examination and to execute an authorization to review the hospital records of the institutions at which he was treated for the injuries giving rise to the within claim. Numerous adjournments, necessitated by the illness of the children of claimant’s counsel and because of the actual engagement on trial of claimant’s counsel, were had. To date no examination before trial or physical examination of the claimant has been held nor has claimant executed the hospital authorization requested by defendant. By order to show cause dated January 28, 1965 defendant moved pursuant to CPLB, 3126 to strike claimant’s pleadings herein and to dismiss the claim, or, in the alternative, to obtain an order directing claimant to appear for examination before trial and for physical examination on a date to be fixed by the court, asserting that the claim had been assigned for trial and that defendant would be prejudiced unless these examinations are had.",
"By notice of cross motion dated January 29, 1965, claimant cross-moved to obtain the production of a written statement obtained by the rink management from claimant immediately subsequent to the accident, the production of claimant’s first-aid records and the roller skates rented by claimant, and an examination before trial of the rink attendant who issued and adjusted claimant’s skates. Claimant further sought the production of the aforesaid items on the same day as that fixed by the court for the examination of claimant heretofore noted, but prior to claimant’s examination. On the argument of the within motion and cross motion, defendant did not stress that portion of its show cause order which sought relief by way of striking claimant’s pleadings and the dismissal of the claim, but urged that claimant be directed to appear for examination on a day certain. Defendant also indicated its willingness to make available for examination those persons and items listed in claimant’s cross motion on the day to be fixed by the court for claimant’s examination, but objected to the production of claimant’s statement prior to claimant’s examination on the ground that it would provide claimant with the opportunity to conform his testimony to that given immediately after the accident.",
"Claimant did not oppose the alternative relief sought, but argued that claimant should be permitted to examine his own statement prior to being examined by the defendant in the interest of justice. *325Defendant conceded that the broad disclosure provisions of article 31 of the CPLR are available to claimants in this court (Di Santo v. State of New York, 22 A D 2d 289, affg. 41 Misc 2d 601), and that, by virtue of CPLR 3101 (subd. [e]) thereof, claimant may generally obtain a copy of his own statement without the need of showing special circumstances such as fraud or overreaching.",
"The court recognizes the recent judicial trend sanctioning the statutory purpose of eliminating the requirement that a party show special circumstances in order to obtain his own statement. (Briggs v. Spencerport Road Plaza, 19 A D 2d 943; Sacks v. Greyhound Corp., 18 A D 2d 747.) The court finds untenable defendant’s assertion that if claimant is provided with his own statement prior to his examination he will alter his own testimony to fit the factual recitals contained in his statement. This very argument was rejected by the Appellate Division, Third Department, in Sacks v. Greyhound Corp. {supra, p. 748), where a unanimous Bench reasoned that a party could not conceal major discrepancies in such fashion and that avoidance of minor discrepancies “must be balanced against the effect of allowing liberal discovery on the speedy and efficient disposition of cases.” Although the subject for review was an order granting plaintiff’s motion to produce plaintiff’s own statement pursuant to section 324 of the Civil Practice Act, a practice provision not available in this court, the court recognizes the applicability of the rationale of that decision which the court perceives to be an expression of belief that dispensation of justice may best be achieved by means of implementing full and fair disclosure of all evidentiary facts and that such a just policy must not be frustrated by parties who place too high a value upon concealment and entrapment as litigation devices.",
"Defendant’s motion to strike claimant’s pleadings and to dismiss the within claim is denied. Defendant’s motion is otherwise granted as provided hereafter. Claimant’s cross motion is granted in all respects. The court directs that claimant be produced for examination before trial as an adverse party under oath, before a person authorized by CPLR 3113 (subd. [a]) on February 26, 1965, at the office of the Attorney-G-eneral, Boom 1001, 270 Broadway, City and State of New York at 10:00 a.m. in the morning and that he submit to a physical examination by a duly licensed physician designated by the defendant and that he authorize defendant to obtain and make copies of claimant’s hospital records in connection with this claim. The court further directs *326defendant to produce those relevant papers and items designated in claimant’s notice of cross motion dated January 29, 1965, for inspection by claimant prior to the examination of claimant by defendant as herein recited and directs that defendant designate and produce its employee having knowledge of the facts herein as set forth in the aforesaid notice of cross motion for examination before trial as an adverse party under oath, said examination to follow claimant’s examination on February 26, 1965 and to be held at the office of the Attorney-G-cneral, Room 1001, 270 Broadway, City and St'ate of New York, under the same terms and conditions governing claimant’s examination.",
"The court further directs that all proceedings in connection with the trial of the claim be stayed pending the completion of the examinations and the production of relevant documents and items in connection therewith, said stay to remain in effect until the receipt, execution and exchange of the transcripts thereof by the respective parties. Movant and cross movant are directed to submit an appropriate order incorporating the provisions heretofore set forth by the court as applicable to the relief sought by each of them, said orders to be submitted on three days’ notice of settlement."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6186106/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SEAWELL, J., dissents. Controversy without action submitted on facts agreed, which, in summary, follow: I. The corporate name of the plaintiff is Trustees of Guilford College. It is an educational institution of the Society of Friends with its campus and school buildings located in Guilford County, this State. II. During the year 1940, the plaintiff was the owner of two lots in Guilford County with houses thereon, which were not used in connection with the college and which were held on lease or rented out — the rentals derived therefrom being used by the plaintiff exclusively for educational purposes: 1. Lot No. 100 Magnolia Street, in the residential section of the city of Greensboro, which the plaintiff acquired by foreclosure of deed of trust securing an investment from its endowment funds. The house on this lot is rented for $50.00 a month. 2. Lot No. 918 West Lee Street, in the city of Greensboro, which the plaintiff acquired by will from Newton F. Farlow. The house on this lot rents for $20.00 a month and the rent is used in providing scholarships for students attending Guilford College in accordance with the will of the testator. III. The plaintiff also owns a lot on Friendly Road (Dolly Madison Birthplace), located about 300 yards from the entrance of the college campus, with a small brick house erected thereon "in which a member of the faculty of the college resides, and the sum of $30.00 per month is considered in the fixing of his salary, and the said $30.00 then completely used as endowment income and applied in operating said college." IV. The defendants, who are the local taxing authorities, caused all three of these properties to be placed on the tax list and assessment roll for the year 1940. V. The taxes were paid by the plaintiff under protest, and this proceeding is to test their validity. From judgment holding the taxes in question to be illegal and ordering their refund, the defendants appeal, assigning error. *Page 349 It follows from what is said in Rockingham County v. Elon College, ante, 342, that two of plaintiff's properties are subject to tax, i.e., the two that are not used in connection with the college, but are held on lease or rented out for profit or gain. These are designated as Lot No. 100 Magnolia Street and Lot No. 918 West Lee Street. The facts are insufficient to determined with definiteness the taxable status of the house and lot on Friendly Road, the Dolly Madison Birthplace. See Revenue Act of 1939, ch. 310, sec. 600 (4), Public Laws 1939; Harrisonv. Guilford County, 218 N.C. 718. Hence, in respect of this piece of property, the cause will be remanded for further proceedings as to justice appertains and the rights of the parties may require. Such procedure finds support in the recent case of Weinstein v. Raleigh, 218 N.C. 549. Error and remanded. SEAWELL, J., dissents. | 07-06-2016 | [
"SEAWELL, J., dissents. Controversy without action submitted on facts agreed, which, in summary, follow: I. The corporate name of the plaintiff is Trustees of Guilford College. It is an educational institution of the Society of Friends with its campus and school buildings located in Guilford County, this State. II. During the year 1940, the plaintiff was the owner of two lots in Guilford County with houses thereon, which were not used in connection with the college and which were held on lease or rented out — the rentals derived therefrom being used by the plaintiff exclusively for educational purposes: 1. Lot No. 100 Magnolia Street, in the residential section of the city of Greensboro, which the plaintiff acquired by foreclosure of deed of trust securing an investment from its endowment funds. The house on this lot is rented for $50.00 a month. 2. Lot No. 918 West Lee Street, in the city of Greensboro, which the plaintiff acquired by will from Newton F. Farlow. The house on this lot rents for $20.00 a month and the rent is used in providing scholarships for students attending Guilford College in accordance with the will of the testator.",
"III. The plaintiff also owns a lot on Friendly Road (Dolly Madison Birthplace), located about 300 yards from the entrance of the college campus, with a small brick house erected thereon \"in which a member of the faculty of the college resides, and the sum of $30.00 per month is considered in the fixing of his salary, and the said $30.00 then completely used as endowment income and applied in operating said college.\" IV. The defendants, who are the local taxing authorities, caused all three of these properties to be placed on the tax list and assessment roll for the year 1940. V. The taxes were paid by the plaintiff under protest, and this proceeding is to test their validity. From judgment holding the taxes in question to be illegal and ordering their refund, the defendants appeal, assigning error. *Page 349 It follows from what is said in Rockingham County v. Elon College, ante, 342, that two of plaintiff's properties are subject to tax, i.e., the two that are not used in connection with the college, but are held on lease or rented out for profit or gain. These are designated as Lot No. 100 Magnolia Street and Lot No. 918 West Lee Street.",
"The facts are insufficient to determined with definiteness the taxable status of the house and lot on Friendly Road, the Dolly Madison Birthplace. See Revenue Act of 1939, ch. 310, sec. 600 (4), Public Laws 1939; Harrisonv. Guilford County, 218 N.C. 718. Hence, in respect of this piece of property, the cause will be remanded for further proceedings as to justice appertains and the rights of the parties may require. Such procedure finds support in the recent case of Weinstein v. Raleigh, 218 N.C. 549.",
"Error and remanded. SEAWELL, J., dissents."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3655833/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
J. Seaborn Holt, Associate Justice. Appellant, Howell, sued Appellee, Simon, and tbe Arkansas Power and Light Company for substantial damages for practicing an alleged fraud on Appellant. Appellee, Company, filed a separate demurrer alleging that tbe complaint did not state facts sufficient to constitute an action against it. Tbe trial court sustained tbis demurrer, Howell refused to plead further and elected to stand on bis complaint. Whereupon tbe court dismissed bis complaint and tbis appeal followed. Tbe case is still pending as to Appellee, Simon. In testing a complaint on demurrer we must assume that all allegations that are well pleaded, are true. Also our rule is well established that pleadings are to be liberally construed and every reasonable intendment is to be indulged on behalf of the pleader in determining whether a cause of action is stated. Rice v. King, 214 Ark. 813, 218 S. W. 2d 91; Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121. Omitting formal parts material allegations in the complaint were in effect that Howell is a licensed real estate broker in Pulaski County. “In February, 1954, the Real Estate Board cancelled his (Howell’s) license, for the reason that plaintiff had split a real estate commission with the defendant, Simon, in connection Avith the transfer of a block of ground at 9th and Louisiana Streets in Little Rock, Arkansas, to the defendant, Arkansas Power and Light Company. “In November, 1952, the defendant, Simon, called the plaintiff (Howell) to his office in the Arcade Building, in the City of Little Rock, and held himself out to the plaintiff as a real estate broker, and as a spokesman, with authority, for the defendant, Arkansas Power and Light Company, and advised the plaintiff that they, by Avorking together, could bring about the purchase by the defendant, Arkansas Power and Light Company, of the above described property; that the Arkansas Power and Light Company was interested in the purchasing of said block of ground; that they Avould buy said block of ground, if the said defendant, Simon, and this plaintiff could arrange for the transfer of good title from each of the individual owners of the various subdivisions of said block of property; that at the time, the plaintiff had listed Avith him as a real estate broker, for sale a certain portion of said block of ground; that to verify the said statements of the defendant, Simon, to the plaintiff, the defendant, Simon, took the plaintiff to one of the officials of the defendant, Arkansas Power and Light Company, at his office in Little Rock, Mr. C. Hamilton Moses, and said statements of the defendant, Simon, were, in the presence of the defendant, Simon, and Mr. Moses, and the plaintiff, then and there verified by Mr. Moses, as an official authorized to speak for the defendant, Arkansas Power and Light Company; that pursuant to the said statements of the defendant, Simon, to the plaintiff, and the verification thereof by Mr. Moses . . . The defendant, Simon, and the plaintiff acquired several written contracts in their names, with the various property owners within the block for the sale of their property at certain prices; that all transactions in connection with the acquiring of the block of ground and the subdivisions thereof for the Power Company, were made with the defendant, Simon, and this plaintiff, jointly; . . . was at all times known to the officials of the Arkansas Power and Light Company, and approved by them . . . “On or about February 5, 1953, by the procedure followed, as hereinabove set forth, the defendant, Arkansas Power and Light Company, acquired title to said block of ground. At that time the defendant, Simon, and the plaintiff were paid a real estate commission fee by the property owners, who conveyed to the defendant, Arkansas Power and Light Company, the sum of approximately $12,500 as brokerage fees, under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff. The plaintiff and the defendant, Simon, split brokerage fees, dividing approximately on a fifty-fifty basis ... It was because of the fact that this plaintiff consented to the defendant, Simon, receiving said money that plaintiff’s real estate license was can-celled, for the reason that it was discovered thereafter that the defendant, Simon, was not a licensed real estate broker, and thereafter not legally entitled to receive said monies as a real estate brokerage fee, and thereby making the plaintiff’s act in consenting thereto an illegal one. The plaintiff did not know the defendant, Simon, ... was not a licensed real estate broker until a considerable length of time after the said real estate commissions had been collected, and the money therefrom distributed and divided, as hereinabove set forth, between this plaintiff and the defendant, Simon. “The plaintiff alleges that the defendant, Simon, practiced fraud on this plaintiff when he held himself out to this plaintiff to be a licensed real estate broker at the time of their first meeting, as hereinabove set forth, and at all times during their associations, as herein alleged, in connection with the herein described real estate operations and transactions. The defendant, Simon, at all times mentioned in this complaint, fraudulently held himself out to be a licensed real estate broker to this plaintiff. The defendant, Simon, was never, at any time, a licensed real estate broker. At all times mentioned in this complaint, and at all times the defendant, Simon, practiced and continued to practice such fraud on this plaintiff, as alleged, he, the defendant, Simon, was acting as an agent for the defendant, Arkansas Power and Light Company. . . . The fraud therefore practiced on this plaintiff, as herein alleged, because of the agency relationship between the defendant, Simon, and the defendant, Arkansas Power and Light Company, as herein set forth, is therefore, and by reason thereof the joint and concurring fraud of both the defendant, Simon, and the defendant, Arkansas Power and Light Company, for which the plaintiff herein is entitled to recover from both of the defendants herein.” We hold that the trial court properly sustained appellee’s demurrer. Giving every reasonable intendment to the pleader’s allegations in his complaint, we hold that he has failed to allege any facts that would justify an inference that Simon was the agent of the power company with authority to bind it by a misrepresentation to the effect that he, Simon, was a licensed real estate broker. While it is alleged that Simon was acting as a real estate broker it is also alleged that $12,500 in commissions was paid by the property owners (not the power company) to appellant and Simon (one-half to each) “under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff (Howell).” This statement negatives the existence of a general agency of Simon for the power company and places the burden on the pleader to allege facts'— not conclusions, — sufficient to show that Simon was such an agent that would bind the power company. As indicated, the only allegations of fact are that Simon was acting as a broker to be paid by the property owners, that “he was acting in the scope of his authority given him by the company, for him to try and bring about the transfer of said block of ground from the owners ... to the Arkansas Power and Light Company, and his said delegated and authorized mission was accomplished as herein alleged.” The principles of law in J. I. Porter Lumber Company v. Hill, 72 Ark. 62, 77 S. W. 905, apply here. We there said: [Headnote 1] “In trespass for cutting timber, an answer to the effect that plaintiff was estopped to recover because his agent stood by and failed to object to the cutting and conversion of the timber is insufficient in failing to allege that such agent had authority to act in the matter.” In holding the answer demurrable this court said in J. I. Porter Lumber Co. v. Hill, 72 Ark. 62, 64, “It is alleged in the answer that one Atwood was an agent of plaintiff, but the answer does not show what kind of an agent he was, nor what his powers were. The mere failure of an agent employed to pay tases and prevent trespassing upon land to perform his duty could not affect the rights of plaintiff in this action, for an agent with such limited powers has no authority to give the timber of his principal away; and if he could not do so directly by permission or agreement, he certainly could not do so indirectly by acts constituting an estoppel.” The allegation that Simon was acting in the scope of his employment is a conclusion of law, only, and must fall because of lack of factual allegations to support it. It was incumbent on the pleader to allege specifically (which he did not do) that Simon had been authorized by the power company to make the misrepresentation about his license. The judgment is affirmed. Justices McFaddin and Millwee dissent. | 09-07-2022 | [
"J. Seaborn Holt, Associate Justice. Appellant, Howell, sued Appellee, Simon, and tbe Arkansas Power and Light Company for substantial damages for practicing an alleged fraud on Appellant. Appellee, Company, filed a separate demurrer alleging that tbe complaint did not state facts sufficient to constitute an action against it. Tbe trial court sustained tbis demurrer, Howell refused to plead further and elected to stand on bis complaint. Whereupon tbe court dismissed bis complaint and tbis appeal followed. Tbe case is still pending as to Appellee, Simon. In testing a complaint on demurrer we must assume that all allegations that are well pleaded, are true. Also our rule is well established that pleadings are to be liberally construed and every reasonable intendment is to be indulged on behalf of the pleader in determining whether a cause of action is stated. Rice v. King, 214 Ark. 813, 218 S. W. 2d 91; Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121. Omitting formal parts material allegations in the complaint were in effect that Howell is a licensed real estate broker in Pulaski County. “In February, 1954, the Real Estate Board cancelled his (Howell’s) license, for the reason that plaintiff had split a real estate commission with the defendant, Simon, in connection Avith the transfer of a block of ground at 9th and Louisiana Streets in Little Rock, Arkansas, to the defendant, Arkansas Power and Light Company.",
"“In November, 1952, the defendant, Simon, called the plaintiff (Howell) to his office in the Arcade Building, in the City of Little Rock, and held himself out to the plaintiff as a real estate broker, and as a spokesman, with authority, for the defendant, Arkansas Power and Light Company, and advised the plaintiff that they, by Avorking together, could bring about the purchase by the defendant, Arkansas Power and Light Company, of the above described property; that the Arkansas Power and Light Company was interested in the purchasing of said block of ground; that they Avould buy said block of ground, if the said defendant, Simon, and this plaintiff could arrange for the transfer of good title from each of the individual owners of the various subdivisions of said block of property; that at the time, the plaintiff had listed Avith him as a real estate broker, for sale a certain portion of said block of ground; that to verify the said statements of the defendant, Simon, to the plaintiff, the defendant, Simon, took the plaintiff to one of the officials of the defendant, Arkansas Power and Light Company, at his office in Little Rock, Mr. C. Hamilton Moses, and said statements of the defendant, Simon, were, in the presence of the defendant, Simon, and Mr. Moses, and the plaintiff, then and there verified by Mr. Moses, as an official authorized to speak for the defendant, Arkansas Power and Light Company; that pursuant to the said statements of the defendant, Simon, to the plaintiff, and the verification thereof by Mr. Moses .",
". . The defendant, Simon, and the plaintiff acquired several written contracts in their names, with the various property owners within the block for the sale of their property at certain prices; that all transactions in connection with the acquiring of the block of ground and the subdivisions thereof for the Power Company, were made with the defendant, Simon, and this plaintiff, jointly; . . . was at all times known to the officials of the Arkansas Power and Light Company, and approved by them .",
". . “On or about February 5, 1953, by the procedure followed, as hereinabove set forth, the defendant, Arkansas Power and Light Company, acquired title to said block of ground. At that time the defendant, Simon, and the plaintiff were paid a real estate commission fee by the property owners, who conveyed to the defendant, Arkansas Power and Light Company, the sum of approximately $12,500 as brokerage fees, under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff. The plaintiff and the defendant, Simon, split brokerage fees, dividing approximately on a fifty-fifty basis ... It was because of the fact that this plaintiff consented to the defendant, Simon, receiving said money that plaintiff’s real estate license was can-celled, for the reason that it was discovered thereafter that the defendant, Simon, was not a licensed real estate broker, and thereafter not legally entitled to receive said monies as a real estate brokerage fee, and thereby making the plaintiff’s act in consenting thereto an illegal one.",
"The plaintiff did not know the defendant, Simon, ... was not a licensed real estate broker until a considerable length of time after the said real estate commissions had been collected, and the money therefrom distributed and divided, as hereinabove set forth, between this plaintiff and the defendant, Simon. “The plaintiff alleges that the defendant, Simon, practiced fraud on this plaintiff when he held himself out to this plaintiff to be a licensed real estate broker at the time of their first meeting, as hereinabove set forth, and at all times during their associations, as herein alleged, in connection with the herein described real estate operations and transactions. The defendant, Simon, at all times mentioned in this complaint, fraudulently held himself out to be a licensed real estate broker to this plaintiff. The defendant, Simon, was never, at any time, a licensed real estate broker.",
"At all times mentioned in this complaint, and at all times the defendant, Simon, practiced and continued to practice such fraud on this plaintiff, as alleged, he, the defendant, Simon, was acting as an agent for the defendant, Arkansas Power and Light Company. . . . The fraud therefore practiced on this plaintiff, as herein alleged, because of the agency relationship between the defendant, Simon, and the defendant, Arkansas Power and Light Company, as herein set forth, is therefore, and by reason thereof the joint and concurring fraud of both the defendant, Simon, and the defendant, Arkansas Power and Light Company, for which the plaintiff herein is entitled to recover from both of the defendants herein.” We hold that the trial court properly sustained appellee’s demurrer. Giving every reasonable intendment to the pleader’s allegations in his complaint, we hold that he has failed to allege any facts that would justify an inference that Simon was the agent of the power company with authority to bind it by a misrepresentation to the effect that he, Simon, was a licensed real estate broker. While it is alleged that Simon was acting as a real estate broker it is also alleged that $12,500 in commissions was paid by the property owners (not the power company) to appellant and Simon (one-half to each) “under the real estate brokerage listing contracts made by and between the said property owners and the defendant, Simon, and this plaintiff (Howell).” This statement negatives the existence of a general agency of Simon for the power company and places the burden on the pleader to allege facts'— not conclusions, — sufficient to show that Simon was such an agent that would bind the power company.",
"As indicated, the only allegations of fact are that Simon was acting as a broker to be paid by the property owners, that “he was acting in the scope of his authority given him by the company, for him to try and bring about the transfer of said block of ground from the owners ... to the Arkansas Power and Light Company, and his said delegated and authorized mission was accomplished as herein alleged.” The principles of law in J. I. Porter Lumber Company v. Hill, 72 Ark. 62, 77 S. W. 905, apply here.",
"We there said: [Headnote 1] “In trespass for cutting timber, an answer to the effect that plaintiff was estopped to recover because his agent stood by and failed to object to the cutting and conversion of the timber is insufficient in failing to allege that such agent had authority to act in the matter.” In holding the answer demurrable this court said in J. I. Porter Lumber Co. v. Hill, 72 Ark. 62, 64, “It is alleged in the answer that one Atwood was an agent of plaintiff, but the answer does not show what kind of an agent he was, nor what his powers were. The mere failure of an agent employed to pay tases and prevent trespassing upon land to perform his duty could not affect the rights of plaintiff in this action, for an agent with such limited powers has no authority to give the timber of his principal away; and if he could not do so directly by permission or agreement, he certainly could not do so indirectly by acts constituting an estoppel.” The allegation that Simon was acting in the scope of his employment is a conclusion of law, only, and must fall because of lack of factual allegations to support it. It was incumbent on the pleader to allege specifically (which he did not do) that Simon had been authorized by the power company to make the misrepresentation about his license.",
"The judgment is affirmed. Justices McFaddin and Millwee dissent."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7814619/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. 11th Cir. Cer-tiorari denied. | 11-28-2022 | [
"C. A. 11th Cir. Cer-tiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9188751/ | 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 . Applicant filed a communication dated 02/09/2021 in which claims 1, 2, 14, 15, 27, and 28 have been amended. Thus, claims 1-39 are pending in the application. Continued Examination Under 37 CFR 1.114 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 03/17/2021 has been entered. Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-39 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of managing indications of interest without significantly more. Examiner has identified claim 1 as the claim that represents the claimed invention presented in independent claims 1, 14, and 27. Claim 1 is directed to a method, which is one of the statutory categories of invention (Step 1: YES Claim 1 is directed to method, which performs a series of steps, e.g., generating a graphical user interface on a computing device; generating a graphical user interface (GUI) on a computing device of a sale's trader for management and distribution of indications of interest (IOIs) to one or more clients; receiving, from an order management server, one or more orders to trade a financial instrument; rendering, on a display of the computing device, a plurality of rows, each of the plurality of rows corresponding to either the one or more orders to trade the financial instrument or one or more subsets of the one or more orders to trade the financial instrument; rendering, on the display of the computing device, a plurality of columns, each of the plurality of columns corresponding to one of the one or more clients; accessing a data store, on a data storage device, to read data corresponding to the one or more clients; determining, based on the at least one current and historical holdings of the financial instrument, current orders, and proprietary trading interest of the one or more clients, one or more data sets, each of the one or more data sets corresponding to the one or more orders to trade the financial instrument and to the one or more clients; determining, based on the one or more data sets, one or more client scores for the one or more orders to trade the financial instrument; assigning, based on the one or more data sets, each of the one or more clients to at least one client tier; generating, for each of the one or more orders to trade the financial instrument, a master IOI comprising one or more IOI shapes; selecting the one or more IOI shapes from the master IOI; rendering the one or more IOI shapes from the master IOI in the cell defined at the intersection of the rows and the columns, the order to trade the financial instrument, and the one or more clients; determining, based on the one or more client scores, to opt-in the one or more clients to automatically receive the IOI including the one or more IOI shapes representing the one or more orders to trade the financial instrument; receiving customization instructions for the IOI from the sale's trader based IOI transmission module to transmit the IOI to the one or more clients; determining to resend the IOI for the one or more orders to trade the financial instrument at one or more intervals; transmitting, in response to the determining, instructions to the IOI transmission module to redistribute the IOI for the one or more orders to trade the financial instrument to the opted-in one or more clients at the one or more intervals; and updating and displaying the one or more IOI shapes rendered on the GUI of the display of the computing device of the sale's trader to indicate a status of the IOI. These limitations describe the abstract idea of managing indications of interest (with the exception of the italicized terms above), which correspond to Certain Methods of Organizing Human Activity: Commercial or Legal Interactions. The computer device limitations, e.g., graphical user interface (GUI), order management server, display of the computing device, computing device, data storage device, data store, and IOI transmission module do not necessarily restrict the claim from reciting an abstract idea. Thus, claim 1 recites an abstract idea (Step 2A-Prong 1: YES). This judicial exception is not integrated into a practical application because the additional limitations of a graphical user interface (GUI), order management server, display of the computing device, computing device, data storage device, data store, and IOI transmission module is no more than simply applying the abstract idea using generic computer elements. The additional elements listed above are all recited at a high level of generality and under their broadest reasonable interpretation comprises a generic computing arrangement. The presence of Step 2A-Prong 2: NO). Claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements of a graphical user interface (GUI), order management server, display of the computing device, computing device, data storage device, data store, and IOI transmission module limitations are recited at a high level of generality in that it results in no more than simply applying the abstract idea using generic computer elements. The computer network limitations are a field of use limitations (MPEP 2106.05(h)).The additional elements when considered separately and as an ordered combination do not amount to add significantly more as these limitations provide nothing more than to simply apply the exception in a generic computer environment (Step 2B: NO). Thus, claim 1 is not patent eligible. Similar arguments can be extended to the other independent claims, claims 14 and 27; and hence claims 14 and 27 are rejected on similar grounds as claim 11. Dependent claims 2-13, 15-26, and 28-39 have further defined the abstract idea that is present in their respective independent claims 1, 14, and 27; and thus correspond to Certain Methods of Organizing Human Activity, and hence are abstract in nature for the reason presented above. The dependent claims 2-13, 15-26, and 28-39 do not include any additional elements that integrate the abstract idea into a practical application or are sufficient to amount to significantly more than the judicial exception when considered both individually and as an Response to Arguments With respect to the 35 U.S.C. 103 rejection of claims 1-39, the claims’ rejection is withdrawn in view of Applicant’s arguments/remarks made in an amendment filed on 02/09/2021. Applicant's arguments filed and dated on 02/09/2021 have been fully considered, but they are not persuasive due to the following reasons: With respect to the rejection of claims 1-39 under 35 U.S.C. 101, Examiner notes that the 35 U.S.C. 101 rejection presented above, in this office action, explains why Examiner respectfully declines Applicant’s request to withdraw the 35 U.S.C. 101 rejection of claims 1-39. Examiner notes that the concept of trading interests corresponds commercial or legal interactions, and hence corresponds to Certain Methods of Organizing Human Activity. The receiving interests, preventing the exclusion of clients, and transmitting instructions limitations are recited at a high level of generality and is simply makes use of the order management server and computing device of sale’s trader. It is unclear how this adds to technology improvement. Thus, these limitations are simply implementing the abstract idea without providing any technical improvements. Examiner respectfully notes that the use of graphical user interface (GUI) on a computing device of a sale's trader for to manage and distribute indications of interest to one or more clients makes use of a computer and the computer limitations do not necessarily restrict the claim from reciting an abstract idea as discussed above under Step 2A-Prong 1 of the 35 U.S.C. 101 rejection. Examiner has also considered each and every arguments under Step 2A-Prong 1 and concludes that these arguments are not persuasive. For example, under Step 2A- With respect to Step 2A, Prong 2, Applicant states that the claimed subject matter relates to a specific improvement in computer-related technology. Examiner notes that there is no technology/technical improvement as a result of implementing the abstract idea. Receiving, generating, rendering, accessing, determining, assigning, selecting, displaying, updating, transmitting and storing trading/financial data simply amount to the abstract idea of managing indications of interest. There is no computer functionality improvement or technology improvement. The claim does not provide a technical solution to a technical problem. If there is an improvement, it is to the abstract idea of managing indications of interest and not to technology. Examiner notes that it is important to keep in mind that an improvement in the judicial exception itself (e.g., a commercial or legal interaction) is not an improvement in technology (see October 2019 Patent Eligibility Guidance Update (issued October 17, 2019), page 13). Thus, the claim does not integrate the abstract idea into a practical application. Applicant argue that “the claims integrate the alleged abstract idea into an inventive concept, thereby transforming the claims into patent-eligible subject matter. See MPEP § 2106.05(1). In particular, claims directed to an improvement in computer related technologies are considered sufficiently transformative to meet the patent-eligibility requirement of 35 U.S.C. § 101. See MPEP § 2106.05(a)(1). In particular, the claims recite “selecting the one or more IOI shapes from the master IOI,”….display of the computing device of the sale’s trader to indicate a Furthermore, Examiner has reviewed all of Applicant's arguments and notes that the inventive concept cannot be furnished by a judicial exception. The improvements argued are to the abstract idea and not to technology. The technical limitations are simply utilized as a tool to implement the abstract idea without adding significantly more. Thus, the claim is directed to an abstract idea and hence these arguments are not persuasive. Hence, Examiner respectfully declines Applicant’s request to withdraw the 35 U.S.C. 101 rejection of claims 1-39. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMMED H MUSTAFA whose telephone number is (571) 270-7978. The examiner can normally be reached on M-F 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 If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SHAHID MERCHANT can be reached on (571) 270-1360. 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.
/MOHAMMED H MUSTAFA/Examiner, Art Unit 3693
/Shahid Merchant/Supervisory Patent Examiner, Art Unit 3693 | 2021-06-27T10:49:45 | [
"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 . Applicant filed a communication dated 02/09/2021 in which claims 1, 2, 14, 15, 27, and 28 have been amended. Thus, claims 1-39 are pending in the application. Continued Examination Under 37 CFR 1.114 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 03/17/2021 has been entered. Claim Rejections - 35 USC § 101 35 U.S.C.",
"101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Claims 1-39 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of managing indications of interest without significantly more. Examiner has identified claim 1 as the claim that represents the claimed invention presented in independent claims 1, 14, and 27.",
"Claim 1 is directed to a method, which is one of the statutory categories of invention (Step 1: YES Claim 1 is directed to method, which performs a series of steps, e.g., generating a graphical user interface on a computing device; generating a graphical user interface (GUI) on a computing device of a sale's trader for management and distribution of indications of interest (IOIs) to one or more clients; receiving, from an order management server, one or more orders to trade a financial instrument; rendering, on a display of the computing device, a plurality of rows, each of the plurality of rows corresponding to either the one or more orders to trade the financial instrument or one or more subsets of the one or more orders to trade the financial instrument; rendering, on the display of the computing device, a plurality of columns, each of the plurality of columns corresponding to one of the one or more clients; accessing a data store, on a data storage device, to read data corresponding to the one or more clients; determining, based on the at least one current and historical holdings of the financial instrument, current orders, and proprietary trading interest of the one or more clients, one or more data sets, each of the one or more data sets corresponding to the one or more orders to trade the financial instrument and to the one or more clients; determining, based on the one or more data sets, one or more client scores for the one or more orders to trade the financial instrument; assigning, based on the one or more data sets, each of the one or more clients to at least one client tier; generating, for each of the one or more orders to trade the financial instrument, a master IOI comprising one or more IOI shapes; selecting the one or more IOI shapes from the master IOI; rendering the one or more IOI shapes from the master IOI in the cell defined at the intersection of the rows and the columns, the order to trade the financial instrument, and the one or more clients; determining, based on the one or more client scores, to opt-in the one or more clients to automatically receive the IOI including the one or more IOI shapes representing the one or more orders to trade the financial instrument; receiving customization instructions for the IOI from the sale's trader based IOI transmission module to transmit the IOI to the one or more clients; determining to resend the IOI for the one or more orders to trade the financial instrument at one or more intervals; transmitting, in response to the determining, instructions to the IOI transmission module to redistribute the IOI for the one or more orders to trade the financial instrument to the opted-in one or more clients at the one or more intervals; and updating and displaying the one or more IOI shapes rendered on the GUI of the display of the computing device of the sale's trader to indicate a status of the IOI.",
"These limitations describe the abstract idea of managing indications of interest (with the exception of the italicized terms above), which correspond to Certain Methods of Organizing Human Activity: Commercial or Legal Interactions. The computer device limitations, e.g., graphical user interface (GUI), order management server, display of the computing device, computing device, data storage device, data store, and IOI transmission module do not necessarily restrict the claim from reciting an abstract idea.",
"Thus, claim 1 recites an abstract idea (Step 2A-Prong 1: YES). This judicial exception is not integrated into a practical application because the additional limitations of a graphical user interface (GUI), order management server, display of the computing device, computing device, data storage device, data store, and IOI transmission module is no more than simply applying the abstract idea using generic computer elements. The additional elements listed above are all recited at a high level of generality and under their broadest reasonable interpretation comprises a generic computing arrangement.",
"The presence of Step 2A-Prong 2: NO). Claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements of a graphical user interface (GUI), order management server, display of the computing device, computing device, data storage device, data store, and IOI transmission module limitations are recited at a high level of generality in that it results in no more than simply applying the abstract idea using generic computer elements. The computer network limitations are a field of use limitations (MPEP 2106.05(h)).The additional elements when considered separately and as an ordered combination do not amount to add significantly more as these limitations provide nothing more than to simply apply the exception in a generic computer environment (Step 2B: NO). Thus, claim 1 is not patent eligible. Similar arguments can be extended to the other independent claims, claims 14 and 27; and hence claims 14 and 27 are rejected on similar grounds as claim 11.",
"Dependent claims 2-13, 15-26, and 28-39 have further defined the abstract idea that is present in their respective independent claims 1, 14, and 27; and thus correspond to Certain Methods of Organizing Human Activity, and hence are abstract in nature for the reason presented above. The dependent claims 2-13, 15-26, and 28-39 do not include any additional elements that integrate the abstract idea into a practical application or are sufficient to amount to significantly more than the judicial exception when considered both individually and as an Response to Arguments With respect to the 35 U.S.C.",
"103 rejection of claims 1-39, the claims’ rejection is withdrawn in view of Applicant’s arguments/remarks made in an amendment filed on 02/09/2021. Applicant's arguments filed and dated on 02/09/2021 have been fully considered, but they are not persuasive due to the following reasons: With respect to the rejection of claims 1-39 under 35 U.S.C. 101, Examiner notes that the 35 U.S.C. 101 rejection presented above, in this office action, explains why Examiner respectfully declines Applicant’s request to withdraw the 35 U.S.C. 101 rejection of claims 1-39. Examiner notes that the concept of trading interests corresponds commercial or legal interactions, and hence corresponds to Certain Methods of Organizing Human Activity. The receiving interests, preventing the exclusion of clients, and transmitting instructions limitations are recited at a high level of generality and is simply makes use of the order management server and computing device of sale’s trader. It is unclear how this adds to technology improvement. Thus, these limitations are simply implementing the abstract idea without providing any technical improvements. Examiner respectfully notes that the use of graphical user interface (GUI) on a computing device of a sale's trader for to manage and distribute indications of interest to one or more clients makes use of a computer and the computer limitations do not necessarily restrict the claim from reciting an abstract idea as discussed above under Step 2A-Prong 1 of the 35 U.S.C.",
"101 rejection. Examiner has also considered each and every arguments under Step 2A-Prong 1 and concludes that these arguments are not persuasive. For example, under Step 2A- With respect to Step 2A, Prong 2, Applicant states that the claimed subject matter relates to a specific improvement in computer-related technology. Examiner notes that there is no technology/technical improvement as a result of implementing the abstract idea. Receiving, generating, rendering, accessing, determining, assigning, selecting, displaying, updating, transmitting and storing trading/financial data simply amount to the abstract idea of managing indications of interest. There is no computer functionality improvement or technology improvement.",
"The claim does not provide a technical solution to a technical problem. If there is an improvement, it is to the abstract idea of managing indications of interest and not to technology. Examiner notes that it is important to keep in mind that an improvement in the judicial exception itself (e.g., a commercial or legal interaction) is not an improvement in technology (see October 2019 Patent Eligibility Guidance Update (issued October 17, 2019), page 13). Thus, the claim does not integrate the abstract idea into a practical application.",
"Applicant argue that “the claims integrate the alleged abstract idea into an inventive concept, thereby transforming the claims into patent-eligible subject matter. See MPEP § 2106.05(1). In particular, claims directed to an improvement in computer related technologies are considered sufficiently transformative to meet the patent-eligibility requirement of 35 U.S.C. § 101. See MPEP § 2106.05(a)(1). In particular, the claims recite “selecting the one or more IOI shapes from the master IOI,”….display of the computing device of the sale’s trader to indicate a Furthermore, Examiner has reviewed all of Applicant's arguments and notes that the inventive concept cannot be furnished by a judicial exception. The improvements argued are to the abstract idea and not to technology. The technical limitations are simply utilized as a tool to implement the abstract idea without adding significantly more. Thus, the claim is directed to an abstract idea and hence these arguments are not persuasive. Hence, Examiner respectfully declines Applicant’s request to withdraw the 35 U.S.C.",
"101 rejection of claims 1-39. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to MOHAMMED H MUSTAFA whose telephone number is (571) 270-7978. The examiner can normally be reached on M-F 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 If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, SHAHID MERCHANT can be reached on (571) 270-1360.",
"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.",
"/MOHAMMED H MUSTAFA/Examiner, Art Unit 3693 /Shahid Merchant/Supervisory Patent Examiner, Art Unit 3693"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-06-27.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1824090
Decision Date: 04/19/18 Archive Date: 04/26/18
DOCKET NO. 02-20 933 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas
THE ISSUES
1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disease or injury.
2. Entitlement to special monthly compensation (SMC), based on the need for the regular aid and attendance of another person (A&A) or on being housebound.
WITNESSES AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The Veteran served on active duty from July 1971 to April 1974.
These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision that, in pertinent part, denied service connection for right knee and left knee disabilities. The Veteran timely appealed.
In September 2005, the Veteran and his wife testified during a hearing before a former Veterans Law Judge at the RO.
In February 2006, the Board remanded the matter for additional development.
In June 2012, the Board duly notified the Veteran that the Board no longer employed the Veterans Law Judge that conducted the September 2005 Board hearing and that he had the right to another Board hearing. Although the Veteran initially requested another hearing, he indicated in March 2013 that he did not want an additional hearing.
In a February 2014 decision, the Board denied service connection for a bilateral knee disability.
The Veteran appealed the February 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2014 Joint Motion for Remand, the parties moved to vacate the Board decision and remand the case to the Board. The Court granted the motion. Thereafter, the case was returned to the Board.
In February 2016 and in March 2017, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders for the claim decided below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).
The issue of entitlement to SMC based on the need for regular A&A or on being housebound, is addressed in the REMAND portion of the decision below; and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
A bilateral knee disability was not manifested during active service and arthritis was not manifest within one year of separation; and is not attributed to service, and is not related (causation or aggravation) to a service-connected disease or injury.
CONCLUSION OF LAW
A bilateral knee disability was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service Connection Claim
Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131.
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, arthritis is considered chronic and a presumptive disease. See 38 U.S.C. § 1101.
The Veteran seeks service connection for a bilateral knee disability, to include arthritis, which he believes had its onset in active service or was aggravated by active service.
Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996).
The Board acknowledges that the Veteran's bilateral knee disability, to include arthritis, was not noted at his examination upon entry to service. Because a bilateral knee disability was not noted at entry, he is entitled to a presumption of soundness. However, the presumption of soundness may be rebutted. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by active service. 38 U.S.C. § 1111. In this regard, VA may show a lack of aggravation by establishing that there was no increase in disability during active service or within one year after service; or may show that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1196.
The Veteran contends that his current bilateral knee disability is the result of aggravation of a preexisting disease or disability in service. He also contends that his bilateral knee pain has persisted since his release from active service. In September 2005, the Veteran testified that he did report at his examination that he had "arthritis real bad" in his knees at age 16 and "could not even walk." He also testified to doing "a whole lot of marching" and "a whole lot of exercising" in active service, and that he started having problems with his knees and with his ankles. The Veteran testified that he was treated with aspirin in active service. He testified that he now required pain medication, and that the arthritis had spread into his arms. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005).
Service treatment records show normal lower extremities on clinical evaluation at a pre-induction examination in May 1971. On a "Report of Medical History" completed by the Veteran at that time, he checked "no" in response to whether he ever had or now had a "trick" or locked knee; arthritis or rheumatism; or bone, joint, or other deformity. His entry examination in July 1971 also reveals normal lower extremities.
Service treatment records also show that the Veteran fell in a hole while playing football, and hurt his right leg in October 1971. At that time he complained of pain in the back of the knee and across the top of the right foot. Examination revealed no evidence of fracture, dislocation, or ligamentous disruption; drawer's test and McMurray's test were negative. The assessment was muscle strain of right knee.
In December 1971, the Veteran reported that he had pain about once or twice a month, which started at the arch of his left foot and worked its way to the left knee. He also reported that this pain had occurred for two-to-three years-that is, prior to his service entry. Examination of the left knee in December 1971 was negative. Tenderness was noted distal to end of medial malleolus of left ankle. There was no heat and no swelling. X-rays of the left ankle were within normal limits. The assessment in December 1971 was questionable for ligament strain. Another treating physician in February 1972 indicated that the Veteran's past medical history was questionable for Osgood-Schlatter's disease of both knees, three years prior to admission, with occasional pain and stiffness.
Service treatment records, dated in November 1973, show that the Veteran wanted to see a doctor about a possible relapse of arthritis. He reported that, at age 16, he was told by a private physician that he had arthritis in his knees, and would probably outgrow it by age 21. The Veteran reported that now, after prolonged periods of sitting, he felt tightness in his knees and sometimes had throbbing and stiffness in his hands. He indicated that the episodes lasted less than one day, and increased with activity. He reportedly took aspirin. Symptoms were relieved by resting, and exacerbated with activity. Examination revealed no swelling, heat, or tenderness of joints. Ranges of motion of all joints were full. X-rays of hands were within normal limits. The assessment was polyarthralgia.
Service treatment records show normal lower extremities on clinical evaluation at a separation examination in March 1974.
MRI scans of the right knee, conducted in March 1996, reveal evidence of a ruptured Baker's cyst; fluid tracking; small joint effusion; fraying of the free edge of posterior horn of lateral meniscus; and an unfused apophysis within the patellar tendon.
A VA examiner in November 2003 reviewed the Veteran's medical history of possible Osgood-Schlatter's disease, and of the in-service knee injury; and noted that the Veteran underwent arthroscopic surgery on his left knee in 1987. Current symptoms include bilateral knee pain, right greater than left; and that the right knee occasionally swelled. Standing was aggravating to both knees. The Veteran wore a wrap/bandage on his right knee and also used a cane. He took aspirin and anti-inflammatory medication for knee pain, which helped. Examination of both knees in November 2003 revealed no edema. Ranges of motion were full, and ligaments were stable. X-rays of the right knee in November 2003 revealed minor abnormality. The assessment was bilateral knee pain with degenerative joint disease, status-post arthroscopic surgery. The November 2003 examiner opined that it was less likely than not that the Veteran's bilateral knee problems started in active service or were aggravated by service. In support of the opinion, the VA examiner reasoned that the Veteran had some type of arthritis at age 16, as diagnosed by a private physician; and had one incidence of knee trauma in active service.
Additional VA records show an assessment of bilateral knee pain and degenerative joint disease in November 2003. The Veteran reported giving way of both knees, and falling on multiple occasions in January 2009. X-rays taken of both knees in January 2009 revealed mild bilateral tricompartmental degenerative joint disease. The diagnosis in March 2009 was osteoarthritis involving the knees.
Following examination in April 2010, a VA examiner opined that it was less likely than not that the Veteran's current degenerative arthritis of bilateral knee is related to active service. In support of the opinion, the VA examiner reasoned that there was no evidence of increased arthritis in active service; and the arthritis that the Veteran had prior to active service was probably Osgood-Schlatter's disease. His current increased severity represented the aging process with wear and tear.
More recent VA records show continuing knee problems and no improvement in knee mobility. The Veteran was unable to undergo additional knee surgery in December 2011 because of a heart condition, and he declined a knee injection for pain relief.
In July 2013, another VA physician reviewed the April 2010 VA examination report and opined that there was no pre-existing knee condition at the time of the Veteran's entry examination. In support of the opinion, the VA physician reasoned that the Veteran's Osgood-Schlatter's disease more likely than not had resolved prior to entry; and was overlooked on examination, since it was not symptomatic. The VA physician explained that this condition, when asymptomatic, did not disqualify a candidate from active service. The VA physician added that Osgood-Schlatter's disease was a condition of adolescence and did not cause symptoms in adults. The VA physician also indicated that there was no evidence of degenerative joint disease of the knees found in active service; and that the Veteran's trauma-related pain had resolved without further intervention. The VA physician also commented that knee stiffness with inactivity was an inadequate finding for diagnosing degenerative joint disease; and estimated that the onset of the Veteran's degenerative joint disease of the knees, which occurred over time, was in 2000. X-rays taken in October 2009 had provided evidence of suspected Osgood-Schlatter's disease; and in noting that the Veteran's degenerative joint disease of the knees was then at a mild stage, the VA physician suggested that it would have normally progressed further were its onset in active service.
In July 2015, the Veteran's sister reported that her brother now used a wheelchair to get around because of his bilateral knee pain; and that he had been in pain since returning from the Navy in 1974. She indicated that the Veteran explained that he had to march to breakfast; march to class; march to lunch, and back to class; and march to dinner. He also explained that he worked on the ship's flight deck in active service, and had to get down and up under the aircraft; and that since 2001, his knees became too painful to walk on them.
The report of an April 2016 VA examination includes a diagnosis of tricompartmental osteoarthritis of the knee bilaterally. Following examination of the Veteran's knees and a review of his medical history, the April 2016 examiner opined that it was less likely that any bilateral knee disability was caused by or aggravated by a service-connected disease or injury to include left ankle sprain. In support of the opinion, the April 2016 examiner reasoned that there was no injury to the right ankle; that the injury to the left ankle caused the Veteran no further difficulty beyond the time necessary for healing; and no ankle disability was noted at the Veteran's separation examination.
In a July 2017 addendum, a VA examiner explained that the Veteran's bilateral knee disability was not proximately due to, the result of, or aggravated by a left ankle sprain. Here, there was no reference to knee pain at the time of the Veteran's complaint of a three-week history of "aching" in his left ankle in 1971; and his mentioning of knee pain in 1973 was nearly two years after the left ankle injury. The VA examiner also explained that there is no evidence-based orthopedic, surgical, or medical support of a connection between the left ankle and bilateral knee-based not only on proximity, but on the fact that there was no reported instability or altered biomechanics of the left ankle.
In October 2017, another VA physician opined that it was less likely than not that the Veteran's bilateral knee disability was proximately due to or the result of the Veteran's service-connected left ankle sprain; and opined that it was less likely than not that the Veteran's bilateral knee disability was permanently aggravated beyond its natural progression by the Veteran's service-connected left ankle sprain. In support of the opinions, the VA physician reasoned that there was no objective medical evidence to indicate otherwise; that there was no mechanism of action for cause or permanent aggravation of bilateral degenerative joint disease of the knee by ankle sprain; and that a bilateral diagnosis was indicative of the natural aging process, and not of a unilateral left ankle sprain, as the etiology.
Here, there are many competing opinions. The competent evidence of record clearly and unmistakably does not demonstrate that a bilateral knee disability existed prior to active service. Specifically, clinical evaluation of the Veteran's lower extremities at entry to active service in July 1971 was normal. Examiners have only suggested the possibility of Osgood-Schlatter's disease prior to active service; and indicated that such condition was associated with adolescence, and either had resolved or was asymptomatic at entry. There were no X-rays findings of degenerative joint disease of bilateral knee until many years post-service in 2003. Accordingly, the evidence is against a finding of a pre-existing bilateral knee disability.
Nor does the evidence reveal increased severity of a pre-existing bilateral knee disability to demonstrate aggravation. The record does establish that there was polyarthralgia during active service; however, its underlying pathology was not ascertained. In essence, disease or injury causing the polyarthralgia had not been identified during or since active service. No examiner has indicated that any such showing of polyarthralgia in active service or since then reflected natural progression of any pre-existing disability. Under these circumstances, the presumption of soundness is not rebutted.
As to service connection on a direct or secondary basis, the Veteran has contended that his current osteoarthritis of bilateral knee is related to the in-service marching and increased activity-namely, getting down and up to work under aircraft on the flight deck; and that the primary pathology or etiology of his bilateral knee disability was increased activity. However, such activity or event was not "noted" or diagnosed in active service or within one year of separation. The Veteran did not have characteristic manifestations of this disease entity, and the medical professionals have opined that the post-service osteoarthritis of bilateral knee is unrelated to in-service events or to the service-connected left ankle sprain. The opinions are broad enough to reflect that there was neither causation nor aggravation. No examiner has associated the Veteran's current osteoarthritis of bilateral knee with marching or other activities in active service.
The Veteran also asserts that he had recurring symptoms of bilateral knee pain following discharge from active service. Here, the Board finds the Veteran's statements regarding recurring symptoms credible. That notwithstanding, the July 2013 VA physician associated the limited findings of mild degenerative joint disease of bilateral knee in 2003 to post-service natural wear and tear; and suggested that the disability would have normally progressed further were its onset in active service. Again, there is no showing of degenerative joint disease in active service or within one year of separation. To the extent that there is lay evidence of continuity of bilateral knee pain post-service, this evidence pales in comparison to the probative value of the medical evidence showing no relationship between current diagnosis of osteoarthritis of bilateral knee and active service, and the finding that current osteoarthritis of bilateral knee-first diagnosed more than three decades post-service-is reflective of the natural aging process. To the extent that there is also evidence of a Baker's cyst rupture and meniscus impairment, such were first manifest long after service and are equally unrelated to active service.
The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after active service with no competent evidence that the disability is in any way related to active service.
In short, for the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for a bilateral knee disability, to include as secondary to a service-connected disease or injury. On this matter, the preponderance of the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for a bilateral knee disability is denied.
REMAND
SMC
In June 2015, the RO denied entitlement to SMC based on the need for regular A&A or on being housebound. Notably, the Veteran has filed a timely VA Form 21-0958, Notice of Disagreement, as to the denial.
The RO accepted the Veteran's notice of disagreement in June 2016, and acknowledged it in a letter later that same month; however, to date, it has not issued a statement of the case concerning the denial of SMC based on the need for regular A&A or on being housebound. The Board is required to remand the claim for the issuance of such statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. Issue a SOC with regard to the denial of SMC based on the need for regular A&A or on being housebound, based on the June 2016 notice of disagreement with the June 2015 rating decision. This SOC must set forth the Veteran's rights and responsibilities in perfecting an appeal.
2. If, and only if, a substantive appeal is timely filed, the issue should be certified to the Board.
The Veteran has the right to submit additional evidence and argument on the matter that 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 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. §§ 5109B, 7112 (2012).
______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 04-19-2018 | [
"Citation Nr: 1824090 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 02-20 933 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disease or injury. 2. Entitlement to special monthly compensation (SMC), based on the need for the regular aid and attendance of another person (A&A) or on being housebound. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to April 1974. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision that, in pertinent part, denied service connection for right knee and left knee disabilities. The Veteran timely appealed. In September 2005, the Veteran and his wife testified during a hearing before a former Veterans Law Judge at the RO.",
"In February 2006, the Board remanded the matter for additional development. In June 2012, the Board duly notified the Veteran that the Board no longer employed the Veterans Law Judge that conducted the September 2005 Board hearing and that he had the right to another Board hearing. Although the Veteran initially requested another hearing, he indicated in March 2013 that he did not want an additional hearing. In a February 2014 decision, the Board denied service connection for a bilateral knee disability. The Veteran appealed the February 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2014 Joint Motion for Remand, the parties moved to vacate the Board decision and remand the case to the Board. The Court granted the motion.",
"Thereafter, the case was returned to the Board. In February 2016 and in March 2017, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders for the claim decided below. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to SMC based on the need for regular A&A or on being housebound, is addressed in the REMAND portion of the decision below; and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A bilateral knee disability was not manifested during active service and arthritis was not manifest within one year of separation; and is not attributed to service, and is not related (causation or aggravation) to a service-connected disease or injury.",
"CONCLUSION OF LAW A bilateral knee disability was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Claim Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word \"chronic.\" 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.",
"Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, arthritis is considered chronic and a presumptive disease. See 38 U.S.C. § 1101. The Veteran seeks service connection for a bilateral knee disability, to include arthritis, which he believes had its onset in active service or was aggravated by active service. Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed.",
"Cir. 2004). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996). The Board acknowledges that the Veteran's bilateral knee disability, to include arthritis, was not noted at his examination upon entry to service. Because a bilateral knee disability was not noted at entry, he is entitled to a presumption of soundness. However, the presumption of soundness may be rebutted. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by active service. 38 U.S.C. § 1111. In this regard, VA may show a lack of aggravation by establishing that there was no increase in disability during active service or within one year after service; or may show that any increase in disability was due to the natural progress of the pre-existing condition.",
"38 U.S.C. § 1153; Wagner, 370 F.3d at 1196. The Veteran contends that his current bilateral knee disability is the result of aggravation of a preexisting disease or disability in service. He also contends that his bilateral knee pain has persisted since his release from active service. In September 2005, the Veteran testified that he did report at his examination that he had \"arthritis real bad\" in his knees at age 16 and \"could not even walk.\" He also testified to doing \"a whole lot of marching\" and \"a whole lot of exercising\" in active service, and that he started having problems with his knees and with his ankles. The Veteran testified that he was treated with aspirin in active service. He testified that he now required pain medication, and that the arthritis had spread into his arms. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet.",
"App. 362 (2005). Service treatment records show normal lower extremities on clinical evaluation at a pre-induction examination in May 1971. On a \"Report of Medical History\" completed by the Veteran at that time, he checked \"no\" in response to whether he ever had or now had a \"trick\" or locked knee; arthritis or rheumatism; or bone, joint, or other deformity. His entry examination in July 1971 also reveals normal lower extremities. Service treatment records also show that the Veteran fell in a hole while playing football, and hurt his right leg in October 1971. At that time he complained of pain in the back of the knee and across the top of the right foot. Examination revealed no evidence of fracture, dislocation, or ligamentous disruption; drawer's test and McMurray's test were negative.",
"The assessment was muscle strain of right knee. In December 1971, the Veteran reported that he had pain about once or twice a month, which started at the arch of his left foot and worked its way to the left knee. He also reported that this pain had occurred for two-to-three years-that is, prior to his service entry. Examination of the left knee in December 1971 was negative. Tenderness was noted distal to end of medial malleolus of left ankle. There was no heat and no swelling. X-rays of the left ankle were within normal limits.",
"The assessment in December 1971 was questionable for ligament strain. Another treating physician in February 1972 indicated that the Veteran's past medical history was questionable for Osgood-Schlatter's disease of both knees, three years prior to admission, with occasional pain and stiffness. Service treatment records, dated in November 1973, show that the Veteran wanted to see a doctor about a possible relapse of arthritis. He reported that, at age 16, he was told by a private physician that he had arthritis in his knees, and would probably outgrow it by age 21. The Veteran reported that now, after prolonged periods of sitting, he felt tightness in his knees and sometimes had throbbing and stiffness in his hands. He indicated that the episodes lasted less than one day, and increased with activity. He reportedly took aspirin. Symptoms were relieved by resting, and exacerbated with activity.",
"Examination revealed no swelling, heat, or tenderness of joints. Ranges of motion of all joints were full. X-rays of hands were within normal limits. The assessment was polyarthralgia. Service treatment records show normal lower extremities on clinical evaluation at a separation examination in March 1974. MRI scans of the right knee, conducted in March 1996, reveal evidence of a ruptured Baker's cyst; fluid tracking; small joint effusion; fraying of the free edge of posterior horn of lateral meniscus; and an unfused apophysis within the patellar tendon. A VA examiner in November 2003 reviewed the Veteran's medical history of possible Osgood-Schlatter's disease, and of the in-service knee injury; and noted that the Veteran underwent arthroscopic surgery on his left knee in 1987. Current symptoms include bilateral knee pain, right greater than left; and that the right knee occasionally swelled. Standing was aggravating to both knees.",
"The Veteran wore a wrap/bandage on his right knee and also used a cane. He took aspirin and anti-inflammatory medication for knee pain, which helped. Examination of both knees in November 2003 revealed no edema. Ranges of motion were full, and ligaments were stable. X-rays of the right knee in November 2003 revealed minor abnormality. The assessment was bilateral knee pain with degenerative joint disease, status-post arthroscopic surgery. The November 2003 examiner opined that it was less likely than not that the Veteran's bilateral knee problems started in active service or were aggravated by service. In support of the opinion, the VA examiner reasoned that the Veteran had some type of arthritis at age 16, as diagnosed by a private physician; and had one incidence of knee trauma in active service.",
"Additional VA records show an assessment of bilateral knee pain and degenerative joint disease in November 2003. The Veteran reported giving way of both knees, and falling on multiple occasions in January 2009. X-rays taken of both knees in January 2009 revealed mild bilateral tricompartmental degenerative joint disease. The diagnosis in March 2009 was osteoarthritis involving the knees. Following examination in April 2010, a VA examiner opined that it was less likely than not that the Veteran's current degenerative arthritis of bilateral knee is related to active service. In support of the opinion, the VA examiner reasoned that there was no evidence of increased arthritis in active service; and the arthritis that the Veteran had prior to active service was probably Osgood-Schlatter's disease. His current increased severity represented the aging process with wear and tear. More recent VA records show continuing knee problems and no improvement in knee mobility.",
"The Veteran was unable to undergo additional knee surgery in December 2011 because of a heart condition, and he declined a knee injection for pain relief. In July 2013, another VA physician reviewed the April 2010 VA examination report and opined that there was no pre-existing knee condition at the time of the Veteran's entry examination. In support of the opinion, the VA physician reasoned that the Veteran's Osgood-Schlatter's disease more likely than not had resolved prior to entry; and was overlooked on examination, since it was not symptomatic. The VA physician explained that this condition, when asymptomatic, did not disqualify a candidate from active service. The VA physician added that Osgood-Schlatter's disease was a condition of adolescence and did not cause symptoms in adults.",
"The VA physician also indicated that there was no evidence of degenerative joint disease of the knees found in active service; and that the Veteran's trauma-related pain had resolved without further intervention. The VA physician also commented that knee stiffness with inactivity was an inadequate finding for diagnosing degenerative joint disease; and estimated that the onset of the Veteran's degenerative joint disease of the knees, which occurred over time, was in 2000. X-rays taken in October 2009 had provided evidence of suspected Osgood-Schlatter's disease; and in noting that the Veteran's degenerative joint disease of the knees was then at a mild stage, the VA physician suggested that it would have normally progressed further were its onset in active service. In July 2015, the Veteran's sister reported that her brother now used a wheelchair to get around because of his bilateral knee pain; and that he had been in pain since returning from the Navy in 1974.",
"She indicated that the Veteran explained that he had to march to breakfast; march to class; march to lunch, and back to class; and march to dinner. He also explained that he worked on the ship's flight deck in active service, and had to get down and up under the aircraft; and that since 2001, his knees became too painful to walk on them. The report of an April 2016 VA examination includes a diagnosis of tricompartmental osteoarthritis of the knee bilaterally. Following examination of the Veteran's knees and a review of his medical history, the April 2016 examiner opined that it was less likely that any bilateral knee disability was caused by or aggravated by a service-connected disease or injury to include left ankle sprain.",
"In support of the opinion, the April 2016 examiner reasoned that there was no injury to the right ankle; that the injury to the left ankle caused the Veteran no further difficulty beyond the time necessary for healing; and no ankle disability was noted at the Veteran's separation examination. In a July 2017 addendum, a VA examiner explained that the Veteran's bilateral knee disability was not proximately due to, the result of, or aggravated by a left ankle sprain. Here, there was no reference to knee pain at the time of the Veteran's complaint of a three-week history of \"aching\" in his left ankle in 1971; and his mentioning of knee pain in 1973 was nearly two years after the left ankle injury. The VA examiner also explained that there is no evidence-based orthopedic, surgical, or medical support of a connection between the left ankle and bilateral knee-based not only on proximity, but on the fact that there was no reported instability or altered biomechanics of the left ankle. In October 2017, another VA physician opined that it was less likely than not that the Veteran's bilateral knee disability was proximately due to or the result of the Veteran's service-connected left ankle sprain; and opined that it was less likely than not that the Veteran's bilateral knee disability was permanently aggravated beyond its natural progression by the Veteran's service-connected left ankle sprain.",
"In support of the opinions, the VA physician reasoned that there was no objective medical evidence to indicate otherwise; that there was no mechanism of action for cause or permanent aggravation of bilateral degenerative joint disease of the knee by ankle sprain; and that a bilateral diagnosis was indicative of the natural aging process, and not of a unilateral left ankle sprain, as the etiology. Here, there are many competing opinions. The competent evidence of record clearly and unmistakably does not demonstrate that a bilateral knee disability existed prior to active service. Specifically, clinical evaluation of the Veteran's lower extremities at entry to active service in July 1971 was normal. Examiners have only suggested the possibility of Osgood-Schlatter's disease prior to active service; and indicated that such condition was associated with adolescence, and either had resolved or was asymptomatic at entry. There were no X-rays findings of degenerative joint disease of bilateral knee until many years post-service in 2003.",
"Accordingly, the evidence is against a finding of a pre-existing bilateral knee disability. Nor does the evidence reveal increased severity of a pre-existing bilateral knee disability to demonstrate aggravation. The record does establish that there was polyarthralgia during active service; however, its underlying pathology was not ascertained. In essence, disease or injury causing the polyarthralgia had not been identified during or since active service.",
"No examiner has indicated that any such showing of polyarthralgia in active service or since then reflected natural progression of any pre-existing disability. Under these circumstances, the presumption of soundness is not rebutted. As to service connection on a direct or secondary basis, the Veteran has contended that his current osteoarthritis of bilateral knee is related to the in-service marching and increased activity-namely, getting down and up to work under aircraft on the flight deck; and that the primary pathology or etiology of his bilateral knee disability was increased activity. However, such activity or event was not \"noted\" or diagnosed in active service or within one year of separation.",
"The Veteran did not have characteristic manifestations of this disease entity, and the medical professionals have opined that the post-service osteoarthritis of bilateral knee is unrelated to in-service events or to the service-connected left ankle sprain. The opinions are broad enough to reflect that there was neither causation nor aggravation. No examiner has associated the Veteran's current osteoarthritis of bilateral knee with marching or other activities in active service. The Veteran also asserts that he had recurring symptoms of bilateral knee pain following discharge from active service. Here, the Board finds the Veteran's statements regarding recurring symptoms credible. That notwithstanding, the July 2013 VA physician associated the limited findings of mild degenerative joint disease of bilateral knee in 2003 to post-service natural wear and tear; and suggested that the disability would have normally progressed further were its onset in active service. Again, there is no showing of degenerative joint disease in active service or within one year of separation.",
"To the extent that there is lay evidence of continuity of bilateral knee pain post-service, this evidence pales in comparison to the probative value of the medical evidence showing no relationship between current diagnosis of osteoarthritis of bilateral knee and active service, and the finding that current osteoarthritis of bilateral knee-first diagnosed more than three decades post-service-is reflective of the natural aging process. To the extent that there is also evidence of a Baker's cyst rupture and meniscus impairment, such were first manifest long after service and are equally unrelated to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence.",
"See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after active service with no competent evidence that the disability is in any way related to active service. In short, for the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for a bilateral knee disability, to include as secondary to a service-connected disease or injury. On this matter, the preponderance of the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied.",
"38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral knee disability is denied. REMAND SMC In June 2015, the RO denied entitlement to SMC based on the need for regular A&A or on being housebound. Notably, the Veteran has filed a timely VA Form 21-0958, Notice of Disagreement, as to the denial. The RO accepted the Veteran's notice of disagreement in June 2016, and acknowledged it in a letter later that same month; however, to date, it has not issued a statement of the case concerning the denial of SMC based on the need for regular A&A or on being housebound. The Board is required to remand the claim for the issuance of such statement of the case. Manlincon v. West, 12 Vet.",
"App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC with regard to the denial of SMC based on the need for regular A&A or on being housebound, based on the June 2016 notice of disagreement with the June 2015 rating decision. This SOC must set forth the Veteran's rights and responsibilities in perfecting an appeal. 2. If, and only if, a substantive appeal is timely filed, the issue should be certified to the Board.",
"The Veteran has the right to submit additional evidence and argument on the matter that 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 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. §§ 5109B, 7112 (2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Opinion and Order
Maletz, Senior Judge: In this drawback action plaintiff C. Itoh & Co. (America), Inc. (Itoh) seeks a refund of duties paid upon exported merchandise which allegedly failed to conform to specifications. Itoh brought this action following the denial of its claim for drawback by the Customs Service and has now moved for summary judgment. Defendant has cross-moved for summary judgment or, in the alternative, to dismiss on the ground that Itoh’s claim for administrative relief was untimely. The controlling statutory and regulatory provisions are contained in sections 313(c) and 520(c) of the Tariff Act of 1930, 19 U.S.C. §§ 1313(c) and 1520(c) (1970),1 respectively, and 19 C.F.R. § 173.4(c) (1975).2 Itoh alleges that errors resulting in the denial of drawback originated in the liquidation of the entries, thereby giving Itoh one year from the date of liquidation to file a claim for drawback under 19 C.F.R. § 173.4(c) (1975). It further argues that two letters, one dated October 1, 1975 and another dated June 25, 1976, when considered as a whole, constitute a timely filing for drawback under 19 C.F.R. § 173.4(c). For the reasons that follow the court concludes that the errors, if any, did not originate in the liquidation of the entries, and that *46Itoh’s claim for drawback under 19 C.F.R. § 173.4(c) was thus untimely. Accordingly, defendant’s motion to dismiss is granted. I The history of the case begins in 1971 when, in August and September of that year, Itoh imported brass-plated wire tire cord from Japan. That merchandise was ultimately returned to Japan in December 1971 because it allegedly failed to meet buyer specifications. At the time of exportation four drawback entries were filed with Customs. More than three years later, these four entries were liquidated on June 27, 1975 without a drawback allowance. In essence three grounds were advanced by Customs for disallowing drawback: (1) the merchandise was not returned to Customs’ custody; (2) an export bill of lading was not filed within two years after the merchandise was exported; and (3) Itoh failed to establish that the merchandise did not conform to specifications. It is undisputed that these grounds were known to both Itoh and Customs well before liquidation. The record reflects that they were the topic of discussions between Itoh and Customs on at least two separate occasions, once one month immediately preceding liquidation and the other four months prior thereto. Indeed, liquidation was twice postponed at Itoh’s request in order to afford it the opportunity to substantiate that each of the grounds for disallowing drawback had in fact been satisfied. On October 7, 1975, the Regional Commissioner of Customs in Chicago received a letter from Itoh’s customhouse broker dated October 1, 1975 regarding the drawback entries. In that letter Itoh’s broker explained that the merchandise had been transferred to Baltimore from Cleveland without the broker’s knowledge and was then exported to Japan from Baltimore on December 9, 1971. The letter did not protest Customs’ disallowance of drawback, nor did the broker petition for such drawback. This letter was apparently treated as a request for reliquidation by the Regional Commissioner’s office which, on October 31, 1975, denied this request on the three grounds previously mentioned. Itoh did not respond to Customs’ October 31 letter until nearly eight months later when, on June 25, 1976, it sent Customs a letter—received June 25, 1976— which for the first time alleged errors in the liquidation and expressly protested the disallowance of drawback. This letter was deemed an untimely petition for drawback by Customs pursuant to 19 U.S.C. § 1520(c). This lawsuit then followed. With this background the court turns first to Itoh’s contention that the errors complained of originated in the June 27, 1975 liquidation. II Under 19 U.S.C. § 1520(c) and 19 C.F.R. § 173.4(c) the limitation periods for filing an application to correct a clerical error, mistake *47of fact, or other inadvertence are strictly circumscribed. Pursuant to those two provisions, a petitioner alleging such error must file its claim with Customs within one of three time periods: (1) within one year of the date of entry of the merchandise, (2) within ninety days of the date of liquidation of the entries if the liquidation occurred more than nine months after the date of entry, or (3) within one year of the date of liquidation if the error resulting in the denial of the claim for drawback “originates in the liquidation.” The liquidation which is the focus of this action occurred more than three years after the merchandise was entered. Itoh concedes that no claim for drawback was presented to Customs within ninety days of the date of liquidation of the entries as required by 19 U.S.C. § 1520(c)(1). Consequently, in order to avail itself of the more generous one-year-of-liquidation period contained in 19 C.F.R. § 173.4(c), it is incumbent upon Itoh to demonstrate that the alleged errors originated in the liquidation. Instructive on the meaning of error which originates in the liquidation are two recent opinions of this court, Lester Engineering Co. v. United States, 3 CIT 236 (1982), and Adorence Co. v. United States, 3 CIT 81, 539 F. Supp. 1216 (1982), aff’d, No. 82-25 (Fed. Cir. Dec. 10, 1982). In Lester Engineering the plaintiff, who had presented a drawback claim some eight months after liquidation, alleged that the entries were liquidated using an excessive value which had been employed for the first time at liquidation. Inasmuch as the Government—the moving party on a motion to dismiss—failed to establish otherwise, the court concluded that the alleged error originated in the liquidation and, accordingly, that the plaintiffs drawback claim was timely filed under 19 C.F.R. § 173.4(c). The Adorence case, while not directly involving 19 C.F.R. § 173.4(c), did address the question of when errors originate in a liquidation. There the plaintiff had placed incorrect value information on the entry papers which were in turn used by a Customs appraising official at the time of liquidation. The plaintiff argued that the use of the wrong information by Customs at liquidation was an error separate and distinct from the earlier submission of the wrong information on the entry by the plaintiff. In granting the Government’s motion to dismiss, the court observed that the error occurred only once, specifically when incorrect values were placed on the entry papers by plaintiff. The later uses of the erroneous data do not constitute new errors but rather are the unavoidable and normal manifestations of the original error. If plaintiffs reasoning was correct, there would be no reason for the statute to specify any events prior to the liquidation because all errors would eventually be incorporated or accumulated in the liquidation and constitute errors at that final stage. By specifying certain events the statute recognizes that errors are discrete events and that their occurrence can be fixed in time and associated with one or the other of the steps in the administrative process of importation. *48Id. at 82, 539 F. Supp. at 1217. Lester Engineering and Adorence thus teach that when determining whether or not an error originated in a liquidation, the proper focus is on that point in time when the alleged error was first committed. If the error antedated the liquidation, then the error did not originate there, even if that error is repeated at the time the entries are liquidated. In the present action it is uncontroverted that if there were any errors, those errors were brought to Itoh’s attention well in advance of liquidation. Customs and Itoh discussed the defects which gave rise to the purported errors four months and then again one month prior to liquidation. Each of the errors complained of by Itoh occurred, if at all, at a time predating liquidation and are not, therefore, errors originating in the liquidation. Thus, inasmuch as the errors did not originate in the liquidation, Itoh had ninety days from the date of the June 27, 1975 liquidation within which to present a claim for drawback. See 19 U.S.C. § 1520(c) (1970). On this score, regardless of how its letter to Customs of October 1, 1975 is characterized, there is no dispute that Itoh failed to file or present a drawback claim within the requisite ninety-day period provided for under section 1520(c). In sum, the court finds as untenable Itoh’s assertion that the errors originated in the liquidation, thereby allowing it one year from the date of liquidation upon which to file a drawback claim pursuant to 19 C.F.R. § 173.4(c) as then in effect. Ill Even assuming arguendo that the alleged errors originated in the liquidation/the court would still be compelled to dismiss Itoh’s complaint on the basis that it failed to file a claim for drawback within one year of the date of liquidation. Of relevance here are the two letters which, Itoh contends, if integrated constitute a timely petition for drawback. The first of these two letters was sent by Itoh’s customhouse broker on October 1, 1975, and received by Customs on October 7, 1975, 102 days after the entries were liquidated.3 That letter stated in toto as follows: We make reference to Cleveland drawback entries 72-107252/5 for the account of C. Itoh & Co. (America) Inc. At the time of intended exportation in December of 1971 this freight was to be loaded aboard the steamer Muneshima Maru. Unfortunately, due to factors beyond our control and without our knowledge as well as the importer’s, the carrier elected to transfer this merchandise to Baltimore for loading aboard the steamer France Maru which departed December 9, 1971. Attached is a statement from Customs in Baltimore indicating *49that the merchandise was physically exported along with a photostatic copy of the outward foreign manifest showing this merchandise as well as documentation from the importer of record as well as the steamship line. Will you kindly review this matter and advise whether drawback can be allowed or if there is additional documentation that you request in order that this matter may be correctly disposed of. No allegation of an error which occurred in connection with liquidation of the entries is to be found in this document. Nevertheless, treating this letter as a request for reliquidation, Customs denied it as untimely. On June 25, 1976, Itoh’s counsel sent a letter to Customs claiming errors in the liquidation of those entries. That letter was received by Customs on June 29, 1976—a year and a day after liquidation. Itoh maintains that even though this June 25 letter arrived one day after the anniversary date of the liquidation, it should nonetheless be considered a supplement to its October 1, 1975 letter and, therefore, a timely claim for drawback pursuant to 19 C.F.R. § 173.4(c). This contention the court must reject on at least two grounds. First, the October 1 letter is inadequate on its face to serve as a petition or claim for drawback. More important, if the court accepted Itoh’s argument it would in the process effectively eliminate the one-year statute of limitations contained in 19 C.F.R. § 173.4(c). For as a practical matter any correspondence submitted more than ninety days but less than one year from the date of liquidation expressing disappointment with a liquidation could be then used months or even years after the liquidation to bootstrap any importer’s claim to correct an alleged error or mistake. Not only would such a result subvert the purpose of limitation periods in general, it would undermine altogether the statutory and regulatory scheme embodied in 19 U.S.C. § 1520(c) and 19 C.F.R. § 173.4(c). IV In view of this court’s conclusion that the alleged errors complained of by Itoh did not originate in the liquidation and that Itoh’s claim for drawback was in any event untimely, plaintiffs motion for summary judgment is denied and defendant’s cross-motion to dismiss is granted.
19 U.S.C. 5 1313(c) provided:
Merchandise not conforming to samóle or specifications
(c) Upon the exportation of merchandise not conforming to sample or specifications . . . upon which the duties have been paid and which have been entered or withdrawn for consumption and, within ninety days after release from customs custody, unless the Secretary authorizes in writing a longer time, returned to customs custody for exportation, the full amount of the duties paid upon such merchandise shall be refunded as drawback, less 1 per centum of such duties. 19 U.S.C. § 1520(c) provided: (c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct— (1) A clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and mainfest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the customs service within one year after the date of entry, or transaction, or within ninety days after liquidation or exaction when the liquidation or exaction is made more than nine months after the date of the entry, or transaction; . . .
19 C.F.R. § 173.4(c) provided: (c) Limitation on time for application. A clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section, must be brought to the attention of the district director: (1) Within 1 year after the date of entry, or other transaction (including liquidation, reliquidation, or exaction) if the error, mistake or fact, or other inadvertence is in the entry, or other transaction (including a liquidation, reliquidation, or exaction), or (2) Within 90 days after liquidation or exaction when the liquidation or exaction is made more than 9 months after the date of entry, or other transaction, except that in cases where the error originates in the liquidation, reliquidation, or exaction, the 1-year limitation provided for in subparagraph (1) of this paragraph shall apply. [Emphasis added.]
The periods within which to file a drawback claim are tolled upon receipt of the claim by Customs. Under 19 U.S.C. § 1520(c) (1970) and 19 C.F.R. § 173.4(c) (1975) the error had to be “brought to the attention of’ the Customs Service within ninety days or one year after liquidation, respectively. | 07-20-2022 | [
"Opinion and Order Maletz, Senior Judge: In this drawback action plaintiff C. Itoh & Co. (America), Inc. (Itoh) seeks a refund of duties paid upon exported merchandise which allegedly failed to conform to specifications. Itoh brought this action following the denial of its claim for drawback by the Customs Service and has now moved for summary judgment. Defendant has cross-moved for summary judgment or, in the alternative, to dismiss on the ground that Itoh’s claim for administrative relief was untimely. The controlling statutory and regulatory provisions are contained in sections 313(c) and 520(c) of the Tariff Act of 1930, 19 U.S.C. §§ 1313(c) and 1520(c) (1970),1 respectively, and 19 C.F.R. § 173.4(c) (1975).2 Itoh alleges that errors resulting in the denial of drawback originated in the liquidation of the entries, thereby giving Itoh one year from the date of liquidation to file a claim for drawback under 19 C.F.R. § 173.4(c) (1975).",
"It further argues that two letters, one dated October 1, 1975 and another dated June 25, 1976, when considered as a whole, constitute a timely filing for drawback under 19 C.F.R. § 173.4(c). For the reasons that follow the court concludes that the errors, if any, did not originate in the liquidation of the entries, and that *46Itoh’s claim for drawback under 19 C.F.R. § 173.4(c) was thus untimely. Accordingly, defendant’s motion to dismiss is granted. I The history of the case begins in 1971 when, in August and September of that year, Itoh imported brass-plated wire tire cord from Japan. That merchandise was ultimately returned to Japan in December 1971 because it allegedly failed to meet buyer specifications. At the time of exportation four drawback entries were filed with Customs. More than three years later, these four entries were liquidated on June 27, 1975 without a drawback allowance. In essence three grounds were advanced by Customs for disallowing drawback: (1) the merchandise was not returned to Customs’ custody; (2) an export bill of lading was not filed within two years after the merchandise was exported; and (3) Itoh failed to establish that the merchandise did not conform to specifications.",
"It is undisputed that these grounds were known to both Itoh and Customs well before liquidation. The record reflects that they were the topic of discussions between Itoh and Customs on at least two separate occasions, once one month immediately preceding liquidation and the other four months prior thereto. Indeed, liquidation was twice postponed at Itoh’s request in order to afford it the opportunity to substantiate that each of the grounds for disallowing drawback had in fact been satisfied. On October 7, 1975, the Regional Commissioner of Customs in Chicago received a letter from Itoh’s customhouse broker dated October 1, 1975 regarding the drawback entries. In that letter Itoh’s broker explained that the merchandise had been transferred to Baltimore from Cleveland without the broker’s knowledge and was then exported to Japan from Baltimore on December 9, 1971. The letter did not protest Customs’ disallowance of drawback, nor did the broker petition for such drawback. This letter was apparently treated as a request for reliquidation by the Regional Commissioner’s office which, on October 31, 1975, denied this request on the three grounds previously mentioned.",
"Itoh did not respond to Customs’ October 31 letter until nearly eight months later when, on June 25, 1976, it sent Customs a letter—received June 25, 1976— which for the first time alleged errors in the liquidation and expressly protested the disallowance of drawback. This letter was deemed an untimely petition for drawback by Customs pursuant to 19 U.S.C. § 1520(c). This lawsuit then followed. With this background the court turns first to Itoh’s contention that the errors complained of originated in the June 27, 1975 liquidation. II Under 19 U.S.C. § 1520(c) and 19 C.F.R. § 173.4(c) the limitation periods for filing an application to correct a clerical error, mistake *47of fact, or other inadvertence are strictly circumscribed. Pursuant to those two provisions, a petitioner alleging such error must file its claim with Customs within one of three time periods: (1) within one year of the date of entry of the merchandise, (2) within ninety days of the date of liquidation of the entries if the liquidation occurred more than nine months after the date of entry, or (3) within one year of the date of liquidation if the error resulting in the denial of the claim for drawback “originates in the liquidation.” The liquidation which is the focus of this action occurred more than three years after the merchandise was entered.",
"Itoh concedes that no claim for drawback was presented to Customs within ninety days of the date of liquidation of the entries as required by 19 U.S.C. § 1520(c)(1). Consequently, in order to avail itself of the more generous one-year-of-liquidation period contained in 19 C.F.R. § 173.4(c), it is incumbent upon Itoh to demonstrate that the alleged errors originated in the liquidation. Instructive on the meaning of error which originates in the liquidation are two recent opinions of this court, Lester Engineering Co. v. United States, 3 CIT 236 (1982), and Adorence Co. v. United States, 3 CIT 81, 539 F. Supp. 1216 (1982), aff’d, No. 82-25 (Fed. Cir. Dec. 10, 1982). In Lester Engineering the plaintiff, who had presented a drawback claim some eight months after liquidation, alleged that the entries were liquidated using an excessive value which had been employed for the first time at liquidation.",
"Inasmuch as the Government—the moving party on a motion to dismiss—failed to establish otherwise, the court concluded that the alleged error originated in the liquidation and, accordingly, that the plaintiffs drawback claim was timely filed under 19 C.F.R. § 173.4(c). The Adorence case, while not directly involving 19 C.F.R. § 173.4(c), did address the question of when errors originate in a liquidation. There the plaintiff had placed incorrect value information on the entry papers which were in turn used by a Customs appraising official at the time of liquidation. The plaintiff argued that the use of the wrong information by Customs at liquidation was an error separate and distinct from the earlier submission of the wrong information on the entry by the plaintiff. In granting the Government’s motion to dismiss, the court observed that the error occurred only once, specifically when incorrect values were placed on the entry papers by plaintiff.",
"The later uses of the erroneous data do not constitute new errors but rather are the unavoidable and normal manifestations of the original error. If plaintiffs reasoning was correct, there would be no reason for the statute to specify any events prior to the liquidation because all errors would eventually be incorporated or accumulated in the liquidation and constitute errors at that final stage. By specifying certain events the statute recognizes that errors are discrete events and that their occurrence can be fixed in time and associated with one or the other of the steps in the administrative process of importation. *48Id. at 82, 539 F. Supp. at 1217. Lester Engineering and Adorence thus teach that when determining whether or not an error originated in a liquidation, the proper focus is on that point in time when the alleged error was first committed. If the error antedated the liquidation, then the error did not originate there, even if that error is repeated at the time the entries are liquidated. In the present action it is uncontroverted that if there were any errors, those errors were brought to Itoh’s attention well in advance of liquidation.",
"Customs and Itoh discussed the defects which gave rise to the purported errors four months and then again one month prior to liquidation. Each of the errors complained of by Itoh occurred, if at all, at a time predating liquidation and are not, therefore, errors originating in the liquidation. Thus, inasmuch as the errors did not originate in the liquidation, Itoh had ninety days from the date of the June 27, 1975 liquidation within which to present a claim for drawback. See 19 U.S.C. § 1520(c) (1970). On this score, regardless of how its letter to Customs of October 1, 1975 is characterized, there is no dispute that Itoh failed to file or present a drawback claim within the requisite ninety-day period provided for under section 1520(c).",
"In sum, the court finds as untenable Itoh’s assertion that the errors originated in the liquidation, thereby allowing it one year from the date of liquidation upon which to file a drawback claim pursuant to 19 C.F.R. § 173.4(c) as then in effect. Ill Even assuming arguendo that the alleged errors originated in the liquidation/the court would still be compelled to dismiss Itoh’s complaint on the basis that it failed to file a claim for drawback within one year of the date of liquidation. Of relevance here are the two letters which, Itoh contends, if integrated constitute a timely petition for drawback. The first of these two letters was sent by Itoh’s customhouse broker on October 1, 1975, and received by Customs on October 7, 1975, 102 days after the entries were liquidated.3 That letter stated in toto as follows: We make reference to Cleveland drawback entries 72-107252/5 for the account of C. Itoh & Co. (America) Inc. At the time of intended exportation in December of 1971 this freight was to be loaded aboard the steamer Muneshima Maru.",
"Unfortunately, due to factors beyond our control and without our knowledge as well as the importer’s, the carrier elected to transfer this merchandise to Baltimore for loading aboard the steamer France Maru which departed December 9, 1971. Attached is a statement from Customs in Baltimore indicating *49that the merchandise was physically exported along with a photostatic copy of the outward foreign manifest showing this merchandise as well as documentation from the importer of record as well as the steamship line. Will you kindly review this matter and advise whether drawback can be allowed or if there is additional documentation that you request in order that this matter may be correctly disposed of. No allegation of an error which occurred in connection with liquidation of the entries is to be found in this document. Nevertheless, treating this letter as a request for reliquidation, Customs denied it as untimely. On June 25, 1976, Itoh’s counsel sent a letter to Customs claiming errors in the liquidation of those entries. That letter was received by Customs on June 29, 1976—a year and a day after liquidation.",
"Itoh maintains that even though this June 25 letter arrived one day after the anniversary date of the liquidation, it should nonetheless be considered a supplement to its October 1, 1975 letter and, therefore, a timely claim for drawback pursuant to 19 C.F.R. § 173.4(c). This contention the court must reject on at least two grounds. First, the October 1 letter is inadequate on its face to serve as a petition or claim for drawback. More important, if the court accepted Itoh’s argument it would in the process effectively eliminate the one-year statute of limitations contained in 19 C.F.R. § 173.4(c). For as a practical matter any correspondence submitted more than ninety days but less than one year from the date of liquidation expressing disappointment with a liquidation could be then used months or even years after the liquidation to bootstrap any importer’s claim to correct an alleged error or mistake.",
"Not only would such a result subvert the purpose of limitation periods in general, it would undermine altogether the statutory and regulatory scheme embodied in 19 U.S.C. § 1520(c) and 19 C.F.R. § 173.4(c). IV In view of this court’s conclusion that the alleged errors complained of by Itoh did not originate in the liquidation and that Itoh’s claim for drawback was in any event untimely, plaintiffs motion for summary judgment is denied and defendant’s cross-motion to dismiss is granted. 19 U.S.C. 5 1313(c) provided: Merchandise not conforming to samóle or specifications (c) Upon the exportation of merchandise not conforming to sample or specifications . . . upon which the duties have been paid and which have been entered or withdrawn for consumption and, within ninety days after release from customs custody, unless the Secretary authorizes in writing a longer time, returned to customs custody for exportation, the full amount of the duties paid upon such merchandise shall be refunded as drawback, less 1 per centum of such duties. 19 U.S.C. § 1520(c) provided: (c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct— (1) A clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of a law, adverse to the importer and mainfest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the customs service within one year after the date of entry, or transaction, or within ninety days after liquidation or exaction when the liquidation or exaction is made more than nine months after the date of the entry, or transaction; .",
". . 19 C.F.R. § 173.4(c) provided: (c) Limitation on time for application. A clerical error, mistake of fact, or other inadvertence meeting the requirements of paragraph (b) of this section, must be brought to the attention of the district director: (1) Within 1 year after the date of entry, or other transaction (including liquidation, reliquidation, or exaction) if the error, mistake or fact, or other inadvertence is in the entry, or other transaction (including a liquidation, reliquidation, or exaction), or (2) Within 90 days after liquidation or exaction when the liquidation or exaction is made more than 9 months after the date of entry, or other transaction, except that in cases where the error originates in the liquidation, reliquidation, or exaction, the 1-year limitation provided for in subparagraph (1) of this paragraph shall apply. [Emphasis added.] The periods within which to file a drawback claim are tolled upon receipt of the claim by Customs. Under 19 U.S.C. § 1520(c) (1970) and 19 C.F.R.",
"§ 173.4(c) (1975) the error had to be “brought to the attention of’ the Customs Service within ninety days or one year after liquidation, respectively."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6614544/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition for certification denied. | 07-25-2022 | [
"Petition for certification denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7311487/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
This is a bill of complaint filed by M. C. Galloway against Southern Investment Company to enforce specific performance of a contract of sale of a lot, and to enjoin an action of unlawful detainer suit filed by defendant for the possession of it. On January 6, 1919, the complainant and defendant entered into a written contract for the purchase and sale of a lot in the town of Florala, Ala., for $825. Both signed the contract. It is made part of the bill. Complainant was placed in possession of the lot by defendant under the purchase contract. The contract provides: "The party of the second part [complainant] hereby covenants and agrees to pay to said party of first part [defendant] the sum of eight hundred and twenty-five dollars in the manner following: Cash down payment $25.00 and ($10.00) ten dollars per month until the whole contract is paid in full and interest at the rate of 8 per cent. per annum payable annually on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments or impositions that may be legally levied or imposed upon said land subsequent to the year __________." Time was made an essence of the contract. It provided for forfeiture of entire amounts paid in the event of failure of the performance of any part of it by complainant. The $25 cash payment was made. The $10 monthly payments were made until $225 more was paid, and on the 29th of November, 1920, she paid $50 more in advance on the contract. This makes $300 paid in all on the contract. On February 6, 1921, defendant furnished complainant with written statement, which is attached to the bill. It shows $300 paid: $25 of same was to her credit, to be applied February 6, 1921, as per the statement. There was no interest charged on the statement. No taxes were charged on this statement. She was charged with only $825 with $275 credited on it, and stated, "Bal. to Cr. to be applied $25.00 February 6, 1921." On February 23, 1921, the defendant attempted to purchase this lot from complainant for $150. She has placed permanent improvements on the property of value $850. The offer of defendant to purchase for $150 was refused. On March 3, 1921, about 10 days thereafter, complainant received notice from defendant to vacate said premises, and claiming that complainant had forfeited said contract, and "that the defendant has never made any demand for taxes or interest on complainant, and never has made any claim she owed taxes or interest that had not been paid up until she refused to sell her contract back to defendant, and on same date she was notified to vacate said premises." The bill avers complainant has performed her part of the contract, and if in this she is mistaken, she submits herself to the jurisdiction of the court, and will do as the court directs; that she is ready and willing and able to carry out her part of the contract, and defendant "refused to accept the tender of payments tendered them under the sale contract." The defendant filed an unlawful detainer suit against complainant for this lot in the justice of the peace court. The prosecution of this suit was enjoined by the court below in this cause. The defendant filed demurrers to the bill, and the court overruled the demurrers. From this decree the defendant appeals, and assigns it as error. This was a contract of sale. After January 6, 1919, the date of the contract, the complainant has been in possession of the property. It was her duty to assess this lot for taxes and pay the taxes annually on it after January 6, 1919. If she failed to assess it for taxes and pay the taxes on it, then defendant to protect its rights could do so, but complainant would still owe the tax debt and the interest thereon to defendant. In the contract the complainant agreed "to pay all taxes, assessments or impositions that may be legally levied or imposed upon said land subsequent to year __________." This being left blank, we will presume the contracting parties intended for complainant to pay the taxes after the date of purchase and not before. She would not be responsible for taxes prior to the purchase but should assess and pay all taxes imposed after the purchase. The taxes would be a lien on the lot. Section 2093, Code 1907. The $25 cash payment was made by the complainant. This left $800 balance of the purchase money. This was to be paid, "ten dollars per month until the whole contract is paid in full and interest at the rate of 8 per cent. per annum, payable annually on the whole sum remaining from time to time unpaid." After the $25 cash payment was made, all the contract required complainant *Page 447 to do was to pay the taxes, and $10 monthly until the $800, with interest on the balance "remaining from time to time unpaid," was paid in full. That part of the $800 "remaining from time to time unpaid" would bear interest at the rate of 8 per cent. per annum from date. The $800 would begin to bear interest from January 6, 1919, the date of the contract. Debts draw interest from their maturity by operation of law. When a contract for a debt matures it bears interest. Section 4620, Code 1907. If the contract provides for the debt to be paid at a future day, with interest, it bears interest from date. Campbell Printing-Press Mfg. Co. v. Jones, 79 Ala. 475. The $10 per month must be applied to the payment of interest and principal until the whole $800 is paid in full, with interest payable annually on the whole sum of $800 remaining from time to time unpaid, the interest to be paid annually out of the partial monthly payments, and the balance applied to the principal. Root v. Johnson, 99 Ala. 90, 10 So. 293; Campbell v. Jones, 79 Ala. 475; section 4620, Code of 1907. In Root v. Johnson, 99 Ala. 90, 10 So. 293, this court, speaking through Chief Justice Stone, wrote: "Forfeitures are not favorites in equity, and unless the penalty is fairly proportionate to the damage suffered by the breach, relief will be granted when the court can give by way of compensation all that could be reasonably expected." Has there been a forfeiture? If yea, should it be permitted in equity, if the defendant has not been and will not be injured thereby and the complainant would be? We think not. The contract bears date January 6, 1919. The first $10 was due February 6, 1919. The complainant has paid on these monthly installments or on the contract, $275, not including the $25 cash payment. If applied to the monthly payments, this would pay for 27 1/2 months — 11 months in 1919, 12 months in 1920, and 4 1/2 months in 1921. This would make the monthly payments paid up to May 21, 1921, 2 months after the bill was filed on March 21, 1921. The record does not disclose the amount of the taxes. It could not be for more than two years, 1919 and 1920. If it was assessed at 60 per cent. of $825, the purchase price, the amount would be $495, the full amount required by law; the state and county taxes would hardly exceed $10 annually on $495. The taxes for 1919 were due October 1, 1919, and for 1920, October 1, 1920. They became delinquent January 1 after maturity. Section 2091, Code 1907. The taxes for these two years would hardly exceed $20. When this bill was filed, March 21, 1921, there was in the hands of the defendant to the credit of complainant, $20 on this contract. This would no doubt have paid in full the taxes, and all monthly payments were paid. The statement rendered complainant by defendant February 6, 1921, shows "Bal. to Cr. to be applied $25.00 February 6, 1921." This would, no doubt have overpaid the taxes. The bill also avers, "Respondent has refused to accept the tender of payments tendered them under the sale contract on payment of said place," and complainant asks leave of the court to deposit the payments with the register for respondents. If the court permits the contract to be forfeited, complainant would lose $300 cash payments, and $250 in improvements. The complainant would lose $550, and defendant gain it, if the contract is forfeited. If the contract is enforced, complainant will lose nothing, and respondent will not be damaged, but receive the entire purchase money, interest, and taxes paid. This being true, it should be enforced and not forfeited. Root v. Johnson, 99 Ala. 90,10 So. 293; Franklin v. Long, 191 Ala. 310, 68 So. 149. The complainant has displayed a willingness and ability to perform her part of the contract, and the court will permit her to do so. She paid the defendant at one time, in November, 1920, $50 cash in advance payments. This could have been applied to the payment of taxes if defendant has paid them. The defendant has displayed a desire to get the property back and a determined effort to declare the contract forfeited. This it should not be permitted to do, as long as the complainant is ready, willing, and able to perform her part as shown by the allegations of the bill. The demurrers to the bill were properly overruled by the court. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. | 07-05-2016 | [
"This is a bill of complaint filed by M. C. Galloway against Southern Investment Company to enforce specific performance of a contract of sale of a lot, and to enjoin an action of unlawful detainer suit filed by defendant for the possession of it. On January 6, 1919, the complainant and defendant entered into a written contract for the purchase and sale of a lot in the town of Florala, Ala., for $825. Both signed the contract. It is made part of the bill. Complainant was placed in possession of the lot by defendant under the purchase contract. The contract provides: \"The party of the second part [complainant] hereby covenants and agrees to pay to said party of first part [defendant] the sum of eight hundred and twenty-five dollars in the manner following: Cash down payment $25.00 and ($10.00) ten dollars per month until the whole contract is paid in full and interest at the rate of 8 per cent.",
"per annum payable annually on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments or impositions that may be legally levied or imposed upon said land subsequent to the year __________.\" Time was made an essence of the contract. It provided for forfeiture of entire amounts paid in the event of failure of the performance of any part of it by complainant. The $25 cash payment was made. The $10 monthly payments were made until $225 more was paid, and on the 29th of November, 1920, she paid $50 more in advance on the contract. This makes $300 paid in all on the contract. On February 6, 1921, defendant furnished complainant with written statement, which is attached to the bill. It shows $300 paid: $25 of same was to her credit, to be applied February 6, 1921, as per the statement. There was no interest charged on the statement.",
"No taxes were charged on this statement. She was charged with only $825 with $275 credited on it, and stated, \"Bal. to Cr. to be applied $25.00 February 6, 1921.\" On February 23, 1921, the defendant attempted to purchase this lot from complainant for $150. She has placed permanent improvements on the property of value $850. The offer of defendant to purchase for $150 was refused. On March 3, 1921, about 10 days thereafter, complainant received notice from defendant to vacate said premises, and claiming that complainant had forfeited said contract, and \"that the defendant has never made any demand for taxes or interest on complainant, and never has made any claim she owed taxes or interest that had not been paid up until she refused to sell her contract back to defendant, and on same date she was notified to vacate said premises.\" The bill avers complainant has performed her part of the contract, and if in this she is mistaken, she submits herself to the jurisdiction of the court, and will do as the court directs; that she is ready and willing and able to carry out her part of the contract, and defendant \"refused to accept the tender of payments tendered them under the sale contract.\" The defendant filed an unlawful detainer suit against complainant for this lot in the justice of the peace court. The prosecution of this suit was enjoined by the court below in this cause.",
"The defendant filed demurrers to the bill, and the court overruled the demurrers. From this decree the defendant appeals, and assigns it as error. This was a contract of sale. After January 6, 1919, the date of the contract, the complainant has been in possession of the property. It was her duty to assess this lot for taxes and pay the taxes annually on it after January 6, 1919. If she failed to assess it for taxes and pay the taxes on it, then defendant to protect its rights could do so, but complainant would still owe the tax debt and the interest thereon to defendant. In the contract the complainant agreed \"to pay all taxes, assessments or impositions that may be legally levied or imposed upon said land subsequent to year __________.\" This being left blank, we will presume the contracting parties intended for complainant to pay the taxes after the date of purchase and not before.",
"She would not be responsible for taxes prior to the purchase but should assess and pay all taxes imposed after the purchase. The taxes would be a lien on the lot. Section 2093, Code 1907. The $25 cash payment was made by the complainant. This left $800 balance of the purchase money. This was to be paid, \"ten dollars per month until the whole contract is paid in full and interest at the rate of 8 per cent. per annum, payable annually on the whole sum remaining from time to time unpaid.\" After the $25 cash payment was made, all the contract required complainant *Page 447 to do was to pay the taxes, and $10 monthly until the $800, with interest on the balance \"remaining from time to time unpaid,\" was paid in full. That part of the $800 \"remaining from time to time unpaid\" would bear interest at the rate of 8 per cent. per annum from date. The $800 would begin to bear interest from January 6, 1919, the date of the contract. Debts draw interest from their maturity by operation of law.",
"When a contract for a debt matures it bears interest. Section 4620, Code 1907. If the contract provides for the debt to be paid at a future day, with interest, it bears interest from date. Campbell Printing-Press Mfg. Co. v. Jones, 79 Ala. 475. The $10 per month must be applied to the payment of interest and principal until the whole $800 is paid in full, with interest payable annually on the whole sum of $800 remaining from time to time unpaid, the interest to be paid annually out of the partial monthly payments, and the balance applied to the principal. Root v. Johnson, 99 Ala. 90, 10 So. 293; Campbell v. Jones, 79 Ala. 475; section 4620, Code of 1907. In Root v. Johnson, 99 Ala. 90, 10 So. 293, this court, speaking through Chief Justice Stone, wrote: \"Forfeitures are not favorites in equity, and unless the penalty is fairly proportionate to the damage suffered by the breach, relief will be granted when the court can give by way of compensation all that could be reasonably expected.\" Has there been a forfeiture?",
"If yea, should it be permitted in equity, if the defendant has not been and will not be injured thereby and the complainant would be? We think not. The contract bears date January 6, 1919. The first $10 was due February 6, 1919. The complainant has paid on these monthly installments or on the contract, $275, not including the $25 cash payment. If applied to the monthly payments, this would pay for 27 1/2 months — 11 months in 1919, 12 months in 1920, and 4 1/2 months in 1921. This would make the monthly payments paid up to May 21, 1921, 2 months after the bill was filed on March 21, 1921. The record does not disclose the amount of the taxes. It could not be for more than two years, 1919 and 1920.",
"If it was assessed at 60 per cent. of $825, the purchase price, the amount would be $495, the full amount required by law; the state and county taxes would hardly exceed $10 annually on $495. The taxes for 1919 were due October 1, 1919, and for 1920, October 1, 1920. They became delinquent January 1 after maturity. Section 2091, Code 1907. The taxes for these two years would hardly exceed $20. When this bill was filed, March 21, 1921, there was in the hands of the defendant to the credit of complainant, $20 on this contract. This would no doubt have paid in full the taxes, and all monthly payments were paid. The statement rendered complainant by defendant February 6, 1921, shows \"Bal. to Cr. to be applied $25.00 February 6, 1921.\" This would, no doubt have overpaid the taxes. The bill also avers, \"Respondent has refused to accept the tender of payments tendered them under the sale contract on payment of said place,\" and complainant asks leave of the court to deposit the payments with the register for respondents.",
"If the court permits the contract to be forfeited, complainant would lose $300 cash payments, and $250 in improvements. The complainant would lose $550, and defendant gain it, if the contract is forfeited. If the contract is enforced, complainant will lose nothing, and respondent will not be damaged, but receive the entire purchase money, interest, and taxes paid. This being true, it should be enforced and not forfeited. Root v. Johnson, 99 Ala. 90,10 So. 293; Franklin v. Long, 191 Ala. 310, 68 So. 149. The complainant has displayed a willingness and ability to perform her part of the contract, and the court will permit her to do so.",
"She paid the defendant at one time, in November, 1920, $50 cash in advance payments. This could have been applied to the payment of taxes if defendant has paid them. The defendant has displayed a desire to get the property back and a determined effort to declare the contract forfeited. This it should not be permitted to do, as long as the complainant is ready, willing, and able to perform her part as shown by the allegations of the bill. The demurrers to the bill were properly overruled by the court. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3254228/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Order and judgment of sentence affirmed. | 02-18-2022 | [
"Order and judgment of sentence affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6303356/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DISSENTING OPINION OF QUARLES, J. The indictment in this case, in my opinion, failed to state any crime or offense against the defendant, failing to state the intent with which the defendant committed the acts charged against him, did not allege the offense described and forbidden by section 3897, R. L. The words contained in that statute, to wit, “without committing or intending to commit the crime of rape” are descriptive of the crime, a new one, created by such statute. The indictment did not charge a simple assault, as defined in section 3874, R. L., in that there is no allegation of “a malicious attempt forcibly to do a corporal injury to another without authority or justification by law.” It did not allege the acts which constitute a crime under section 3896, R. L., in that it failed to allege a malicious assault with intent to commit the crime of rape and did not allege that defendant “maliciously” assaulted any female child under the age of twelve years with intent to ravish or carnally abuse such child. It did not state an offense under section 3897, R. L., the statute under which this prosecution was evidently instituted, in that the indictment was wholly silent as to the intent of the defendant. The offense created by section 3897, R. L., is a revolting one, and one which should be subject to severe punishment, and the legislature has very properly prescribed the same punishment for the offense *781created by this statute as is prescribed for an assault with intent to commit rape. Nevertheless it is such an old and established principle of criminal procedure that an indictment against an accused must state with particularity all of the essential elements and ingredients of the crime charged against him that it would seem unnecessary to discuss this rule. In the crime of indecent assault, defined and prescribed by section 3897, R. L., as well as in the crime of assault with intent to ravish, defined and forbidden in section 3896, R. L., the question of intent is a material and necessary ingredient. - In the one case the intent to commit or attempt to commit the forbidden act must exist; in the other the intent not to commit the crime of rape must exist. The indictment in this case fails to charge the felony defined in section 3897, R. L., in that the intent with which the acts alleged were done is entirely omitted, and the words “without committing or intending to commit the crime of rape” are a necessary part of the description and are descriptive of the new crime created hy this statute enacted in 1911. When intent is made a part of the definition of the crime it is one of the ingredients of such crime and such intent must he alleged in the indictment else the indictment does not state an offense. State v. Bacon, 7 Vt. 219, 222; United States v. Gleason, Woolw. 75, Fed. Cas. 15,215; People v. Lohman, 2 Barb. 216, 218; Brittin v. State, 5 Eng. (10 Ark.) 299; Sarah v. State, 28 Miss. 267; State v. Gove, 34 N. H. 510; State v. Freeman, 6 Blackf. 248; State v. Drake, 1 Vroom 422; Morrow v. State, 10 Humph. 120. “Where the intention is made a material ingredient in the offense, it is always necessary to allege it.” State v. Ullman, 5 Minn. 1, 5. And to the same effect see also the following authorities : Johnson v. State, 1 Tex. App. 146; Howard v. State, 8 Tex. App. 447; Drake v. State, 19 Ohio St. 211, 217; State v. Malloy, 5 Vroom 410; Wood v. State, 46 Ga. 322; 1 Arch. *782Or. Prac. & PL (7th ed., 1860), 282-285 and authorities cited in notes. “The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition, of the offense must be stated, and that, if any essential element, of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly and not inferentially or by way of recital. United States v. Hess, 124 U. S. 483, 486. * * * This indictment does not in terms aver that it was the purpose of the conspiracy to violate the injunction referred to or to impede or obstruct the due administration of justice in the circuit court; but it states, as a legal conclusion from the previous allegations, that the defendants-conspired so to obstruct and impede * * * but the indictment nowhere made the direct charge that the purpose of the conspiracy was to violate the injunction or to interfere with the proceedings in the circuit court.” Pettibone v. United States, 148 U. S. 197, 202, 203. The court held that the indictment did not state an offense. “So far as relates to the charge of felony, there is no allegation that the defendant used the means to procure the abortion with intent thereby to destroy the child. * * * That is a part, and, as we deem it, an essential part of the definition of the offense contained in the Act of 1846. When a particular intent accompanying an act is requisite to constitute a crime it should be averred in the indictment.” People v. Lohman, 2 Barb, at p. 218, citing 6 East. Rep. 473, 4; 1 Chit. Cr. Law 233. “It is a well established general rule of criminal pléadingin relation to offences created by statute, that where the words of the statute are descriptive of the offence, the indictment must-follow, substantially at least, the language of the statute, and expressly charge the respondent with the commission of the offence as described, or it will be defective. The respondent-must be brought within the material words of the statute, and *783nothing will be taken by intendment. Wharton’s Cr. Law, 185, and authorities; 1 Chitty’s Cr. Law, 281, 2, 3; 1 Archb. Cr. Plead. 50; People v. Allen, 5 Denio 76. * * * Where a particular intent is essential to constitute a crime that intent must be distinctly alleged in the indictment. People v. Lohman, 2 Barb., S. C. 216; Gabe v. State, 1 Eng. 519; Commonwealth v. Morse, 2 Mass. 128.” State v. Gove, 34 N. H. 510, 515. To the same effect see United States v. Staats, 8 How. 41, 44; United States v. Carll, 105 U. S. 611; Evans v. United States, 153 U. S. 584, 594; United States v. Britton, 107 U. S. 655, 669; Spurr v. United States, 174 U. S. 728, 735. “The particular intent must, therefore, be left to the jury to be determined by all the facts in the case, and should not in this case be given to them as a legal presumption. It must be remembered that this act is only criminal if done with a particular intent, and that intent must, therefore, be alleged and proved according to all the terms of the statute.” State v. Malloy, supra, citing Commonwealth v. Dana, 2 Metc. 329; Miller v. People, 5 Barb. 203; Commonwealth v. York, 9 Metc. 93; 1 Arch. Prac. & Pl. 119-121; 3 Greenl. Ev., Sec. 13; 1 Stark. Ev., 524. These authorities hold that the intent must be proven, but that it may be proven by proof of the actions and surrounding circumstances of the defendant. “It is a general principle of evidence that a man shall be taken to intend that which he does, or which is the immediate and natural consequence of his act. ■ But where an act in itself indifferent becomes criminal if it be done with a particular intent, then the intent must be alleged and proved. The intent in the present case was a material ingredient in the offense, and was a question of fact, under all the circumstances, for the consideration of the jury. It was for them to find whether there had been an intentional, wanton and indecent exposure of the persons of the defendants, at such a time and place, and in such a manner, *784as to offend against public decency.” Miller v. People, 5 Barb. 203. The trial court erred, in my opinion, in refusing to instruct the jury to find for the defendant on the ground that the evidence showed that the defendant was not guilty of talcing “indecent and improper liberties with the person” of one Maria Lau Chong, an unmarried “female child under the age of twelve years, without committing or attempting to commit the crime of rape.” The indictment failing to allege an essential ingredient in this statutory crime, stated no criminal offense against the defendant and he was, in my opinion, entitled to be discharged, and the court should have given the request for an instructed verdict. The evidence shows conclusively that the defendant did not commit the crime of indecent assault, as defined in section 3897, R. L., but did commit the crime of assault with intent to ravish, as defined in section 3896, R. L. Now by section 3898, R. L., the legislature has provided that under an indictment charging rape or carnal abuse of a female child under twelve years of age, or charging assault with intent to commit either of such offenses, the jury may find “the defendant guilty of an indecent assault if the facts so warrantNow the facts to warrant conviction of an indecent assault must show that it was committed without committing rape, and without intending to commit rape. The two offenses are of a diverse nature. The intent necessary to create the one proves conclusively that the other was not committed. In the one the intent to commit rape must exist; in the other the intent not to commit rape must exist. The words of the statute, “without committing or intending to commit' rape,” are descriptive and definitive of the very nature of the acts constituting the offense and do not constitute an exception to a general rule prescribed by the statute, but are of the essence of the general rule applicable to all persons committing the acts forbidden by the statute. ■ *785I am unable to concur in tbe majority opinion wherein it holds that the question of intent is immaterial, as I understand it to hold. What the legislature said, and evidently intended to say, is, that where a defendant is prosecuted under an indictment charging rape, carnal abuse of a female child under twelve years of age, or assault with intent to commit rape, if the facts showing an indecent assault are proven but the proven facts and circumstances do not show intent to rape or carnally abuse the female child upon whom the assault is allaged to have been made, the defendant may be convicted of indecent assault. The legislature has nowhere provided that under an indictment charging an indecent assault the defendant may be convicted of rape or carnal abuse of a female child under twelve years of age, or of an assault with intent to commit either of such crimes. That is what has occurred in this case, without warrant of law, in my opinion. It would be just as reasonable to hold that a man charged with assault might be convicted of homicide as it is to hold that a man charged with an indecent assault may be convicted of an attempt to commit rape. The offense shown by the evidence in this case to have been committed by the defendant constitutes a heinous crime against good morals, decency and the best interests of society and merits severe punishment. Nevertheless, the defendant in this, as in all other cases, should be lawfully convicted according to established rules of law and procedure. In my opinion the judgment should be reversed and a new trial granted. | 06-26-2022 | [
"DISSENTING OPINION OF QUARLES, J. The indictment in this case, in my opinion, failed to state any crime or offense against the defendant, failing to state the intent with which the defendant committed the acts charged against him, did not allege the offense described and forbidden by section 3897, R. L. The words contained in that statute, to wit, “without committing or intending to commit the crime of rape” are descriptive of the crime, a new one, created by such statute. The indictment did not charge a simple assault, as defined in section 3874, R. L., in that there is no allegation of “a malicious attempt forcibly to do a corporal injury to another without authority or justification by law.” It did not allege the acts which constitute a crime under section 3896, R. L., in that it failed to allege a malicious assault with intent to commit the crime of rape and did not allege that defendant “maliciously” assaulted any female child under the age of twelve years with intent to ravish or carnally abuse such child.",
"It did not state an offense under section 3897, R. L., the statute under which this prosecution was evidently instituted, in that the indictment was wholly silent as to the intent of the defendant. The offense created by section 3897, R. L., is a revolting one, and one which should be subject to severe punishment, and the legislature has very properly prescribed the same punishment for the offense *781created by this statute as is prescribed for an assault with intent to commit rape.",
"Nevertheless it is such an old and established principle of criminal procedure that an indictment against an accused must state with particularity all of the essential elements and ingredients of the crime charged against him that it would seem unnecessary to discuss this rule. In the crime of indecent assault, defined and prescribed by section 3897, R. L., as well as in the crime of assault with intent to ravish, defined and forbidden in section 3896, R. L., the question of intent is a material and necessary ingredient. - In the one case the intent to commit or attempt to commit the forbidden act must exist; in the other the intent not to commit the crime of rape must exist.",
"The indictment in this case fails to charge the felony defined in section 3897, R. L., in that the intent with which the acts alleged were done is entirely omitted, and the words “without committing or intending to commit the crime of rape” are a necessary part of the description and are descriptive of the new crime created hy this statute enacted in 1911. When intent is made a part of the definition of the crime it is one of the ingredients of such crime and such intent must he alleged in the indictment else the indictment does not state an offense.",
"State v. Bacon, 7 Vt. 219, 222; United States v. Gleason, Woolw. 75, Fed. Cas. 15,215; People v. Lohman, 2 Barb. 216, 218; Brittin v. State, 5 Eng. (10 Ark.) 299; Sarah v. State, 28 Miss. 267; State v. Gove, 34 N. H. 510; State v. Freeman, 6 Blackf. 248; State v. Drake, 1 Vroom 422; Morrow v. State, 10 Humph. 120. “Where the intention is made a material ingredient in the offense, it is always necessary to allege it.” State v. Ullman, 5 Minn. 1, 5. And to the same effect see also the following authorities : Johnson v. State, 1 Tex. App. 146; Howard v. State, 8 Tex. App. 447; Drake v. State, 19 Ohio St. 211, 217; State v. Malloy, 5 Vroom 410; Wood v. State, 46 Ga. 322; 1 Arch. *782Or. Prac. & PL (7th ed., 1860), 282-285 and authorities cited in notes.",
"“The general rule in reference to an indictment is that all the material facts and circumstances embraced in the definition, of the offense must be stated, and that, if any essential element, of the crime is omitted, such omission cannot be supplied by intendment or implication. The charge must be made directly and not inferentially or by way of recital. United States v. Hess, 124 U. S. 483, 486. * * * This indictment does not in terms aver that it was the purpose of the conspiracy to violate the injunction referred to or to impede or obstruct the due administration of justice in the circuit court; but it states, as a legal conclusion from the previous allegations, that the defendants-conspired so to obstruct and impede * * * but the indictment nowhere made the direct charge that the purpose of the conspiracy was to violate the injunction or to interfere with the proceedings in the circuit court.” Pettibone v. United States, 148 U. S. 197, 202, 203.",
"The court held that the indictment did not state an offense. “So far as relates to the charge of felony, there is no allegation that the defendant used the means to procure the abortion with intent thereby to destroy the child. * * * That is a part, and, as we deem it, an essential part of the definition of the offense contained in the Act of 1846. When a particular intent accompanying an act is requisite to constitute a crime it should be averred in the indictment.” People v. Lohman, 2 Barb, at p. 218, citing 6 East.",
"Rep. 473, 4; 1 Chit. Cr. Law 233. “It is a well established general rule of criminal pléadingin relation to offences created by statute, that where the words of the statute are descriptive of the offence, the indictment must-follow, substantially at least, the language of the statute, and expressly charge the respondent with the commission of the offence as described, or it will be defective. The respondent-must be brought within the material words of the statute, and *783nothing will be taken by intendment. Wharton’s Cr.",
"Law, 185, and authorities; 1 Chitty’s Cr. Law, 281, 2, 3; 1 Archb. Cr. Plead. 50; People v. Allen, 5 Denio 76. * * * Where a particular intent is essential to constitute a crime that intent must be distinctly alleged in the indictment. People v. Lohman, 2 Barb., S. C. 216; Gabe v. State, 1 Eng. 519; Commonwealth v. Morse, 2 Mass. 128.” State v. Gove, 34 N. H. 510, 515. To the same effect see United States v. Staats, 8 How. 41, 44; United States v. Carll, 105 U. S. 611; Evans v. United States, 153 U. S. 584, 594; United States v. Britton, 107 U. S. 655, 669; Spurr v. United States, 174 U. S. 728, 735. “The particular intent must, therefore, be left to the jury to be determined by all the facts in the case, and should not in this case be given to them as a legal presumption.",
"It must be remembered that this act is only criminal if done with a particular intent, and that intent must, therefore, be alleged and proved according to all the terms of the statute.” State v. Malloy, supra, citing Commonwealth v. Dana, 2 Metc. 329; Miller v. People, 5 Barb. 203; Commonwealth v. York, 9 Metc. 93; 1 Arch. Prac. & Pl. 119-121; 3 Greenl. Ev., Sec. 13; 1 Stark. Ev., 524. These authorities hold that the intent must be proven, but that it may be proven by proof of the actions and surrounding circumstances of the defendant. “It is a general principle of evidence that a man shall be taken to intend that which he does, or which is the immediate and natural consequence of his act. ■ But where an act in itself indifferent becomes criminal if it be done with a particular intent, then the intent must be alleged and proved.",
"The intent in the present case was a material ingredient in the offense, and was a question of fact, under all the circumstances, for the consideration of the jury. It was for them to find whether there had been an intentional, wanton and indecent exposure of the persons of the defendants, at such a time and place, and in such a manner, *784as to offend against public decency.” Miller v. People, 5 Barb. 203. The trial court erred, in my opinion, in refusing to instruct the jury to find for the defendant on the ground that the evidence showed that the defendant was not guilty of talcing “indecent and improper liberties with the person” of one Maria Lau Chong, an unmarried “female child under the age of twelve years, without committing or attempting to commit the crime of rape.” The indictment failing to allege an essential ingredient in this statutory crime, stated no criminal offense against the defendant and he was, in my opinion, entitled to be discharged, and the court should have given the request for an instructed verdict. The evidence shows conclusively that the defendant did not commit the crime of indecent assault, as defined in section 3897, R. L., but did commit the crime of assault with intent to ravish, as defined in section 3896, R. L. Now by section 3898, R. L., the legislature has provided that under an indictment charging rape or carnal abuse of a female child under twelve years of age, or charging assault with intent to commit either of such offenses, the jury may find “the defendant guilty of an indecent assault if the facts so warrantNow the facts to warrant conviction of an indecent assault must show that it was committed without committing rape, and without intending to commit rape.",
"The two offenses are of a diverse nature. The intent necessary to create the one proves conclusively that the other was not committed. In the one the intent to commit rape must exist; in the other the intent not to commit rape must exist. The words of the statute, “without committing or intending to commit' rape,” are descriptive and definitive of the very nature of the acts constituting the offense and do not constitute an exception to a general rule prescribed by the statute, but are of the essence of the general rule applicable to all persons committing the acts forbidden by the statute.",
"■ *785I am unable to concur in tbe majority opinion wherein it holds that the question of intent is immaterial, as I understand it to hold. What the legislature said, and evidently intended to say, is, that where a defendant is prosecuted under an indictment charging rape, carnal abuse of a female child under twelve years of age, or assault with intent to commit rape, if the facts showing an indecent assault are proven but the proven facts and circumstances do not show intent to rape or carnally abuse the female child upon whom the assault is allaged to have been made, the defendant may be convicted of indecent assault.",
"The legislature has nowhere provided that under an indictment charging an indecent assault the defendant may be convicted of rape or carnal abuse of a female child under twelve years of age, or of an assault with intent to commit either of such crimes. That is what has occurred in this case, without warrant of law, in my opinion. It would be just as reasonable to hold that a man charged with assault might be convicted of homicide as it is to hold that a man charged with an indecent assault may be convicted of an attempt to commit rape. The offense shown by the evidence in this case to have been committed by the defendant constitutes a heinous crime against good morals, decency and the best interests of society and merits severe punishment. Nevertheless, the defendant in this, as in all other cases, should be lawfully convicted according to established rules of law and procedure. In my opinion the judgment should be reversed and a new trial granted."
]
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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 .
Continued Examination Under 37 CFR 1.114 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 allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). 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, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on March 2, 2021 has been entered.
Allowable Subject Matter Claims 1, 2, 4 – 16, and 18 are allowed.
Reasons for Allowance The following is an examiner' s statement of reasons for the indication of allowable subject matter:
In interpreting the currently amended claims, in light of the specification as well as arguments presented in the response to the Office Actions, the Examiner finds the claimed invention to be patentably distinct from the prior arts of records.
Therefore, the prior arts of record fail to teach or suggest individually or in combination of “detect a network access event of the target application to a destination network through the access control application, request network access of the target application to the destination network to the external server using the communication circuit, receive a first response to the network access request from the external server, based on the first response: when a tunnel authorized by the external server exists and the target application is accessible to the destination network, transmit a data packet of the target application through the authorized tunnel using the communication circuit, and when the authorized tunnel does not exist or the target application is not accessible to the destination network, drop the data packet of the target application” as recited in Claim 1. Similar limitations are presented in the independent Claims 10 and 15.
Dependent claims 2, 4 – 9, 11 – 14, 16, and 18 further limit the allowed independent claims 1, 10, and 15. Therefore, the instant claims are also 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 The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Douglas DILLON – the regulation of received data communications comprises performing a set rate transaction with a peer second node of the network (the set rate transaction establishes a rate for data transmitted over the tunnel by the peer second node to the first node) when the tunnel comprises a peered tunnel, and the regulation of received data communications comprises shaping data traffic received by the first node over the tunnel when the tunnel comprises a peerless tunnel PUGACZEWSKI et al – the network gateway establishes GRE tunnel between the network gateway and the customer gateway, where the network gateway identifies the unique identifier from the user to be granted access to the network CLARK et al – the packet type identification is indicated by the network security software to transmit the data packet through and existing network tunnel (for example an authenticated and/or authorized network tunnel), and the network packets are dropped if they are not authorized following the comparing (for example dropping network packets for which the metadata does not match expected values based on the authorization codes)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAI J CHANG whose telephone number is (571)270-5448. The examiner can normally be reached on Monday - Friday, 10AM-6PM 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, Asad Nawaz can be reached on (571)272-3988. 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
/Kai Chang/Examiner, Art Unit 2468
/ASAD M NAWAZ/Supervisory Patent Examiner, Art Unit 2468 | 2021-03-26T10:44:58 | [
"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 . Continued Examination Under 37 CFR 1.114 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 allowance or after an Office action under Ex Parte Quayle, 25 USPQ 74, 453 O.G. 213 (Comm'r Pat. 1935). 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, prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant's submission filed on March 2, 2021 has been entered. Allowable Subject Matter Claims 1, 2, 4 – 16, and 18 are allowed. Reasons for Allowance The following is an examiner' s statement of reasons for the indication of allowable subject matter: In interpreting the currently amended claims, in light of the specification as well as arguments presented in the response to the Office Actions, the Examiner finds the claimed invention to be patentably distinct from the prior arts of records.",
"Therefore, the prior arts of record fail to teach or suggest individually or in combination of “detect a network access event of the target application to a destination network through the access control application, request network access of the target application to the destination network to the external server using the communication circuit, receive a first response to the network access request from the external server, based on the first response: when a tunnel authorized by the external server exists and the target application is accessible to the destination network, transmit a data packet of the target application through the authorized tunnel using the communication circuit, and when the authorized tunnel does not exist or the target application is not accessible to the destination network, drop the data packet of the target application” as recited in Claim 1.",
"Similar limitations are presented in the independent Claims 10 and 15. Dependent claims 2, 4 – 9, 11 – 14, 16, and 18 further limit the allowed independent claims 1, 10, and 15. Therefore, the instant claims are also 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 The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Douglas DILLON – the regulation of received data communications comprises performing a set rate transaction with a peer second node of the network (the set rate transaction establishes a rate for data transmitted over the tunnel by the peer second node to the first node) when the tunnel comprises a peered tunnel, and the regulation of received data communications comprises shaping data traffic received by the first node over the tunnel when the tunnel comprises a peerless tunnel PUGACZEWSKI et al – the network gateway establishes GRE tunnel between the network gateway and the customer gateway, where the network gateway identifies the unique identifier from the user to be granted access to the network CLARK et al – the packet type identification is indicated by the network security software to transmit the data packet through and existing network tunnel (for example an authenticated and/or authorized network tunnel), and the network packets are dropped if they are not authorized following the comparing (for example dropping network packets for which the metadata does not match expected values based on the authorization codes) Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAI J CHANG whose telephone number is (571)270-5448.",
"The examiner can normally be reached on Monday - Friday, 10AM-6PM 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, Asad Nawaz can be reached on (571)272-3988. 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 /Kai Chang/Examiner, Art Unit 2468 /ASAD M NAWAZ/Supervisory Patent Examiner, Art Unit 2468"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
HUNT, Circuit Judge. A sufficient recital of the facts is as follows : Alongside of the dock owned by the United States Metal Refining Company at its plant in Chrome, N, J., and extending out about *380325 feet.in length and for 50 feet in width, there are 19 or 20 feet of water at low tide. There is also another slip for the accommodation of barges. From the steamship dock over to a certain cribbing there is a distance of 150 feet; adjacent to this crib the bank is mud and soft; at places in the bank the descent is precipitous, at others gradual. Barges have rested on the mud bank at different times. On August 25, 1912, the flat bottom coal barge Violet Blossom, loaded with 810 tons of copper ore, was lying low in about 50 feet from the edge of the steamship dock. It was Sunday. The weather was fair and the wind very moderate. The barge was lying approximately 75 feet from the mud bank in 19 feet of water. She had been leaking when brought in on Saturday night. On Sunday morning four men were pumping. I gather from the evidence that before 12 o’clock on Sunday there were about 3 feet 6 inches of water on the starboard side stern of the barge, and, because of a list, more on the port side. Toward the stern the water was upon the deck, even with the deck on the port side, and at one time the water extended about 10 inches across the deck and in places had a depth of about 2 inches at the rail. The men pumping were not able to keep the water down, whereupon two additional men were put to the pumps and kept even with the incoming water. The pumping by six men seems to have continued from 11 until 12 o’clock. At that time, the yardmaster of the United States Metal Refining Company, concerned evidently for the safety of the barge, ordered that the Florence, which was passing up the sound, be hailed. He says that she was hailed in order to assist in the pumping, as is the usual practice. The master of the Florence says that the man who hailed him asked him if he could pump water out of the barge; that when he started in to pump he thought it was going to be a hard matter, but after working three hours he got most of the water out and left. No bargain was made. Witnesses for the owners of the cargo testify that they did not think the Violet Blossom was going to sink while the six men were pumping the water. After the 2% hours of pumping by the Florence, 75 tons of cargo were discharged by using mechanical means available for such purposes. It then became comparatively easy to keep the barge free from water, so the number of men kept on the pumps was reduced. There' were a good many employés connected with the United States Metal Refining Company, the owner of the copper ore loaded on the barge, and the yardmaster says that he could have called these men out to aid in moving the barge to the mud bank if he had believed that she was really in immediate danger of sinking. It was about 12 o’clock, too, that measures were first taken to get the mechanical crane to lighten the cargo, but it was not until the time that the Florence left that discharging cargo com7 menced. The foreman says that by pumping he was able to keep up with the incoming water, but in order to obviate holding so many men at work in the night he sent out for the craneman in order to lighten the cargo. At the time the Florence left the water was reduced to about four inches on the starboard side, yet the hand pumps were kept working on the barge. All serious danger had passed, but after the Florence had gone the tug Robinson came up and endeavored to *381help. The master of the Violet Blossom was not called as witness, and it appears that at the time of the arrival of the Florence he was of no assistance. Taking the barge over to the mud bank in the event of imminent danger was contemplated, but it was not thought necessary to take such a course, and, as I understand the evidence, there would have been no serious difficulty in moving the barge irom where she was at the steamship dock over to the mud flats near the crib. At about 2 o’clock, the tug boat Robinson went to Chrome and passed the Florence, which had left about that time. When the Robinson reached the Violet Blossom they were unloading her and had taken 40 or 50 tons off. The master of the Robinson says that the Violet Blossom then had about 18 inches of water in the stern and had a pump at work. As the pump was gaining on the water, the Robinson left. Salvage has been defined to be the compensation due to persons by whose voluntary assistance a ship or its load has been saved to the owner from impending peril or recovered after actual loss. It consists of an adequate compensation for the actual outlay of labor and expense used in the enterprise, and of the reward as bounty allowed from motives of public policy as a means of encouraging extraordinary exertions in the saving of life and property in peril at sea. The Egypt (D. C.) 17 Fed. 359. In Murphy v. Ship Suliote (C. C.) 5 Fed. 99, Justice Bradley said: “Salvage should be regarded in the light of compensation and reward, and not in the light of prize. The latter is more like a gift of fortune conferred without regard to the loss or sufferings of the owner, who is a public enemy, whilst salvage is the reward granted for saving the property of the unfortunate, and should not exceed what is necessary to insure the most prompt, energetic, and daring effort of those who have it in their power to furnish aid and succor. Anything beyond that would be foreign to the principles and purposes of salvage; anything short of it would not secure its objects. The courts should be liberal, but not extravagant; otherwise that which is intended as an encouragement to rescue property from destruction may become a temptation to subject it to peril.” The assistance rendered'by the Florence did not involve the doing of any of those unusual acts which generally characterize claims founded upon the law of salvage. The court would not detract from the credit due to the Florence for promptness and efficiency in rendering service while she remained pumping, but it was merely pumping. I doubt whether those in charge of the Violet Blossom believed that she was in most imminent peril, or whether in fact she was, when we consider that with the added number of men put to the pumps before the Florence arrived, any gain of the water was prevented, and that mechanical appliances were available which could have been employed to keep her from sinking. On the other hand, there was no danger to the Florence and no risk incurred by her. The skill, therefore, was but that ordinarily required in pumping, and no unusual risk was taken. Under all the circumstances there ought not to be a large award in the case. My best judgment is that a just allowance is $133. Decree for that sum, with costs ordered. | 11-26-2022 | [
"HUNT, Circuit Judge. A sufficient recital of the facts is as follows : Alongside of the dock owned by the United States Metal Refining Company at its plant in Chrome, N, J., and extending out about *380325 feet.in length and for 50 feet in width, there are 19 or 20 feet of water at low tide. There is also another slip for the accommodation of barges. From the steamship dock over to a certain cribbing there is a distance of 150 feet; adjacent to this crib the bank is mud and soft; at places in the bank the descent is precipitous, at others gradual. Barges have rested on the mud bank at different times. On August 25, 1912, the flat bottom coal barge Violet Blossom, loaded with 810 tons of copper ore, was lying low in about 50 feet from the edge of the steamship dock. It was Sunday. The weather was fair and the wind very moderate. The barge was lying approximately 75 feet from the mud bank in 19 feet of water. She had been leaking when brought in on Saturday night.",
"On Sunday morning four men were pumping. I gather from the evidence that before 12 o’clock on Sunday there were about 3 feet 6 inches of water on the starboard side stern of the barge, and, because of a list, more on the port side. Toward the stern the water was upon the deck, even with the deck on the port side, and at one time the water extended about 10 inches across the deck and in places had a depth of about 2 inches at the rail. The men pumping were not able to keep the water down, whereupon two additional men were put to the pumps and kept even with the incoming water. The pumping by six men seems to have continued from 11 until 12 o’clock.",
"At that time, the yardmaster of the United States Metal Refining Company, concerned evidently for the safety of the barge, ordered that the Florence, which was passing up the sound, be hailed. He says that she was hailed in order to assist in the pumping, as is the usual practice. The master of the Florence says that the man who hailed him asked him if he could pump water out of the barge; that when he started in to pump he thought it was going to be a hard matter, but after working three hours he got most of the water out and left. No bargain was made. Witnesses for the owners of the cargo testify that they did not think the Violet Blossom was going to sink while the six men were pumping the water. After the 2% hours of pumping by the Florence, 75 tons of cargo were discharged by using mechanical means available for such purposes. It then became comparatively easy to keep the barge free from water, so the number of men kept on the pumps was reduced. There' were a good many employés connected with the United States Metal Refining Company, the owner of the copper ore loaded on the barge, and the yardmaster says that he could have called these men out to aid in moving the barge to the mud bank if he had believed that she was really in immediate danger of sinking. It was about 12 o’clock, too, that measures were first taken to get the mechanical crane to lighten the cargo, but it was not until the time that the Florence left that discharging cargo com7 menced.",
"The foreman says that by pumping he was able to keep up with the incoming water, but in order to obviate holding so many men at work in the night he sent out for the craneman in order to lighten the cargo. At the time the Florence left the water was reduced to about four inches on the starboard side, yet the hand pumps were kept working on the barge. All serious danger had passed, but after the Florence had gone the tug Robinson came up and endeavored to *381help. The master of the Violet Blossom was not called as witness, and it appears that at the time of the arrival of the Florence he was of no assistance. Taking the barge over to the mud bank in the event of imminent danger was contemplated, but it was not thought necessary to take such a course, and, as I understand the evidence, there would have been no serious difficulty in moving the barge irom where she was at the steamship dock over to the mud flats near the crib.",
"At about 2 o’clock, the tug boat Robinson went to Chrome and passed the Florence, which had left about that time. When the Robinson reached the Violet Blossom they were unloading her and had taken 40 or 50 tons off. The master of the Robinson says that the Violet Blossom then had about 18 inches of water in the stern and had a pump at work. As the pump was gaining on the water, the Robinson left. Salvage has been defined to be the compensation due to persons by whose voluntary assistance a ship or its load has been saved to the owner from impending peril or recovered after actual loss. It consists of an adequate compensation for the actual outlay of labor and expense used in the enterprise, and of the reward as bounty allowed from motives of public policy as a means of encouraging extraordinary exertions in the saving of life and property in peril at sea.",
"The Egypt (D. C.) 17 Fed. 359. In Murphy v. Ship Suliote (C. C.) 5 Fed. 99, Justice Bradley said: “Salvage should be regarded in the light of compensation and reward, and not in the light of prize. The latter is more like a gift of fortune conferred without regard to the loss or sufferings of the owner, who is a public enemy, whilst salvage is the reward granted for saving the property of the unfortunate, and should not exceed what is necessary to insure the most prompt, energetic, and daring effort of those who have it in their power to furnish aid and succor. Anything beyond that would be foreign to the principles and purposes of salvage; anything short of it would not secure its objects. The courts should be liberal, but not extravagant; otherwise that which is intended as an encouragement to rescue property from destruction may become a temptation to subject it to peril.” The assistance rendered'by the Florence did not involve the doing of any of those unusual acts which generally characterize claims founded upon the law of salvage.",
"The court would not detract from the credit due to the Florence for promptness and efficiency in rendering service while she remained pumping, but it was merely pumping. I doubt whether those in charge of the Violet Blossom believed that she was in most imminent peril, or whether in fact she was, when we consider that with the added number of men put to the pumps before the Florence arrived, any gain of the water was prevented, and that mechanical appliances were available which could have been employed to keep her from sinking. On the other hand, there was no danger to the Florence and no risk incurred by her. The skill, therefore, was but that ordinarily required in pumping, and no unusual risk was taken. Under all the circumstances there ought not to be a large award in the case. My best judgment is that a just allowance is $133.",
"Decree for that sum, with costs ordered."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8793108/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 22 July 1999. | 07-20-2022 | [
"Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 22 July 1999."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6715115/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
523 F. Supp. 1112 (1981) Gary LANG, Plaintiff, v. BIRCH SHIPPING COMPANY, Defendant. No. 78 Civ. 3963 (CHT). United States District Court, S. D. New York. September 29, 1981. *1113 Paul C. Matthews, New York City, for plaintiff. William M. Kimball, New York City, for defendant.
OPINION TENNEY, District Judge. At the end of a six-day trial, the jury returned a special verdict which stated that the defendant was 75% responsible for the plaintiff's injuries, that the plaintiff was 25% contributorily negligent, and that the total damages were $100,000, thus leaving the plaintiff with a judgment for $75,000 against the defendant. The plaintiff, at this time, moves for a new trial pursuant to Federal Rule of Civil Procedure ("Rule") 50(b) on the grounds that the jury's award was clearly inadequate and that the finding of contributory negligence was unsupported by any evidence. The plaintiff, Gary Lang, was an able-bodied seaman aboard the SS Point Julie, a grain-carrying tanker, from January 31, 1978 when she was being loaded in Philadelphia, until April 23, 1978 when Lang left the ship in New Orleans. This period included approximately three weeks in March when the Point Julie's cargo of grain was unloaded in Alexandria, Egypt. Mr. Lang testified that the ship's atmosphere was constantly full of grain dust, especially during the loading and unloading; that the ventilation system was broken, allowing grain dust to enter his cabin; that the shipping company failed to provide adequate masks or other protective devices; *1114 and that as a result of his exposure to grain dust, he has suffered chronic obstructive pulmonary disease which renders him permanently disabled. The plaintiff offered expert testimony to corroborate his medical condition and to estimate his loss of earnings, past and future. Through cross-examination and several of its own witnesses, the defendant urged that the grain dust was not unreasonable; that the safety precautions were adequate; that safety masks were available to those who wanted them, at least until the last few days of unloading; that the plaintiff could have taken additional precautions to minimize his illness, including using the available masks and leaving the ship; and that plaintiff's damage claims were grossly inflated in light of his diabetes, sinusitis, and history of working fewer months per year than he claimed. In response to this motion, defendant adds that the jury acted reasonably in awarding damages in light of the weaknesses in the plaintiff's expert's estimates. Defendant's Brief in Opposition to Plaintiff's New Trial Motion ("Defendant's Brief") at 1-3. On a motion for a new trial, the Court is governed by the following words of the Second Circuit: The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not. Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978), quoting 6A Moore's Federal Practice and Procedure ¶ 59.08[5], at 59-160 to -161 (1979) (footnotes omitted); Compton v. Luckenbach Overseas Corp., 425 F.2d 1130 (2d Cir.), cert. denied, 400 U.S. 916, 91 S. Ct. 175, 27 L. Ed. 2d 155 (1970). The plaintiff is correct that the standard for granting a new trial is considerably more lenient than the standard for granting a judgment notwithstanding the verdict: a new trial may be granted where the court finds the verdict to be against the weight of the evidence, whereas a directed verdict or judgment n. o. v. requires a legal conclusion that the movant is entitled to judgment regardless of the credibility of the witnesses. Memorandum in Support of Plaintiff's Motion for a New Trial ("Plaintiff's Memorandum") at 3. This distinction, however, does not give the trial court a free hand to throw out jury verdicts until its own view is adopted by a subsequent jury. To the contrary, as a general rule, "the court should avoid substituting its judgment for that of the jury." 6A Moore's, supra, at 59-169. Furthermore, the opinion in Bevevino v. Saydjari, supra, reinforces the propriety of deferring to jury findings. There, the court of appeals ruled that "the district court was not required to grant a new trial simply because he disagreed with the jury." 574 F.2d at 685. In ruling on a motion for a new trial because of inadequate damages, the court "must apply the same standard as in determining whether a liability verdict is against the weight of the evidence." University Marketing and Consulting, Inc. v. Hartford Life and Accident Ins. Co., 413 F. Supp. 1250, 1264 (E.D.Pa.1976) (footnote omitted). In another case involving a claim of inadequate damages, the court wrote: We are ever mindful that a jury's verdict should not be disturbed except in unusually persuasive circumstances where gross injustice ensues, that the Court should not substitute its own estimate of damages for that announced by the jury; that a jury's verdict should not be disturbed because it was not as generous as the facts in the case warranted.... Where, however, as here, the Court's conscience is shocked by the jury's grossly inadequate award, ... it becomes the bounden duty of the Court to interfere lest a grave injustice result. *1115 Centrowitz v. Texaco, Inc., 49 F.R.D. 142, 143 (S.D.N.Y.1969). In Centrowitz, the jury found the defendant liable to the plaintiffs, and then arrived at a very low damage figure. It awarded $8,200 to one plaintiff who was unrefutably hit with tremendous force by the defendant's automobile, and it made no award to the victim's husband's estate which had incurred large expenses as a result of the accident. In an even more dramatic case, the court set aside a verdict of $2,340 which was awarded to the parents of an 18-year-old boy killed in a motorcycle accident for which the jury found he bore no responsibility. Feinberg v. Mathai, 60 F.R.D. 69 (E.D.Pa.1973). In short, before a court may set aside an award of damages as inadequate, the inadequacy must be patent and severe, such that leaving the verdict undisturbed would be an unconscionable miscarriage of justice. In this case, the Court's conscience is not shocked by the jury's finding that the plaintiff Lang was 25% contributorily negligent, nor by the finding that his total damages were $100,000. Regarding contributory negligence, the defendant argued strenuously on summation that Lang failed to confine himself to bed, failed to seek a release from his employment on the SS Point Julie, and failed to take proper precautions against the grain dust. In addition, the defendant pointed out that the plaintiff had a history of sinusitis and allergies, and that he was just recovering from the flu, which should have made him even more careful to guard his health. On the basis of these arguments, which were reasonably drawn from the evidence, the jury could have found that Mr. Lang was 25% contributorily negligent. Regarding the damages awarded, the defendant argued forcefully that the plaintiff's expert's figures were grossly overstated, in that (1) they were based upon an assumed ten months' work per year instead of seven months, which is the actual number Mr. Lang sailed in 1977; (2) they were based upon tanker wages, which are considerably higher than freighter wages, even though Mr. Lang spent only 19 months on tankers during a 27-year career; (3) they made no allowance for any injuries, illnesses or personal absences; and (4) despite the expected increases in contract wages, the expert's figures were way out of line with the general reductions in the industry and with the fact that Mr. Lang's greatest salary as a merchant marine was $10,000, which he earned in 1977. In addition, regarding pain and suffering, Mr. Lang's conditions have been brought under control fairly well through the use of medications (although, he testified, they make him edgy). In light of these arguments, it was reasonable for the jury to find that Mr. Lang's total damages were $100,000. In his reply affidavit, the plaintiff's counsel takes issue with the points made in the defendant's brief. First, counsel states that Mr. Lang was over the flu when he signed on the Point Julie and that leaving the ship would have been a breach of contract. But these facts do not blunt the defendant's argument that Mr. Lang should have taken better care of himself and that he should have absented himself from some of the ship's more rigorous duties. Plaintiff's counsel's statement that defendant's counsel misled the jury should have been expressed to the jury itself, not to the Court. Second, plaintiff's counsel takes issue with defendant's characterization of plaintiff as "an overweight diabetic with chronic sinusitis and a scar on his lung" (a statement made to the Court only, in connection with this motion). Since this statement is substantially true (although incomplete) and since it was not made to the jury, the Court will not set aside the verdict simply because the defendant's statement paints an unfairly one-sided picture of Mr. Lang. The issue here is not the defendant's response to the motion for a new trial, but the adequacy of damages, which the Court finds reasonable. Third, plaintiff objects to the defendant's reference to the principle, "falsus in uno, falsus in omnibus," in regard to Lang's testimony. The only material fact here is that the jury heard admissible evidence which tended to discredit Mr. Lang. The Court will not speculate as to whether the jury discredited *1116 all of the plaintiff's testimony or whether the jury attempted to punish Mr. Lang for any false statements made in the past. Fourth, the plaintiff argues that the amount of damages should shock the Court's conscience and that "[j]ust as there is an upper limit to the amount that can be awarded for pain and suffering, so there must be a lower limit." Reply Affidavit of Paul C. Matthews, sworn to August 19, 1981, ¶ 4. At least within the confines of this case, the Court disagrees. Fifth, the plaintiff challenges the Court's instruction on causation of damages resulting from unseaworthiness. The Court instructed the jury as follows: If you find that the Point Julie was unseaworthy, you must then consider whether that unseaworthiness was the proximate cause of Mr. Lang's injuries. As I explained in connection with the negligence claim, you may find that the ship's unseaworthiness was responsible for the plaintiff's injuries if you find that the unseaworthiness in whole or in part caused the harm. Perhaps you will find that several factors, including the ship's unseaworthiness, caused the plaintiff's injuries. If so, you may still find that the unseaworthiness was a proximate cause so long as it played an important part in bringing about the plaintiff's harm. On the other hand, if you find that the ship's unseaworthiness was only incidental to the plaintiff's injuries, then you must find that the ship's condition was not a proximate cause of the alleged harm. Transcript at 593-94 (emphasis supplied). The Court stands by its original charge. The phrase, "in whole or in part," adequately conveys the more liberal standard of causation applicable here, without encouraging the speculation or the unfair imposition of damages which might result from the requested charge, "any part, even the slightest."[*] The Court contrasted unseaworthiness which "played an important part" in causing injuries with unseaworthiness which was "only incidental." This reinforced the concept that the defendant would be liable unless its acts were only incidental to the plaintiff's injuries. The plaintiff's motion for a new trial on the issue of damages is denied. So ordered. NOTES [*] Plaintiff cites the Transcript at 610, where the Court stated: "That was one we said we would charge, wasn't it?" In fact, when the Court ruled on the requests to charge, it stated: "With respect to the plaintiff's requests, the first 8 are charged either as requested or in substance.... 10 is not charged in that form. The business of `even the slightest' is inappropriate." Tr. at 510. | 10-30-2013 | [
"523 F. Supp. 1112 (1981) Gary LANG, Plaintiff, v. BIRCH SHIPPING COMPANY, Defendant. No. 78 Civ. 3963 (CHT). United States District Court, S. D. New York. September 29, 1981. *1113 Paul C. Matthews, New York City, for plaintiff. William M. Kimball, New York City, for defendant. OPINION TENNEY, District Judge. At the end of a six-day trial, the jury returned a special verdict which stated that the defendant was 75% responsible for the plaintiff's injuries, that the plaintiff was 25% contributorily negligent, and that the total damages were $100,000, thus leaving the plaintiff with a judgment for $75,000 against the defendant. The plaintiff, at this time, moves for a new trial pursuant to Federal Rule of Civil Procedure (\"Rule\") 50(b) on the grounds that the jury's award was clearly inadequate and that the finding of contributory negligence was unsupported by any evidence. The plaintiff, Gary Lang, was an able-bodied seaman aboard the SS Point Julie, a grain-carrying tanker, from January 31, 1978 when she was being loaded in Philadelphia, until April 23, 1978 when Lang left the ship in New Orleans. This period included approximately three weeks in March when the Point Julie's cargo of grain was unloaded in Alexandria, Egypt.",
"Mr. Lang testified that the ship's atmosphere was constantly full of grain dust, especially during the loading and unloading; that the ventilation system was broken, allowing grain dust to enter his cabin; that the shipping company failed to provide adequate masks or other protective devices; *1114 and that as a result of his exposure to grain dust, he has suffered chronic obstructive pulmonary disease which renders him permanently disabled. The plaintiff offered expert testimony to corroborate his medical condition and to estimate his loss of earnings, past and future. Through cross-examination and several of its own witnesses, the defendant urged that the grain dust was not unreasonable; that the safety precautions were adequate; that safety masks were available to those who wanted them, at least until the last few days of unloading; that the plaintiff could have taken additional precautions to minimize his illness, including using the available masks and leaving the ship; and that plaintiff's damage claims were grossly inflated in light of his diabetes, sinusitis, and history of working fewer months per year than he claimed. In response to this motion, defendant adds that the jury acted reasonably in awarding damages in light of the weaknesses in the plaintiff's expert's estimates.",
"Defendant's Brief in Opposition to Plaintiff's New Trial Motion (\"Defendant's Brief\") at 1-3. On a motion for a new trial, the Court is governed by the following words of the Second Circuit: The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not.",
"Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978), quoting 6A Moore's Federal Practice and Procedure ¶ 59.08[5], at 59-160 to -161 (1979) (footnotes omitted); Compton v. Luckenbach Overseas Corp., 425 F.2d 1130 (2d Cir. ), cert. denied, 400 U.S. 916, 91 S. Ct. 175, 27 L. Ed. 2d 155 (1970). The plaintiff is correct that the standard for granting a new trial is considerably more lenient than the standard for granting a judgment notwithstanding the verdict: a new trial may be granted where the court finds the verdict to be against the weight of the evidence, whereas a directed verdict or judgment n. o. v. requires a legal conclusion that the movant is entitled to judgment regardless of the credibility of the witnesses.",
"Memorandum in Support of Plaintiff's Motion for a New Trial (\"Plaintiff's Memorandum\") at 3. This distinction, however, does not give the trial court a free hand to throw out jury verdicts until its own view is adopted by a subsequent jury. To the contrary, as a general rule, \"the court should avoid substituting its judgment for that of the jury.\" 6A Moore's, supra, at 59-169. Furthermore, the opinion in Bevevino v. Saydjari, supra, reinforces the propriety of deferring to jury findings.",
"There, the court of appeals ruled that \"the district court was not required to grant a new trial simply because he disagreed with the jury.\" 574 F.2d at 685. In ruling on a motion for a new trial because of inadequate damages, the court \"must apply the same standard as in determining whether a liability verdict is against the weight of the evidence.\" University Marketing and Consulting, Inc. v. Hartford Life and Accident Ins. Co., 413 F. Supp. 1250, 1264 (E.D.Pa.1976) (footnote omitted). In another case involving a claim of inadequate damages, the court wrote: We are ever mindful that a jury's verdict should not be disturbed except in unusually persuasive circumstances where gross injustice ensues, that the Court should not substitute its own estimate of damages for that announced by the jury; that a jury's verdict should not be disturbed because it was not as generous as the facts in the case warranted.... Where, however, as here, the Court's conscience is shocked by the jury's grossly inadequate award, ... it becomes the bounden duty of the Court to interfere lest a grave injustice result.",
"*1115 Centrowitz v. Texaco, Inc., 49 F.R.D. 142, 143 (S.D.N.Y.1969). In Centrowitz, the jury found the defendant liable to the plaintiffs, and then arrived at a very low damage figure. It awarded $8,200 to one plaintiff who was unrefutably hit with tremendous force by the defendant's automobile, and it made no award to the victim's husband's estate which had incurred large expenses as a result of the accident. In an even more dramatic case, the court set aside a verdict of $2,340 which was awarded to the parents of an 18-year-old boy killed in a motorcycle accident for which the jury found he bore no responsibility. Feinberg v. Mathai, 60 F.R.D.",
"69 (E.D.Pa.1973). In short, before a court may set aside an award of damages as inadequate, the inadequacy must be patent and severe, such that leaving the verdict undisturbed would be an unconscionable miscarriage of justice. In this case, the Court's conscience is not shocked by the jury's finding that the plaintiff Lang was 25% contributorily negligent, nor by the finding that his total damages were $100,000.",
"Regarding contributory negligence, the defendant argued strenuously on summation that Lang failed to confine himself to bed, failed to seek a release from his employment on the SS Point Julie, and failed to take proper precautions against the grain dust. In addition, the defendant pointed out that the plaintiff had a history of sinusitis and allergies, and that he was just recovering from the flu, which should have made him even more careful to guard his health. On the basis of these arguments, which were reasonably drawn from the evidence, the jury could have found that Mr. Lang was 25% contributorily negligent. Regarding the damages awarded, the defendant argued forcefully that the plaintiff's expert's figures were grossly overstated, in that (1) they were based upon an assumed ten months' work per year instead of seven months, which is the actual number Mr. Lang sailed in 1977; (2) they were based upon tanker wages, which are considerably higher than freighter wages, even though Mr. Lang spent only 19 months on tankers during a 27-year career; (3) they made no allowance for any injuries, illnesses or personal absences; and (4) despite the expected increases in contract wages, the expert's figures were way out of line with the general reductions in the industry and with the fact that Mr. Lang's greatest salary as a merchant marine was $10,000, which he earned in 1977. In addition, regarding pain and suffering, Mr. Lang's conditions have been brought under control fairly well through the use of medications (although, he testified, they make him edgy).",
"In light of these arguments, it was reasonable for the jury to find that Mr. Lang's total damages were $100,000. In his reply affidavit, the plaintiff's counsel takes issue with the points made in the defendant's brief. First, counsel states that Mr. Lang was over the flu when he signed on the Point Julie and that leaving the ship would have been a breach of contract. But these facts do not blunt the defendant's argument that Mr. Lang should have taken better care of himself and that he should have absented himself from some of the ship's more rigorous duties. Plaintiff's counsel's statement that defendant's counsel misled the jury should have been expressed to the jury itself, not to the Court. Second, plaintiff's counsel takes issue with defendant's characterization of plaintiff as \"an overweight diabetic with chronic sinusitis and a scar on his lung\" (a statement made to the Court only, in connection with this motion).",
"Since this statement is substantially true (although incomplete) and since it was not made to the jury, the Court will not set aside the verdict simply because the defendant's statement paints an unfairly one-sided picture of Mr. Lang. The issue here is not the defendant's response to the motion for a new trial, but the adequacy of damages, which the Court finds reasonable. Third, plaintiff objects to the defendant's reference to the principle, \"falsus in uno, falsus in omnibus,\" in regard to Lang's testimony. The only material fact here is that the jury heard admissible evidence which tended to discredit Mr. Lang. The Court will not speculate as to whether the jury discredited *1116 all of the plaintiff's testimony or whether the jury attempted to punish Mr. Lang for any false statements made in the past.",
"Fourth, the plaintiff argues that the amount of damages should shock the Court's conscience and that \"[j]ust as there is an upper limit to the amount that can be awarded for pain and suffering, so there must be a lower limit.\" Reply Affidavit of Paul C. Matthews, sworn to August 19, 1981, ¶ 4. At least within the confines of this case, the Court disagrees. Fifth, the plaintiff challenges the Court's instruction on causation of damages resulting from unseaworthiness. The Court instructed the jury as follows: If you find that the Point Julie was unseaworthy, you must then consider whether that unseaworthiness was the proximate cause of Mr. Lang's injuries.",
"As I explained in connection with the negligence claim, you may find that the ship's unseaworthiness was responsible for the plaintiff's injuries if you find that the unseaworthiness in whole or in part caused the harm. Perhaps you will find that several factors, including the ship's unseaworthiness, caused the plaintiff's injuries. If so, you may still find that the unseaworthiness was a proximate cause so long as it played an important part in bringing about the plaintiff's harm. On the other hand, if you find that the ship's unseaworthiness was only incidental to the plaintiff's injuries, then you must find that the ship's condition was not a proximate cause of the alleged harm. Transcript at 593-94 (emphasis supplied).",
"The Court stands by its original charge. The phrase, \"in whole or in part,\" adequately conveys the more liberal standard of causation applicable here, without encouraging the speculation or the unfair imposition of damages which might result from the requested charge, \"any part, even the slightest. \"[*] The Court contrasted unseaworthiness which \"played an important part\" in causing injuries with unseaworthiness which was \"only incidental.\" This reinforced the concept that the defendant would be liable unless its acts were only incidental to the plaintiff's injuries. The plaintiff's motion for a new trial on the issue of damages is denied.",
"So ordered. NOTES [*] Plaintiff cites the Transcript at 610, where the Court stated: \"That was one we said we would charge, wasn't it?\" In fact, when the Court ruled on the requests to charge, it stated: \"With respect to the plaintiff's requests, the first 8 are charged either as requested or in substance.... 10 is not charged in that form. The business of `even the slightest' is inappropriate.\" Tr. at 510."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2299009/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
USCA1 Opinion
Can't open 17-1683P.01b | 07-16-2018 | [
"USCA1 Opinion Can't open 17-1683P.01b"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4294626/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. The court concurs in the recommendation and confirms the report of the Board of Bar Commissioners that Henry T. Kraft be reinstated as a member of the State Bar Association and licensed as a practicing attorney in this state. See Board of Bar Commissioners of Kentucky State Bar Ass’n v. Kraft, Ky., 177 S.W.2d 907. An order will be entered in accordance herewith. | 10-01-2021 | [
"PER CURIAM. The court concurs in the recommendation and confirms the report of the Board of Bar Commissioners that Henry T. Kraft be reinstated as a member of the State Bar Association and licensed as a practicing attorney in this state. See Board of Bar Commissioners of Kentucky State Bar Ass’n v. Kraft, Ky., 177 S.W.2d 907. An order will be entered in accordance herewith."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5024167/ | 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. Continued Examination Under 37 CFR 1.114 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 1/26/2022 has been entered. Response to Amendments Applicant's amendments filed 1/26/2022 to claims 1, 9, 15 and 18-19 have been entered. Claim 27 has been added. Claim 16 has been canceled. Claims 1-7, 9-15, 18-20 and 23-27 remain pending, of which claims 1-7, 9, and 23-27 are being considered on their merits. Claims 10-15 and 18-20 remain withdrawn from consideration. References not included with this Office action can be found in a prior action. Any rejections of record not particularly addressed below are withdrawn in light of the claim amendments and applicant’s comments. Election/Restrictions Applicant's election of Group I in the reply filed on 6/13/2017 stands. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph 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 the first paragraph of pre-AIA 35 U.S.C. 112: 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
Claims 24 and 26 remain 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. Claim 24, limits to the concentration of L-arginine in the solution being about “250-2000 mM”. The only reference to the concentration of L-arginine recites that the concentration is 1 gram per liter, which is about 5.7 mM. Therefore there is a lack of support for the high concentration for arginine. Claim 26, limits to the glutathione and the ascorbic acid in a molar ratio of 1.98:1. The specification is silent as to any molar ratio between any components and therefore there is not written description that supports this specifically claimed molar ratio. Response to Arguments Applicant's arguments filed 1/26/2022 have been fully considered but they are not persuasive. Applicant highlights that many of the concentrations listed in claims 24-25 are recited in U.S. Patent 7,981,596, which the instant application incorporates by reference. While this application does recite many of the ranges in claims 24-25, the only recitation of the concentration of L-arginine is 250-2000 micromolar not 250-2000 millimolar as claimed. Therefore claim 24 remains rejection for failing to comply with the written description requirement. . Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 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, 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 1-6, 23 and 25-26 remain rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915). Regarding claims 1 and 23, Thatte teaches a kit for preserving organs comprising storage/resuscitation solution (both alpha and beta Lazarus solutions, both with different pH levels) comprising water, salts, and glucose (see paragraphs [0093]-[0116]). Regarding claims 1, 4, and 25-26, Thatte teaches preferred final solutions also include solutions comprising 0.01-2.0 L of distilled water, 0.01-0.75 g/L (0.3 to 2.44 mM) reduced glutathione, 0.01-0.5 g/L (0.07 to 2.8 mM) ascorbic acid and 5 g/L (28 mM) glucose (reads on about 50 mM) (see paragraphs [0093]-[0116]); regarding claim 26, these ranges include the claimed ratio. Regarding claims 1 and 6, Thatte teaches including THAM to adjust pH of the solutions, and Thatte provides examples wherein the pH is 7.4 (reads on “about” 8) and wherein the pH is 6.8 (see paragraphs [0115], [0240], and [0252]). Regarding claim 1, Thatte teaches that the solution for preserving Thatte does not teach the solutions are separated into first and second containers (claim 1), or that a second solution consist of water, ascorbic acid, and glutathione with a pH of 2.7 to 4 (claims 1). Thatte does not teach the solutions are present in a ratio of about 1:19 (claim 5) such that the concentration of the concentrations of the ascorbic acid, and glutathione in the second solution is 20 times more concentrated (claim 25). Regarding claim 1, Touitou teaches adding glutathione to ascorbic acid in aqueous solutions stabilizes the as ascorbic acid, and Touitou teaches using a solution that consists of water, ascorbic acid, and glutathione (see abstract and page 86). Regarding claim 1, Touitou teaches acidification of the solution to a pH of 3.5 also led to a remarkable stabilization of ascorbic acid (see page 86). Regarding claims 1, 4 and 25, Payrat teaches a system wherein preservation solutions can be separated to keep one solution at a lower pH, such as 5.8, and one solution at a higher pH, such as 7.4, such that when the solutions are mixed the pH remains in the desired physiological range (see Figure 1 and col. 5-6). Regarding claim 1, 4 and 25, Hassanein teaches that components of organ preservation solutions that are not shelf-stable can be prepared separately from the solution comprising other A person of ordinary skill in the art would have had a reasonable expectation of success in separating Thatte’s solutions in two separate containers such that one container consists of water, ascorbic acid, and glutathione with a pH of 3.5, and the other comprises the remaining components in solution because while Thatte teaches the inclusion of ascorbic acid and glutathione in the solution, Touitou teaches keeping them separate with a reduced pH stabilizes the ascorbic acid. The skilled artisan would have been motivated to separate Thatte’s solutions in two separate containers such that one container consists of water, ascorbic acid, and glutathione with a pH of 3.5, because this would provide for a more stable ascorbic acid to be used in Thatte's solution. A person of ordinary skill in the art would have had a further reasonable expectation of success in including Thatte’s solutions in two separate containers and adjusting the ratios of the solutions because Hassanein teaches that components of organ preservation solutions that are not shelf-stable can be prepared separately from the solution comprising other more stable ingredients, and admixed with the preservation solution just prior to use. The skilled artisan would have been motivated to include Thatte’s solutions in two separate containers and adjusting the ratios of the solutions because Thatte teaches the composition may include amounts of the compounds in the listed ranges, and that these ranges can be used to achieve a desired ratio of components within the solution, and Hassanein establishes that solutions can be separated to improve stability of components. Furthermore, the primary reference Thatte teaches that solutions should have a physiological pH of 7.4 for use. Additionally, Payrat provides motivation for a system wherein preservation solutions can be separated to keep one solution at a lower pH, and one solution at a higher pH, such that when the solutions are mixed the pH remains in the desired physiological range, while Touitou provides motivation for specifically having components such as glutathione and L-ascorbic acid together in a solution A person of ordinary skill in the art would have had a reasonable expectation of success in including Thatte’s solutions in two separate containers because Thatte teaches various compounds can be useful for organ preservation as well as different pH levels, which would require separate containers to maintain. The skilled artisan would have been motivated to include Thatte’s solutions in two separate containers because it would allow for lower pH levels Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made.
Claim 7 remains rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915) as applied to claims 1-6, 23 and 25-26 above, and further in view of Campbell et al (1950, Canadian Journal of Research, 28e(1): abstract only). Thatte in view of the secondary references does not teach the pH of the second solution is in a range from 2.7 to 3.3. Regarding claim 7 is Campbell teaches that maximum stability of ascorbic acid, including when combined with glutathione, is obtained at pH levels ranging from 2.5 to 4.5 (see abstract). A person of ordinary skill in the art would have had a reasonable expectation of success in using a pH in a range from 2.7 to 3.3 for the container consists of water, ascorbic acid, and glutathione because Campbell teaches that maximum stability of ascorbic acid, including when combined with glutathione, is obtained at pH levels ranging from 2.5 to 4.5. The skilled artisan would have been motivated to use a pH in a range from 2.7 to 3.3 for the container consists of water, ascorbic acid, and glutathione because this would provide for a stable ascorbic acid to be used in Thatte's solution. Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made.
Claim 9 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915) as applied to claims 1-6, 23 and 25-26 above, and further in view of Su (U.S. PGPUB 20050128866; reference A). Thatte in view of the secondary references does not teach the kit includes a single container comprising first and second compartments, and a partition positioned to separate the compartments, and wherein the partition that may be removed to allow for the solutions to mix (claim 9). Regarding claim 9, Su is drawn to a medical package mixing device designed to keep two or more solutions separate, and allows for accurately measured solutions to be easily evenly mix them together (see abstract and paragraphs [0001] – [0006]). Regarding claim 9, Su teaches the device includes a single container comprising first and second compartments, and a partition positioned to separate the compartments, and wherein the partition is breakable (reads on “may be removed”) to allow for the solutions to mix (see abstract and paragraphs [0007] – [0015]). A person of ordinary skill in the art would have had a reasonable expectation of success in separating Thatte’s solutions in such a way that they could be mixed in Su’s container because Su teaches that the device is specifically for medical mixing device two or more medical solutions that are stored separately. The skilled artisan would have been motivated to separate Thatte’s solutions into Su’s container because Su teachers the medical package mixing device is designed to keep two or more solutions separate, and allows for accurately measured solutions to be easily evenly mix them together. Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made.
Claim 7 remains rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915) as applied to claims 1-6, 23 and 25-26 above, and further in view of Uprety et al (1963, J Pharm Sci, 52:1001-1002). Thatte in view of the secondary references does not teach the pH of the second solution is in a range from 2.7 to 3.3. Regarding claim 7, Uprety teaches aspartic is most stable at a pH of 3 (see Table II). A person of ordinary skill in the art would have had a reasonable expectation of success in adjusting the pH of Thatte’s solution comprising ascorbic acid to a pH of 3 because Uprety teaches aspartic is most stable at a pH of 3. The skilled artisan would have been motivated to adjust the pH of Thatte’s solution comprising ascorbic acid to a pH of 3 because this would provide for a more stable ascorbic acid to be used in Thatte's solution. Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made. Response to Arguments Applicant's arguments filed 1/26/2022 have been fully considered but they are not persuasive. Applicant alleges that because Thatte does not suggest that any of the components in the solution are unstable if stored for extended periods of time, that there is no motivation to modify Thatte’s teachings. However, as discussed at length in the above rejections, the motivation to modify Thatte comes from the secondary references. The rejection states that a person of ordinary skill in the art would have had a reasonable expectation of success in separating Thatte’s solutions in two separate containers such that one container consists of water, ascorbic acid, and glutathione with a pH of 3.5, and the other comprises the remaining components in solution because while Thatte teaches the inclusion of ascorbic acid and Applicant alleges that Touitou’s observed results of glutathione stabilizing ascorbic acid are dependent on the molar ratio of the two compounds, pointing to page 87 and Figure 2 of Touitou. Applicant highlights that Touitou does not provide data on solutions wherein the ascorbic acid is greater than the molar amounts of glutathione. Applicant concludes that there would be little stabilizing effect in solutions wherein the ascorbic acid is greater than the molar amounts of glutathione. Applicant does not provide any evidence for this conclusion. Each of the solutions tested in Figure 2 of Touitou resulted in a stabilizing effect and therefore nothing in Touitou is evidence that there would be no stabilizing effect using other molar ratios. Importantly, the claims are drawn to specific ranges of ascorbic acid and glutathione, and in each of the claims that list a range of molarity, the molar ratio of glutathione is greater than ascorbic acid. For example, claim 4 limits to the equivalent of 20 mM glutathione and 10 mM ascorbic acid. Similarly, claims 24 and 25 limit to ranges wherein the glutathione is twice the molar concentration of ascorbic acid. While claim 26 recites the inverse of these amounts, as stated above this claim lacks support in the specification. Therefore this argument is not persuasive. Applicant highlights that the secondary reference Hassanein teaches mixing blood components with the organ preservation solution. Applicant concludes that Hassanein does not releate to the instant organ preservation solution which does not include blood components. However, as stated above, Hassanein was relied upon for the general teachings that it is known that solutions with unstable components can be prepared separating and the unstable components can be added just prior to use. The paragraph cited in the rejection above states “in a shelf-stable preservation solution premix is formed by admixing a carbohydrate, sodium chloride, potassium, calcium, magnesium, bicarbonate ion, epinephrine and adenosine in advance of forming the fluid media. The final fluid media is then formed by combining the whole blood, the premix described above, as well as other desired fluid components which are not shelf-stable in such a premix such as insulin, just prior to delivery to the organ”. Therefore this reference is in the same field of endeavor and was properly relied upon. Applicant alleges that Payrat has nothing to do with Thatte because Payrat’s preservation solutions do not comprise ascorbic acid and glutathione, and because Payrat uses the solutions to preserve red blood cells and not organs. However, as stated above, Payrat is directed to a system wherein preservation solutions can be separated to keep one solution at a lower pH, such as 5.8, and one solution at a higher pH, such as 7.4, such that when the solutions are mixed the pH remains in the desired physiological range. Both the instant claims and the primary reference Thatte are also drawn to solutions for preserving biological samples and therefore they are in the same field of endeavor. Additionally, the motivation to separate solutions also comes from the other cited secondary references. While applicant further highlights that Payrat is concerned with stability of other compounds in the solution, and for different reasons, the rejection as a whole renders it obvious to specifically separate ascorbic acid and glutathione into a separate solution to increase their stability. As stated in the above rejection, the skilled artisan would have been motivated to include Thatte’s solutions in two separate containers and adjusting the ratios of the solutions because Thatte teaches the composition may include amounts of the compounds in the listed ranges, and that these ranges can be used to achieve a desired ratio of components within the solution, and Hassanein establishes that solutions can be separated to improve stability of components. Furthermore, the primary reference Thatte teaches that solutions should have a physiological pH of 7.4 for use. Additionally, Payrat provides motivation for a system wherein preservation solutions can be Applicant points to the 11/13/2018 Declaration by Pachuk, and alleges that applicant unexpectedly found that glutathione and ascorbic acid could remain stable at lower pH levels. Applicant reproduces two Figures from page 4 of the declaration showing that glutathione degrades quickly at a pH of 7.4 (one solution set up as taught by Thatte), and that ascorbic acid degrades quickly at a pH of 7.4 (one solution set up as taught by Thatte). These arguments and this declaration were addressed in the reply mailed 2/14/2020. This data remains insufficient to show expected results as these are the results that are expected based on the teaching of Touitou. Specifically, Touitou teaches that both a low pH (Touitou exemplifies a pH of 3.5) and the inclusion of glutathione in solution result in longer stability of ascorbic acid, and that is exactly what is shown in the declaration. In other words, this data only confirms what is already taught by Touitou. Applicant points to the previously filed 8/21/2020 and 6/17/2021 Declarations by Pachuk and alleges that it was only their discovery that when glutathione and ascorbic acid are stored together at a lower pH that they remain more stable. Applicant points to their results using an undisclosed commercial product (8/21/2020 declaration), and alleges that this undisclosed product correlates to the claimed second solution and shows better ascorbic acid stability than Thatte’s single solution. However, as stated in the Office Actions mailed 9/6/2017, 6/12/2018, 11/29/2018, 2/21/2020, 3/17/2021, and 8/18/2021, Touitou was published in 1996 and Touitou specifically recognizes that components of Thatte’s solution can be stabilized by separating out the ascorbic acid and glutathione into a low pH solution. As stated above, the solution taught by Touitou is identical to the applicant’s claimed second solution, and therefore Touitou’s solution Applicant alleges claim 4 is allowable. Howver, as stated above, the secondary references all render it obvious to separate out the glutathione and ascorbic acid into a separate low pH solution, the level/ratio of concentration is result effective to achieve the final desired pH and levels that are taught by Thatte when the separate low pH solution is admixed as taught by Payrat and Hassanein. It is also noted, that by concentrating the components in the second solution, the levels of the components would fall within the ranges listed in claim 25. Similarly, regarding clam 4, concentrating Thatte’s glutathione and ascorbic acid 20 times would result 0.01-0.75 grams reduced glutathione per 50-100 mL and 0.01-0.5 grams ascorbic acid per 50-100 mL. Therefore the limitations of claim 4 remain obvious. Applicant alleges that neither Campbell nor Uprety alone does not remedy all of the deficiencies addressed above. However as applicant’s arguments above were not persuasive, this argument is not persuasive. Regarding claim 9, applicant alleges that the previously cited Wikman-Coffelt reference is distinct from the claimed composition since Wikman-Coffelt teaches two containers that are connected to each other and not two chambers within a single container as claimed. However, as stated above, the newly cited Su reference is drawn to a medical package mixing device designed to keep two or more solutions separate, and allows for accurately measured solutions to be easily evenly mix them together. Su teaches the device includes a single container comprising first and second compartments, and a partition positioned to separate the compartments, and wherein the partition is breakable (reads on “may be removed”) to allow for the solutions to mix. Therefore this argument is not persuasive. Applicant generally alleges that the new claims are not obvious. However, these claims are rejected for the reasons stated above.
Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-7, 9, and 23-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11291201 in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88).
‘201 does not teach the second solution consist of water, ascorbic acid, and glutathione with a pH below 4. Regarding claim 1, Touitou teaches adding glutathione to ascorbic acid in aqueous solutions stabilizes the as ascorbic acid, and Touitou teaches using a solution that consists of water, ascorbic acid, and glutathione (see abstract and page 86). Touitou teaches acidification of the solution to a pH of 3.5 (renders obvious pH of 3.3 because there is motivation to optimize) also led to a remarkable stabilization of ascorbic acid (see page 86). A person of ordinary skill in the art would have had a reasonable expectation of success in separating the solutions taught by ‘201 to include a solution consisting of water, ascorbic acid, and glutathione with a pH below 4 because Touitou teaches this allows for a stable solution. The skilled artisan would have been motivated separate the solutions taught ‘201 to include a solution consisting of water, ascorbic acid, and glutathione with a pH below 4 because it would allow for a longer shelf life of the ascorbic acid. Response to Arguments Applicant's arguments filed 1/26/2022 have been fully considered but they are not persuasive. Applicant requests that the double patenting rejections be held in abeyance. . Conclusion No claims are free of the art. No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Stephanie McNeil whose telephone number is (571)270-5250. The examiner can normally be reached Monday - Friday 9:30am - 5:30pm. 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, Sharmila Landau can be reached on 5712720614. 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.
/STEPHANIE A MCNEIL/Examiner, Art Unit 1653 | 2022-04-01T11:53:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Continued Examination Under 37 CFR 1.114 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 1/26/2022 has been entered. Response to Amendments Applicant's amendments filed 1/26/2022 to claims 1, 9, 15 and 18-19 have been entered.",
"Claim 27 has been added. Claim 16 has been canceled. Claims 1-7, 9-15, 18-20 and 23-27 remain pending, of which claims 1-7, 9, and 23-27 are being considered on their merits. Claims 10-15 and 18-20 remain withdrawn from consideration. References not included with this Office action can be found in a prior action. Any rejections of record not particularly addressed below are withdrawn in light of the claim amendments and applicant’s comments.",
"Election/Restrictions Applicant's election of Group I in the reply filed on 6/13/2017 stands. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph 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 the first paragraph of pre-AIA 35 U.S.C.",
"112: 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 Claims 24 and 26 remain 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. Claim 24, limits to the concentration of L-arginine in the solution being about “250-2000 mM”. The only reference to the concentration of L-arginine recites that the concentration is 1 gram per liter, which is about 5.7 mM. Therefore there is a lack of support for the high concentration for arginine.",
"Claim 26, limits to the glutathione and the ascorbic acid in a molar ratio of 1.98:1. The specification is silent as to any molar ratio between any components and therefore there is not written description that supports this specifically claimed molar ratio. Response to Arguments Applicant's arguments filed 1/26/2022 have been fully considered but they are not persuasive. Applicant highlights that many of the concentrations listed in claims 24-25 are recited in U.S. Patent 7,981,596, which the instant application incorporates by reference. While this application does recite many of the ranges in claims 24-25, the only recitation of the concentration of L-arginine is 250-2000 micromolar not 250-2000 millimolar as claimed. Therefore claim 24 remains rejection for failing to comply with the written description requirement.",
". Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 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, 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 1-6, 23 and 25-26 remain rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915). Regarding claims 1 and 23, Thatte teaches a kit for preserving organs comprising storage/resuscitation solution (both alpha and beta Lazarus solutions, both with different pH levels) comprising water, salts, and glucose (see paragraphs [0093]-[0116]). Regarding claims 1, 4, and 25-26, Thatte teaches preferred final solutions also include solutions comprising 0.01-2.0 L of distilled water, 0.01-0.75 g/L (0.3 to 2.44 mM) reduced glutathione, 0.01-0.5 g/L (0.07 to 2.8 mM) ascorbic acid and 5 g/L (28 mM) glucose (reads on about 50 mM) (see paragraphs [0093]-[0116]); regarding claim 26, these ranges include the claimed ratio. Regarding claims 1 and 6, Thatte teaches including THAM to adjust pH of the solutions, and Thatte provides examples wherein the pH is 7.4 (reads on “about” 8) and wherein the pH is 6.8 (see paragraphs [0115], [0240], and [0252]).",
"Regarding claim 1, Thatte teaches that the solution for preserving Thatte does not teach the solutions are separated into first and second containers (claim 1), or that a second solution consist of water, ascorbic acid, and glutathione with a pH of 2.7 to 4 (claims 1). Thatte does not teach the solutions are present in a ratio of about 1:19 (claim 5) such that the concentration of the concentrations of the ascorbic acid, and glutathione in the second solution is 20 times more concentrated (claim 25).",
"Regarding claim 1, Touitou teaches adding glutathione to ascorbic acid in aqueous solutions stabilizes the as ascorbic acid, and Touitou teaches using a solution that consists of water, ascorbic acid, and glutathione (see abstract and page 86). Regarding claim 1, Touitou teaches acidification of the solution to a pH of 3.5 also led to a remarkable stabilization of ascorbic acid (see page 86). Regarding claims 1, 4 and 25, Payrat teaches a system wherein preservation solutions can be separated to keep one solution at a lower pH, such as 5.8, and one solution at a higher pH, such as 7.4, such that when the solutions are mixed the pH remains in the desired physiological range (see Figure 1 and col. 5-6). Regarding claim 1, 4 and 25, Hassanein teaches that components of organ preservation solutions that are not shelf-stable can be prepared separately from the solution comprising other A person of ordinary skill in the art would have had a reasonable expectation of success in separating Thatte’s solutions in two separate containers such that one container consists of water, ascorbic acid, and glutathione with a pH of 3.5, and the other comprises the remaining components in solution because while Thatte teaches the inclusion of ascorbic acid and glutathione in the solution, Touitou teaches keeping them separate with a reduced pH stabilizes the ascorbic acid. The skilled artisan would have been motivated to separate Thatte’s solutions in two separate containers such that one container consists of water, ascorbic acid, and glutathione with a pH of 3.5, because this would provide for a more stable ascorbic acid to be used in Thatte's solution.",
"A person of ordinary skill in the art would have had a further reasonable expectation of success in including Thatte’s solutions in two separate containers and adjusting the ratios of the solutions because Hassanein teaches that components of organ preservation solutions that are not shelf-stable can be prepared separately from the solution comprising other more stable ingredients, and admixed with the preservation solution just prior to use. The skilled artisan would have been motivated to include Thatte’s solutions in two separate containers and adjusting the ratios of the solutions because Thatte teaches the composition may include amounts of the compounds in the listed ranges, and that these ranges can be used to achieve a desired ratio of components within the solution, and Hassanein establishes that solutions can be separated to improve stability of components. Furthermore, the primary reference Thatte teaches that solutions should have a physiological pH of 7.4 for use.",
"Additionally, Payrat provides motivation for a system wherein preservation solutions can be separated to keep one solution at a lower pH, and one solution at a higher pH, such that when the solutions are mixed the pH remains in the desired physiological range, while Touitou provides motivation for specifically having components such as glutathione and L-ascorbic acid together in a solution A person of ordinary skill in the art would have had a reasonable expectation of success in including Thatte’s solutions in two separate containers because Thatte teaches various compounds can be useful for organ preservation as well as different pH levels, which would require separate containers to maintain.",
"The skilled artisan would have been motivated to include Thatte’s solutions in two separate containers because it would allow for lower pH levels Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made. Claim 7 remains rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915) as applied to claims 1-6, 23 and 25-26 above, and further in view of Campbell et al (1950, Canadian Journal of Research, 28e(1): abstract only). Thatte in view of the secondary references does not teach the pH of the second solution is in a range from 2.7 to 3.3. Regarding claim 7 is Campbell teaches that maximum stability of ascorbic acid, including when combined with glutathione, is obtained at pH levels ranging from 2.5 to 4.5 (see abstract).",
"A person of ordinary skill in the art would have had a reasonable expectation of success in using a pH in a range from 2.7 to 3.3 for the container consists of water, ascorbic acid, and glutathione because Campbell teaches that maximum stability of ascorbic acid, including when combined with glutathione, is obtained at pH levels ranging from 2.5 to 4.5. The skilled artisan would have been motivated to use a pH in a range from 2.7 to 3.3 for the container consists of water, ascorbic acid, and glutathione because this would provide for a stable ascorbic acid to be used in Thatte's solution. Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made. Claim 9 is rejected under pre-AIA 35 U.S.C.",
"103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915) as applied to claims 1-6, 23 and 25-26 above, and further in view of Su (U.S. PGPUB 20050128866; reference A). Thatte in view of the secondary references does not teach the kit includes a single container comprising first and second compartments, and a partition positioned to separate the compartments, and wherein the partition that may be removed to allow for the solutions to mix (claim 9). Regarding claim 9, Su is drawn to a medical package mixing device designed to keep two or more solutions separate, and allows for accurately measured solutions to be easily evenly mix them together (see abstract and paragraphs [0001] – [0006]).",
"Regarding claim 9, Su teaches the device includes a single container comprising first and second compartments, and a partition positioned to separate the compartments, and wherein the partition is breakable (reads on “may be removed”) to allow for the solutions to mix (see abstract and paragraphs [0007] – [0015]). A person of ordinary skill in the art would have had a reasonable expectation of success in separating Thatte’s solutions in such a way that they could be mixed in Su’s container because Su teaches that the device is specifically for medical mixing device two or more medical solutions that are stored separately. The skilled artisan would have been motivated to separate Thatte’s solutions into Su’s container because Su teachers the medical package mixing device is designed to keep two or more solutions separate, and allows for accurately measured solutions to be easily evenly mix them together. Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made. Claim 7 remains rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thatte et al (U.S.PGPUB 2010/0151435) in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88), Hassanein et al (U.S.PGPUB 2005/0147958) and Payrat et al (1999, U.S. Patent 5,906,915) as applied to claims 1-6, 23 and 25-26 above, and further in view of Uprety et al (1963, J Pharm Sci, 52:1001-1002). Thatte in view of the secondary references does not teach the pH of the second solution is in a range from 2.7 to 3.3.",
"Regarding claim 7, Uprety teaches aspartic is most stable at a pH of 3 (see Table II). A person of ordinary skill in the art would have had a reasonable expectation of success in adjusting the pH of Thatte’s solution comprising ascorbic acid to a pH of 3 because Uprety teaches aspartic is most stable at a pH of 3. The skilled artisan would have been motivated to adjust the pH of Thatte’s solution comprising ascorbic acid to a pH of 3 because this would provide for a more stable ascorbic acid to be used in Thatte's solution. Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill at the time the invention was made. Response to Arguments Applicant's arguments filed 1/26/2022 have been fully considered but they are not persuasive. Applicant alleges that because Thatte does not suggest that any of the components in the solution are unstable if stored for extended periods of time, that there is no motivation to modify Thatte’s teachings. However, as discussed at length in the above rejections, the motivation to modify Thatte comes from the secondary references.",
"The rejection states that a person of ordinary skill in the art would have had a reasonable expectation of success in separating Thatte’s solutions in two separate containers such that one container consists of water, ascorbic acid, and glutathione with a pH of 3.5, and the other comprises the remaining components in solution because while Thatte teaches the inclusion of ascorbic acid and Applicant alleges that Touitou’s observed results of glutathione stabilizing ascorbic acid are dependent on the molar ratio of the two compounds, pointing to page 87 and Figure 2 of Touitou. Applicant highlights that Touitou does not provide data on solutions wherein the ascorbic acid is greater than the molar amounts of glutathione. Applicant concludes that there would be little stabilizing effect in solutions wherein the ascorbic acid is greater than the molar amounts of glutathione.",
"Applicant does not provide any evidence for this conclusion. Each of the solutions tested in Figure 2 of Touitou resulted in a stabilizing effect and therefore nothing in Touitou is evidence that there would be no stabilizing effect using other molar ratios. Importantly, the claims are drawn to specific ranges of ascorbic acid and glutathione, and in each of the claims that list a range of molarity, the molar ratio of glutathione is greater than ascorbic acid. For example, claim 4 limits to the equivalent of 20 mM glutathione and 10 mM ascorbic acid. Similarly, claims 24 and 25 limit to ranges wherein the glutathione is twice the molar concentration of ascorbic acid. While claim 26 recites the inverse of these amounts, as stated above this claim lacks support in the specification. Therefore this argument is not persuasive. Applicant highlights that the secondary reference Hassanein teaches mixing blood components with the organ preservation solution.",
"Applicant concludes that Hassanein does not releate to the instant organ preservation solution which does not include blood components. However, as stated above, Hassanein was relied upon for the general teachings that it is known that solutions with unstable components can be prepared separating and the unstable components can be added just prior to use. The paragraph cited in the rejection above states “in a shelf-stable preservation solution premix is formed by admixing a carbohydrate, sodium chloride, potassium, calcium, magnesium, bicarbonate ion, epinephrine and adenosine in advance of forming the fluid media. The final fluid media is then formed by combining the whole blood, the premix described above, as well as other desired fluid components which are not shelf-stable in such a premix such as insulin, just prior to delivery to the organ”. Therefore this reference is in the same field of endeavor and was properly relied upon. Applicant alleges that Payrat has nothing to do with Thatte because Payrat’s preservation solutions do not comprise ascorbic acid and glutathione, and because Payrat uses the solutions to preserve red blood cells and not organs.",
"However, as stated above, Payrat is directed to a system wherein preservation solutions can be separated to keep one solution at a lower pH, such as 5.8, and one solution at a higher pH, such as 7.4, such that when the solutions are mixed the pH remains in the desired physiological range. Both the instant claims and the primary reference Thatte are also drawn to solutions for preserving biological samples and therefore they are in the same field of endeavor. Additionally, the motivation to separate solutions also comes from the other cited secondary references. While applicant further highlights that Payrat is concerned with stability of other compounds in the solution, and for different reasons, the rejection as a whole renders it obvious to specifically separate ascorbic acid and glutathione into a separate solution to increase their stability. As stated in the above rejection, the skilled artisan would have been motivated to include Thatte’s solutions in two separate containers and adjusting the ratios of the solutions because Thatte teaches the composition may include amounts of the compounds in the listed ranges, and that these ranges can be used to achieve a desired ratio of components within the solution, and Hassanein establishes that solutions can be separated to improve stability of components. Furthermore, the primary reference Thatte teaches that solutions should have a physiological pH of 7.4 for use. Additionally, Payrat provides motivation for a system wherein preservation solutions can be Applicant points to the 11/13/2018 Declaration by Pachuk, and alleges that applicant unexpectedly found that glutathione and ascorbic acid could remain stable at lower pH levels.",
"Applicant reproduces two Figures from page 4 of the declaration showing that glutathione degrades quickly at a pH of 7.4 (one solution set up as taught by Thatte), and that ascorbic acid degrades quickly at a pH of 7.4 (one solution set up as taught by Thatte). These arguments and this declaration were addressed in the reply mailed 2/14/2020. This data remains insufficient to show expected results as these are the results that are expected based on the teaching of Touitou. Specifically, Touitou teaches that both a low pH (Touitou exemplifies a pH of 3.5) and the inclusion of glutathione in solution result in longer stability of ascorbic acid, and that is exactly what is shown in the declaration.",
"In other words, this data only confirms what is already taught by Touitou. Applicant points to the previously filed 8/21/2020 and 6/17/2021 Declarations by Pachuk and alleges that it was only their discovery that when glutathione and ascorbic acid are stored together at a lower pH that they remain more stable. Applicant points to their results using an undisclosed commercial product (8/21/2020 declaration), and alleges that this undisclosed product correlates to the claimed second solution and shows better ascorbic acid stability than Thatte’s single solution. However, as stated in the Office Actions mailed 9/6/2017, 6/12/2018, 11/29/2018, 2/21/2020, 3/17/2021, and 8/18/2021, Touitou was published in 1996 and Touitou specifically recognizes that components of Thatte’s solution can be stabilized by separating out the ascorbic acid and glutathione into a low pH solution. As stated above, the solution taught by Touitou is identical to the applicant’s claimed second solution, and therefore Touitou’s solution Applicant alleges claim 4 is allowable.",
"Howver, as stated above, the secondary references all render it obvious to separate out the glutathione and ascorbic acid into a separate low pH solution, the level/ratio of concentration is result effective to achieve the final desired pH and levels that are taught by Thatte when the separate low pH solution is admixed as taught by Payrat and Hassanein. It is also noted, that by concentrating the components in the second solution, the levels of the components would fall within the ranges listed in claim 25. Similarly, regarding clam 4, concentrating Thatte’s glutathione and ascorbic acid 20 times would result 0.01-0.75 grams reduced glutathione per 50-100 mL and 0.01-0.5 grams ascorbic acid per 50-100 mL. Therefore the limitations of claim 4 remain obvious. Applicant alleges that neither Campbell nor Uprety alone does not remedy all of the deficiencies addressed above.",
"However as applicant’s arguments above were not persuasive, this argument is not persuasive. Regarding claim 9, applicant alleges that the previously cited Wikman-Coffelt reference is distinct from the claimed composition since Wikman-Coffelt teaches two containers that are connected to each other and not two chambers within a single container as claimed. However, as stated above, the newly cited Su reference is drawn to a medical package mixing device designed to keep two or more solutions separate, and allows for accurately measured solutions to be easily evenly mix them together. Su teaches the device includes a single container comprising first and second compartments, and a partition positioned to separate the compartments, and wherein the partition is breakable (reads on “may be removed”) to allow for the solutions to mix. Therefore this argument is not persuasive. Applicant generally alleges that the new claims are not obvious. However, these claims are rejected for the reasons stated above. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s).",
"See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).",
"The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claims 1-7, 9, and 23-26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No.",
"11291201 in view of Touitou et al (1996, International Journal of Pharmaceutics, 133: 85-88). ‘201 does not teach the second solution consist of water, ascorbic acid, and glutathione with a pH below 4. Regarding claim 1, Touitou teaches adding glutathione to ascorbic acid in aqueous solutions stabilizes the as ascorbic acid, and Touitou teaches using a solution that consists of water, ascorbic acid, and glutathione (see abstract and page 86). Touitou teaches acidification of the solution to a pH of 3.5 (renders obvious pH of 3.3 because there is motivation to optimize) also led to a remarkable stabilization of ascorbic acid (see page 86). A person of ordinary skill in the art would have had a reasonable expectation of success in separating the solutions taught by ‘201 to include a solution consisting of water, ascorbic acid, and glutathione with a pH below 4 because Touitou teaches this allows for a stable solution. The skilled artisan would have been motivated separate the solutions taught ‘201 to include a solution consisting of water, ascorbic acid, and glutathione with a pH below 4 because it would allow for a longer shelf life of the ascorbic acid. Response to Arguments Applicant's arguments filed 1/26/2022 have been fully considered but they are not persuasive.",
"Applicant requests that the double patenting rejections be held in abeyance. . Conclusion No claims are free of the art. No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Stephanie McNeil whose telephone number is (571)270-5250. The examiner can normally be reached Monday - Friday 9:30am - 5:30pm. 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, Sharmila Landau can be reached on 5712720614. 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. /STEPHANIE A MCNEIL/Examiner, Art Unit 1653"
]
| 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 |
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 action is in response to a request for continued examination filed 9/10/21. Claim 1, 4-6, 8 11-13, 15 and 18-20 are pending.
Response to Arguments 35 U.S.C. §112 The applicant’s amendments are sufficient to overcome the previous rejections which are consequently withdrawn.
35 U.S.C. §103 Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 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, 4-6, 8, 11-13, 15 and 18-20are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/004959 to Chen (Chen) in view of US 10,503,908 to Bellis et al. (Bellis) in view of “A Feature Extraction Method Based on Stacked Denoising Autoencode for Massive High Dimensional Data” by Xu et al. (Xu) in view of US 2019/0079741 to Makkar (Makkar).
Claims 1, 8 and 15: Chen discloses a system for cross-technology code analysis, the system comprising: at least one memory device (Fig. 4, Main Memory 404) with computer-readable program code stored thereon (Fig. 4, Instructions 408); at least one communication device (Fig. 4, Network Interface Controller 418); at least one processing device operatively coupled to the at least one memory device and the at least one communication device (Fig. 4, Processor 124), wherein executing the computer-readable code is configured to cause the at least one processing device to:
autoencode the program data to obtain encoded program data, wherein the encoded program data comprises a numerical representation of the program data (par. [0022] “use of a DNN, such as the application of a sparse autoencoder”); vectorize the encoded program data, wherein vectorizing the program code comprises converting the encoded program data into a vector containing multiple vector dimensions (par. [0018] “a square similarity matrix … N rows … N columns …”); compare vectorized program code of the first program and vectorized program code of one or more additional programs and calculate a mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs (par. [0017] “quantitatively determines a measure of similarity between each pair of call graphs … a matching metric, or distance”); determine that the mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs is sufficiently small (par. [0018] “a distance of “0” refers to complete identify”, par. [0026] “k-means clustering may then be performed”); and cluster the vectorized program code of the first program and vectorized program code of one or more additional programs based on determining that the mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs is sufficiently small (par. [0023] identification of the first program and of the one or more additional programs (see e.g. par. par. [0024] “grouping the given program code set with other program codes [sic] sets that are recognized as being malicious”); an executable portion configured to notify a user of issues related to a particular function or particular program feature (par. [0013] “determine … that another program code set under evaluation shares features in common with … codes sets that are recognized as being malicious … notifying a system administrator”); and based on the one or more vectorized program clusters, calculate a similarity for the first program and the one or more additional programs (par. [0023] “groups, or clusters, the program code sets”); wherein the similarity includes identifying inter-program dependency between programs of the vectorized program cluster based on known dependency between programs (par. [0016] “extract … “call graphs” … to compactly represent the relationship among subroutines or functions”); and identification of the first program and the one or more additional programs (par. [0013] "notifying a system administrator, ... sending electronic communications to users").
Chen does not disclose:
retrieving the identification of the first program and the one or more additional programs based on the attached metadata.
Bellis teaches attaching metadata to a first program and one or more additional programs, wherein attached metadata comprises an identification of the first program and of the one or more additional programs (col. 2, lines 49-53 “the set of metadata includes a program name”); and retrieving the identification of the first program and the one or more additional programs based on the attached metadata (col. 2, lines 49-53 “extracts at least the program name”).
It would have been obvious at the time of filing to attach metadata to the vectorized program code (Chen par. [0018] “a square similarity matrix”) comprising identification of the programs (Bellis col. 2, lines 49-53 “the set of metadata includes a program name”) and to retrieve these identifications (Bellis col. 2, lines 49-53 “extracts at least the program name”). Those of ordinary skill in the art would have been motivated to do so in order to properly identify the respective programs (e.g. Chen par. [0024] “grouping the given program with other program codes [sic] sets that are recognized as being malicious”, par. [0013] “notifying a system administrator … sending communications to user associated with the program code set”).
Chen and Bellis do not teach: wherein autoencoding the program data further comprises: manipulating the program data by adding noise data to the program data resulting in artificially corrupted data; encoding the artificially corrupted data and decoding the artificially corrupted data, wherein decoding the artificially corrupted data further includes removing the added noise data to obtain decoded output data; and repeating the encoding and decoding of artificially corrupted data until the decoded output data converges on the value of the received program data, resulting in a trained autoencoding module, the trained autoencoding module comprising multiple layers of autoencoding and decoding that are executed simultaneously;
Xu teaches: wherein autoencoding the program data further comprises: manipulating the program data by adding noise data to the program data resulting in artificially corrupted data (pg. 208, col. 1, 1st par. “Step1: Add artificial noise”); encoding the artificially corrupted data and decoding the artificially corrupted data, wherein decoding the artificially corrupted data further includes removing the added noise data to obtain decoded output data (pg. 207, col. 2, repeating the encoding and decoding of artificially corrupted data until the decoded output data converges on the value of the received program data, resulting in a trained autoencoding module, the trained autoencoding module comprising multiple layers of autoencoding and decoding (pg. 208, col. 1, 2nd par. “Step2: If there is a next layer … used as the input of the second hidden layer”) that are executed simultaneously (pg. 207, Fig. 1 note that this shows several encoders and several decoders executing in parallel);
It would have been obvious at the time of filing add noise to the program data (Xu pg. 208, col. 1, 2nd par. “Add artificial noise”) to repeatedly encode and decode the program data (pg. 208, col. 2, 2nd par. “a next layer”). Those of ordinary skill in the art would have been motivated to do so as a known alternate feature extraction method which would have produced only the expected results (e.g. more accurate feature extraction see e.g. Xu pg. 209 last par. “this feature extraction method is more effective”).
Chen, Bellis and Xu do not explicitly teach: determining that the mathematical distance between the programs is below a threshold value; based on the one or more vectorized program clusters, calculate a storage requirement for the first program and the one or more additional programs; and
Makkar teaches: determining a mathematical distance between programs is below a threshold (par. [0029] “each source code vector 23 may be compared for similarity … using a similarity threshold value”); based on the one or more vectorized program clusters, calculate a storage requirement for the first program and the one or more additional programs (par. [0070] “the recommended library function will reduce the size of the source code by four lines”, requires calculation of storage requirements for each); and generate a recommendation for reducing functional redundancy and the storage requirement for the first program and the one or more additional program within the vectorized program cluster (par. [0033] “Once the matching library functions 26 are identified … present library function recommendations 27 … for swapping the validated code snippets 25 with the matching library functions 26”, par. [0070] “the recommended library function will reduce the size of the source code by four lines”).
Further, Chen does not explicitly disclose an executable portion configured to display a query option via a graphical user interface wherein the query option allows a user to query the system for a particular function or particular program feature to view the one or more vectorized program clusters.
Makkar teaches an executable portion configured to display a query option via a graphical user interface (Fig. 4A, user interface 400) wherein the query option allows a user to query the system for a particular function or particular program feature to view the program (par. [0071] “user interface controls … the developer may cause [the display of] a code reduction opportunity for the selected input source code file”, see e.g. Fig. 4B).
Claims 4, 11 and 18: Chen, Billis, Xu and Makkar teach claims 1, 8 and 15, further comprising identifying redundancy and functional similarity of program attributes between the first program and the one or more additional programs based on the calculated mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs (Chen par. [0017] “a measure of similarity between each pair of call graphs”, par. [0018] “a distance of “0” refers to complete identity”, here a “0” distance indicates redundancy between the two call graphs, optimizations based on this identification are addressed below in view of Makkar).
Claims 5, 12 and 19: Chen, Billis, Xu and Makkar teach claims 4, 11 and 18, further comprising calculating possible reduction in storage requirements based on the identified redundancy of program attributes (Chen par. [0023] “groups, or clusters, the program code sets, pursuant to
Claims 6, 13 and 20: Chen, Billis, Xu and Makkar teach claims 5, 12 and 19 further comprising providing recommendations for storage reduction based on the calculated possible reduction in storage requirements (Makkar par. [0070] “the recommended library function will reduce the size of the source code by four lines”).
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2012/0240236 to Wyatt et al. discloses additional uses of metadata including an identification of a program. 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) Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON D MITCHELL whose telephone number is (571)272-3728. The examiner can normally be reached on Monday through Thursday 7:00am - 4:30pm and alternate Fridays 7:00am 3:30pm. 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, Lewis Bullock can be reached on (571)272-3759. 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.
/JASON D MITCHELL/Primary Examiner, Art Unit 2199 | 2021-10-05T04:30:55 | [
"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 action is in response to a request for continued examination filed 9/10/21. Claim 1, 4-6, 8 11-13, 15 and 18-20 are pending. Response to Arguments 35 U.S.C. §112 The applicant’s amendments are sufficient to overcome the previous rejections which are consequently withdrawn. 35 U.S.C. §103 Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.",
"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 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, 4-6, 8, 11-13, 15 and 18-20are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/004959 to Chen (Chen) in view of US 10,503,908 to Bellis et al. (Bellis) in view of “A Feature Extraction Method Based on Stacked Denoising Autoencode for Massive High Dimensional Data” by Xu et al. (Xu) in view of US 2019/0079741 to Makkar (Makkar). Claims 1, 8 and 15: Chen discloses a system for cross-technology code analysis, the system comprising: at least one memory device (Fig. 4, Main Memory 404) with computer-readable program code stored thereon (Fig. 4, Instructions 408); at least one communication device (Fig.",
"4, Network Interface Controller 418); at least one processing device operatively coupled to the at least one memory device and the at least one communication device (Fig. 4, Processor 124), wherein executing the computer-readable code is configured to cause the at least one processing device to: autoencode the program data to obtain encoded program data, wherein the encoded program data comprises a numerical representation of the program data (par. [0022] “use of a DNN, such as the application of a sparse autoencoder”); vectorize the encoded program data, wherein vectorizing the program code comprises converting the encoded program data into a vector containing multiple vector dimensions (par. [0018] “a square similarity matrix … N rows … N columns …”); compare vectorized program code of the first program and vectorized program code of one or more additional programs and calculate a mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs (par. [0017] “quantitatively determines a measure of similarity between each pair of call graphs … a matching metric, or distance”); determine that the mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs is sufficiently small (par.",
"[0018] “a distance of “0” refers to complete identify”, par. [0026] “k-means clustering may then be performed”); and cluster the vectorized program code of the first program and vectorized program code of one or more additional programs based on determining that the mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs is sufficiently small (par. [0023] identification of the first program and of the one or more additional programs (see e.g. par. par. [0024] “grouping the given program code set with other program codes [sic] sets that are recognized as being malicious”); an executable portion configured to notify a user of issues related to a particular function or particular program feature (par.",
"[0013] “determine … that another program code set under evaluation shares features in common with … codes sets that are recognized as being malicious … notifying a system administrator”); and based on the one or more vectorized program clusters, calculate a similarity for the first program and the one or more additional programs (par. [0023] “groups, or clusters, the program code sets”); wherein the similarity includes identifying inter-program dependency between programs of the vectorized program cluster based on known dependency between programs (par. [0016] “extract … “call graphs” … to compactly represent the relationship among subroutines or functions”); and identification of the first program and the one or more additional programs (par.",
"[0013] \"notifying a system administrator, ... sending electronic communications to users\"). Chen does not disclose: retrieving the identification of the first program and the one or more additional programs based on the attached metadata. Bellis teaches attaching metadata to a first program and one or more additional programs, wherein attached metadata comprises an identification of the first program and of the one or more additional programs (col. 2, lines 49-53 “the set of metadata includes a program name”); and retrieving the identification of the first program and the one or more additional programs based on the attached metadata (col. 2, lines 49-53 “extracts at least the program name”). It would have been obvious at the time of filing to attach metadata to the vectorized program code (Chen par. [0018] “a square similarity matrix”) comprising identification of the programs (Bellis col. 2, lines 49-53 “the set of metadata includes a program name”) and to retrieve these identifications (Bellis col. 2, lines 49-53 “extracts at least the program name”). Those of ordinary skill in the art would have been motivated to do so in order to properly identify the respective programs (e.g.",
"Chen par. [0024] “grouping the given program with other program codes [sic] sets that are recognized as being malicious”, par. [0013] “notifying a system administrator … sending communications to user associated with the program code set”). Chen and Bellis do not teach: wherein autoencoding the program data further comprises: manipulating the program data by adding noise data to the program data resulting in artificially corrupted data; encoding the artificially corrupted data and decoding the artificially corrupted data, wherein decoding the artificially corrupted data further includes removing the added noise data to obtain decoded output data; and repeating the encoding and decoding of artificially corrupted data until the decoded output data converges on the value of the received program data, resulting in a trained autoencoding module, the trained autoencoding module comprising multiple layers of autoencoding and decoding that are executed simultaneously; Xu teaches: wherein autoencoding the program data further comprises: manipulating the program data by adding noise data to the program data resulting in artificially corrupted data (pg. 208, col. 1, 1st par. “Step1: Add artificial noise”); encoding the artificially corrupted data and decoding the artificially corrupted data, wherein decoding the artificially corrupted data further includes removing the added noise data to obtain decoded output data (pg. 207, col. 2, repeating the encoding and decoding of artificially corrupted data until the decoded output data converges on the value of the received program data, resulting in a trained autoencoding module, the trained autoencoding module comprising multiple layers of autoencoding and decoding (pg.",
"208, col. 1, 2nd par. “Step2: If there is a next layer … used as the input of the second hidden layer”) that are executed simultaneously (pg. 207, Fig. 1 note that this shows several encoders and several decoders executing in parallel); It would have been obvious at the time of filing add noise to the program data (Xu pg. 208, col. 1, 2nd par. “Add artificial noise”) to repeatedly encode and decode the program data (pg. 208, col. 2, 2nd par.",
"“a next layer”). Those of ordinary skill in the art would have been motivated to do so as a known alternate feature extraction method which would have produced only the expected results (e.g. more accurate feature extraction see e.g. Xu pg. 209 last par. “this feature extraction method is more effective”). Chen, Bellis and Xu do not explicitly teach: determining that the mathematical distance between the programs is below a threshold value; based on the one or more vectorized program clusters, calculate a storage requirement for the first program and the one or more additional programs; and Makkar teaches: determining a mathematical distance between programs is below a threshold (par. [0029] “each source code vector 23 may be compared for similarity … using a similarity threshold value”); based on the one or more vectorized program clusters, calculate a storage requirement for the first program and the one or more additional programs (par. [0070] “the recommended library function will reduce the size of the source code by four lines”, requires calculation of storage requirements for each); and generate a recommendation for reducing functional redundancy and the storage requirement for the first program and the one or more additional program within the vectorized program cluster (par.",
"[0033] “Once the matching library functions 26 are identified … present library function recommendations 27 … for swapping the validated code snippets 25 with the matching library functions 26”, par. [0070] “the recommended library function will reduce the size of the source code by four lines”). Further, Chen does not explicitly disclose an executable portion configured to display a query option via a graphical user interface wherein the query option allows a user to query the system for a particular function or particular program feature to view the one or more vectorized program clusters. Makkar teaches an executable portion configured to display a query option via a graphical user interface (Fig. 4A, user interface 400) wherein the query option allows a user to query the system for a particular function or particular program feature to view the program (par. [0071] “user interface controls … the developer may cause [the display of] a code reduction opportunity for the selected input source code file”, see e.g. Fig.",
"4B). Claims 4, 11 and 18: Chen, Billis, Xu and Makkar teach claims 1, 8 and 15, further comprising identifying redundancy and functional similarity of program attributes between the first program and the one or more additional programs based on the calculated mathematical distance between the vectorized program code for the first program and the vectorized program code for the one or more additional programs (Chen par. [0017] “a measure of similarity between each pair of call graphs”, par. [0018] “a distance of “0” refers to complete identity”, here a “0” distance indicates redundancy between the two call graphs, optimizations based on this identification are addressed below in view of Makkar). Claims 5, 12 and 19: Chen, Billis, Xu and Makkar teach claims 4, 11 and 18, further comprising calculating possible reduction in storage requirements based on the identified redundancy of program attributes (Chen par. [0023] “groups, or clusters, the program code sets, pursuant to Claims 6, 13 and 20: Chen, Billis, Xu and Makkar teach claims 5, 12 and 19 further comprising providing recommendations for storage reduction based on the calculated possible reduction in storage requirements (Makkar par. [0070] “the recommended library function will reduce the size of the source code by four lines”). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"US 2012/0240236 to Wyatt et al. discloses additional uses of metadata including an identification of a program. 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) Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON D MITCHELL whose telephone number is (571)272-3728.",
"The examiner can normally be reached on Monday through Thursday 7:00am - 4:30pm and alternate Fridays 7:00am 3:30pm. 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, Lewis Bullock can be reached on (571)272-3759. 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. /JASON D MITCHELL/Primary Examiner, Art Unit 2199"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-09-26.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinion bt Mr. Justice Stewabt, The case-stated recites the following facts agreed upon by the parties, and submitted for determination by the ■court on the law governing. By article of agreement dated August 14, 1919, Jacob A. Phillippi, since deceased, and Avhose legal representative is the plaintiff in the case, covenanted to sell and convey to Horace P. Fetter certain real estate therein described, situate in the City of Reading, at and for the price of $3,900. Pursuant to this contract, the said Jacob A. Phillippi subsequently tendered to Fetter a deed for the premises, sufficient and correct in form, in which his wife joined, and demanded the stipulated purchase money. Fetter declined acceptance claiming that the deed did not convey a fee simple title, Phillippi having no larger interest in the premises than an estate for life. This states the only question to be resolved. Whatever interest the said Jacob A. Phillippi had in the premises he had acquired under the will of his mother, Henrietta S. Johnston, who died seized of the premises in fee simple, a widow and testate, September 18, 1895, leaving to survive her no other descendants than said Jacob A. Phillippi and a grandson, Elmer, son of Philip A. Phillippi, who died in 1885. The said Jacob A. Phillippi survived his mother and died September 21, 1919, leaving children to survive him. So much of the will of the said Henrietta S. Johnston, made July *17619, 1893, and probated September 18, 1895, as is material, reads as follows: “It is my will that Elmer Phillippi, my grandson, shall receive Five Dollars out of my personal estate, and the remainder of my personal estate, after paying debts, funeral expenses, tombstones, etc., shall go to my son, Jacob A. Phillippi. Item. I direct that my real estate shall not be sold so long as my son Jacob A. Phillippi lives and that the rents and profits shall go to my son Jacob A. Phillippi from all my estate I am possessed of at the time of my death, and that my son Jacob A. Phillippi shall have the right to lease properties and collect rent from same; but I order that my son Jacob A. Phillippi shall pay over to my grandson Elmer Phillippi the sum of Eight Dollars per month right after my death, which money shall be taken from the income of rents of my properties so long as my son Jacob A. Phillippi lives; but in case my son Jacob A. Phillippi should die, the said Elmer Phillippi shall receive the same as one of the heirs of my son Jacob A. Phillippi, that is, share and share alike; but if my grandson Elmer Phillippi dies without heirs, then his share shall fall back to Jacob A. Phillippi or his heirs after the death of my son Jacob A. Phillippi.” By codicil to the will the provision therein made for the grandson Elmer was revoked, and testatrix there directed that he should have no part of her estate except the f5 given him by the will. This having been paid him, he is without interest in the present controversy; but since by the original will he was made beneficiary to a larger extent, and associated in some degree in the devise of the real estate, it may be that the provision as to him, though revoked, may afford some light as to the governing intent of the testatrix in the disposition she made of the real estate. It therefore calls for consideration here. It is the intention of the testatrix with respect to the disposition of her real estate, if that can be satisfactorily derived from the language used, that must govern. This is the test that is first to be applied, and until that has *177failed we gain nothing by the application of artificial or technical rules, nor would it aid in searching for testatrix’s intention, to have recourse to precedents, since each will is its own best interpreter, and a construction of one is no certain guide as to the meaning of another. “Precedents in the construing of a will, except as to technical or quasi-technical phrases in the creation of trusts, or limitations of estates, where they tend to become rules of property, are of little value. The same words may be used by different testators, and yet in their context, or in their connection with the other parts, they may have widely different meanings. Wills, like contracts, must be read according to the intent of their makers and rules of construction are useful only as aids to the ascertainment of the actual meaning. When that is clear, no rule or method of construction can be permitted to override it”: Penney’s Est., 159 Pa. 346. The learned judge of the court below, with too great dependence, as we think, upon technical rules of construction, derives from the first clause of the will, — which directs the rents and profits from all the real estate shall go to her son Jacob A., who shall have the right to lease properties and collect the rents from the same, — a gift to Jacob A. of the land in fee simple, a conclusion clearly warranted under all our authorities, provided, however, that a contrary intent or an intent to give a less estate cannot, without doing violence to the language of the will, be derived. The rule here applied, namely, that a gift of income or profits of land will carry an absolute estate in the principal, was never intended as an aid to develop the intention of the testator, but only to supply a legal intendment when from the will itself no inconsistent or contrary intention can be derived. “That a bequest of income or profits will carry an absolute estate in the principal or corpus of the estate in some cases, is well settled,” says Agnew, C. J., in Bentley v. Kauffman, 86 Pa. 99, “but,” he adds, “the ground of such conclusion in such instances is that no contrary intent of the testa*178tor appears to sever the product from its source, and the fruits therefore carry with them that which bears them. ......Hence, when the intent clearly appears, to carry the corpus or principal over to others, the words of the will must be permitted to have their proper force.” True, the learned judge in the court below states very explicitly that he derives his conclusion that a fee simple was given to Jacob A. from the earlier part of the first clause of the will which gives to Jacob A. the rents and profits from all the real estate of which the said testatrix shall be possessed at the time of her death. He says, “by this clause, standing alone, he [Jacob] would have received the rents and profits of the estate, with power to lease and collect the rent. That is, there is an estate here given to Jacob A. of the rents and profits, not merely during his lifetime, but they are given to him absolutely without words of limitation or any devise over of the property.” He distinctly recognizes the fact that the first clause that he relies upon does not stand alone, but that it is attempted to be qualified by what immediately follows, part of the same sentence, namely, “but I order my said son Jacob A. Phillippi shall pay over to my grandson Elmer Phillippi the sum of Eight Dollars per month right after my death, which money shall be taken from the income or rents of my properties so long as my son Jacob A. Phillippi lives; but in case my son Jacob A. Phillippi should die, the said Elmer Phillippi shall receive the same as one of the heirs of my son Jacob A. Phillippi, that is, share and share alike; but if my grandson Elmer Phillippi dies Avithout heirs then his share shall fall back to Jacob A. Phillippi or his heirs after the death of my son Jacob A. Phillippi.” If the construction placed on this part of the will by the learned judge is correct, and we are of opinion that it is entirely correct, and gives a true interpretation of the express intention of the testatrix therein, then it is in direct variance with the final conclusion reached by the court below and requires a reversal of the judgment entered in the *179case, since the judgment rests on the conclusion that by the will the son, Jacob A. Phillippi, acquired a fee simple in the land devised. What could be more inconsistent with a purpose to give the first taker an estate of inheritance than a gift over to another upon his death? We quite agree that when the testatrix in the clause referred to uses the words “of the same,” and “share and share alike,” she had in mind the real estate, and that her intent was to place Elmer Phillippi, the son of her deceased son, in the same position with respect thereto as the four children of Jacob A. Phillippi would naturally be, who as children would be the heirs of their father upon his decease, receiving the title of their father in equal shares. While there is here no express gift over upon the death of Jacob A., yet we think it abundantly clear that as much was intended and that there was a devise over by implication to the heirs or children of Jacob A.: Beilstein v. Beilstein, 194 Pa. 152; Reisher’s Est., ib., 261 Pa. 223. The revocation by codicil of the share or interest given to the grandson Elmer in the will is without significance here. Instead of allowing the devise over to Jacob A. its true and legal effect, the learned court treated it as though it amounted to no more than a vain attempt on the part of the testatrix to cut down the fee given to Jacob A. under the first clause, under intendment of law. This was error. No fee was there given and none could have been derived therefrom except by intendment of law, and then only as the clause, which it is argued conferred a fee, “stood alone,” that is, was not followed by any words which necessarily implied a devise over on the death of the first taker. The final conclusion of the court below was that Jacob A., under the will and codicil of Henrietta S. Johnston, acquired a fee simple to all her real estate, and directed judgment on the case-stated for William B. Bechtel, executor of Jacob A. Phillippi, deceased, and against Horace P. Fetter, for the sum of $3,900, which was ac*180cordingly entered. When entered, this appeal was taken, and the error assigned was the entry of such judgment. Judgment is reversed, and judgment is now entered for the defendant in the case-stated, with costs. | 02-17-2022 | [
"Opinion bt Mr. Justice Stewabt, The case-stated recites the following facts agreed upon by the parties, and submitted for determination by the ■court on the law governing. By article of agreement dated August 14, 1919, Jacob A. Phillippi, since deceased, and Avhose legal representative is the plaintiff in the case, covenanted to sell and convey to Horace P. Fetter certain real estate therein described, situate in the City of Reading, at and for the price of $3,900. Pursuant to this contract, the said Jacob A. Phillippi subsequently tendered to Fetter a deed for the premises, sufficient and correct in form, in which his wife joined, and demanded the stipulated purchase money. Fetter declined acceptance claiming that the deed did not convey a fee simple title, Phillippi having no larger interest in the premises than an estate for life.",
"This states the only question to be resolved. Whatever interest the said Jacob A. Phillippi had in the premises he had acquired under the will of his mother, Henrietta S. Johnston, who died seized of the premises in fee simple, a widow and testate, September 18, 1895, leaving to survive her no other descendants than said Jacob A. Phillippi and a grandson, Elmer, son of Philip A. Phillippi, who died in 1885. The said Jacob A. Phillippi survived his mother and died September 21, 1919, leaving children to survive him.",
"So much of the will of the said Henrietta S. Johnston, made July *17619, 1893, and probated September 18, 1895, as is material, reads as follows: “It is my will that Elmer Phillippi, my grandson, shall receive Five Dollars out of my personal estate, and the remainder of my personal estate, after paying debts, funeral expenses, tombstones, etc., shall go to my son, Jacob A. Phillippi. Item. I direct that my real estate shall not be sold so long as my son Jacob A. Phillippi lives and that the rents and profits shall go to my son Jacob A. Phillippi from all my estate I am possessed of at the time of my death, and that my son Jacob A. Phillippi shall have the right to lease properties and collect rent from same; but I order that my son Jacob A. Phillippi shall pay over to my grandson Elmer Phillippi the sum of Eight Dollars per month right after my death, which money shall be taken from the income of rents of my properties so long as my son Jacob A. Phillippi lives; but in case my son Jacob A. Phillippi should die, the said Elmer Phillippi shall receive the same as one of the heirs of my son Jacob A. Phillippi, that is, share and share alike; but if my grandson Elmer Phillippi dies without heirs, then his share shall fall back to Jacob A. Phillippi or his heirs after the death of my son Jacob A. Phillippi.” By codicil to the will the provision therein made for the grandson Elmer was revoked, and testatrix there directed that he should have no part of her estate except the f5 given him by the will.",
"This having been paid him, he is without interest in the present controversy; but since by the original will he was made beneficiary to a larger extent, and associated in some degree in the devise of the real estate, it may be that the provision as to him, though revoked, may afford some light as to the governing intent of the testatrix in the disposition she made of the real estate. It therefore calls for consideration here. It is the intention of the testatrix with respect to the disposition of her real estate, if that can be satisfactorily derived from the language used, that must govern.",
"This is the test that is first to be applied, and until that has *177failed we gain nothing by the application of artificial or technical rules, nor would it aid in searching for testatrix’s intention, to have recourse to precedents, since each will is its own best interpreter, and a construction of one is no certain guide as to the meaning of another. “Precedents in the construing of a will, except as to technical or quasi-technical phrases in the creation of trusts, or limitations of estates, where they tend to become rules of property, are of little value. The same words may be used by different testators, and yet in their context, or in their connection with the other parts, they may have widely different meanings. Wills, like contracts, must be read according to the intent of their makers and rules of construction are useful only as aids to the ascertainment of the actual meaning. When that is clear, no rule or method of construction can be permitted to override it”: Penney’s Est., 159 Pa. 346.",
"The learned judge of the court below, with too great dependence, as we think, upon technical rules of construction, derives from the first clause of the will, — which directs the rents and profits from all the real estate shall go to her son Jacob A., who shall have the right to lease properties and collect the rents from the same, — a gift to Jacob A. of the land in fee simple, a conclusion clearly warranted under all our authorities, provided, however, that a contrary intent or an intent to give a less estate cannot, without doing violence to the language of the will, be derived. The rule here applied, namely, that a gift of income or profits of land will carry an absolute estate in the principal, was never intended as an aid to develop the intention of the testator, but only to supply a legal intendment when from the will itself no inconsistent or contrary intention can be derived.",
"“That a bequest of income or profits will carry an absolute estate in the principal or corpus of the estate in some cases, is well settled,” says Agnew, C. J., in Bentley v. Kauffman, 86 Pa. 99, “but,” he adds, “the ground of such conclusion in such instances is that no contrary intent of the testa*178tor appears to sever the product from its source, and the fruits therefore carry with them that which bears them. ......Hence, when the intent clearly appears, to carry the corpus or principal over to others, the words of the will must be permitted to have their proper force.” True, the learned judge in the court below states very explicitly that he derives his conclusion that a fee simple was given to Jacob A. from the earlier part of the first clause of the will which gives to Jacob A. the rents and profits from all the real estate of which the said testatrix shall be possessed at the time of her death. He says, “by this clause, standing alone, he [Jacob] would have received the rents and profits of the estate, with power to lease and collect the rent.",
"That is, there is an estate here given to Jacob A. of the rents and profits, not merely during his lifetime, but they are given to him absolutely without words of limitation or any devise over of the property.” He distinctly recognizes the fact that the first clause that he relies upon does not stand alone, but that it is attempted to be qualified by what immediately follows, part of the same sentence, namely, “but I order my said son Jacob A. Phillippi shall pay over to my grandson Elmer Phillippi the sum of Eight Dollars per month right after my death, which money shall be taken from the income or rents of my properties so long as my son Jacob A. Phillippi lives; but in case my son Jacob A. Phillippi should die, the said Elmer Phillippi shall receive the same as one of the heirs of my son Jacob A. Phillippi, that is, share and share alike; but if my grandson Elmer Phillippi dies Avithout heirs then his share shall fall back to Jacob A. Phillippi or his heirs after the death of my son Jacob A. Phillippi.” If the construction placed on this part of the will by the learned judge is correct, and we are of opinion that it is entirely correct, and gives a true interpretation of the express intention of the testatrix therein, then it is in direct variance with the final conclusion reached by the court below and requires a reversal of the judgment entered in the *179case, since the judgment rests on the conclusion that by the will the son, Jacob A. Phillippi, acquired a fee simple in the land devised. What could be more inconsistent with a purpose to give the first taker an estate of inheritance than a gift over to another upon his death?",
"We quite agree that when the testatrix in the clause referred to uses the words “of the same,” and “share and share alike,” she had in mind the real estate, and that her intent was to place Elmer Phillippi, the son of her deceased son, in the same position with respect thereto as the four children of Jacob A. Phillippi would naturally be, who as children would be the heirs of their father upon his decease, receiving the title of their father in equal shares.",
"While there is here no express gift over upon the death of Jacob A., yet we think it abundantly clear that as much was intended and that there was a devise over by implication to the heirs or children of Jacob A.: Beilstein v. Beilstein, 194 Pa. 152; Reisher’s Est., ib., 261 Pa. 223. The revocation by codicil of the share or interest given to the grandson Elmer in the will is without significance here. Instead of allowing the devise over to Jacob A. its true and legal effect, the learned court treated it as though it amounted to no more than a vain attempt on the part of the testatrix to cut down the fee given to Jacob A. under the first clause, under intendment of law. This was error. No fee was there given and none could have been derived therefrom except by intendment of law, and then only as the clause, which it is argued conferred a fee, “stood alone,” that is, was not followed by any words which necessarily implied a devise over on the death of the first taker. The final conclusion of the court below was that Jacob A., under the will and codicil of Henrietta S. Johnston, acquired a fee simple to all her real estate, and directed judgment on the case-stated for William B. Bechtel, executor of Jacob A. Phillippi, deceased, and against Horace P. Fetter, for the sum of $3,900, which was ac*180cordingly entered.",
"When entered, this appeal was taken, and the error assigned was the entry of such judgment. Judgment is reversed, and judgment is now entered for the defendant in the case-stated, with costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6254767/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
When we met in this very place in September last year, who among us could have imagined that in barely one year the world, already shaken by an unprecedented economic crisis, would undergo such change? Within a few months, the Arab Spring gave rise to immense hope. The Arab peoples, too long crushed by oppression, were able to raise their heads and claimed the right to be free at last. They fought back against the violence and brutality with their bare hands. To those who proclaimed that the Arab Muslim world was by nature hostile to democracy and human rights, the young Arabs produced the most cogent denial. We do not have the right to disappoint the hope of the Arab peoples. We do not have the right to destroy their dreams. For shattering the dreams of those peoples would vindicate the fanatics who have not stopped pitting Islam against the West by stirring up hatred and violence everywhere. That appeal for justice shook the world, and the world cannot respond to that call for justice by perpetuating an injustice. That miraculous spring of the 23 11-50692 Arab peoples imposes on us the moral and political obligation at last to find a solution to the Middle East conflict. We cannot wait any longer. The method used to date — I weigh my words carefully — has failed. So we must change the method. We must stop believing that a single country — whether the largest or a small group of countries — can resolve so complex a problem. Too many large actors have been sidelined for our efforts to succeed. I mean that no one can believe that the peace process can succeed without Europe, without all the permanent members of the Security Council and without the Arab States that have already chosen peace. A collective approach has become indispensable in order to create trust and to provide guarantees to each of the parties. Peace will indeed be made by the Israelis and the Palestinians, and by no one else. No one can expect to impose it on them. But we must help them. The method no longer works. Let us together acknowledge that setting preconditions for negotiation is to condemn ourselves to failure. Preconditions are the opposite of negotiation. If we wish to enter into negotiation, which is the only possible path for peace, there must be no preconditions. Let us change the method. All the elements of a solution are known — the Madrid Conference of 1991, President Obama’s speech of 19 May, the Road Map, the Arab Peace Initiative and the parameters agreed by the European Union. So, let us stop endlessly discussing the parameters and allow negotiation to begin in line with a concrete and ambitious timetable. Sixty years without one centimetre’s progress — does that not compel us to change the method and time frame to one month to resume discussions, six months to reach agreement on borders and security, and one year to reach a definitive settlement? As of this autumn, France proposes hosting a donor conference so that the Palestinians can complete the construction of their future State. France wishes to say that we must not immediately seek the perfect solution, because there are no perfect solutions. Let us choose the path of compromise, which is neither renunciation nor repudiation, but which allows us to move forward, step by step. Thus, for 60 years the Palestinians have been waiting for their State. Has the time not come to give them hope? For 60 years, Israel has suffered from not being able to live in peace. For 60 years, the question of the peaceful coexistence of the two peoples — Palestinian and Israeli — has continued to fester. We can no longer wait to take the path of peace. Let us put ourselves in the place of the Palestinians. Is it not legitimate that they claim their State? Of course it is. And who does not see that creating a democratic, viable and peaceful Palestinian State would be, for Israel, the best guarantee of its security? Let us put ourselves in the place of the Israelis. Is it not legitimate that, after 60 years of war and attacks, they demand guarantees of that peace, so long awaited? Of course it is. I say that forcefully. If anyone anywhere in the world were to threaten the existence of Israel, France would immediately and wholeheartedly stand alongside Israel. Threats made against a State Member of the United Nations are unacceptable, and they will not be accepted. Today, we are facing a very difficult choice. Each of us knows — and let us stop with hypocrisy and one- off diplomacy — that full recognition of the status of a State Member of the United Nations cannot be attained at once. The first reason for that is the lack of trust between the main parties. But let us tell the truth: who can doubt that a veto in the Security Council will engender a cycle of violence in the Middle East? Who can doubt that? Must we therefore exclude an intermediate stage? Why not envisage offering Palestine the status of United Nations Observer State? That would be an important step forward. After 60 years of immobility, which has paved the way for extremists, we would be giving hope to the Palestinians by making progress towards final status. To show their determined commitment to a negotiated peace, the Palestinian authorities should, as part of that approach, reaffirm Israel’s right to exist and to its security. They should commit to avoiding using this new status to resort to actions that are incompatible with the pursuit of negotiations. We have but one alternative — immobility and negotiations that go nowhere or an intermediate solution that would give hope to the Palestinians with the status of an Observer State. In parallel, Israel must observe the same restraint. It must abstain from any actions that would prejudge the final status. 11-50692 24 The ultimate goal must be mutual recognition of two nation-States for two peoples established on the basis of the 1967 lines with agreed and equivalent exchanges of land. The General Assembly, which has a power to do so, should decide to move ahead, leave behind the fatal trap of paralysis, missed appointments and short-lived attempts to relaunch the process. Let us change our approach. Let us change our state of mind. Each should try to understand the reasoning, sufferings and fears of the other. Each must open its eyes and be ready to make concessions. In conclusion, I would like to say to the Palestinian people with the deep and sincere friendship I hold for them: “Think of the Israeli mothers grieving for their family members killed in terrorist attacks. They feel the same pain as the Palestinian mothers confronted with the brutal death of one of theirs”. I would like to say to the Israeli people with the deep and sincere friendship I hold for them: “Listen to what the young people of the Arab Spring are saying: ‘Long live freedom!’ They are not crying ‘Down with Israel’. You cannot remain immobile when this wind of freedom and democracy is blowing in your region”. I say with deep and sincere friendship for these two peoples who have suffered so much that the time has come to build peace for the children of Palestine and for the children of Israel. But it would be a great shame if the General Assembly did not seize the opportunity of the reawakening of the Arab peoples to democracy to settle a problem that brings unhappiness to these two peoples, who are in any event condemned to live alongside each other. If we take a compromise solution, we will rebuild trust and we will give people hope. I say that with the utmost gravity to the representatives of all nations. We must assume an historic responsibility. It is the General Assembly of the United Nations that must keep this appointment with History. Let us reassure Israel and give hope to the Palestinian people. The solution is on the table. Let us take this compromise solution over deadlock. Deadlock might satisfy everyone here, but it will create violence, bitterness and opposition that will imperil the resurgence of the Arab peoples. To that, France says that the tragedy must cease for a simple reason: it has gone on for too long. | 2011 | [
"When we met in this very place in September last year, who among us could have imagined that in barely one year the world, already shaken by an unprecedented economic crisis, would undergo such change? Within a few months, the Arab Spring gave rise to immense hope. The Arab peoples, too long crushed by oppression, were able to raise their heads and claimed the right to be free at last. They fought back against the violence and brutality with their bare hands. To those who proclaimed that the Arab Muslim world was by nature hostile to democracy and human rights, the young Arabs produced the most cogent denial. We do not have the right to disappoint the hope of the Arab peoples. We do not have the right to destroy their dreams. For shattering the dreams of those peoples would vindicate the fanatics who have not stopped pitting Islam against the West by stirring up hatred and violence everywhere. That appeal for justice shook the world, and the world cannot respond to that call for justice by perpetuating an injustice. That miraculous spring of the 23 11-50692 Arab peoples imposes on us the moral and political obligation at last to find a solution to the Middle East conflict.",
"We cannot wait any longer. The method used to date — I weigh my words carefully — has failed. So we must change the method. We must stop believing that a single country — whether the largest or a small group of countries — can resolve so complex a problem. Too many large actors have been sidelined for our efforts to succeed. I mean that no one can believe that the peace process can succeed without Europe, without all the permanent members of the Security Council and without the Arab States that have already chosen peace. A collective approach has become indispensable in order to create trust and to provide guarantees to each of the parties. Peace will indeed be made by the Israelis and the Palestinians, and by no one else.",
"No one can expect to impose it on them. But we must help them. The method no longer works. Let us together acknowledge that setting preconditions for negotiation is to condemn ourselves to failure. Preconditions are the opposite of negotiation. If we wish to enter into negotiation, which is the only possible path for peace, there must be no preconditions. Let us change the method. All the elements of a solution are known — the Madrid Conference of 1991, President Obama’s speech of 19 May, the Road Map, the Arab Peace Initiative and the parameters agreed by the European Union.",
"So, let us stop endlessly discussing the parameters and allow negotiation to begin in line with a concrete and ambitious timetable. Sixty years without one centimetre’s progress — does that not compel us to change the method and time frame to one month to resume discussions, six months to reach agreement on borders and security, and one year to reach a definitive settlement? As of this autumn, France proposes hosting a donor conference so that the Palestinians can complete the construction of their future State. France wishes to say that we must not immediately seek the perfect solution, because there are no perfect solutions.",
"Let us choose the path of compromise, which is neither renunciation nor repudiation, but which allows us to move forward, step by step. Thus, for 60 years the Palestinians have been waiting for their State. Has the time not come to give them hope? For 60 years, Israel has suffered from not being able to live in peace. For 60 years, the question of the peaceful coexistence of the two peoples — Palestinian and Israeli — has continued to fester. We can no longer wait to take the path of peace. Let us put ourselves in the place of the Palestinians. Is it not legitimate that they claim their State? Of course it is. And who does not see that creating a democratic, viable and peaceful Palestinian State would be, for Israel, the best guarantee of its security?",
"Let us put ourselves in the place of the Israelis. Is it not legitimate that, after 60 years of war and attacks, they demand guarantees of that peace, so long awaited? Of course it is. I say that forcefully. If anyone anywhere in the world were to threaten the existence of Israel, France would immediately and wholeheartedly stand alongside Israel. Threats made against a State Member of the United Nations are unacceptable, and they will not be accepted. Today, we are facing a very difficult choice. Each of us knows — and let us stop with hypocrisy and one- off diplomacy — that full recognition of the status of a State Member of the United Nations cannot be attained at once. The first reason for that is the lack of trust between the main parties. But let us tell the truth: who can doubt that a veto in the Security Council will engender a cycle of violence in the Middle East?",
"Who can doubt that? Must we therefore exclude an intermediate stage? Why not envisage offering Palestine the status of United Nations Observer State? That would be an important step forward. After 60 years of immobility, which has paved the way for extremists, we would be giving hope to the Palestinians by making progress towards final status. To show their determined commitment to a negotiated peace, the Palestinian authorities should, as part of that approach, reaffirm Israel’s right to exist and to its security. They should commit to avoiding using this new status to resort to actions that are incompatible with the pursuit of negotiations.",
"We have but one alternative — immobility and negotiations that go nowhere or an intermediate solution that would give hope to the Palestinians with the status of an Observer State. In parallel, Israel must observe the same restraint. It must abstain from any actions that would prejudge the final status. 11-50692 24 The ultimate goal must be mutual recognition of two nation-States for two peoples established on the basis of the 1967 lines with agreed and equivalent exchanges of land.",
"The General Assembly, which has a power to do so, should decide to move ahead, leave behind the fatal trap of paralysis, missed appointments and short-lived attempts to relaunch the process. Let us change our approach. Let us change our state of mind. Each should try to understand the reasoning, sufferings and fears of the other. Each must open its eyes and be ready to make concessions. In conclusion, I would like to say to the Palestinian people with the deep and sincere friendship I hold for them: “Think of the Israeli mothers grieving for their family members killed in terrorist attacks. They feel the same pain as the Palestinian mothers confronted with the brutal death of one of theirs”. I would like to say to the Israeli people with the deep and sincere friendship I hold for them: “Listen to what the young people of the Arab Spring are saying: ‘Long live freedom!’ They are not crying ‘Down with Israel’.",
"You cannot remain immobile when this wind of freedom and democracy is blowing in your region”. I say with deep and sincere friendship for these two peoples who have suffered so much that the time has come to build peace for the children of Palestine and for the children of Israel. But it would be a great shame if the General Assembly did not seize the opportunity of the reawakening of the Arab peoples to democracy to settle a problem that brings unhappiness to these two peoples, who are in any event condemned to live alongside each other.",
"If we take a compromise solution, we will rebuild trust and we will give people hope. I say that with the utmost gravity to the representatives of all nations. We must assume an historic responsibility. It is the General Assembly of the United Nations that must keep this appointment with History. Let us reassure Israel and give hope to the Palestinian people. The solution is on the table. Let us take this compromise solution over deadlock. Deadlock might satisfy everyone here, but it will create violence, bitterness and opposition that will imperil the resurgence of the Arab peoples. To that, France says that the tragedy must cease for a simple reason: it has gone on for too long."
]
| https://dataverse.harvard.edu/file.xhtml?fileId=4590189&version=6.0# | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
601 So. 2d 1355 (1992) Alex SPOTT v. OTIS ELEVATOR COMPANY, et al. No. 91-C-2522. Supreme Court of Louisiana. June 18, 1992. Dissenting Opinion June 22, 1992. Rehearing Denied September 3, 1992. *1356 Frank Allen Bruno, Bruno & Bruno, New Orleans, for plaintiff-applicant. Charles Edgar Cloutier, III, Richard Joseph Garvey, Jr., Christovich & Kearney, Thomas Edward Loehn, Boggs, Loehn & Rodrigue, New Orleans, for defendant-respondent. Dissenting Opinion by Justice Dennis June 22, 1992. COLE, Justice. This suit involves a claim for damages resulting from personal injuries sustained by plaintiff Alex Spott in an elevator owned by Pelican Homestead & Savings Association and manufactured and serviced by Otis Elevator Company. The court of appeal affirmed the district court's dismissal of Spott's suit, holding no liability on the part of the defendants was proven. 592 So. 2d 13. We granted certiorari to determine the correctness of the lower courts' decisions.[1]
FACTS On the morning of April 20, 1987, Pro-Temporary Service dispatched its employee, *1357 Alex Spott, on an assignment to McGregor Printing Company. McGregor sent its own employee, Scott Colomb, with Spott to deliver a load of paper to Pelican Homestead in Jefferson Parish. The two men entered the building from a loading dock which leads to an elevator reserved strictly for freight after 9:00 a.m. They used this elevator to transport a pallet of computer paper from the first floor to the second. The paper weighed between 2000 and 2500 pounds, well within the elevator's 4500-pound capacity. At trial, Colomb and Spott testified regarding an incident which occurred en route to the second floor. An Otis repairman assigned to Pelican, John Mandola, also testified.[2] Colomb, who had been in this elevator several times before and was familiar with operating it on independent service,[3] testified that he pushed the button for the second floor and the elevator started going up, but made a sudden, bouncing stop before it reached its destination. Specifically, Colomb testified: [I]t sounded like and felt like it caught something in the shaft and then it went down maybe a couple of feet, stopped real hard, jerked us real hard and after that we stayed in it the better part of a half hour until it just went down to the first floor and it opened up and after that it went right up to the second floor, no trouble. Colomb tried pressing buttons to start the car but eventually gave up and the car, apparently on its own, began working normally again. According to Colomb, none of the paper, which was shrink-wrapped, fell from the pallet, and neither he nor Spott was thrown against the walls or to the floor. The dropping problem did not recur.[4] Spott, who took the stand next, testified the elevator dropped four to five feet, a much more conservative estimate than the fifteen feet he posited in his deposition. Spott stated he had been leaning against the handrail when the elevator "jerked" and "it hit my back and then you know jerking movement it hurt my neck because it was like a snap, a forward snap you know." The day of the accident Spott went to a lawyer who referred him to a Dr. Jones whom Spott saw the next day. Spott complained of nausea and neck pain. Dr. Jones diagnosed the plaintiff as being bruised. Accordingly, the doctor gave him heat and pain treatments. Spott, bothered by occasional stiffness, continued seeing Dr. Jones for four months from April 21, 1987 until he was found to be asymptomatic and was discharged August 31, 1987.[5] Although the plaintiff did not call Dr. Jones to testify, his report and bill were admitted into evidence.[6] On cross-examination, defense counsel emphasized discrepancies between Spott's account of the accident at trial and that in his deposition. In his deposition, Spott apparently stated that he and Colomb had loaded two pallets, not one, onto the elevator and that the elevator fell a couple of stories. Furthermore, he stated in his deposition that he was thrown about the elevator and that the paper fell off the pallet. Also testifying, and the only expert witness called by either side, was John Mandola, a maintenance man employed by Otis for over thirty years. Mandola, who inspected Pelican's elevators regularly under a maintenance contract with Otis, was summoned *1358 to the building by Pelican at the time of the incident. However, by the time Mandola arrived, Spott and Colomb had already left, and the elvator was functioning normally. Mandola had inspected the elevator five days before the incident, as part of routine maintenance, and found it to be in proper operating condition. A thorough, post-incident examination of the elevator revealed no problems. Mandola testified that in over thirty years of working with elevators, he had no experience with one dropping. Indeed, if the elevator had dropped, according to Mandola, an electrical switch would have been tripped, shutting off power to the elevator. Once the switch has been tripped, the elevator will not run again unless mechanically reset. Because the switch did not require mechanical resetting, Mandola concluded the elevator had not fallen. Moreover, if the power had shut off because of the tripped switch and the elevator had continued to fall, then a safety brake would have clamped the rails. Had this safety stop been activated, a manual reset again would have been necessary. Mandola's explanation of the incident, and the only hypothesis put forward by anyone at trial, was that a safety device, the door interlock circuit, had been interrupted. He described the safety device as follows. Attached to the elevator car doors, which are electrically powered, is a cam which, when it is between the two rollers on the hoistway doors (the non-electric doors at each floor), will pull open the hoistway doors as the car doors open. When the car is not at a floor, the hoistway doors are prevented from opening by a mechanical interlock. The interlock is a small, dog-legged piece of metal which conducts an electrical current. The circuit must be completed for a car to run. This insures that the hoistway doors will not open onto the elevator shaft when the car is not in place. If the car is moving and the electrical current is broken, the power to the car will be shut off and the car will come to a sliding stop. Such a break in the current might occur if, for instance, debris on the car sill fell into the shaft, and broke the circuit as the car began to move. The same sort of stop would occur, according to Mandola, if someone pushed the emergency stop button in the elevator. Once a car has been stopped by the interruption of the door interlock circuit, the car will only begin running again by pressing the "door close" button. Mandola theorized that a piece of the wooden pallet used by Spott and Colomb broke off and fell into the shaft, causing the interlock's electrical current to be temporarily interrupted. The pit of the elevator shaft apparently always contains trash and pieces of wood from pallets. Finally, Mandola testified that if there had been some mechanical problem with the elevator it would have been discoverable after the accident. At the time of the incident, there was in effect an "Extended Coverage Maintenance" contract between Otis and Pelican which provided, with respect to control, that Otis does: not assume possession or control of any part of the equipment but such remains yours [Pelican's] exclusively as the owner (or lessee) thereof. We shall not be liable for any loss, damage or delay due to any cause beyond our reasonable control including, but not limited to, acts of government, strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief or act of God. Under no circumstances shall we be liable for consequential damages.
I. PROCEDURE Although the accident occurred in Jefferson Parish, Spott, on November 11, 1987, filed suit in Civil District Court for the Parish of Orleans, naming both Otis and Pelican as defendants. The petition mentions that Spott is domiciled in Orleans Parish, but, on the location of the defendants' registered agents or principal places of business, it is silent.[7] Spott served Otis within the one year prescriptive period but withheld service on Pelican. Otis answered the suit without objecting to venue. Pelican, on the other hand, was not served until May 1988, more than one year after the incident. Pelican then raised the declinatory exception contending venue was improper *1359 as to both Otis and itself. On November 14, 1988, the suit was transferred by joint consent judgment to the 24th Judicial District Court for the Parish of Jefferson where it was tried. In the consent judgment, the plaintiff concedes venue was improper as to Pelican in Orleans. Pelican also raised the peremptory exception, averring the action against it had prescribed because suit was brought in an improper venue and Pelican was not served within a year of the incident. The district court overruled the exception but nonetheless rendered judgment in favor of both defendants. The court of appeal affirmed the district court's ruling on the peremptory exception. We disagree, in part, with those rulings. Even assuming Orleans Parish is a parish of improper venue as to Otis, Spott served Otis within a year of the incident. Therefore, prescription was interrupted as to Otis. La.Civ.Code art. 3462[8]. Because Otis was ultimately found not liable, which result we affirm, the plaintiff cannot rely on La.Civ.Code art. 3503 nor on La.Civ. Code art. 2324(C).[9] These articles provide that interruption of prescription as to one solidary obligor interrupts prescription as to all other solidary obligors. Randall v. Feducia, 507 So. 2d 1237, 1239 (La.1987).[10] Because he cannot rely on articles 3503 and 2324(C), the plaintiff contends La.Code Civ.Proc. art. 73(B) is applicable. It provides: A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant ... B. If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants. (Emphasis added.) Here, Otis, allegedly the resident defendant, was dismissed after trial on the merits. Therefore, venue, if proper at the inception of the suit, would have remained proper as to the nonresident defendant, Pelican. The only problem with a straightforward *1360 application of the article and the cases under it,[11] is that the record contains no evidence of the location of Otis's primary, in-state place of business nor of its designated principal business establishment, as mandated to satisfy the requirement of La.Code Civ.Pro. art. 42(4). The plaintiff contends Otis's failure to object to venue in Orleans, which constitutes a waiver of its right to object to venue, precludes Pelican from objecting to venue as well. We disagree. Pelican filed a timely exception of improper venue and did not waive its objection to venue. Otis's failure to object to venue did not affect Pelican's right to object to venue over either defendant. Habig v. Popeye's, Inc., 553 So. 2d 963, 966 (La.App. 4th Cir.1989) (holding, first, that waiver of venue by one defendant does not preclude another defendant from objecting to venue and, second, that waiver of venue does not make improper venue proper); Gelpi v. Ben Development Co., 327 So. 2d 485, 488 (La.App. 4th Cir.1976). Therefore, assuming venue was improper in Orleans as to Otis, Otis's waiver of venue did not make venue proper as to Pelican. Because the plaintiff's waiver argument fails, the question becomes whether the plaintiff is entitled to rely on La.Code Civ. Proc. art. 73(B), predicated on art. 73(A), requiring the action to be brought in a parish of proper venue, under article 42 only, as to any defendant. The plaintiff did not allege facts in the petition which indicate venue was proper as to Otis in Orleans. Moreover, the plaintiff adduced no evidence that Orleans was a parish of proper venue as to either defendant. The lack of evidence is at least partially due to the action's having been transferred by joint consent to Jefferson Parish. In Hawthorne Oil & Gas Corp. v. Continental Oil Co., 377 So. 2d 285 (La.1979), this Court held that unless a plaintiff shows its action comes clearly within one or more of the exceptions provided in La. Code Civ.Proc. arts. 71 through 83, the exception of improper venue must be maintained. Id. at 287. See also Parker v. Parker, 432 So. 2d 1010 (La.App. 1st Cir. 1983); Glover v. Mayer, 209 La. 599, 25 So. 2d 242 (1946) (the petition did not set forth facts sufficient to establish the existence of a partnership; therefore, plaintiff held not to have brought himself squarely within the venue exception for partnerships); Fourth Jefferson Drainage Dist. v. New Orleans, 203 La. 670, 14 So. 2d 482 (1943). Glover and Fourth Jefferson Drainage District were decided under Code of Practice article 162.[12] Article 73(B) is an extremely unusual exception to the general rule that suit against a defendant ultimately found not to be liable does not interrupt prescription as to other defendants who, as a result of the timely sued defendant's dismissal, cannot be the solidary obligors of the dismissed defendant. The jurisprudence on amending petitions after the prescriptive period to name additional defendants, though not directly on point, lends some guidance here. In Scott v. Burden, 527 So. 2d 468 (La.App. 5th Cir.1988), the court held prescription did not bar a suit against a late-named defendant sufficiently alleged to be a solidary obligor of a timely sued defendant. The court noted, however, *1361 "[i]f, during subsequent proceedings, it is shown that solidary liability does not exist, an exception of prescription could be filed again, so appellee's rights are not hurt by our ruling at this time." Id. at 470. Thus, if ultimately the timely sued defendant is found not liable, the suit as to the latenamed defendant could be dismissed on the basis of prescription. Pearson v. Hartford Accident & Indemnity Co., 281 So. 2d 724, 726 (La.1973); Provident Life and Accident Ins. Co. v. Turner, 582 So. 2d 250, 254 (La.App. 1st Cir.1991). The issue in this regard is who had the burden of proving whether venue was proper as to Otis. Generally, the party raising the peremptory exception, urging prescription, bears the burden of proof. New Orleans v. Elms, 566 So. 2d 626 (La. 1990); Langlinais v. Guillotte, 407 So. 2d 1215 (La.1981). This is the rule unless prescription is evident from the face of the pleadings, in which case the plaintiff bears the burden of showing the action has not prescribed. Lake Providence Equipment Co. v. Tallulah Production Credit Association, 257 La. 104, 241 So. 2d 506 (La.1970). We hold that Pelican carried its burden of proof when it established two things: the plaintiff filed suit in a parish of improper venue as to Pelican and did not serve Pelican within the prescriptive period. Having made out a prima facie case of prescription, Pelican was entitled to have its peremptory exception maintained unless the plaintiff could show the interruption or suspension of prescription. Chauser v. Babin, 412 So. 2d 1005 (La.1982).[13] In this case, the plaintiff had to show La.Code Civ.Pro. art. 73's requirement of suing a defendant in a parish of proper venue, under La.Code Civ.Pro. art. 42 only, was met, i.e., that Orleans was a parish of proper venue as to Otis. Given the enormity of the advantage bestowed on plaintiffs by article 73, requiring plaintiff to bring himself squarely within article 73 does not seem an undue burden. In fact, plaintiff could simply have alleged in his petition that Otis's principal place of business was in Orleans. Glover, supra, 25 So.2d at 243. Because the plaintiff failed to establish Orleans was a proper venue under article 73, the suit against Pelican prescribed and it is unnecessary to reach the merits against Pelican. In sum, we find Spott is not entitled to rely on article 73 because he failed to bring himself within that exception to the general venue rule. Having erroneously disposed of the convoluted procedural questions, the trial court, reached the merits. It held: "Otis discharged their [sic] duty by undertaking a program of preventative maintenance of the elevator involving regular inspection, examination, adjustment and repair of the machine." On appeal, Spott argued for the application of res ipsa loquitur and strict liability. The court of appeal affirmed, finding Spott had proved neither negligence nor a defect and res ipsa loquitur was not applicable.
II. LIABILITY OF OTIS
A. Negligence The fountainhead of negligence in Louisiana can be found in two articles in the Louisiana Civil Code. La.Civ.Code art. 2315 provides in part: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La.Civ.Code art. 2316 states: Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill. These articles have spawned the duty-risk analysis. Dixie Drive it Yourself System of New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962). This Court recently reiterated what a plaintiff must establish for liability based on negligence to attach: (1) The conduct in question was a cause in fact of the resultant harm; (2) The defendant owed a duty to plaintiff; (3) The duty owed was breached; and
*1362 (4) The risk or harm caused was within the scope of the breached duty. Fox v. Board of Supervisors of Louisiana State University, 576 So. 2d 978, 981 (La. 1991). Elevator cases, like escalator cases, add another dimension to the duty-risk analysis. Because parties connected with elevators have been likened to common carriers, the standard of care must be considered in such cases.
B. Standard of Care Required of Repairers We granted this writ, in part, to consider a question pretermitted in Rosell v. ESCO, 549 So. 2d 840, 843 (La.1989), namely, whether repairers ought to be held to the same high standard of care to which owners are held. It was not necessary for us to resolve the question there because under either standard, the common carrier or the reasonable person, the elevator maintenance firm would be liable. The Rosell elevator was in such a state of disrepair, as testified to by several of the building's employees, that a reasonable repair person should have discovered and remedied the defect. Id. This case is quite different. There were no reports of the elevator having malfunctioned in this way beforehand, nor any after. Therefore, even if we were to hold Otis to a higher standard of care, there is not in the record even the most meager evidence which would tend to show negligence on its part. Otis had a duty, under its contract with Pelican, to inspect and maintain the elevator. By all accounts, Otis did so. Moreover, as noted above, the explanation given by the repairman Mandola indicates that the accident occurred, not as a result of negligence, but rather as a result of the safety interlock's functioning normally. Hence, once again we are constrained to pretermit the question, because, under either standard, the result would be the same: liability on the basis of negligence would not attach to Otis.
C. Res Ipsa Loquitur The plaintiff contends res ipsa loquitur obtains in this case. Res ipsa is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not, caused the injury. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So. 2d 654, 664 (La.1990), on rehearing; Montgomery v. Opelousas General Hospital, 540 So. 2d 312, 319 (La. 1989). Spott argues that the elevator's falling a few feet and stopping constitutes such an unusual occurrence that the inference should be raised. The court of appeal held the doctrine was not applicable because the plaintiff failed to prove the negligence of the defendants, more probably than not, caused the accident. Res ipsa loquitur, as "a qualification of the general rule that negligence is not to be presumed," must be sparingly applied. Day v. National U.S. Radiator Corp., 241 La. 288, 128 So. 2d 660, 665 (1961). Generally, it obtains when three requirements are met: 1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant's part. Cf. Wilson v. Hibernia Nat. Bank, 517 So. 2d 1206, 1208 (La.App. 4th Cir.1987), writ denied, 520 So. 2d 425 (1988) (in which res ipsa loquitur was not applied), citing Boudreaux v. American Ins. Co., 262 La. 721, 264 So. 2d 621 (1972), on rehearing. The second requirement, that the defendant have exclusive control over the thing, has not, in our jurisprudence, been strictly applied. Day, supra, 128 So.2d at 664. Indeed, it is satisfied if the circumstances indicate that it is more probable than not that the defendant caused the accident and other plausible explanations do not appear to be the probable cause of the accident. Smith v. State, 523 So. 2d 815, 822 (La. 1988). The plaintiff, of course, bears the initial burden of proof. Brown v. Otis Elevator Co., 535 So. 2d 525, 527 (La.App. 4th Cir.1988). *1363 Although res ipsa may have been properly invoked in this case, its invocation alone does not carry the day because, as noted above, Otis's explanation of the accident sufficiently rebutted any presumption of negligence.[14] Rather, Mandola's hypothesis points to a possibility of a defect in the elevator itself, which brings us to the final theory of recovery urged on appeal, strict liability.
D. Strict Liability The plaintiff contends both defendants are strictly liable under La.Civ.Code art. 2317, which provides in part: We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. To recover under this article a plaintiff must prove he was injured by a thing, the thing was in the defendant's custody, there was a vice or defect creating an unreasonable risk of harm in the thing, and the injured person's damage arose from such a defect. Ross v. La Coste de Monterville, 502 So. 2d 1026, 1028 (La.1987). Spott has proven he was injured by a thing, the elevator. Hence, he must next prove the defendant had custody or "garde" of the thing. Otis strongly rejects the notion that it, as repairer, has garde. This Court has defined "garde" as: the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others. The things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. Loescher v. Parr, [324 So. 2d 441, 449 (La.1975)] (quoting Verlander, We Are Responsible ... 2 Tulane Civil Law Forum, No. 2, p. 64 (1974)). King v. Louviere, 543 So. 2d 1327, 1329 (La.1989). On the question of Otis's garde, the plaintiff suggests we follow Coleman v. Otis Elevator Co., 582 So. 2d 341 (La. App. 4th Cir.1991), in which the court held Otis had garde. Spott relies on Doughty v. Insured Lloyds Ins. Co., 576 So. 2d 461 (La.1991), which held the owner's presumed garde may be rebutted. The plaintiff asserts Otis had control over the elevator to the exclusion of Pelican and, therefore, had garde. The plaintiff's contention is without merit in this case. Pelican is the primary party benefitting from the elevators on its premises. Moreover, the facts in Coleman are distinguishable. In Coleman, Otis hired an employee to work forty hours a week at Charity Hospital to upgrade and to maintain the hospital's forty-eight elevators. Hence, Otis had garde of the elevators, the Otis employee being physically on the premises full time. Consequently, on the peculiar facts of Coleman, the court of appeal's determination that Otis had garde was sound. In this case, however, an Otis employee visited Pelican only weekly for a brief period of time. Moreover, a service contract by itself does not create garde. Hunt v. City Stores, Inc., 387 So. 2d 585, 589 (La.1980) (construing a service contract provision with language identical to that in this case, we found the store owner was the sole custodian of the escalator); see also Brown, supra, 535 So.2d at 527. The service contract in this case, in fact, specifically provides that Pelican retains control of the elevator. Because we find Otis did not have garde of the elevator, Otis cannot be found strictly liable.
E. Products Liability Finally, Spott's petition alleges, inter alia, that Otis is liable because the elevator was defectively designed and bore no warnings. However, the plaintiff offered no proof of any kind relative to a products liability claim.[15] Thus, while we *1364 might entertain any patent products claim, we give the theory short shrift in light of the lack of evidence. The elevator in this case was manufactured by Otis. Therefore, Otis could be liable if the elevator, when it left the manufacturer's hands, was unreasonably dangerous to normal use. Bloxom v. Bloxom, 512 So. 2d 839, 843 (La. 1987); Brown v. Sears, 514 So. 2d 439, 444 (La.1987); Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La.1986); Hunt, supra. This case is distinguishable, however, from those cases in which children's hands and feet were caught in escalators. The design defect in escalators was a nationally recognized problem in the 1970's. Indeed, it was referred to as the "tennis shoe phenomenon."[16] It is also distinguishable from McCoy v. Otis Elevator Co., 546 So. 2d 229 (La.App. 2d Cir.1989) (convenience for loading of elevator without inside doors is not outweighed by the significant risk of severe injury.) Defects are not presumed to be present by the mere happening of an accident. Broussard v. Pennsylvania Millers Mutual Ins. Co., 406 So. 2d 574, 576 (La. 1981). No evidence whatsoever was presented in this case with respect to any design, installation, or operational defects. Accordingly, we hold Otis is not liable as a manufacturer. Davis v. D.H. Holmes, Ltd., 359 So. 2d 743 (La.App. 4th Cir.1978). Indeed, at oral argument plaintiff's counsel conceded they were not suing on the basis of products liability.
DECREE For the reasons assigned, we affirm the lower courts' decisions dismissing the plaintiff's suit, agreeing no liability was proven as to Otis Elevator Company and finding the action had prescribed as to Pelican Homestead and Savings Association. RESULT AFFIRMED. CALOGERO, C.J., concurs and assigns reasons. DENNIS, J., dissents with reasons. CALOGERO, Chief Justice, concurring. I understand the majority opinion to conclude that Otis is not liable because there was no proof of fault on its part, and that Pelican's liability need not be addressed because the exception of prescription is meritorious. I agree that prescription is not interrupted by a timely filed suit against a co-defendant later exonerated (i.e., the co-defendant is not a solidary obligor because found to be not liable) and, for this reason, the prescription exception is properly maintained. Accordingly, I concur. DENNIS, Justice, dissenting. I respectfully dissent. On the record before this court it is impossible to say that plaintiff's action against Pelican has prescribed. Because the trial court incorrectly treated the issue as a question of law and overruled the exception of venue without taking evidence, the true facts relevant to this issue do not appear in the record. The majority opinion concedes as much but creates a new judge-made rule of law that the burden of proof is on the plaintiff in this novel situation, applies the rule retroactively, and holds that venue was not proper because the plaintiff did not have the perspicacity to put on his evidence even after the trial court had ruled in his favor. If evidence had been taken on the venue question, it is possible that the plaintiff could have shown that his case had not prescribed against Pelican based on either of two theories. First, if venue was proper for plaintiff's suit against Otis, the fact that Otis was later determined not to be solidarily liable with Pelican, would not destroy the propriety of the venue as to Pelican. La.C.C.P. art. 73(B). If the venue was proper as to the suit against Pelican in Orleans, the timeliness of the commencement of action against Pelican in this competent *1365 venue would have interrupted prescription regardless of the failure to serve Pelican timely. La.C.C. art. 3462. Second, if the timely service upon Otis also constituted service upon Pelican, prescription would have been interrupted on the action against Pelican, regardless of whether venue was proper as to that action. La.C.C. art. 3462. Had the plaintiff been allowed to introduce evidence on this phase of the prescription question he may have been able to show an interruption of prescription supported in the line of cases represented by Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So. 2d 209 (1945). As Justice Tate observed: "In these cases, the proper person was not served, but nevertheless prescription was held to be interrupted because service was made upon some closely related person or entity, sufficient to give notice to the true defendant that the judicial claim had been brought." * * * * * * "The essence of the interruption of prescription is notice, either constructively by filing if in the proper venue (as permitted by La.R.S. 9:5501), or else by actual service of the citation on or before the last day of the prescriptive period, or upon the first legal day thereafter, if the last day is a legal holiday." Conner v. Continental Southern Lines, Inc., 294 So. 2d 485 (La.1974) (Tate, J., dissenting). See also Findley v. City of Baton Rouge, 570 So. 2d 1168, 1170 (La.1990) (While designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, prescriptive statutes are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period.); Ray v. Alexandria Mall, 434 So. 2d 1083 (La. 1983). In the present case, the sketchily represented facts on this issue are that suit was timely filed and served on Otis, there was an ongoing contractual relationship between Otis and Pelican with respect to the maintenance of Pelican's allegedly defective elevator that caused the damage, and suit was brought timely against Pelican but service was withheld pursuant to an agreement between plaintiff's counsel and an adjuster for Pelican, Irvin Breaux. Thus, it appears that Pelican, which was also sued timely, had actual notice and was in no way prejudiced by the pleading mistakes of the plaintiff. For the foregoing reasons, this case is analogous to one in which the peremptory exception has been pleaded after the trial of the case. The plaintiff has been deprived of any real opportunity to show with evidence that his case against Pelican has not prescribed. The plaintiff has been deprived of his day in court on this issue by the combination of the trial judge's premature ruling without taking evidence and this court's retroactive imposition of a burden of proof that plaintiff could not have foreseen he had to carry. Consequently, under the principle of La.C.C.P. art. 929 and in order to render a judgment that is just, legal and proper, La.C.C.P. art. 2164, this court should reverse the judgment in favor of Pelican and remand the case to the trial court so as to permit the plaintiff to present evidence on the exception. Moreover, I cannot agree with another judge-made rule that the majority opinion creates: "Waiver of venue does not render improper venue proper." First, it is troubling to see the majority of the supreme court of a state with a civil law tradition make such a sweeping statement without demonstrating how it is justified as an interpretation of the Code of Civil Procedure. Second, because the majority does not reason from the code, the rule is of uncertain scope and meaning. Does the majority mean by its rule that one solidary obligor's waiver of his objection as to improper venue never operates as such a waiver by other solidary obligors? Will this be the result even if the other solidary obligors had actual notice of the lawsuit and either expressly or tacitly consented to the waiver? Or does this rule simply mean that one defendant's waiver of an objection as to improper venue does not operate as a waiver as to other defendants not bound solidarily with him? If so, again, what if the other defendants acquiesce in the waiver after having received actual or legal notice? In the present case, Pelican may have avoided acquiescence in Otis's waiver of any objection it may have had as to *1366 improper venue, because Pelican obtained a consent judgment that venue was improper as to Pelican in Orleans and the case would be transferred to Jefferson. In any event, regardless of the merit of the majority's holding on this point, the rule or holding should be cured of its obvious overbreadth by a more careful restatement by this court on rehearing or in future cases or, in lieu thereof, by the legislature in future legislation. With respect to the question of whether Otis should be held liable for plaintiff's injury, the majority concludes first that the accident resulted from the normal functioning of the elevator's safety interlock and not from anyone's negligence and implicitly not from any defect in the elevator. Nevertheless, the majority opinion continues with a discussion of res ipsa, garde and products liability. Clearly, therefore, this discussion falls squarely within every definition of obiter dictum, e.g., "a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holdingthat, being peripheral, may not have received the full and careful consideration of the court that uttered it." Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084 (7th Cir.1986) (Posner, J.) Therefore, because the majority's discussion of these issues was unnecessary to its holding and should have no precedential value, it is not desirable to expend further time or resources in evaluating that discussion. In passing, however, I would like to add my own dictum that it seems erroneous and incongruous to conclude that an elevator company which holds itself out as an expert manufacturer and maintainer of elevators, assumes an obligation to maintain an elevator so that it will be safe for use by the public and is evidently in the best position of anyone to inspect for, detect and correct defects in the elevator, does not have the garde of the elevator for these purposes under our law. See King v. Louviere, 543 So. 2d 1327 (La.1989); Loescher v. Parr, 324 So. 2d 441 (La.1975); Coleman v. Otis Elevator Co., 582 So. 2d 341 (La. App. 4th Cir.1991).
On Rehearing LEMMON, Justice, Concurring in Denial of Application for Rehearing. When venue is proper as to one defendant alleged to be a solidary obligor under La.Code Civ.Proc. art. 73, venue remains proper as to all joined defendants even though the defendant as to whom venue was proper is dismissed after trial on the merits. Here, venue was not shown to be proper as to either defendant alleged to be a solidary obligor. While the venue exception filed by Pelican was never tried because the parties consented to a transfer of venue, plaintiff did file a brief in opposition to the exception of venue. In that brief plaintiff never suggested that venue was proper as to Otis. Indeed, apparently realizing that venue was improper as to Otis, plaintiff argued solely that Otis' waiver of its objection to venue served to waive Pelican's objection that venue was improper as to both.[1] I therefore cannot accept plaintiff's argument that he did not have the opportunity to argue and prove that venue was proper as to Otis. NOTES [1] 590 So. 2d 580 (La.1992). [2] The only other person to testify was an employee of Pelican, who testified only that she called Otis to the scene. [3] To operate an elevator on independent service, it is necessary to push the "door close" button until the elevator is in progress. [4] Colomb, too, had some injuries from the accident but did not file suit against anyone. His employer's worker's compensation carrier, Hartford Accident and Indemnity, which paid the $463.00 medical bill, filed a subrogation suit in first city court, but agreed to be bound by the Spott litigation. [5] The plaintiff testified that he tried to obtain work as early as two weeks after the accident but found nothing until the end of October when he landed a job building scaffolding. [6] The evidence verifies that Spott was treated for four months for cervical and lumbar strain at a cost of $900.00. [7] The petition states only that Otis is a foreign corporation authorized to do and doing business in Louisiana and that Pelican is a domestic corporation authorized to do and doing business in Louisiana. Thus, La.Code Civ.Pro. art. 42(2) and (4) are implicated. Article 42 provides:
The general rules of venue are that an action against: (2) A domestic corporation ... shall be brought in the parish where its registered office is located.... (4) A foreign corporation licensed to do business in this state shall be brought in the parish where its primary place of business in the state is located or in the parish designated as its principal business establishment in its application to do business in the state. The application does not state where Otis's primary place of business in the state is located nor which parish was designated as its principal business establishment in its application to do business. [8] The article provides in part:
Prescription is interrupted when ... the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. [9] Article 3503 provides in pertinent part:
When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors. Similarly, article 2324(C) provides: Interruption of prescription against one joint tortfeasor, whether the obligation is considered joint and divisible or solidary, is effective against all joint tortfeasors. [10] In Randall, the plaintiff timely sued two defendants, Feducia and his insurer. These defendants filed a third party demand against the City of Shreveport more than a year after the accident but within the 90 days allowed by Code Civ.Proc. art. 1067. The plaintiff then amended its petition naming the third party defendant as a defendant. We held plaintiff was barred by prescription from so amending its petition because article 1067 was not designed to benefit plaintiffs. Rather it was meant to allow defendants sued at or near the end of a prescriptive period to bring in other parties.
We noted in Randall the plaintiff not only may not rely on La.Code Civ.Proc. art. 1067, but likewise may not rely on La.Civil Code article 3503 because the timely sued defendant was held not liable. Id. at 1239. Similarly, the plaintiff may not rely on Civil Code article 2324, as the trial court mistakenly did here. Vicknair v. Hibernia Bldg. Corp., 479 So. 2d 904, 907 (La. 1985), on remand, 482 So. 2d 95 (La.App. 4th Cir.1986). [11] See, e.g., Riess v. Abshire, 570 So. 2d 195 (La. App. 5th Cir.1990), writ denied, 576 So. 2d 32 (1991); Sea Tang Fisheries, Inc. v. You'll See Sea Foods, Inc., 569 So. 2d 992 (La.App. 1st Cir.1990), writ denied, 572 So. 2d 89 (1991); Reeves v. Dixie Brick, Inc., 403 So. 2d 792, 795 (La.App.2d Cir. 1981). The courts of appeal correctly interpret art. 73 as not requiring solidarity to be shown at the end of trial. Comment (b) to that article states: "The second paragraph of the above article overturns the principle of the cited cases in so far as compromise or dismissal after trial is concerned." Among the "cited cases" is Gordon v. Bates-Crumley Chevrolet Co., 182 La. 795, 162 So. 624 (1935), in which suit was dismissed as to the resident defendant after trial on the merits on the ground that he was not guilty of negligence. [12] Article 162 of the 1870 Code of Practice provided:
It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence, and shall not be permitted to elect any other domicile or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law. This article was replaced in part by the more detailed La.Code Civ.Proc. art. 42, Acts 1961, No. 23, § 1. [13] Chauser dealt with the interruption of prescription on a promissory note, but the principle is the same. [14] Cases in which res ipsa applies are no different from many other negligence cases, as noted scholar Wex Malone once pointed out. What distinguishes them is merely "the fact that the occurrence of the accident constitutes the given fact group from which the inference of negligence is drawn." Malone, Res Ipsa Loquitur and Proof by InferenceA Discussion of the Louisiana Cases, 4 La.L.Rev. 70, 72 (1941). Accordingly, it is often said that an "unusual occurrence" warrants an application of res ipsa loquitur. [15] Pre-act products liability was in effect at the time this cause of action arose. Gilboy v. American Tobacco Co., 582 So. 2d 1263 (La.1991), held the Louisiana Products Liability Act, La.R.S. 9:2800.51, et seq., effective September 1, 1988, is not retroactive. Id. at 1264. [16] See Note, TortsNo Defense for the Manufacturer The Supreme Court of Kentucky Restricts the Shifting Responsibility Defense in Strict Products Liability CasesMontgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky.1984), 12 N.Ky. L.Rev. 347 (1985), for a discussion of this wellknown escalator defect and the reaction by the industry and the courts. [1] The majority properly (although perhaps too broadly) rejected this argument. | 10-30-2013 | [
"601 So. 2d 1355 (1992) Alex SPOTT v. OTIS ELEVATOR COMPANY, et al. No. 91-C-2522. Supreme Court of Louisiana. June 18, 1992. Dissenting Opinion June 22, 1992. Rehearing Denied September 3, 1992. *1356 Frank Allen Bruno, Bruno & Bruno, New Orleans, for plaintiff-applicant. Charles Edgar Cloutier, III, Richard Joseph Garvey, Jr., Christovich & Kearney, Thomas Edward Loehn, Boggs, Loehn & Rodrigue, New Orleans, for defendant-respondent. Dissenting Opinion by Justice Dennis June 22, 1992. COLE, Justice. This suit involves a claim for damages resulting from personal injuries sustained by plaintiff Alex Spott in an elevator owned by Pelican Homestead & Savings Association and manufactured and serviced by Otis Elevator Company. The court of appeal affirmed the district court's dismissal of Spott's suit, holding no liability on the part of the defendants was proven.",
"592 So. 2d 13. We granted certiorari to determine the correctness of the lower courts' decisions. [1] FACTS On the morning of April 20, 1987, Pro-Temporary Service dispatched its employee, *1357 Alex Spott, on an assignment to McGregor Printing Company. McGregor sent its own employee, Scott Colomb, with Spott to deliver a load of paper to Pelican Homestead in Jefferson Parish. The two men entered the building from a loading dock which leads to an elevator reserved strictly for freight after 9:00 a.m. They used this elevator to transport a pallet of computer paper from the first floor to the second. The paper weighed between 2000 and 2500 pounds, well within the elevator's 4500-pound capacity. At trial, Colomb and Spott testified regarding an incident which occurred en route to the second floor. An Otis repairman assigned to Pelican, John Mandola, also testified.",
"[2] Colomb, who had been in this elevator several times before and was familiar with operating it on independent service,[3] testified that he pushed the button for the second floor and the elevator started going up, but made a sudden, bouncing stop before it reached its destination. Specifically, Colomb testified: [I]t sounded like and felt like it caught something in the shaft and then it went down maybe a couple of feet, stopped real hard, jerked us real hard and after that we stayed in it the better part of a half hour until it just went down to the first floor and it opened up and after that it went right up to the second floor, no trouble. Colomb tried pressing buttons to start the car but eventually gave up and the car, apparently on its own, began working normally again. According to Colomb, none of the paper, which was shrink-wrapped, fell from the pallet, and neither he nor Spott was thrown against the walls or to the floor. The dropping problem did not recur. [4] Spott, who took the stand next, testified the elevator dropped four to five feet, a much more conservative estimate than the fifteen feet he posited in his deposition.",
"Spott stated he had been leaning against the handrail when the elevator \"jerked\" and \"it hit my back and then you know jerking movement it hurt my neck because it was like a snap, a forward snap you know.\" The day of the accident Spott went to a lawyer who referred him to a Dr. Jones whom Spott saw the next day. Spott complained of nausea and neck pain. Dr. Jones diagnosed the plaintiff as being bruised. Accordingly, the doctor gave him heat and pain treatments. Spott, bothered by occasional stiffness, continued seeing Dr. Jones for four months from April 21, 1987 until he was found to be asymptomatic and was discharged August 31, 1987. [5] Although the plaintiff did not call Dr. Jones to testify, his report and bill were admitted into evidence. [6] On cross-examination, defense counsel emphasized discrepancies between Spott's account of the accident at trial and that in his deposition. In his deposition, Spott apparently stated that he and Colomb had loaded two pallets, not one, onto the elevator and that the elevator fell a couple of stories. Furthermore, he stated in his deposition that he was thrown about the elevator and that the paper fell off the pallet. Also testifying, and the only expert witness called by either side, was John Mandola, a maintenance man employed by Otis for over thirty years.",
"Mandola, who inspected Pelican's elevators regularly under a maintenance contract with Otis, was summoned *1358 to the building by Pelican at the time of the incident. However, by the time Mandola arrived, Spott and Colomb had already left, and the elvator was functioning normally. Mandola had inspected the elevator five days before the incident, as part of routine maintenance, and found it to be in proper operating condition. A thorough, post-incident examination of the elevator revealed no problems. Mandola testified that in over thirty years of working with elevators, he had no experience with one dropping. Indeed, if the elevator had dropped, according to Mandola, an electrical switch would have been tripped, shutting off power to the elevator. Once the switch has been tripped, the elevator will not run again unless mechanically reset.",
"Because the switch did not require mechanical resetting, Mandola concluded the elevator had not fallen. Moreover, if the power had shut off because of the tripped switch and the elevator had continued to fall, then a safety brake would have clamped the rails. Had this safety stop been activated, a manual reset again would have been necessary. Mandola's explanation of the incident, and the only hypothesis put forward by anyone at trial, was that a safety device, the door interlock circuit, had been interrupted. He described the safety device as follows. Attached to the elevator car doors, which are electrically powered, is a cam which, when it is between the two rollers on the hoistway doors (the non-electric doors at each floor), will pull open the hoistway doors as the car doors open. When the car is not at a floor, the hoistway doors are prevented from opening by a mechanical interlock. The interlock is a small, dog-legged piece of metal which conducts an electrical current.",
"The circuit must be completed for a car to run. This insures that the hoistway doors will not open onto the elevator shaft when the car is not in place. If the car is moving and the electrical current is broken, the power to the car will be shut off and the car will come to a sliding stop. Such a break in the current might occur if, for instance, debris on the car sill fell into the shaft, and broke the circuit as the car began to move. The same sort of stop would occur, according to Mandola, if someone pushed the emergency stop button in the elevator.",
"Once a car has been stopped by the interruption of the door interlock circuit, the car will only begin running again by pressing the \"door close\" button. Mandola theorized that a piece of the wooden pallet used by Spott and Colomb broke off and fell into the shaft, causing the interlock's electrical current to be temporarily interrupted. The pit of the elevator shaft apparently always contains trash and pieces of wood from pallets. Finally, Mandola testified that if there had been some mechanical problem with the elevator it would have been discoverable after the accident. At the time of the incident, there was in effect an \"Extended Coverage Maintenance\" contract between Otis and Pelican which provided, with respect to control, that Otis does: not assume possession or control of any part of the equipment but such remains yours [Pelican's] exclusively as the owner (or lessee) thereof.",
"We shall not be liable for any loss, damage or delay due to any cause beyond our reasonable control including, but not limited to, acts of government, strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief or act of God. Under no circumstances shall we be liable for consequential damages. I. PROCEDURE Although the accident occurred in Jefferson Parish, Spott, on November 11, 1987, filed suit in Civil District Court for the Parish of Orleans, naming both Otis and Pelican as defendants. The petition mentions that Spott is domiciled in Orleans Parish, but, on the location of the defendants' registered agents or principal places of business, it is silent. [7] Spott served Otis within the one year prescriptive period but withheld service on Pelican. Otis answered the suit without objecting to venue. Pelican, on the other hand, was not served until May 1988, more than one year after the incident. Pelican then raised the declinatory exception contending venue was improper *1359 as to both Otis and itself. On November 14, 1988, the suit was transferred by joint consent judgment to the 24th Judicial District Court for the Parish of Jefferson where it was tried.",
"In the consent judgment, the plaintiff concedes venue was improper as to Pelican in Orleans. Pelican also raised the peremptory exception, averring the action against it had prescribed because suit was brought in an improper venue and Pelican was not served within a year of the incident. The district court overruled the exception but nonetheless rendered judgment in favor of both defendants. The court of appeal affirmed the district court's ruling on the peremptory exception. We disagree, in part, with those rulings.",
"Even assuming Orleans Parish is a parish of improper venue as to Otis, Spott served Otis within a year of the incident. Therefore, prescription was interrupted as to Otis. La.Civ.Code art. 3462[8]. Because Otis was ultimately found not liable, which result we affirm, the plaintiff cannot rely on La.Civ.Code art. 3503 nor on La.Civ. Code art. 2324(C). [9] These articles provide that interruption of prescription as to one solidary obligor interrupts prescription as to all other solidary obligors. Randall v. Feducia, 507 So. 2d 1237, 1239 (La.1987). [10] Because he cannot rely on articles 3503 and 2324(C), the plaintiff contends La.Code Civ.Proc. art. 73(B) is applicable. It provides: A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant ... B.",
"If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants. (Emphasis added.) Here, Otis, allegedly the resident defendant, was dismissed after trial on the merits. Therefore, venue, if proper at the inception of the suit, would have remained proper as to the nonresident defendant, Pelican. The only problem with a straightforward *1360 application of the article and the cases under it,[11] is that the record contains no evidence of the location of Otis's primary, in-state place of business nor of its designated principal business establishment, as mandated to satisfy the requirement of La.Code Civ.Pro. art. 42(4). The plaintiff contends Otis's failure to object to venue in Orleans, which constitutes a waiver of its right to object to venue, precludes Pelican from objecting to venue as well. We disagree. Pelican filed a timely exception of improper venue and did not waive its objection to venue. Otis's failure to object to venue did not affect Pelican's right to object to venue over either defendant. Habig v. Popeye's, Inc., 553 So.",
"2d 963, 966 (La.App. 4th Cir.1989) (holding, first, that waiver of venue by one defendant does not preclude another defendant from objecting to venue and, second, that waiver of venue does not make improper venue proper); Gelpi v. Ben Development Co., 327 So. 2d 485, 488 (La.App. 4th Cir.1976). Therefore, assuming venue was improper in Orleans as to Otis, Otis's waiver of venue did not make venue proper as to Pelican. Because the plaintiff's waiver argument fails, the question becomes whether the plaintiff is entitled to rely on La.Code Civ.",
"Proc. art. 73(B), predicated on art. 73(A), requiring the action to be brought in a parish of proper venue, under article 42 only, as to any defendant. The plaintiff did not allege facts in the petition which indicate venue was proper as to Otis in Orleans. Moreover, the plaintiff adduced no evidence that Orleans was a parish of proper venue as to either defendant. The lack of evidence is at least partially due to the action's having been transferred by joint consent to Jefferson Parish. In Hawthorne Oil & Gas Corp. v. Continental Oil Co., 377 So. 2d 285 (La.1979), this Court held that unless a plaintiff shows its action comes clearly within one or more of the exceptions provided in La. Code Civ.Proc. arts. 71 through 83, the exception of improper venue must be maintained. Id. at 287.",
"See also Parker v. Parker, 432 So. 2d 1010 (La.App. 1st Cir. 1983); Glover v. Mayer, 209 La. 599, 25 So. 2d 242 (1946) (the petition did not set forth facts sufficient to establish the existence of a partnership; therefore, plaintiff held not to have brought himself squarely within the venue exception for partnerships); Fourth Jefferson Drainage Dist. v. New Orleans, 203 La. 670, 14 So. 2d 482 (1943). Glover and Fourth Jefferson Drainage District were decided under Code of Practice article 162. [12] Article 73(B) is an extremely unusual exception to the general rule that suit against a defendant ultimately found not to be liable does not interrupt prescription as to other defendants who, as a result of the timely sued defendant's dismissal, cannot be the solidary obligors of the dismissed defendant. The jurisprudence on amending petitions after the prescriptive period to name additional defendants, though not directly on point, lends some guidance here.",
"In Scott v. Burden, 527 So. 2d 468 (La.App. 5th Cir.1988), the court held prescription did not bar a suit against a late-named defendant sufficiently alleged to be a solidary obligor of a timely sued defendant. The court noted, however, *1361 \"[i]f, during subsequent proceedings, it is shown that solidary liability does not exist, an exception of prescription could be filed again, so appellee's rights are not hurt by our ruling at this time.\" Id.",
"at 470. Thus, if ultimately the timely sued defendant is found not liable, the suit as to the latenamed defendant could be dismissed on the basis of prescription. Pearson v. Hartford Accident & Indemnity Co., 281 So. 2d 724, 726 (La.1973); Provident Life and Accident Ins. Co. v. Turner, 582 So. 2d 250, 254 (La.App. 1st Cir.1991). The issue in this regard is who had the burden of proving whether venue was proper as to Otis. Generally, the party raising the peremptory exception, urging prescription, bears the burden of proof. New Orleans v. Elms, 566 So. 2d 626 (La. 1990); Langlinais v. Guillotte, 407 So. 2d 1215 (La.1981). This is the rule unless prescription is evident from the face of the pleadings, in which case the plaintiff bears the burden of showing the action has not prescribed.",
"Lake Providence Equipment Co. v. Tallulah Production Credit Association, 257 La. 104, 241 So. 2d 506 (La.1970). We hold that Pelican carried its burden of proof when it established two things: the plaintiff filed suit in a parish of improper venue as to Pelican and did not serve Pelican within the prescriptive period. Having made out a prima facie case of prescription, Pelican was entitled to have its peremptory exception maintained unless the plaintiff could show the interruption or suspension of prescription. Chauser v. Babin, 412 So. 2d 1005 (La.1982). [13] In this case, the plaintiff had to show La.Code Civ.Pro. art. 73's requirement of suing a defendant in a parish of proper venue, under La.Code Civ.Pro.",
"art. 42 only, was met, i.e., that Orleans was a parish of proper venue as to Otis. Given the enormity of the advantage bestowed on plaintiffs by article 73, requiring plaintiff to bring himself squarely within article 73 does not seem an undue burden. In fact, plaintiff could simply have alleged in his petition that Otis's principal place of business was in Orleans. Glover, supra, 25 So.2d at 243. Because the plaintiff failed to establish Orleans was a proper venue under article 73, the suit against Pelican prescribed and it is unnecessary to reach the merits against Pelican. In sum, we find Spott is not entitled to rely on article 73 because he failed to bring himself within that exception to the general venue rule. Having erroneously disposed of the convoluted procedural questions, the trial court, reached the merits.",
"It held: \"Otis discharged their [sic] duty by undertaking a program of preventative maintenance of the elevator involving regular inspection, examination, adjustment and repair of the machine.\" On appeal, Spott argued for the application of res ipsa loquitur and strict liability. The court of appeal affirmed, finding Spott had proved neither negligence nor a defect and res ipsa loquitur was not applicable. II. LIABILITY OF OTIS A. Negligence The fountainhead of negligence in Louisiana can be found in two articles in the Louisiana Civil Code. La.Civ.Code art. 2315 provides in part: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La.Civ.Code art. 2316 states: Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.",
"These articles have spawned the duty-risk analysis. Dixie Drive it Yourself System of New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So. 2d 298 (1962). This Court recently reiterated what a plaintiff must establish for liability based on negligence to attach: (1) The conduct in question was a cause in fact of the resultant harm; (2) The defendant owed a duty to plaintiff; (3) The duty owed was breached; and *1362 (4) The risk or harm caused was within the scope of the breached duty. Fox v. Board of Supervisors of Louisiana State University, 576 So. 2d 978, 981 (La. 1991). Elevator cases, like escalator cases, add another dimension to the duty-risk analysis. Because parties connected with elevators have been likened to common carriers, the standard of care must be considered in such cases. B. Standard of Care Required of Repairers We granted this writ, in part, to consider a question pretermitted in Rosell v. ESCO, 549 So. 2d 840, 843 (La.1989), namely, whether repairers ought to be held to the same high standard of care to which owners are held.",
"It was not necessary for us to resolve the question there because under either standard, the common carrier or the reasonable person, the elevator maintenance firm would be liable. The Rosell elevator was in such a state of disrepair, as testified to by several of the building's employees, that a reasonable repair person should have discovered and remedied the defect. Id. This case is quite different. There were no reports of the elevator having malfunctioned in this way beforehand, nor any after. Therefore, even if we were to hold Otis to a higher standard of care, there is not in the record even the most meager evidence which would tend to show negligence on its part. Otis had a duty, under its contract with Pelican, to inspect and maintain the elevator. By all accounts, Otis did so.",
"Moreover, as noted above, the explanation given by the repairman Mandola indicates that the accident occurred, not as a result of negligence, but rather as a result of the safety interlock's functioning normally. Hence, once again we are constrained to pretermit the question, because, under either standard, the result would be the same: liability on the basis of negligence would not attach to Otis. C. Res Ipsa Loquitur The plaintiff contends res ipsa loquitur obtains in this case. Res ipsa is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not, caused the injury.",
"Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So. 2d 654, 664 (La.1990), on rehearing; Montgomery v. Opelousas General Hospital, 540 So. 2d 312, 319 (La. 1989). Spott argues that the elevator's falling a few feet and stopping constitutes such an unusual occurrence that the inference should be raised. The court of appeal held the doctrine was not applicable because the plaintiff failed to prove the negligence of the defendants, more probably than not, caused the accident. Res ipsa loquitur, as \"a qualification of the general rule that negligence is not to be presumed,\" must be sparingly applied. Day v. National U.S. Radiator Corp., 241 La.",
"288, 128 So. 2d 660, 665 (1961). Generally, it obtains when three requirements are met: 1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant's part.",
"Cf. Wilson v. Hibernia Nat. Bank, 517 So. 2d 1206, 1208 (La.App. 4th Cir.1987), writ denied, 520 So. 2d 425 (1988) (in which res ipsa loquitur was not applied), citing Boudreaux v. American Ins. Co., 262 La. 721, 264 So. 2d 621 (1972), on rehearing. The second requirement, that the defendant have exclusive control over the thing, has not, in our jurisprudence, been strictly applied. Day, supra, 128 So.2d at 664. Indeed, it is satisfied if the circumstances indicate that it is more probable than not that the defendant caused the accident and other plausible explanations do not appear to be the probable cause of the accident. Smith v. State, 523 So.",
"2d 815, 822 (La. 1988). The plaintiff, of course, bears the initial burden of proof. Brown v. Otis Elevator Co., 535 So. 2d 525, 527 (La.App. 4th Cir.1988). *1363 Although res ipsa may have been properly invoked in this case, its invocation alone does not carry the day because, as noted above, Otis's explanation of the accident sufficiently rebutted any presumption of negligence. [14] Rather, Mandola's hypothesis points to a possibility of a defect in the elevator itself, which brings us to the final theory of recovery urged on appeal, strict liability. D. Strict Liability The plaintiff contends both defendants are strictly liable under La.Civ.Code art. 2317, which provides in part: We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. To recover under this article a plaintiff must prove he was injured by a thing, the thing was in the defendant's custody, there was a vice or defect creating an unreasonable risk of harm in the thing, and the injured person's damage arose from such a defect.",
"Ross v. La Coste de Monterville, 502 So. 2d 1026, 1028 (La.1987). Spott has proven he was injured by a thing, the elevator. Hence, he must next prove the defendant had custody or \"garde\" of the thing. Otis strongly rejects the notion that it, as repairer, has garde. This Court has defined \"garde\" as: the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others. The things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. Loescher v. Parr, [324 So.",
"2d 441, 449 (La.1975)] (quoting Verlander, We Are Responsible ... 2 Tulane Civil Law Forum, No. 2, p. 64 (1974)). King v. Louviere, 543 So. 2d 1327, 1329 (La.1989). On the question of Otis's garde, the plaintiff suggests we follow Coleman v. Otis Elevator Co., 582 So. 2d 341 (La. App. 4th Cir.1991), in which the court held Otis had garde. Spott relies on Doughty v. Insured Lloyds Ins. Co., 576 So. 2d 461 (La.1991), which held the owner's presumed garde may be rebutted.",
"The plaintiff asserts Otis had control over the elevator to the exclusion of Pelican and, therefore, had garde. The plaintiff's contention is without merit in this case. Pelican is the primary party benefitting from the elevators on its premises. Moreover, the facts in Coleman are distinguishable. In Coleman, Otis hired an employee to work forty hours a week at Charity Hospital to upgrade and to maintain the hospital's forty-eight elevators. Hence, Otis had garde of the elevators, the Otis employee being physically on the premises full time. Consequently, on the peculiar facts of Coleman, the court of appeal's determination that Otis had garde was sound.",
"In this case, however, an Otis employee visited Pelican only weekly for a brief period of time. Moreover, a service contract by itself does not create garde. Hunt v. City Stores, Inc., 387 So. 2d 585, 589 (La.1980) (construing a service contract provision with language identical to that in this case, we found the store owner was the sole custodian of the escalator); see also Brown, supra, 535 So.2d at 527. The service contract in this case, in fact, specifically provides that Pelican retains control of the elevator. Because we find Otis did not have garde of the elevator, Otis cannot be found strictly liable. E. Products Liability Finally, Spott's petition alleges, inter alia, that Otis is liable because the elevator was defectively designed and bore no warnings.",
"However, the plaintiff offered no proof of any kind relative to a products liability claim. [15] Thus, while we *1364 might entertain any patent products claim, we give the theory short shrift in light of the lack of evidence. The elevator in this case was manufactured by Otis. Therefore, Otis could be liable if the elevator, when it left the manufacturer's hands, was unreasonably dangerous to normal use. Bloxom v. Bloxom, 512 So. 2d 839, 843 (La. 1987); Brown v. Sears, 514 So. 2d 439, 444 (La.1987); Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La.1986); Hunt, supra. This case is distinguishable, however, from those cases in which children's hands and feet were caught in escalators. The design defect in escalators was a nationally recognized problem in the 1970's. Indeed, it was referred to as the \"tennis shoe phenomenon. \"[16] It is also distinguishable from McCoy v. Otis Elevator Co., 546 So.",
"2d 229 (La.App. 2d Cir.1989) (convenience for loading of elevator without inside doors is not outweighed by the significant risk of severe injury.) Defects are not presumed to be present by the mere happening of an accident. Broussard v. Pennsylvania Millers Mutual Ins. Co., 406 So. 2d 574, 576 (La. 1981). No evidence whatsoever was presented in this case with respect to any design, installation, or operational defects. Accordingly, we hold Otis is not liable as a manufacturer. Davis v. D.H. Holmes, Ltd., 359 So. 2d 743 (La.App. 4th Cir.1978). Indeed, at oral argument plaintiff's counsel conceded they were not suing on the basis of products liability. DECREE For the reasons assigned, we affirm the lower courts' decisions dismissing the plaintiff's suit, agreeing no liability was proven as to Otis Elevator Company and finding the action had prescribed as to Pelican Homestead and Savings Association.",
"RESULT AFFIRMED. CALOGERO, C.J., concurs and assigns reasons. DENNIS, J., dissents with reasons. CALOGERO, Chief Justice, concurring. I understand the majority opinion to conclude that Otis is not liable because there was no proof of fault on its part, and that Pelican's liability need not be addressed because the exception of prescription is meritorious. I agree that prescription is not interrupted by a timely filed suit against a co-defendant later exonerated (i.e., the co-defendant is not a solidary obligor because found to be not liable) and, for this reason, the prescription exception is properly maintained. Accordingly, I concur. DENNIS, Justice, dissenting. I respectfully dissent. On the record before this court it is impossible to say that plaintiff's action against Pelican has prescribed. Because the trial court incorrectly treated the issue as a question of law and overruled the exception of venue without taking evidence, the true facts relevant to this issue do not appear in the record.",
"The majority opinion concedes as much but creates a new judge-made rule of law that the burden of proof is on the plaintiff in this novel situation, applies the rule retroactively, and holds that venue was not proper because the plaintiff did not have the perspicacity to put on his evidence even after the trial court had ruled in his favor. If evidence had been taken on the venue question, it is possible that the plaintiff could have shown that his case had not prescribed against Pelican based on either of two theories. First, if venue was proper for plaintiff's suit against Otis, the fact that Otis was later determined not to be solidarily liable with Pelican, would not destroy the propriety of the venue as to Pelican. La.C.C.P. art.",
"73(B). If the venue was proper as to the suit against Pelican in Orleans, the timeliness of the commencement of action against Pelican in this competent *1365 venue would have interrupted prescription regardless of the failure to serve Pelican timely. La.C.C. art. 3462. Second, if the timely service upon Otis also constituted service upon Pelican, prescription would have been interrupted on the action against Pelican, regardless of whether venue was proper as to that action. La.C.C. art. 3462. Had the plaintiff been allowed to introduce evidence on this phase of the prescription question he may have been able to show an interruption of prescription supported in the line of cases represented by Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.",
"2d 209 (1945). As Justice Tate observed: \"In these cases, the proper person was not served, but nevertheless prescription was held to be interrupted because service was made upon some closely related person or entity, sufficient to give notice to the true defendant that the judicial claim had been brought.\" * * * * * * \"The essence of the interruption of prescription is notice, either constructively by filing if in the proper venue (as permitted by La.R.S. 9:5501), or else by actual service of the citation on or before the last day of the prescriptive period, or upon the first legal day thereafter, if the last day is a legal holiday.\"",
"Conner v. Continental Southern Lines, Inc., 294 So. 2d 485 (La.1974) (Tate, J., dissenting). See also Findley v. City of Baton Rouge, 570 So. 2d 1168, 1170 (La.1990) (While designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, prescriptive statutes are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period. ); Ray v. Alexandria Mall, 434 So. 2d 1083 (La. 1983).",
"In the present case, the sketchily represented facts on this issue are that suit was timely filed and served on Otis, there was an ongoing contractual relationship between Otis and Pelican with respect to the maintenance of Pelican's allegedly defective elevator that caused the damage, and suit was brought timely against Pelican but service was withheld pursuant to an agreement between plaintiff's counsel and an adjuster for Pelican, Irvin Breaux. Thus, it appears that Pelican, which was also sued timely, had actual notice and was in no way prejudiced by the pleading mistakes of the plaintiff. For the foregoing reasons, this case is analogous to one in which the peremptory exception has been pleaded after the trial of the case. The plaintiff has been deprived of any real opportunity to show with evidence that his case against Pelican has not prescribed. The plaintiff has been deprived of his day in court on this issue by the combination of the trial judge's premature ruling without taking evidence and this court's retroactive imposition of a burden of proof that plaintiff could not have foreseen he had to carry.",
"Consequently, under the principle of La.C.C.P. art. 929 and in order to render a judgment that is just, legal and proper, La.C.C.P. art. 2164, this court should reverse the judgment in favor of Pelican and remand the case to the trial court so as to permit the plaintiff to present evidence on the exception. Moreover, I cannot agree with another judge-made rule that the majority opinion creates: \"Waiver of venue does not render improper venue proper.\" First, it is troubling to see the majority of the supreme court of a state with a civil law tradition make such a sweeping statement without demonstrating how it is justified as an interpretation of the Code of Civil Procedure. Second, because the majority does not reason from the code, the rule is of uncertain scope and meaning. Does the majority mean by its rule that one solidary obligor's waiver of his objection as to improper venue never operates as such a waiver by other solidary obligors? Will this be the result even if the other solidary obligors had actual notice of the lawsuit and either expressly or tacitly consented to the waiver? Or does this rule simply mean that one defendant's waiver of an objection as to improper venue does not operate as a waiver as to other defendants not bound solidarily with him?",
"If so, again, what if the other defendants acquiesce in the waiver after having received actual or legal notice? In the present case, Pelican may have avoided acquiescence in Otis's waiver of any objection it may have had as to *1366 improper venue, because Pelican obtained a consent judgment that venue was improper as to Pelican in Orleans and the case would be transferred to Jefferson. In any event, regardless of the merit of the majority's holding on this point, the rule or holding should be cured of its obvious overbreadth by a more careful restatement by this court on rehearing or in future cases or, in lieu thereof, by the legislature in future legislation. With respect to the question of whether Otis should be held liable for plaintiff's injury, the majority concludes first that the accident resulted from the normal functioning of the elevator's safety interlock and not from anyone's negligence and implicitly not from any defect in the elevator. Nevertheless, the majority opinion continues with a discussion of res ipsa, garde and products liability.",
"Clearly, therefore, this discussion falls squarely within every definition of obiter dictum, e.g., \"a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holdingthat, being peripheral, may not have received the full and careful consideration of the court that uttered it.\" Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084 (7th Cir.1986) (Posner, J.) Therefore, because the majority's discussion of these issues was unnecessary to its holding and should have no precedential value, it is not desirable to expend further time or resources in evaluating that discussion. In passing, however, I would like to add my own dictum that it seems erroneous and incongruous to conclude that an elevator company which holds itself out as an expert manufacturer and maintainer of elevators, assumes an obligation to maintain an elevator so that it will be safe for use by the public and is evidently in the best position of anyone to inspect for, detect and correct defects in the elevator, does not have the garde of the elevator for these purposes under our law.",
"See King v. Louviere, 543 So. 2d 1327 (La.1989); Loescher v. Parr, 324 So. 2d 441 (La.1975); Coleman v. Otis Elevator Co., 582 So. 2d 341 (La. App. 4th Cir.1991). On Rehearing LEMMON, Justice, Concurring in Denial of Application for Rehearing. When venue is proper as to one defendant alleged to be a solidary obligor under La.Code Civ.Proc. art. 73, venue remains proper as to all joined defendants even though the defendant as to whom venue was proper is dismissed after trial on the merits. Here, venue was not shown to be proper as to either defendant alleged to be a solidary obligor. While the venue exception filed by Pelican was never tried because the parties consented to a transfer of venue, plaintiff did file a brief in opposition to the exception of venue.",
"In that brief plaintiff never suggested that venue was proper as to Otis. Indeed, apparently realizing that venue was improper as to Otis, plaintiff argued solely that Otis' waiver of its objection to venue served to waive Pelican's objection that venue was improper as to both. [1] I therefore cannot accept plaintiff's argument that he did not have the opportunity to argue and prove that venue was proper as to Otis. NOTES [1] 590 So. 2d 580 (La.1992). [2] The only other person to testify was an employee of Pelican, who testified only that she called Otis to the scene.",
"[3] To operate an elevator on independent service, it is necessary to push the \"door close\" button until the elevator is in progress. [4] Colomb, too, had some injuries from the accident but did not file suit against anyone. His employer's worker's compensation carrier, Hartford Accident and Indemnity, which paid the $463.00 medical bill, filed a subrogation suit in first city court, but agreed to be bound by the Spott litigation. [5] The plaintiff testified that he tried to obtain work as early as two weeks after the accident but found nothing until the end of October when he landed a job building scaffolding.",
"[6] The evidence verifies that Spott was treated for four months for cervical and lumbar strain at a cost of $900.00. [7] The petition states only that Otis is a foreign corporation authorized to do and doing business in Louisiana and that Pelican is a domestic corporation authorized to do and doing business in Louisiana. Thus, La.Code Civ.Pro. art. 42(2) and (4) are implicated. Article 42 provides: The general rules of venue are that an action against: (2) A domestic corporation ... shall be brought in the parish where its registered office is located.... (4) A foreign corporation licensed to do business in this state shall be brought in the parish where its primary place of business in the state is located or in the parish designated as its principal business establishment in its application to do business in the state. The application does not state where Otis's primary place of business in the state is located nor which parish was designated as its principal business establishment in its application to do business. [8] The article provides in part: Prescription is interrupted when ... the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.",
"[9] Article 3503 provides in pertinent part: When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors. Similarly, article 2324(C) provides: Interruption of prescription against one joint tortfeasor, whether the obligation is considered joint and divisible or solidary, is effective against all joint tortfeasors. [10] In Randall, the plaintiff timely sued two defendants, Feducia and his insurer. These defendants filed a third party demand against the City of Shreveport more than a year after the accident but within the 90 days allowed by Code Civ.Proc. art. 1067. The plaintiff then amended its petition naming the third party defendant as a defendant. We held plaintiff was barred by prescription from so amending its petition because article 1067 was not designed to benefit plaintiffs. Rather it was meant to allow defendants sued at or near the end of a prescriptive period to bring in other parties.",
"We noted in Randall the plaintiff not only may not rely on La.Code Civ.Proc. art. 1067, but likewise may not rely on La.Civil Code article 3503 because the timely sued defendant was held not liable. Id. at 1239. Similarly, the plaintiff may not rely on Civil Code article 2324, as the trial court mistakenly did here. Vicknair v. Hibernia Bldg. Corp., 479 So. 2d 904, 907 (La. 1985), on remand, 482 So. 2d 95 (La.App. 4th Cir.1986). [11] See, e.g., Riess v. Abshire, 570 So.",
"2d 195 (La. App. 5th Cir.1990), writ denied, 576 So. 2d 32 (1991); Sea Tang Fisheries, Inc. v. You'll See Sea Foods, Inc., 569 So. 2d 992 (La.App. 1st Cir.1990), writ denied, 572 So. 2d 89 (1991); Reeves v. Dixie Brick, Inc., 403 So. 2d 792, 795 (La.App.2d Cir. 1981). The courts of appeal correctly interpret art. 73 as not requiring solidarity to be shown at the end of trial. Comment (b) to that article states: \"The second paragraph of the above article overturns the principle of the cited cases in so far as compromise or dismissal after trial is concerned.\" Among the \"cited cases\" is Gordon v. Bates-Crumley Chevrolet Co., 182 La. 795, 162 So. 624 (1935), in which suit was dismissed as to the resident defendant after trial on the merits on the ground that he was not guilty of negligence. [12] Article 162 of the 1870 Code of Practice provided: It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence, and shall not be permitted to elect any other domicile or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law.",
"This article was replaced in part by the more detailed La.Code Civ.Proc. art. 42, Acts 1961, No. 23, § 1. [13] Chauser dealt with the interruption of prescription on a promissory note, but the principle is the same. [14] Cases in which res ipsa applies are no different from many other negligence cases, as noted scholar Wex Malone once pointed out. What distinguishes them is merely \"the fact that the occurrence of the accident constitutes the given fact group from which the inference of negligence is drawn.\" Malone, Res Ipsa Loquitur and Proof by InferenceA Discussion of the Louisiana Cases, 4 La.L.Rev. 70, 72 (1941). Accordingly, it is often said that an \"unusual occurrence\" warrants an application of res ipsa loquitur. [15] Pre-act products liability was in effect at the time this cause of action arose. Gilboy v. American Tobacco Co., 582 So. 2d 1263 (La.1991), held the Louisiana Products Liability Act, La.R.S.",
"9:2800.51, et seq., effective September 1, 1988, is not retroactive. Id. at 1264. [16] See Note, TortsNo Defense for the Manufacturer The Supreme Court of Kentucky Restricts the Shifting Responsibility Defense in Strict Products Liability CasesMontgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky.1984), 12 N.Ky. L.Rev. 347 (1985), for a discussion of this wellknown escalator defect and the reaction by the industry and the courts. [1] The majority properly (although perhaps too broadly) rejected this argument."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1776456/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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.
Authorization for this examiner’s amendment was given in an interview with Alexander Czanik on 11/1/21. The application has been amended as follows:
Claim 1: the claim has been replaced with -- An apparatus comprising: (a) an irrigation fluid source including an irrigation fluid fitting, wherein the irrigation fluid fitting has a head, wherein the head of the irrigation fluid fitting has a first width; (b) an inflation fluid source including an inflation fluid fitting, wherein the inflation fluid fitting has a head, wherein the head of the inflation fluid fitting has a second width; (c) an elongate shaft, wherein the elongate shaft comprises: (i) an inflation lumen, (ii) an irrigation lumen, wherein the irrigation lumen is in fluid isolation from the inflation lumen, and
(d) a dilation balloon located at the distal portion of the elongate shaft, wherein the dilation balloon is in fluid communication with the inflation lumen; and (e) a fitting member at a proximal end of the elongate shaft, wherein the fitting member comprises: (i) an inflation fluid port in fluid communication with the inflation lumen, (ii) an irrigation fluid port in fluid communication with the irrigation lumen, wherein the irrigation fluid port includes a locking structure configured to couple with the irrigation fluid fitting, and (iii) a blocking structure adjacent to the irrigation fluid port, wherein the blocking structure defines a gap about the irrigation fluid port, wherein the gap has a third[[first]] width, wherein the first width of the head of the irrigation fluid fitting is less than the third width, wherein the second width of the head of the inflation fluid fitting is greater than the third width, wherein the blocking structure includes first and second wings that each extend distally beyond the locking structure of the irrigation fluid port and proximally beyond the locking structure of the irrigation fluid port.-- Claims 10-12: Cancelled Claim 18: The claim has been replaced with --A dilation system comprising: (a) an irrigation fluid source having an irrigation fluid fitting, wherein the irrigation fluid fitting has a head, wherein the head of the irrigation fluid fitting has a first width; (b) an inflation fluid source having an inflation fluid fitting, wherein the inflation fluid fitting has a head, wherein the head of the inflation fluid fitting has a second width, wherein the second width is greater than the first width; and (c) a dilation catheter, the dilation catheter comprising: (i) an elongate shaft, wherein the elongate shaft comprises: (A) an inflation lumen, (B) an irrigation lumen, wherein the irrigation lumen is in fluid isolation from the inflation lumen, and (C) at least one irrigation opening at a distal portion of the elongate shaft, wherein the at least one irrigation opening is in fluid communication with the irrigation lumen, (ii) a dilation balloon located at the distal portion of the elongate shaft, wherein the dilation balloon is in fluid communication with the inflation lumen, and (iii) a fitting member at a proximal end of the elongate shaft, wherein the fitting member comprises:
(B) an irrigation fluid port in fluid communication with the irrigation lumen, wherein the irrigation fluid port is configured to couple with the irrigation fluid fitting of the irrigation fluid source, and (C) a blocking structure adjacent to the irrigation fluid port, wherein the blocking structure includes at least one wing that extends distally beyond the irrigation fluid port and proximally beyond the irrigation fluid port, wherein the at least one wing of the blocking structure is configured to prevent the head of the inflation fluid fitting from coupling with the irrigation fluid port yet permit the head of the irrigation fluid fitting to couple with the irrigation fluid port.-- Claim 20: The claim has been replaced with --An apparatus comprising: (a) an irrigation fluid source including an irrigation fluid fitting, wherein the irrigation fluid fitting has a head, wherein the head of the irrigation fluid fitting has a first width; (b) an inflation fluid source including an inflation fluid fitting, wherein the inflation fluid fitting has a head, wherein the head of the inflation fluid fitting has a second width that is greater than the first width; (c) an elongate shaft, wherein the elongate shaft comprises: (i) an inflation lumen,
(iii) at least one irrigation opening at a distal portion of the elongate shaft, wherein the at least one irrigation opening is in fluid communication with the irrigation lumen; (d) a dilation balloon located at the distal portion of the elongate shaft, wherein the dilation balloon is in fluid communication with the inflation lumen; and (e) a fitting member at a proximal end of the elongate shaft, wherein the fitting member comprises: (i) an inflation fluid port in fluid communication with the inflation lumen, (ii) an irrigation fluid port in fluid communication with the irrigation lumen, wherein the irrigation fluid port includes a locking structure, (iii) a first wing extending along a first side of the irrigation fluid port, wherein the first wing extends proximally past a proximal end of the locking structure of the irrigation fluid port, wherein the first wing includes a notch positioned between the inflation fluid port and the irrigation fluid port and is formed as a detent of the first wing, wherein the notch is configured to accommodate a portion of the inflation fluid fitting, and (iv) a second wing extending along a second side of the irrigation fluid port, wherein the second wing extends proximally past the proximal end of the irrigation fluid port,
wherein the first and second wings are configured to prevent the inflation fluid fitting from coupling with the irrigation fluid port yet permit the irrigation fluid fitting to couple with the irrigation fluid port.-- Claim 22: Cancelled Claim 24: On line 1, “The dilation system of” has been replaced with --The apparatus of— Claim 25: On line 1, “The dilation system of” has been replaced with --The apparatus of— Claim 30: On line 2, “configured to couple with an irrigation fluid” has been replaced with -- configured to couple with the irrigation fluid— Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The art of record when considered alone or in combination neither renders obvious nor anticipates a dilation catheter having a blocking structure with at least one wing that extends distally beyond the irrigation fluid port and proximally beyond the irrigation fluid port, wherein the at least one wing of the blocking structure is configured to prevent the head of the inflation fluid fitting from coupling with the irrigation fluid port yet permit the head of the irrigation fluid fitting to couple with the irrigation fluid port (claims 18 and 20) (note that this limitation is found in claim 1 by stating “wherein the first width of the head of the irrigation fluid fitting is less than the third width, wherein the second width of the head of the inflation fluid fitting is greater than the third width”), in conjunction with the rest of the claimed limitations. 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 DIANNE DORNBUSCH whose telephone number is (571)270-3515. The examiner can normally be reached Monday-Wednesday 9 am-3 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, Elizabeth Houston can be reached on (571) 272-7134. 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.
/DIANNE DORNBUSCH/Primary Examiner, Art Unit 3771 | 2021-11-12T09:13:06 | [
"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. Authorization for this examiner’s amendment was given in an interview with Alexander Czanik on 11/1/21.",
"The application has been amended as follows: Claim 1: the claim has been replaced with -- An apparatus comprising: (a) an irrigation fluid source including an irrigation fluid fitting, wherein the irrigation fluid fitting has a head, wherein the head of the irrigation fluid fitting has a first width; (b) an inflation fluid source including an inflation fluid fitting, wherein the inflation fluid fitting has a head, wherein the head of the inflation fluid fitting has a second width; (c) an elongate shaft, wherein the elongate shaft comprises: (i) an inflation lumen, (ii) an irrigation lumen, wherein the irrigation lumen is in fluid isolation from the inflation lumen, and (d) a dilation balloon located at the distal portion of the elongate shaft, wherein the dilation balloon is in fluid communication with the inflation lumen; and (e) a fitting member at a proximal end of the elongate shaft, wherein the fitting member comprises: (i) an inflation fluid port in fluid communication with the inflation lumen, (ii) an irrigation fluid port in fluid communication with the irrigation lumen, wherein the irrigation fluid port includes a locking structure configured to couple with the irrigation fluid fitting, and (iii) a blocking structure adjacent to the irrigation fluid port, wherein the blocking structure defines a gap about the irrigation fluid port, wherein the gap has a third[[first]] width, wherein the first width of the head of the irrigation fluid fitting is less than the third width, wherein the second width of the head of the inflation fluid fitting is greater than the third width, wherein the blocking structure includes first and second wings that each extend distally beyond the locking structure of the irrigation fluid port and proximally beyond the locking structure of the irrigation fluid port.-- Claims 10-12: Cancelled Claim 18: The claim has been replaced with --A dilation system comprising: (a) an irrigation fluid source having an irrigation fluid fitting, wherein the irrigation fluid fitting has a head, wherein the head of the irrigation fluid fitting has a first width; (b) an inflation fluid source having an inflation fluid fitting, wherein the inflation fluid fitting has a head, wherein the head of the inflation fluid fitting has a second width, wherein the second width is greater than the first width; and (c) a dilation catheter, the dilation catheter comprising: (i) an elongate shaft, wherein the elongate shaft comprises: (A) an inflation lumen, (B) an irrigation lumen, wherein the irrigation lumen is in fluid isolation from the inflation lumen, and (C) at least one irrigation opening at a distal portion of the elongate shaft, wherein the at least one irrigation opening is in fluid communication with the irrigation lumen, (ii) a dilation balloon located at the distal portion of the elongate shaft, wherein the dilation balloon is in fluid communication with the inflation lumen, and (iii) a fitting member at a proximal end of the elongate shaft, wherein the fitting member comprises: (B) an irrigation fluid port in fluid communication with the irrigation lumen, wherein the irrigation fluid port is configured to couple with the irrigation fluid fitting of the irrigation fluid source, and (C) a blocking structure adjacent to the irrigation fluid port, wherein the blocking structure includes at least one wing that extends distally beyond the irrigation fluid port and proximally beyond the irrigation fluid port, wherein the at least one wing of the blocking structure is configured to prevent the head of the inflation fluid fitting from coupling with the irrigation fluid port yet permit the head of the irrigation fluid fitting to couple with the irrigation fluid port.-- Claim 20: The claim has been replaced with --An apparatus comprising: (a) an irrigation fluid source including an irrigation fluid fitting, wherein the irrigation fluid fitting has a head, wherein the head of the irrigation fluid fitting has a first width; (b) an inflation fluid source including an inflation fluid fitting, wherein the inflation fluid fitting has a head, wherein the head of the inflation fluid fitting has a second width that is greater than the first width; (c) an elongate shaft, wherein the elongate shaft comprises: (i) an inflation lumen, (iii) at least one irrigation opening at a distal portion of the elongate shaft, wherein the at least one irrigation opening is in fluid communication with the irrigation lumen; (d) a dilation balloon located at the distal portion of the elongate shaft, wherein the dilation balloon is in fluid communication with the inflation lumen; and (e) a fitting member at a proximal end of the elongate shaft, wherein the fitting member comprises: (i) an inflation fluid port in fluid communication with the inflation lumen, (ii) an irrigation fluid port in fluid communication with the irrigation lumen, wherein the irrigation fluid port includes a locking structure, (iii) a first wing extending along a first side of the irrigation fluid port, wherein the first wing extends proximally past a proximal end of the locking structure of the irrigation fluid port, wherein the first wing includes a notch positioned between the inflation fluid port and the irrigation fluid port and is formed as a detent of the first wing, wherein the notch is configured to accommodate a portion of the inflation fluid fitting, and (iv) a second wing extending along a second side of the irrigation fluid port, wherein the second wing extends proximally past the proximal end of the irrigation fluid port, wherein the first and second wings are configured to prevent the inflation fluid fitting from coupling with the irrigation fluid port yet permit the irrigation fluid fitting to couple with the irrigation fluid port.-- Claim 22: Cancelled Claim 24: On line 1, “The dilation system of” has been replaced with --The apparatus of— Claim 25: On line 1, “The dilation system of” has been replaced with --The apparatus of— Claim 30: On line 2, “configured to couple with an irrigation fluid” has been replaced with -- configured to couple with the irrigation fluid— Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The art of record when considered alone or in combination neither renders obvious nor anticipates a dilation catheter having a blocking structure with at least one wing that extends distally beyond the irrigation fluid port and proximally beyond the irrigation fluid port, wherein the at least one wing of the blocking structure is configured to prevent the head of the inflation fluid fitting from coupling with the irrigation fluid port yet permit the head of the irrigation fluid fitting to couple with the irrigation fluid port (claims 18 and 20) (note that this limitation is found in claim 1 by stating “wherein the first width of the head of the irrigation fluid fitting is less than the third width, wherein the second width of the head of the inflation fluid fitting is greater than the third width”), in conjunction with the rest of the claimed limitations.",
"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 DIANNE DORNBUSCH whose telephone number is (571)270-3515. The examiner can normally be reached Monday-Wednesday 9 am-3 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, Elizabeth Houston can be reached on (571) 272-7134. 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. /DIANNE DORNBUSCH/Primary Examiner, Art Unit 3771"
]
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114 Cal. App. 2d 802 (1952) R. PARDOW HOOPER, Appellant, v. JULIET BORDEN MAYFIELD et al., Respondents. Civ. No. 15122. California Court of Appeals. First Dist., Div. Two. Dec. 19, 1952. Cushing, Cullinan, Duniway & Gorrill for Appellant. Graham & Morse, Mark A. Hall, Heller, Ehrman, White & McAuliffe, C. Ray Robinson and William B. Boone for Respondents. NOURSE, P. J. This is an action by a broker to recover a commission on a sale of real estate. A general demurrer to his complaint was sustained without leave to amend and he appeals from the judgment entered accordingly. It is conceded that no further cause of action can be stated by amendment. The complaint contains in evidentiary detail all the facts on which plaintiff bases his right to commission, the correspondence between the parties being set out in haec verba. The substance of appellant's allegations is as follows: Plaintiff is a licensed real estate broker doing business as such. In August of 1949 he completed an appraisal of *804 "Victoria Island," the realty here involved, which was part of an estate in probate and of which the defendants were the owners in different fractional interests. Expecting that said owners would offer Victoria Island for sale, plaintiff in that month suggested to one J. L. Rude, an investor, its possible purchase, showed it to him and gave him complete information about it. In September, 1949, said Rude proposed to plaintiff to "flush out" the owners by an offer of one million dollars cash if plaintiff would cut in Rude on the commission, but for the time being the matter rested when plaintiff explained that he was not allowed to share commissions with an unlicensed person. On February 2, 1950, plaintiff received a letter signed by F. M. McAuliffe, an attorney at law, stating that he represented certain of the legatees interested in selling the property, that he was advised that plaintiff was one of several who had made inquiries as to whether the property was for sale, and that if a fair offer was made he would try to induce the owners to consent to a sale. Data as to the property were enclosed. Plaintiff immediately informed Rude of said letter and told him that he was informed the owners were trying to obtain a price of $1,500,000, and what terms of payment they would expect. By letter of February 3, 1950, he informed Mr. McAuliffe that he had advised several clients of the opportunity to make offers and gave the names of three clients, among them Rude, who had approached plaintiff on the matter and with whom he was now attempting to negotiate. By letter of February 8, 1950, Rude informed plaintiff that to his people Victoria Island did not seem attractive at present price and terms, but he asked plaintiff to keep in touch with him. On June 22, 1950, plaintiff received another letter from Mr. McAuliffe reading: "Enclosed find notice of sale of Victoria Island, which we are forwarding to you as our records show that you have indicated an interest in the purchase of this property." Attached to said letter was a "Notice of Sale of Victoria Island at Private Sale." It offered the property for sale to the highest bidder, sealed bids of not less than $1,250,000 to be accepted up to 2:00 p. m. on July 17, 1950, and contained full terms of sale of which the following must be noted: "Bidder shall state in dollars the amount of real estate commission, if any, that is to be deducted from the purchase price. The rate of such commission shall not be in excess of that customary in the sale of farm property in San Joaquin *805 County." Plaintiff sent a copy of the notice to Rude but there is no allegation of any reaction of Rude. On July 24, 1950, plaintiff received a third letter from Mr. McAuliffe informing him that on July 17th no bids had been received, but that he had been advised by several parties that they would be interested in obtaining an option and that he believed an option would be granted to persons representing responsible purchasers if the price was fixed. Subsequent to July 25, 1950, Rude, without consulting or informing plaintiff, made an agreement in writing directly with defendants for the purchase of Victoria Island for $1,250,000, which sale was completed. "Said agreement was made as a result of the services and activities of plaintiff herein, as herein set forth, acting to the knowledge of said defendants as a licensed real estate broker." It is concluded that in consequence of said stated facts defendants became obligated to pay to plaintiff $62,500, being the customary commission for a licensed broker on such sale. Appellant's primary contention is that said complaint states a good cause of action for commission by a middleman employed only to bring buyer and seller together, not taking part in the negotiations, and leaving the parties to make their own contract. It is contended that an agreement employing such middleman is not an agreement authorizing or employing an agent or broker to purchase or sell real estate and therefore is not subject to the requirement of the statute of frauds that it or some note or memorandum thereof be in writing. (Civ. Code, 1624, subd. 5; Code Civ. Proc., 1973, subd. 5.) The contention is without merit. The distinction between an intermediary acting as a middleman and one acting as an agent of either buyer or seller is generally recognized with respect to the question whether the intermediary is in a confidential relation to one of the parties and may not receive compensation from both without their knowledge. (Clark v. Allen, 125 Cal. 276 [57 P. 985]; King v. Reed, 24 Cal. App. 229 [141 P. 41]; Carothers v. Caine, 38 Cal. App. 71 [175 P. 478]; Williams v. Kinsey, 74 Cal. App. 2d 583, 596 [169 P.2d 487].) Some cases deal with the question whether under special statutes a broker's license is required for someone acting as a middleman (Shaffer v. Beinhorn, 190 Cal. 569 [213 P. 960]; Davis v. Chipman, 210 Cal. 609, 620 [293 P. 40]; Rhode v. Bartholomew, 94 Cal. App. 2d 272, 280 et seq. [210 P.2d 768]). (Appellant takes the position that under the present statute, Bus. & Prof. Code, 10134, *806 which includes in the acts of a broker "listing or soliciting prospective purchasers of real estate" a broker's license is required to act as a middleman.) [1] However appellant does not cite any case, nor have we found any, which holds that a middleman can sue for commission for his services as to the sale of real estate without showing an agreement which satisfies the statute of frauds. To the contrary this proposition has been expressly rejected in Ryan v. Walker, 35 Cal. App. 116, 119 [169 P. 417]. Other cases are to the same effect. In Cram v. McNeil, 32 Cal. App. 101 [162 P. 140] it was held that an oral promise to pay commission for information as to the identity and residence of a person, who was not willing to deal through any real estate agent, but to whom defendant would himself sell his property was unenforceable under the statute as the intermediary in such case is an agent or broker within the meaning of the statute. In Kornman v. Nelson, 83 Cal. App. 616 [257 P. 150], the defendant, the owner of the realty, promised orally to the plaintiff that if she would show the property to prospective purchasers while occupying it as a tenant and would place intended purchasers in touch with him, he would pay her a commission of 5 per cent of the selling price in the event that a sale of the property was made to any such person. It was held that the oral contract was void under the statute. In each of these cases the intermediary was not employed to negotiate or conclude a sale but only to bring the prospective buyer in contact with the seller who would himself make the contract. [2] The rule is stated as follows in Duckworth v. Schumacher, 135 Cal. App. 661, 666 [27 P.2d 919], a case which as to its facts is not so directly in point as the preceding cases: "If one assists either in the purchase or sale of real estate on a contract for compensation either by commission or salary, he falls within the inhibitions provided in said section [Civ. Code, 1624] to the same extent and in the same manner as though he had been the sole and exclusive medium through which the purchase or sale was made. We think that the term 'employed to sell or purchase' should and does include to aid and assist in the purchase or sale ..." In the same opinion it is said on page 665: "To hold otherwise would give rise to a practice of ingenious forms, without substance in fact, and thus avoid the very salutary rule of law declared in section 1624 of the Civil Code, and open the door to fraud, long closed by said statute, and would in effect abrogate such statute of frauds." We consider this language applicable to the distinction proposed *807 by appellant and in accordance with our duty to construe the statute so as to effect its object, the protection against unfounded claims (Egan v. Pacific Southwest Trust & Sav. Bank, 92 Cal. App. 1, 5 [267 P. 719]; Toomy v. Dunphy, 86 Cal. 639, 642 [25 P. 130]), we reject the distinction. [3] Moreover the allegations of the complaint do not even show that appellant's function was that of such a middleman, assuming for the moment that an invitation by defendants to some intermediary activity of plaintiff was alleged. Appellant in his briefs bases his right to commission more specifically on the letter of Mr. McAuliffe of June 22, 1950, which he considers a "listing" of the property with appellant. (It is conceded that the letter of February 2d is not sufficient for that purpose and no activity whatever of appellant in response to the letter of July 24th is alleged.) But said letter of June 22d, if it were intended to invite any activity of plaintiff, would require him to persuade his client to accept the owners' offer of a private sale on their stated conditions by bidding within the time limit given not less than the stated minimum price. Thereafter there would be no room for any negotiation or making of contract between the parties themselves. By persuading his client to send in the highest bid appellant would have effected the sale as completely as if he had transmitted to his client a direct offer to sell and had persuaded him to accept it. (Compare Dolan v. O'Toole, 129 Cal. 488-490 [62 P. 92].) There is therefore no doubt that the complaint states a cause of action only if the manner in which appellant's services allegedly were engaged satisfies the statute (12 C.J.S. 244). Appellant argues that if he is subject to such requirements they are fulfilled by the alleged letter of June 22d together with the Notice of Sale. The authorities do not support the contention. [4] The chief element required to be shown in writing is the fact of authority or employment to act as intermediary. (Toomy v. Dunphy, supra, 86 Cal. 639-642; Moore v. Borgfeldt, 96 Cal. App. 306, 309 [273 P. 1114].) "The rule is settled that in a suit by a broker to recover a real estate commission in order to show compliance with the statute the writing signed by the party to be charged or his agent must unequivocally show on its face the fact of employment of the broker." A writing from the owner to a broker which merely states that the former will sell certain property on certain conditions is insufficient because it does not show employment. (Blanchard v. Pauley, 92 Cal.App.2d *808 244, 247 [206 P.2d 864] and earlier cases there cited. See moreover Herring v. Fisher, 110 Cal. App. 2d 322, 326 [242 P.2d 963]; Egan v. Pacific Southwest Trust & Sav. Bank, supra, 92 Cal. App. 1, 3.) [5] A statement that the regular commission will be paid as part of the condition on which the owner is willing to sell does not make the writing sufficient to satisfy the statute (Morrill v. Barneson, 30 Cal. App. 2d 598, 600 [86 P.2d 924]). Although according to Justice Carter, dissenting in Marks v. Walter G. McCarty Corp., 33 Cal. 2d 814 at page 830 [205 P.2d 1025], these rules may be somewhat modified where the writing is the memorandum of an oral agreement of employment, there is no doubt that they are fully applicable where, as in this case, there has been no personal contact and the writings must constitute the agreement itself. [6] The letter of June 22d together with the Notice of Sale does not show an intention to employ appellant as an intermediary unequivocally or at all. The letter shows that the Notice of Sale was sent to appellant "as our records show that you have indicated an interest in the purchase of this property." (Emphasis ours.) As said in Kleinsorge & Heilbron v. Liness, 17 Cal. App. 534, 539 [120 P. 444], the language does not show that the intervention of a broker or any other third party was necessarily intended, but the offer of a private sale might have been directly submitted by the defendants to an intending purchaser. [7] The commission clause in the Notice of Sale, on which appellant strongly relies, negatives rather than shows the intention of the owners to employ themselves any intermediary. It asks the bidder to state the amount of commission, if any, to be deducted from the purchase price. The obvious sense of this clause is that, as it is customary that the sellers pay the commission of the intermediary, they will do so but only if the bidder has engaged the services of one. Rude, the purchaser, did not bid and did not claim commission for appellant and appellant does not even contend that he is entitled to commission because he was engaged as intermediary by Rude. Under the authorities cited the letter and Notice of Sale are clearly insufficient to satisfy the statute. The other correspondence cannot add anything which results in an unequivocal statement of employment. It shows the same deficiency as the main letter and more so. Appellant's contention that the letter of June 22d constitutes a "listing" of the property with appellant has no separate significance. [8] A listing is at most an offer to use the broker's services *809 which can be accepted by rendering the services impliedly requested (12 C.J.S. 139). To base an action for commission on it, it must satisfy the statute, as has been shown hereinbefore. [9] Appellant's contention that respondents were estopped to invoke the statute is wholly without merit. Even where an intermediary has rendered his services in reliance on an express oral employment and the owner has taken advantage of these services the statute prevents recovery of commission and no estoppel is recognized. (Hicks v. Post, 154 Cal. 22, 28 [96 P. 878]; Colburn v. Sessin, 94 Cal. App. 2d 4 [209 P.2d 989] and cases there cited.) Here no action whatever of defendants is alleged which can give their recourse to the statute the slightest taint of fraud. Respondents argue that even apart from the statute no employment sufficient for an action for commission has been alleged, citing Morrill v. Barneson, supra, 30 Cal. App. 2d 598, 603. This may well be so, but, as the authorities with regard to the requirements of a showing of employment are much more specific where the statute is applicable than where it is not, we prefer to base our affirmance on the failure to satisfy the statute without deciding the other point. Judgment affirmed. Dooling, J., concurred. | 10-30-2013 | [
"114 Cal. App. 2d 802 (1952) R. PARDOW HOOPER, Appellant, v. JULIET BORDEN MAYFIELD et al., Respondents. Civ. No. 15122. California Court of Appeals. First Dist., Div. Two. Dec. 19, 1952. Cushing, Cullinan, Duniway & Gorrill for Appellant. Graham & Morse, Mark A. Hall, Heller, Ehrman, White & McAuliffe, C. Ray Robinson and William B. Boone for Respondents. NOURSE, P. J. This is an action by a broker to recover a commission on a sale of real estate. A general demurrer to his complaint was sustained without leave to amend and he appeals from the judgment entered accordingly. It is conceded that no further cause of action can be stated by amendment. The complaint contains in evidentiary detail all the facts on which plaintiff bases his right to commission, the correspondence between the parties being set out in haec verba.",
"The substance of appellant's allegations is as follows: Plaintiff is a licensed real estate broker doing business as such. In August of 1949 he completed an appraisal of *804 \"Victoria Island,\" the realty here involved, which was part of an estate in probate and of which the defendants were the owners in different fractional interests. Expecting that said owners would offer Victoria Island for sale, plaintiff in that month suggested to one J. L. Rude, an investor, its possible purchase, showed it to him and gave him complete information about it. In September, 1949, said Rude proposed to plaintiff to \"flush out\" the owners by an offer of one million dollars cash if plaintiff would cut in Rude on the commission, but for the time being the matter rested when plaintiff explained that he was not allowed to share commissions with an unlicensed person.",
"On February 2, 1950, plaintiff received a letter signed by F. M. McAuliffe, an attorney at law, stating that he represented certain of the legatees interested in selling the property, that he was advised that plaintiff was one of several who had made inquiries as to whether the property was for sale, and that if a fair offer was made he would try to induce the owners to consent to a sale. Data as to the property were enclosed. Plaintiff immediately informed Rude of said letter and told him that he was informed the owners were trying to obtain a price of $1,500,000, and what terms of payment they would expect. By letter of February 3, 1950, he informed Mr. McAuliffe that he had advised several clients of the opportunity to make offers and gave the names of three clients, among them Rude, who had approached plaintiff on the matter and with whom he was now attempting to negotiate. By letter of February 8, 1950, Rude informed plaintiff that to his people Victoria Island did not seem attractive at present price and terms, but he asked plaintiff to keep in touch with him.",
"On June 22, 1950, plaintiff received another letter from Mr. McAuliffe reading: \"Enclosed find notice of sale of Victoria Island, which we are forwarding to you as our records show that you have indicated an interest in the purchase of this property.\" Attached to said letter was a \"Notice of Sale of Victoria Island at Private Sale.\" It offered the property for sale to the highest bidder, sealed bids of not less than $1,250,000 to be accepted up to 2:00 p. m. on July 17, 1950, and contained full terms of sale of which the following must be noted: \"Bidder shall state in dollars the amount of real estate commission, if any, that is to be deducted from the purchase price. The rate of such commission shall not be in excess of that customary in the sale of farm property in San Joaquin *805 County.\" Plaintiff sent a copy of the notice to Rude but there is no allegation of any reaction of Rude. On July 24, 1950, plaintiff received a third letter from Mr. McAuliffe informing him that on July 17th no bids had been received, but that he had been advised by several parties that they would be interested in obtaining an option and that he believed an option would be granted to persons representing responsible purchasers if the price was fixed.",
"Subsequent to July 25, 1950, Rude, without consulting or informing plaintiff, made an agreement in writing directly with defendants for the purchase of Victoria Island for $1,250,000, which sale was completed. \"Said agreement was made as a result of the services and activities of plaintiff herein, as herein set forth, acting to the knowledge of said defendants as a licensed real estate broker.\" It is concluded that in consequence of said stated facts defendants became obligated to pay to plaintiff $62,500, being the customary commission for a licensed broker on such sale.",
"Appellant's primary contention is that said complaint states a good cause of action for commission by a middleman employed only to bring buyer and seller together, not taking part in the negotiations, and leaving the parties to make their own contract. It is contended that an agreement employing such middleman is not an agreement authorizing or employing an agent or broker to purchase or sell real estate and therefore is not subject to the requirement of the statute of frauds that it or some note or memorandum thereof be in writing. (Civ. Code, 1624, subd.",
"5; Code Civ. Proc., 1973, subd. 5.) The contention is without merit. The distinction between an intermediary acting as a middleman and one acting as an agent of either buyer or seller is generally recognized with respect to the question whether the intermediary is in a confidential relation to one of the parties and may not receive compensation from both without their knowledge. (Clark v. Allen, 125 Cal. 276 [57 P. 985]; King v. Reed, 24 Cal. App. 229 [141 P. 41]; Carothers v. Caine, 38 Cal. App. 71 [175 P. 478]; Williams v. Kinsey, 74 Cal. App. 2d 583, 596 [169 P.2d 487].) Some cases deal with the question whether under special statutes a broker's license is required for someone acting as a middleman (Shaffer v. Beinhorn, 190 Cal. 569 [213 P. 960]; Davis v. Chipman, 210 Cal.",
"609, 620 [293 P. 40]; Rhode v. Bartholomew, 94 Cal. App. 2d 272, 280 et seq. [210 P.2d 768]). (Appellant takes the position that under the present statute, Bus. & Prof. Code, 10134, *806 which includes in the acts of a broker \"listing or soliciting prospective purchasers of real estate\" a broker's license is required to act as a middleman.) [1] However appellant does not cite any case, nor have we found any, which holds that a middleman can sue for commission for his services as to the sale of real estate without showing an agreement which satisfies the statute of frauds. To the contrary this proposition has been expressly rejected in Ryan v. Walker, 35 Cal. App.",
"116, 119 [169 P. 417]. Other cases are to the same effect. In Cram v. McNeil, 32 Cal. App. 101 [162 P. 140] it was held that an oral promise to pay commission for information as to the identity and residence of a person, who was not willing to deal through any real estate agent, but to whom defendant would himself sell his property was unenforceable under the statute as the intermediary in such case is an agent or broker within the meaning of the statute. In Kornman v. Nelson, 83 Cal. App. 616 [257 P. 150], the defendant, the owner of the realty, promised orally to the plaintiff that if she would show the property to prospective purchasers while occupying it as a tenant and would place intended purchasers in touch with him, he would pay her a commission of 5 per cent of the selling price in the event that a sale of the property was made to any such person. It was held that the oral contract was void under the statute. In each of these cases the intermediary was not employed to negotiate or conclude a sale but only to bring the prospective buyer in contact with the seller who would himself make the contract.",
"[2] The rule is stated as follows in Duckworth v. Schumacher, 135 Cal. App. 661, 666 [27 P.2d 919], a case which as to its facts is not so directly in point as the preceding cases: \"If one assists either in the purchase or sale of real estate on a contract for compensation either by commission or salary, he falls within the inhibitions provided in said section [Civ. Code, 1624] to the same extent and in the same manner as though he had been the sole and exclusive medium through which the purchase or sale was made. We think that the term 'employed to sell or purchase' should and does include to aid and assist in the purchase or sale ...\" In the same opinion it is said on page 665: \"To hold otherwise would give rise to a practice of ingenious forms, without substance in fact, and thus avoid the very salutary rule of law declared in section 1624 of the Civil Code, and open the door to fraud, long closed by said statute, and would in effect abrogate such statute of frauds.\"",
"We consider this language applicable to the distinction proposed *807 by appellant and in accordance with our duty to construe the statute so as to effect its object, the protection against unfounded claims (Egan v. Pacific Southwest Trust & Sav. Bank, 92 Cal. App. 1, 5 [267 P. 719]; Toomy v. Dunphy, 86 Cal. 639, 642 [25 P. 130]), we reject the distinction. [3] Moreover the allegations of the complaint do not even show that appellant's function was that of such a middleman, assuming for the moment that an invitation by defendants to some intermediary activity of plaintiff was alleged. Appellant in his briefs bases his right to commission more specifically on the letter of Mr. McAuliffe of June 22, 1950, which he considers a \"listing\" of the property with appellant.",
"(It is conceded that the letter of February 2d is not sufficient for that purpose and no activity whatever of appellant in response to the letter of July 24th is alleged.) But said letter of June 22d, if it were intended to invite any activity of plaintiff, would require him to persuade his client to accept the owners' offer of a private sale on their stated conditions by bidding within the time limit given not less than the stated minimum price. Thereafter there would be no room for any negotiation or making of contract between the parties themselves. By persuading his client to send in the highest bid appellant would have effected the sale as completely as if he had transmitted to his client a direct offer to sell and had persuaded him to accept it. (Compare Dolan v. O'Toole, 129 Cal. 488-490 [62 P. 92].) There is therefore no doubt that the complaint states a cause of action only if the manner in which appellant's services allegedly were engaged satisfies the statute (12 C.J.S. 244).",
"Appellant argues that if he is subject to such requirements they are fulfilled by the alleged letter of June 22d together with the Notice of Sale. The authorities do not support the contention. [4] The chief element required to be shown in writing is the fact of authority or employment to act as intermediary. (Toomy v. Dunphy, supra, 86 Cal. 639-642; Moore v. Borgfeldt, 96 Cal. App. 306, 309 [273 P. 1114].) \"The rule is settled that in a suit by a broker to recover a real estate commission in order to show compliance with the statute the writing signed by the party to be charged or his agent must unequivocally show on its face the fact of employment of the broker.\" A writing from the owner to a broker which merely states that the former will sell certain property on certain conditions is insufficient because it does not show employment. (Blanchard v. Pauley, 92 Cal.App.2d *808 244, 247 [206 P.2d 864] and earlier cases there cited.",
"See moreover Herring v. Fisher, 110 Cal. App. 2d 322, 326 [242 P.2d 963]; Egan v. Pacific Southwest Trust & Sav. Bank, supra, 92 Cal. App. 1, 3.) [5] A statement that the regular commission will be paid as part of the condition on which the owner is willing to sell does not make the writing sufficient to satisfy the statute (Morrill v. Barneson, 30 Cal. App. 2d 598, 600 [86 P.2d 924]). Although according to Justice Carter, dissenting in Marks v. Walter G. McCarty Corp., 33 Cal.",
"2d 814 at page 830 [205 P.2d 1025], these rules may be somewhat modified where the writing is the memorandum of an oral agreement of employment, there is no doubt that they are fully applicable where, as in this case, there has been no personal contact and the writings must constitute the agreement itself. [6] The letter of June 22d together with the Notice of Sale does not show an intention to employ appellant as an intermediary unequivocally or at all. The letter shows that the Notice of Sale was sent to appellant \"as our records show that you have indicated an interest in the purchase of this property.\" (Emphasis ours.) As said in Kleinsorge & Heilbron v. Liness, 17 Cal. App. 534, 539 [120 P. 444], the language does not show that the intervention of a broker or any other third party was necessarily intended, but the offer of a private sale might have been directly submitted by the defendants to an intending purchaser. [7] The commission clause in the Notice of Sale, on which appellant strongly relies, negatives rather than shows the intention of the owners to employ themselves any intermediary. It asks the bidder to state the amount of commission, if any, to be deducted from the purchase price.",
"The obvious sense of this clause is that, as it is customary that the sellers pay the commission of the intermediary, they will do so but only if the bidder has engaged the services of one. Rude, the purchaser, did not bid and did not claim commission for appellant and appellant does not even contend that he is entitled to commission because he was engaged as intermediary by Rude. Under the authorities cited the letter and Notice of Sale are clearly insufficient to satisfy the statute.",
"The other correspondence cannot add anything which results in an unequivocal statement of employment. It shows the same deficiency as the main letter and more so. Appellant's contention that the letter of June 22d constitutes a \"listing\" of the property with appellant has no separate significance. [8] A listing is at most an offer to use the broker's services *809 which can be accepted by rendering the services impliedly requested (12 C.J.S. 139). To base an action for commission on it, it must satisfy the statute, as has been shown hereinbefore. [9] Appellant's contention that respondents were estopped to invoke the statute is wholly without merit. Even where an intermediary has rendered his services in reliance on an express oral employment and the owner has taken advantage of these services the statute prevents recovery of commission and no estoppel is recognized. (Hicks v. Post, 154 Cal.",
"22, 28 [96 P. 878]; Colburn v. Sessin, 94 Cal. App. 2d 4 [209 P.2d 989] and cases there cited.) Here no action whatever of defendants is alleged which can give their recourse to the statute the slightest taint of fraud. Respondents argue that even apart from the statute no employment sufficient for an action for commission has been alleged, citing Morrill v. Barneson, supra, 30 Cal.",
"App. 2d 598, 603. This may well be so, but, as the authorities with regard to the requirements of a showing of employment are much more specific where the statute is applicable than where it is not, we prefer to base our affirmance on the failure to satisfy the statute without deciding the other point. Judgment affirmed. Dooling, J., concurred."
]
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"Case 0:20-cv-60416-AMC Document 97-70 Entered on FLSD Docket 07/09/2021 Page 1 of 4 EXHIBIT 70 Case 0:20-cv-60416-AMC Document 97-70 Entered on FLSD Docket 07/09/2021 Page 2 of 4 Document title: Malware and ransomware protection in Microsoft 365 - Microsoft Service Assurance | Microsoft Docs Capture URL: https://docs.microsoft.com/en-us/compliance/assurance/assurance-malware-and- ransomware-protection Captured site IP: 23.39.179.42 Page loaded at (UTC): Wed, 07 Jul 2021 18:59:47 GMT Capture timestamp (UTC): Wed, 07 Jul 2021 19:00:46 GMT Capture tool: v7.9.1 Collection server IP: 54.175.14.236 Browser engine: Chrome/77.0.3865.120 Operating system: Microsoft Windows NT 10.0.14393.0 (10.0.14393.0) PDF length: 3 Capture ID: b9c194eb-3990-484c-b0af-ce01ee0b3c79 User: jmlaw-jcooper PDF REFERENCE #: woJrdvjuM4Qt6xyTyoe9qq Case 0:20-cv-60416-AMC Document 97-70 Entered on FLSD Docket 07/09/2021 Page 3 of 4 Document title: Malware and ransomware protection in Microsoft 365 - Microsoft Service Assurance | Microsoft Docs Capture URL: https://docs.microsoft.com/en-us/compliance/assurance/assurance-malware-and-ransomware-protection Capture timestamp (UTC): Wed, 07 Jul 2021 19:00:46 GMT Page 1 of 2 Case 0:20-cv-60416-AMC Document 97-70 Entered on FLSD Docket 07/09/2021 Page 4 of 4 Document title: Malware and ransomware protection in Microsoft 365 - Microsoft Service Assurance | Microsoft Docs Capture URL: https://docs.microsoft.com/en-us/compliance/assurance/assurance-malware-and-ransomware-protection Capture timestamp (UTC): Wed, 07 Jul 2021 19:00:46 GMT Page 2 of 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/174875317/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Aff. Cir. Ct. (Bro-ward) | 08-23-2021 | [
"Aff. Cir. Ct. (Bro-ward)"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4835650/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mr. Justice McGoorty delivered the opinion of the court. 4. Brokers, § 90*—when evidence sufficient to sustain finding that broker not procuring cause of lease. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where plaintiff, a broker, negotiated in regard to such lease with a person who at first refused, and who, after plaintiff had abandoned such negotiations, changed his mind and took the lease, a finding that plaintiff did not procure or induce such person to take the lease held not manifestly against the weight of the evidence. 5. Brokers, § 72*—when judgment properly entered on set-off in action for commissions. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where defendant filed set-off, and the action was tried by ttie court, judgment for defendant on his set-off held not erroneous as ignoring the issues joined on plaintiff’s claim, where it appears that the trial court after hearing the issues raised both on plaintiff’s claim and defendant’s set-off, and overruling plaintiff’s motion for a finding in his favor, and finding that plaintiff was indebted to defendant entered the judgment complained of, for the reason that such action of the trial court was proper under section 47 of the Practice Act (J. & A. If 8584), providing that where it appears on the trial of an action that plaintiff is indebted to defendant, the jury shall find for defendant and shall certify to the court the amount so found, which shall enter judgment for defendant, and further, that where the cause is tried by the court, the finding in judgment shall be in like manner. | 11-26-2022 | [
"Mr. Justice McGoorty delivered the opinion of the court. 4. Brokers, § 90*—when evidence sufficient to sustain finding that broker not procuring cause of lease. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where plaintiff, a broker, negotiated in regard to such lease with a person who at first refused, and who, after plaintiff had abandoned such negotiations, changed his mind and took the lease, a finding that plaintiff did not procure or induce such person to take the lease held not manifestly against the weight of the evidence. 5. Brokers, § 72*—when judgment properly entered on set-off in action for commissions.",
"In an action to recover a broker’s commission for procuring a lease of defendant’s property, where defendant filed set-off, and the action was tried by ttie court, judgment for defendant on his set-off held not erroneous as ignoring the issues joined on plaintiff’s claim, where it appears that the trial court after hearing the issues raised both on plaintiff’s claim and defendant’s set-off, and overruling plaintiff’s motion for a finding in his favor, and finding that plaintiff was indebted to defendant entered the judgment complained of, for the reason that such action of the trial court was proper under section 47 of the Practice Act (J. & A. If 8584), providing that where it appears on the trial of an action that plaintiff is indebted to defendant, the jury shall find for defendant and shall certify to the court the amount so found, which shall enter judgment for defendant, and further, that where the cause is tried by the court, the finding in judgment shall be in like manner."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8823649/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
760 N.W.2d 674 (2008) 280 Mich. App. 213 SHAWL v. SPENCE BROTHERS, INC. Docket No. 275271. Court of Appeals of Michigan. Submitted May 7, 2008, at Lansing. Decided August 19, 2008, at 9:00 a.m. *677 Hurlburt, Tsiros & Allweil, PC, Saginaw (by Lawrence A. Hurlburt), for the plaintiffs. Cardelli, Lanfear & Buikema, PC, Grand Rapids (by Anthony F. Caffrey III), for the defendant. Before: WILDER, P.J., and O'CONNELL and WHITBECK, JJ.
Opinion of the Court PER CURIAM. Defendant Spence Brothers, Inc., appeals by leave granted the trial court's order denying its motion to set aside a default in favor of plaintiffs James Shawl (Shawl) and Mary Shawl. On appeal, Spence Brothers argues that the trial court erred as a matter of law by applying the wrong standard in denying its motion to set aside the default. In addition, Spence Brothers argues that the trial court abused its discretion in refusing to set aside the default. We reverse and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY Boice Bird and Sons, Inc., employed Shawl as a journeyman painter. Spence Brothers hired Boice as a subcontractor to perform painting work on the Saginaw County Event Center, and in late June 2003, Boice assigned Shawl to work at the Event Center. While painting the lobby area of the Event Center, Shawl was injured. Specifically, according to Shawl, while he was painting a wall in the lobby, a temporary electrical panel fell toward him and struck him in the back. As a result, according to Shawl, three screws projecting from the rear of the panel punctured his "lumbar spine." After the accident, Shawl sued Spence Brothers and J. Ranck Electric, Inc. Shawl's suit alleged that Ranck Electric was negligent by failing to brace safely or attach the electrical panel to the wall and that Spence Brothers, as the general contractor, was negligent for failing to ensure that reasonable steps were taken to guard against the danger that Ranck Electric created. *678 After being served with Shawl's complaint, Spence Brothers forwarded the complaint to its insurer, Amerisure. Amerisure began processing the complaint, but while examining coverage issues as part of the process, Amerisure determined that it needed more time to answer the complaint. Accordingly, in early July 2006, Annette Rigdins, an Amerisure senior claims representative, contacted Shawl's attorney and asked for a 30-day extension. Shawl's attorney agreed to the extension and asked Rigdins to "put it in writing." Rigdins then wrote a letter to Shawl's attorney that stated that the new due date for answering the complaint was August 8, 2006. Spence Brothers failed to answer Shawl's complaint by August 8, 2006. As a result, the trial court entered a default against Spence Brothers on August 16, 2006, pursuant to MCR 2.603(A)(1). Spence Brothers moved to set aside the default under MCR 2.603(D)(1). Spence Brothers argued that the 30-day extension was from the original due date of the answer, July 14, 2006, which, according to Spence Brothers, would have allowed it to answer through the end of the day on August 14, 2006. However, no answer was filed on that date either. Therefore, the trial court denied the motion. Spence Brothers moved for reconsideration, but the trial court also denied that motion. Spence Brothers now appeals.
II. "GOOD FAITH" VERSUS "GOOD CAUSE"
A. STANDARD OF REVIEW Spence Brothers argues that the trial court did not apply the MCR 2.603(D)(1) criteria when it considered whether to set aside the default. More specifically, Spence Brothers argues that the trial court erroneously refused to analyze the matter to determine whether there was good cause and a meritorious defense as MCR 2.603(D)(1) requires. With respect to our review of this argument, Spence Brothers relies on Colista v. Thomas[1] to support its assertion that we should apply a de novo standard of review to determine whether the trial court used the appropriate standard under MCR 2.603(D)(1). In Colista, this Court stated that the "interpretation and application of the court rules, like the interpretation of statutes, is a question of law that is reviewed de novo on appeal."[2] However, because the trial court here ultimately explained its use of MCR 2.603(D)(1) and, thus, applied the proper standard, the interpretation and application of the rule are not truly at issue in this case. Therefore, the proper standard of review is the abuse of discretion standard, which applies to review of a trial court's decision on a motion to set aside a default.[3] We also review a trial court's decision to deny a motion for reconsideration for an abuse of discretion.[4]
B. THE WORDING OF THE COURT RULE MCR 2.603(D)(1), which governs motions to set aside a default, provides: "A motion to set aside a default or a default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed." (emphasis added.)
*679 C. THE TRIAL COURT'S DECISION Spence Brothers argues that the trial court applied the wrong legal standard under MCR 2.603(D)(1) because the trial court never spoke explicitly about "good cause" or a "meritorious defense" at the original hearing on the motion to set aside the default. However, the trial court later provided a fuller explanation in considering Spence Brothers' motion to reconsider the motion to set aside the default. In response to Spence Brothers' concern that the wrong standard was used, the trial court stated: Going back to [MCR] 2.603(D)(1), I was not very artful in saying that I thought that because of this exchange of letters there was not good cause shown. That's what I meant toI think that's the proper standard and not whether they acted in good faith. In addition, the trial court stated: [I]t's important to the rights of your clients that they have a full hearing, and certainly my words were not as required by the court rules and they were entitled to get a little more definitive response I think as to why I ruled to deny the motion. The trial court then went on to deny Spence Brothers' motion to reconsider and stated: I'll deny the motion for reconsideration under MCR 2.603(D)(1) on the basis that the good cause has not been shown. That's primarily why I think this case isis easy, and I think plaintiffs' authorities correctly cite that the public policy of the state is in favor of not setting aside defaults indeed without not only good cause but a meritorious defense. In this regard, the trial court essentially sought to remedy any ambiguity in its prior ruling to deny the motion to set aside default. In addition, the trial court explained that the reference to "good faith" from the original hearing was merely to say that Shawl did not act in bad faith. In this regard, the trial court stated: In this case, quite the contrary. [Shawl] requested the letter [from the insurance adjuster] to foreclose any possibility of confusion or mistake [in regard to the 30-day extension]. Thus, the trial court was simply stating that Shawl acted in good faith and that Spence Brothers did not show good cause to set aside the default. Even though the trial court may have originally referred to a good faith standard, ultimately the trial court used the correct standard under MCR 2.603(D)(1). Accordingly, Spence Brothers has not shown an abuse of discretion with regard to this issue because the trial court, in fact, used the proper standard.
III. APPLYING MCR 2.603(D)(1)
A. STANDARD OF REVIEW Spence Brothers argues that it demonstrated good cause based on procedural irregularities and genuine confusion in the proceedings below. Spence Brothers further argues that it has a meritorious defense that will extinguish liability and that a lesser showing of good cause will suffice where a meritorious defense is strong. As noted, we review a trial court's decision on a motion to set aside a default for an abuse of discretion.[5] Indeed, a trial court's decision in this regard should only be reversed on appeal when there is a clear abuse of that discretion.[6] "An abuse of discretion involves far more than a difference in judicial opinion."[7]*680 "Rather, an abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes."[8] "Moreover, although the law favors the determination of claims on the merits, it has also been said that the policy of this state is generally against setting aside defaults and default judgments that have been properly entered."[9]
B. GOOD CAUSE "Good cause" can be shown by: "`"(1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand."'"[10] Spence Brothers argues that the complex nature of this matter ultimately led to the confusion between it and Amerisure that caused the answer to be late, which constituted good cause. We disagree.
(1) PROCEDURAL DEFECT OR IRREGULARITY There was, and is, considerable dispute about the exact date the answer to the complaint was due. Under MCR 2.108(A)(1), Spence Brothers had 21 days to answer after being served with the complaint on June 23, 2006. However, as noted earlier, Shawl's attorney and Amerisure agreed on a 30-day extension, which Shawl contends ran from the date on which Amerisure asked for the extension. Shawl points to the written confirmation stating that the new deadline was August 8, 2006. Despite the letter, Spence Brothers contends that the new deadline was intended to be 30 days from the original deadline to answer, which was July 14, 2006. We conclude that the letter stating the August 8, 2006, date unequivocally set forth the intended expiration of the agreed-upon extension. However, even assuming that the 30-day extension ran from the original deadline to answer, Spence Brothers failed to answer in the time allowed. Thirty days from July 14, 2006, was Sunday, August 13, 2006. Because August 13 was a Sunday, Spence Brothers actually would have had until the end of Monday, August 14, 2006, to answer the complaint.[11] Regardless, Spence Brothers still failed to file an answer within the time allocated. Thus, we conclude that no procedural defect or irregularity was present to support a finding of good cause.
(2) REASONABLE EXCUSE We next turn to the second factor of the "good cause" test: "`"a reasonable excuse for failure to comply with the requirements which created the default."'"[12] With respect to this factor, we initially *681 conclude that Spence Brothers' default was clearly caused by Amerisure's negligence in failing to answer the complaint. There is no dispute that Amerisure's agent knew of, and indeed established, the August 8, 2006, deadline. And, again, even assuming there was some confusion that may have led Amerisure to believe it had until August 14 to file the answer, it has offered no reasonable excuse to explain its ultimate failure to respond. The salient question, however, is whether Amerisure's negligence should be imputed to Spence Brothers.
(a) CONFLICTING CASES There is, we believe, a conflict in the pre-November 1990 published opinions[13] of this Court regarding whether to impute the negligence of an insurance company to a defendant.
(i) WALTERS
We start with Walters v. Arenac Circuit Judge. There, Justice O'HARA, joined by Justices DETHMERS and KELLY, stated, "It is well settled that the negligence of either the attorney or the litigant is not normally grounds for setting aside a default regularly entered."[14] However, in Walters, neither the attorney nor the plaintiff was negligent; rather, the culpable negligence was that of the insurer. Under the circumstances, Justice O'HARA reasoned that the insurer's negligence should not be imputed to the insured, a doctor, and that the circuit court did not abuse its discretion in setting aside the default. More specifically, Justice O'HARA explained: The doctor averred he did what any reasonably prudent person would do under the circumstances when he was personally served. He turned the "papers" over to his insurance company. We do not consider him obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do. We find no neglect on his part disclosed by the record before us. The culpable negligence was that of the involved insurer. The question is then whether that negligence of the unnamed defendant liability insurer, should be imputed to and be conclusive upon the defendant doctor. We recognize that in the realities of this situation, irrespective of the named defendant, the real defendant, to the extent of the policy provisions, was the insurer. This conclusion is record-supported by the fact that when counsel received the term calendar showing the named doctor-defendant to be in default, he communicated not with the doctor but with his insurer. It seems an inescapable conclusion that the insurer directed the communicating counsel to appear and answer. On the merits of the main case, the doctor-defendant may have been blameless beyond question. He may have been in legal dimension answerable. The question is not before us. It has not been meritoriously litigated under our system of determination of that issue. The trend of our jurisprudence is toward meritorious determination of issues. The complexities of our economic system placed the named defendant-doctor in the position of having no way to *682 reach trial on the merits because his insurer was negligent. The money judgment, if such resulted, might have to be paid in full or in part by the insurer. Absent doing violence to the rules of the jurisprudential game, we think the doctor should be entitled to his day in court. By this holding we would not be understood to dilute the well-settled law of this jurisdiction that the neglect of a personally served defendant, nor that of his counsel, may not ordinarily be grounds for setting aside a default regularly entered.[[15]] Accordingly, the lead opinion in Walters affirmed the trial court's decision to set aside the default judgment. However, as noted, only Justices O'HARA, DETHMERS, and KELLY took part in the lead opinion. Justices BLACK and SMITH concurred in the result without providing any supporting rationale,[16] and Chief Justice KAVANAGH, joined by Justices SOURIS and ADAMS, dissented.[17] Thus, Walters created no binding precedent because no majority of justices signed the lead opinion.[18]
(ii) FREEMAN
In Freeman v. Remley, the defendant in an automobile accident suit sent the summons and complaint to his insurer.[19] The defendant heard nothing else about the case until he received notice of the default judgment. The insurer denied all knowledge of the claim.[20] In denying the defendant's motion to set aside the default judgment, the trial court noted that the defendant "might have had a good and valid defense," but found it significant that "there was at least notice to an agent of the insurer, that the pleadings were properly served and that an additional letter was sent notifying the insurer of commencement of suit."[21] On appeal, the defendant contended that the case at hand was "virtually indistinguishable" from Walters.[22] However, without directly commenting on the defendant's argument, and while noting that Justice O'HARA'S opinion in Walters "capture[d] the current trend in the law," the Freeman panel concluded without further elucidation that, "given the facts and circumstances here presented," the trial court did not clearly abuse its discretion in refusing to set aside the default judgment.[23] From what we can ascertain from its brief analysis, the Freeman panel essentially chose to employ a strict adherence to the abuse of discretion standard of review rather than follow the rationale provided by the lead opinion in Walters. We further note that, in concluding that the trial court did not abuse its discretion, the Freeman panel cited Hartman v. Roberts-Walby *683 Enterprises, Inc.[24] However, the significance of that citation is questionable in that the Hartman Court declined to reverse the trial courts denial of the defendant's motion to set aside a default because the defendant failed to show a meritorious defense. Yet, in Freeman, the trial court recognized that the defendant "might have had a good and valid defense[.]"
(iii) ASMUS
In Asmus v. Barrett, this Court stated that Freeman had "ruled by implication that the negligence of an insurer can and would be imputed to the insured," and opined that "[t]o hold otherwise would be to grant insurance companies an automatic right to vacation of all default judgments."[25] In analyzing the trial court's refusal to set aside the default, the Asmus panel assumed, but did not decide, that certain personnel problems at the defendants' insurance company constituted good cause for the defendants' failure to timely answer.[26] Ultimately, however, the Asmus panel affirmed the trial court on the ground that the defendants' affidavits did not support a meritorious defense.
(iv) LEVITT
In Levitt v. Kacy Mfg. Co., a panel of this Court took a slightly different approach with regard to the issue whether the insurer's negligence should be imputed to the defendant. The Levitts sued Kacy Manufacturing Company under a products liability theory.[27] Kacy then apparently sent the summons and complaint to its insurance broker, which in turn passed them on to an insurance management company. However, the insurance management company's relationship with the insurer had been severed earlier that year. The Levitts then filed a default. Shortly thereafter, the insurance management company notified the Levitts' attorney that the insurer was in receivership and that no work would be completed on the case for another month.[28] Approximately a week later, the Levitts moved for a default judgment. Kacy then moved to set aside the default, but the trial court denied the motion because, although the affidavit of facts showed a meritorious defense, Kacy had not shown excusable neglect. The trial court then awarded the Levitts a default judgment. On appeal, the Levitt panel cited Asmus and stated that "[t]he negligence of an insurer resulting in a default can and will be imputed to the insured."[29] Yet, the panel recognized that "the mere existence of negligence does not prevent a finding of good cause."[30] The Levitt panel then reasoned as follows: [The trial judge] did not address the specific negligence that occurred in this case but focused on the problem of companies insulating themselves from default procedures by engaging multiple levels of insurance personnel who must handle suit papers. [The trial judge] would seem to require that a defendant send litigation papers which are served on him directly to his insurer or else proceed "at their own peril". We do not believe the specific facts of this case *684 justify the application of such a generalized policy towards this defendant's employment practice. Apparently, when defendant's insurer went into receivership, its relationship with [the insurance management company] was severed without adequate notice to defendant or the insurance management company. Thus, the suit papers were erroneously sent to [an insurance management company representative], who, before the insurer was placed in receivership, had handled the claims during the prelitigation stage. We believe that the errors in providing notice and in handling the suit papers, arising out of the unusual problems associated with the insurer's being in receivership, provide a reasonable excuse for defendant's delay in filing an answer to plaintiff's complaint.[[31]] In sum, although adopting a general rule that the insurer's negligence in failing to answer will be imputed to a defendant, the Levitt panel nevertheless found good cause to set aside the default because of certain special circumstances that constituted a reasonable excuse for Kacy's delay in answering.
(v) FEDERSPIEL
In Federspiel v. Bourassa, Larry Federspiel was injured when Gerald Bourassa hit him with his automobile.[32] Federspiel filed a complaint alleging negligence against Bourassa and Marcia Holland, whose employee served Bourassa alcohol before the accident. Bourassa settled with Federspiel. Holland forwarded the summons and complaint to her insurer, who then forwarded the summons and complaint to an insurance broker.[33] The insurer, however, was unaware that the insurance broker had gone out of business a couple months before the summons and complaint were sent.[34] Apparently during the process of the insurance broker's records being moved to another agency, Holland's claim was misplaced. Therefore, counsel was never assigned to timely answer the complaint, and, as a result, the trial court entered a default and default judgment against Holland.[35] Holland moved to set aside the default, and the trial court granted the motion on the basis of excusable neglect and good cause.[36] Federspiel appealed, disputing the trial court's finding that the failure of Holland's insurer to provide her with representation constituted good cause to set aside the default.[37] The Federspiel panel first noted that "Michigan lacks definitive case law on the issue of whether an insurer's or its intermediaries' negligence ought to be imputed to the insured to preclude a finding of `excusable neglect' and `good cause.'"[38] The panel then adopted the reasoning employed in Walters.[39] The Federspiel panel recognized that the split decision in Walters was not controlling precedent and that Court of Appeals cases issued after Walters "diluted its impact," yet the panel stated that it was nevertheless "impressed with the logic" of the Walters "well-reasoned approach to the problem at hand."[40] The Federspiel panel therefore concluded that "[t]he insured defendant in the present *685 situation should not be denied her day in court because of the insurer's negligence in processing her claim."[41] The panel also concluded that the insurer's "failure to answer for or defend [Holland] was the culmination of events which amounted to excusable neglect."[42] Finally, the Federspiel panel found that manifest injustice would result if the default judgment were permitted to stand, noting that evidence supported a meritorious defense that Bourassa was not actually intoxicated at the time of the accident. Accordingly, the panel affirmed the trial court's decision to set aside the default judgment.[43] Notably, the Federspiel panel distinguished the facts presented from other cases where this Court affirmed denials of motions to set aside default judgments: In Freeman, the insurer was reckless in ignoring notice of the suit and this [C]ourt upheld the trial court's exercise of discretion in denying the motion to set aside the default. In both Asmus and Van Haaften [v. Miller-Davis Co., 54 Mich.App. 186, 220 N.W.2d 752 (1974) ], the defendants lacked a meritorious defense, which is not the case here.[[44]]
(vi) CONCLUSION Unfortunately, now 20-plus years after Federspiel, Michigan still "lacks definitive case law on the issue of whether an insurer's or its intermediaries' negligence ought to be imputed to the insured to preclude a finding of `excusable neglect' and `good cause.'"[45] Given this lack of solid precedent on which to rely, and despite the nonbinding nature of the lead opinion in Walters, we, like the Federspiel panel, are persuaded by the logic of Walters. That case clearly articulates the well-reasoned rule that an insurer's negligence should not be conclusive on the procedurally nonnegligent defendant.[46] A defendant who diligently turns over a case to an ultimately negligent insurer should not be denied his or her day in court. The defendant is not "obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do."[47] In following Walters, we specifically reject the rule implied by Freeman, and later taken up by Asmus, that the negligence of the insurer should be presumptively imputed to the defendant. To hold otherwise may result in the unfavorable consequence of denying defendants who "might have had a good and valid defense"[48] a chance at the meritorious determination of the issues. "[T]he law favors the determination of claims on the merits...."[49] We further believe that employing an analysis like that in Levitt, in which the panel found that "unusual problems associated with the insurer's being in receivership" provided a reasonable excuse for the defendant's delay, merely serves to complicate the issue. Whether the insurer's negligence was a mere oversight in failing to meet the filing deadline or whether it is *686 the result of some other complication, the end result is that the nonculpable defendant is unfairly punished for trusting that his or her insurer was doing its job. We are cognizant of the Asmus panel's concern that not to apply a blanket rule imputing the insurer's negligence to the defendant might be viewed as granting "insurance companies an automatic right to vacation of all default judgments."[50] However, our conclusion here that an insurance company's negligence in failing to answer a complaint constitutes a reasonable excuse under the good cause test for setting aside a default does not dilute a defendant's duty to nevertheless show a meritorious defense supported by an affidavit of facts.[51] Indeed, in Asmus, despite ostensibly imputing the insurer's negligence to the defendant, the panel nevertheless decided the case on the ground that the defendant did not demonstrate a meritorious defense. In keeping with Walters, we conclude that Amerisure's negligence should not be imputed to Spence Brothers and that Amerisure's negligence in failing to answer the complaint constituted a reasonable excuse, under the good cause test, to set aside the default.
(b) COMMUNICATION BETWEEN ATTORNEY AND INSURANCE REPRESENTATIVE We acknowledge Spence Brothers' argument that Shawl's attorney should not have communicated with Rigdins because she was a "non-lawyer." However, as the trial court stated, "I see no problem with the insurance agent, the person charged contractually withto act on behalf of the defendant to engage in the extension of time agreements." Indeed, Rigdins was a senior claims representative for Amerisure. Therefore, the trial court did not abuse its discretion in determining that the communication between Rigdins and Shawl's attorney was not a reasonable excuse that showed good cause to set aside the default.
C. MERITORIOUS DEFENSE Spence Brothers argues that it presented a meritorious defense under MCR 2.603(D)(1). "[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of `good cause' will be required than if the defense were weaker, in order to prevent a manifest injustice."[52] However, as Alken-Ziegler makes clear, the good cause and meritorious defense elements of MCR 2.603(D)(1) are not to be blurred; they are "separate requirements."[53] Thus, Spence Brothers must show a meritorious defense to have the default set aside under MCR 2.603(D)(1). In Michigan, as a matter of public policy, the subcontractors on a job site have a duty to ensure the worksite is safe for their employees.[54] Further, a general contractor is not liable for a subcontractor's negligence.[55] However, a general contractor may be found liable if it failed to take "reasonable steps within its supervisory and coordinating authority" to protect workers from "readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen."[56] In *687 what is often referred to as the Funk four-part test, a plaintiff must show that (1) the defendant, either the property owner or general contractor, failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area.[[57]] Spence Brothers argues that it is impossible for Shawl to recover under the Funk four-part test. Spence Brothers asserts that its affidavit demonstrates that at least one of the elements under the Funk four-part test is missing and, thus, it has presented a meritorious defense. In its affidavit, Spence Brothers stated that "[a]ny danger created by the allegedly faulty electrical panel was not readily observable by Spence Brothers." Spence Brothers also stated, "Any danger created by the allegedly faulty electrical panel presented a danger to only a small number of workers since the painting subcontractor, Boice Bird & Sons, requested that the electrical panel be made mobile for purposes of their work." If proven, these assertions might well be a defense to Shawl's claim. Therefore, we conclude that Spence Brothers has met its burden by filing an affidavit of facts showing a meritorious defense.
D. MANIFEST INJUSTICE The Supreme Court has clarified the manifest injustice factor of the "good cause" test as follows: The first two prongs of the Honigman & Hawkins "good cause" test are unremarkable and accurately reflect our decisions. It is the third factor, "manifest injustice," that has been problematic. The difficulty has arisen because, properly viewed, "manifest injustice" is not a discrete occurrence such as a procedural defect or a tardy filing that can be assessed independently. Rather, manifest injustice is the result that would occur if a default were to be allowed to stand where a party has satisfied the "meritorious defense" and "good cause" requirements of the court rule. When a party puts forth a meritorious defense and then attempts to satisfy "good cause" by showing (1) a procedural irregularity or defect, or (2) a reasonable excuse for failure to comply with the requirements that created the default, the strength of the defense obviously will affect the "good cause" showing that is necessary. In other words, if a party states a meritorious defense that would be absolute if proven, a lesser showing of "good cause" will be required than if the defense were weaker, in order to prevent a manifest injustice.[[58]] To reiterate, we conclude that Amerisure's negligence should not be imputed to Spence Brothers and that Amerisure's negligence in failing to answer the complaint constituted a reasonable excuse under the good-cause test to set aside the default. We further conclude that Spence Brothers has met its burden by filing an affidavit of facts showing a meritorious defense. Therefore, we conclude that permitting the default to stand, by following a rule that would perfunctorily impute Amerisure's negligence to Spence Brothers, would result in manifest injustice.
*688 E. TOTALITY OF THE CIRCUMSTANCES In light of the previously unsettled state of the law on the issue whether an insurer's or its intermediaries' negligence ought to be imputed to the insured to preclude a finding of "excusable neglect" and "good cause," we offer additional guidance for future cases. There are multiple types of cases, both civil and criminal, where caselaw provides factors to the trial courts to weigh and balance before reaching a decision based on the totality of the circumstances.[59] Because the grant or denial of a motion to set aside a default judgment is examined under the same standard of review and is similarly fact-intensive, we believe that it would be helpful to the trial courts if we provided additional factors for them to use in their evaluations of "good cause" and "meritorious defense" under MCR 2.603(D)(1). We emphasize that trial courts should base the final result on the totality of the circumstances. We base the need for a "totality of the circumstances" test in part on the broad elements considered in the cases discussed earlier and in part on the Michigan Supreme Court's recognition that although "good cause" and a "meritorious defense" are separate requirements that may not be blurred and that a party must have both,[60] there is some interplay between the two: "[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of `good cause' will be required than if the defense were weaker, in order to prevent a manifest injustice.[61] With an already existing relationship between the two requirements, we believe that balancing these factors to come up with an overall assessment under the totality of the circumstances provides a better, more easily applied rule because it supplies a flexibility that takes into consideration the variable, fact-intensive nature of default cases, avoiding bright-line distinctions that fail to balance the dueling public policy issues of having cases decided on the merits and not setting aside properly entered default judgments. With respect to the present facts, such a test avoids the two extremes of automatically imputing an insurer's negligence to a defendant or automatically giving the insurer a free pass to void any default judgment. To reiterate, the following lists are intended to provide guidance to the trial courts in determining whether a party has shown "good cause" and a "meritorious defense" under MCR 2.603(D)(1) such that setting aside a default judgment is proper under the totality of the circumstances. In determining whether a party has shown good cause, the trial court should consider the following factors: (1) whether the party completely failed to respond or simply missed the deadline to file;
*689 (2) if the party simply missed the deadline to file, how long after the deadline the filing occurred; (3) the duration between entry of the default judgment and the filing of the motion to set aside the judgment; (4) whether there was defective process or notice; (5) the circumstances behind the failure to file or file timely; (6) whether the failure was knowing or intentional; (7) the size of the judgment and the amount of costs due under MCR 2.603(D)(4);[62] (8) whether the default judgment results in an ongoing liability (as with paternity or child support); and (9) if an insurer is involved, whether internal policies of the company were followed. In determining whether a defendant has a meritorious defense, the trial court should consider whether the affidavit contains evidence that: (1) the plaintiff cannot prove or defendant can disprove an element of the claim or a statutory requirement; (2) a ground for summary disposition exists under MCR 2.116(C)(2), (3), (5), (6), (7) or (8); or (3) the plaintiff's claim rests on evidence that is inadmissible. Neither of these lists is intended to be exhaustive or exclusive. Additionally, as with the factors provided in other contexts, the trial court should consider only relevant factors, and it is within the trial court's discretion to determine how much weight any single factor should receive.[63] We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Concurring Opinion by O'CONNELL, J. O'CONNELL, J. (concurring). I concur with the majority opinion that the trial court, when deciding whether to grant or deny a motion to set aside a default judgment, must examine the totality of the circumstances. I also join in the majority's conclusion to reverse the trial court's decision. I write separately to advocate the totality of the circumstances test and to emphasize that the Michigan Court Rules are not "a procedural tightrope upon which a litigant must balance carefully and perfectly" or be thrown out of court. Gering v. Anderson Villas, LLC, unpublished opinion per curiam of the Court of Appeals, issued May 13, 2008 (Docket No. 275940), at 3, 2008 WL 2038405. At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority's methodology in resolving this case, but as *690 an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today's law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic. I begin with the proposition that the litigation process is best described as "conflict within a set of rules." Stated another way, lawsuits generally involve a disagreement between conflicting parties, and the Michigan Court Rules provide a set of rules designed to help resolve this conflict. Consequently, a judge's role is to resolve the conflict within the strictures of the Michigan Court Rules. These rules are designed to create consistency and a level playing field for all participants in the dispute resolution process. The law favors the determination of claims on their merits. Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich. 219, 229, 600 N.W.2d 638 (1999). Dismissals and defaults are the system's mechanism for sanctioning those whose conduct does not fall within the confines of the rules. See MCR 2.504(B)(1); MCR 2.313(B)(2)(c); Mink v. Masters, 204 Mich. App. 242, 243-245, 514 N.W.2d 235 (1994). Litigants who purposefully and repeatedly act outside the scope of, or fail to follow clear and concise, rules deserve special and prompt attention from the court. However, if a timely meritorious claim or defense is alleged and the conflict of the parties reasonably falls within the set of rules at issue, the law favors a lesser sanction than default or dismissal. See MCR 2.603(D)(1). But not all cases are meritorious and not all defenses are worth pursuing, particularly if the costs of litigation exceed the benefits or burdens to the parties. That is why, in my opinion, the best manner in which to balance these issues and reach a fair and just decision is to weigh the totality of the circumstances. Every case is different, with factual nuances that must be identified, evaluated, and balanced to reach a proper result. Only an experienced judge with common sense, wisdom, and a sense of justice is empowered by our constitution to make the correct decision. It is the judge who also exercises patience that generally uses the correct process. However, a judge who focuses solely on a single process, to the exclusion of all else, sometimes experiences methodological tunnel vision.[1] The process then becomes perfunctory and often results in unjust, illogical, and incongruous outcomes. *691 I find this occurs most often where, as in this case, "procedure is substance." The merits of the case are left in the wake created by the procedural rules. In such cases, the manner in which the procedural rules are implemented can be more important than the substance of the case. The journey becomes more important that the destination. The totality of the circumstances test is an attempt to distinguish those occasions when the bright-line application of the rules is appropriate (such as dismissal for failure to file within the statute of limitations) with situations where the rules themselves involve abstract concepts of justice (as with the use of the term "good cause" in the default judgment context). In the latter case, the art of judging cannot become a mechanical or computer-like process. Indeed, both this Court and our Supreme Court have dismissed the notion of judging as a mechanical process. "`[Rules of practice and procedure] must be followed but they must also be thought of as guides and standards to the means of achieving justice, not the end of justice itself.'" Higgins v. Henry Ford Hosp., 384 Mich. 633, 637, 186 N.W.2d 337 (1971),[2] cited with approval in People v. Grove, 455 Mich. 439, 469-470 n. 36, 566 N.W.2d 547 (1997). "Judging is an art," and the role of a judge is not that of a computer plugging facts into a formula and spitting out results. Nippa v. Botsford Gen. Hosp. (On Remand), 257 Mich.App. 387, 393-394 n. 5, 668 N.W.2d 628 (2003). Indeed, the very nature of the rules confirms that "[n]o computer will ever be able to replace the role of judge in our society, and no computer or mechanical device can function at the level of a judge." Id. at 393 n. 5, 668 N.W.2d 628. MCR 1.105 provides that a trial court should construe the rules "to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties." Computers input data and spit out results. They cannot comprehend, let alone administer, something as non-formulaic as justice. Accordingly, I conclude that a decision to set aside a default judgment must be based on the totality of the circumstances and an individualized assessment of the facts and conditions of the specific case. Because the majority opinion takes this position into account and, because under the totality of the circumstances test the trial court erred in failing to set aside the default judgment, I concur in the result reached by the majority opinion. NOTES [1] Colista v. Thomas, 241 Mich.App. 529, 616 N.W.2d 249 (2000). [2] Id. at 535, 616 N.W.2d 249. [3] Koy v. Koy, 274 Mich.App. 653, 657, 735 N.W.2d 665 (2007). [4] Churchman v. Rickerson, 240 Mich.App. 223, 233, 611 N.W.2d 333 (2000). [5] Koy, supra at 657, 735 N.W.2d 665. [6] Amco Builders & Developers, Inc. v. Team Ace Joint Venture, 469 Mich. 90, 94-95, 666 N.W.2d 623 (2003). [7] Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich. 219, 227, 600 N.W.2d 638 (1999). [8] Saffian v. Simmons, 477 Mich. 8, 12, 727 N.W.2d 132 (2007). [9] Alken-Ziegler, supra at 229, 600 N.W.2d 638 (internal citation omitted). [10] Levitt v. Kacy Mfg. Co., 142 Mich.App. 603, 608, 370 N.W.2d 4 (1985), quoting Bigelow v. Walraven, 392 Mich. 566, 576 n. 15, 221 N.W.2d 328 (1974), quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 662. [11] MCR 1.108(1) states:
The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order. [12] Levitt, supra at 608, 370 N.W.2d 4, quoting Bigelow, supra, quoting Honigman, supra. [13] MCR 7.215(J)(1) (stating that, absent subsequent reversal or modification, this Court is bound to follow the precedent established by Court of Appeals decisions issued on or after November 1, 1990). [14] Walters v. Arenac Circuit Judge, 377 Mich. 37, 46, 138 N.W.2d 751 (1966) (opinion by O'Hara, J., joined by Dethmers and Kelly, JJ.). See also Amco Builders & Developers, Inc., supra at 96, 666 N.W.2d 623 ("[G]enerally, an attorney's negligence is attributable to that attorney's client[.]"). [15] Id. at 46-47, 138 N.W.2d 751 (opinion by O'Hara, J., joined by Dethmers and Kelly, JJ.) (citations omitted). [16] Id. at 48, 138 N.W.2d 751 (Black and Smith, JJ., concurring). [17] Id. at 48-56, 138 N.W.2d 751 (Kavanagh, C.J., and Souris and Adams, JJ., dissenting). [18] See Butterworth Hosp. v. Farm Bureau Ins. Co., 225 Mich.App. 244, 248, 570 N.W.2d 304 (1997) (recognizing that a lead opinion of the Michigan Supreme Court signed by only three justices was not binding on this Court). [19] Freeman v. Remley, 23 Mich.App. 441, 443, 178 N.W.2d 816 (1970). [20] Id. at 444, 178 N.W.2d 816. [21] Id. [22] Id. at 446, 178 N.W.2d 816. [23] Id. at 446, 448, 178 N.W.2d 816, citing Walters, supra at 47, 138 N.W.2d 751 (stating that a trial court's decision on a motion to set aside a judgment should not be disturbed absent a clear instance of abuse of discretion). [24] Hartman v. Roberts-Walby Enterprises, Inc., 17 Mich.App. 724, 726, 170 N.W.2d 292 (1969). [25] Asmus v. Barrett, 30 Mich.App. 570, 574-575, 186 N.W.2d 819 (1971). [26] Id. at 574, 186 N.W.2d 819. [27] Levitt, supra at 605, 370 N.W.2d 4. [28] Id. at 606, 370 N.W.2d 4. [29] Id. at 609, 370 N.W.2d 4. [30] Id., citing Walters, supra, and Asmus, supra at 574, 186 N.W.2d 819. [31] Id. at 609-610, 370 N.W.2d 4. [32] Federspiel v. Bourassa, 151 Mich.App. 656, 658, 391 N.W.2d 431 (1986). [33] Id. at 658-659, 661, 391 N.W.2d 431. [34] Id. at 661, 391 N.W.2d 431. [35] Id. at 659, 661, 391 N.W.2d 431. [36] Id. at 658, 659, 391 N.W.2d 431. [37] Id. at 660, 391 N.W.2d 431. [38] Id. at 661, 391 N.W.2d 431. [39] Id. [40] Id. at 663, 391 N.W.2d 431. [41] Id. [42] Id. [43] Id. at 658, 664, 391 N.W.2d 431. [44] Id. at 663 n. 2, 391 N.W.2d 431. [45] Id. at 661, 391 N.W.2d 431. [46] We distinguish procedurally nonnegligent defendants from defendants who are alleged to be negligent with respect to the substance of the plaintiff's claim. [47] Walters, supra at 46, 138 N.W.2d 751. [48] Freeman, supra at 444, 178 N.W.2d 816. [49] Alken-Ziegler, supra at 229, 600 N.W.2d 638. [50] Asmus, supra at 574-575, 186 N.W.2d 819. [51] See MCR 2.603(D)(1). [52] Alken-Ziegler, supra at 233-234, 600 N.W.2d 638. [53] Id. at 230-231, 600 N.W.2d 638. [54] See Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 6, 574 N.W.2d 691 (1997). [55] Signs v. Detroit Edison Co., 93 Mich.App. 626, 632, 287 N.W.2d 292 (1979). [56] Ormsby v. Capital Welding, Inc., 471 Mich. 45, 53-54, 684 N.W.2d 320 (2004), quoting Funk v. Gen. Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641 (1974), overruled in part on another ground in Hardy v. Monsanto Enviro-Chem Sys., Inc., 414 Mich. 29, 323 N.W.2d 270 (1982). [57] Ormsby, supra at 54, 684 N.W.2d 320. [58] Alken-Ziegler, Inc., supra at 233-234, 600 N.W.2d 638. [59] See Sparks v. Sparks, 440 Mich. 141, 158-160, 485 N.W.2d 893 (1992) (determining alimony is within the trial court's discretion and involves consideration of certain enumerated factors); People v. Cipriano, 431 Mich. 315, 334, 429 N.W.2d 781 (1988) (whether a confession is voluntary requires reviewing factors and making a determination on the basis of the totality of the circumstances); People v. Colon, 233 Mich.App. 295, 304-305, 591 N.W.2d 692 (1998) (a suggestive identification procedure is only improper where, after reviewing certain relevant factors, the totality of the circumstances indicates a substantial likelihood of misidentification); McCain v. McCain, 229 Mich.App. 123, 124, 580 N.W.2d 485 (1998) (custody determinations are made on the basis of the best interest of the child in light of the trial court's findings with regard to 12 specific factors). [60] Alken-Ziegler, Inc., supra at 230-231, 233-234, 600 N.W.2d 638. [61] Id. at 233-234, 600 N.W.2d 638. [62] For example, it seems illogical to set aside a default judgment where the amount of fees and costs to be awarded under MCR 2.603(D)(4) will be greater than or roughly equal to the amount of the default judgment, as the defendant will pay the same amount, whether in costs if the judgment is set aside or under the judgment if it is not. [63] See Sparks, supra at 159-160, 485 N.W.2d 893 (in determining alimony, the trial court determines what factors are significant and how much weight to assign to each factor; the factors listed are not exclusive); Cipriano, supra at 334-335, 429 N.W.2d 781 (no single factor is conclusive of the issue); People v. Kachar, 400 Mich. 78, 93-94, 97, 252 N.W.2d 807 (1977) (factors used to determine whether an independent basis for an in-court identification exists are not inclusive or exclusive and the weight given to each is within the trial court's discretion); McCain, supra at 131, 580 N.W.2d 485 (a trial court need not give equal weight to all the best-interest factors in child custody decisions). [1] The reader may interpret this statement as a criticism of textualism. It is not. In my opinion, all good judges begin the resolution of a controversy with the text of the statute or court rule. A principled decision with a principled outcome is the goal of any decisionmaking process. I use this language only in the sense that the practical constraints involved in drafting court rules impose what may occasionally resemble methodological tunnel vision. Good judges will have the common sense and wisdom to integrate, where necessary, the rules, the comments to the rules, and caselaw into a fully articulated and intellectual framework. [2] The quotation comes from the official committee comment to GCR 1963, 13 (replaced in 1985 with MCR 1.105) and reads in full:
"Rules of practice and procedure are exactly that. They should create no rights and should be thought of as indicating the way in which justice should be administered. They should give direction to the process of administering justice but their application should not become a fetish to the extent that justice in an individual case is not done. There is a need for guides and standards. They must be followed but they must always be thought of as guides and standards to the means of achieving justice, not the end of justice itself." [Higgins, supra.] | 10-30-2013 | [
"760 N.W.2d 674 (2008) 280 Mich. App. 213 SHAWL v. SPENCE BROTHERS, INC. Docket No. 275271. Court of Appeals of Michigan. Submitted May 7, 2008, at Lansing. Decided August 19, 2008, at 9:00 a.m. *677 Hurlburt, Tsiros & Allweil, PC, Saginaw (by Lawrence A. Hurlburt), for the plaintiffs. Cardelli, Lanfear & Buikema, PC, Grand Rapids (by Anthony F. Caffrey III), for the defendant. Before: WILDER, P.J., and O'CONNELL and WHITBECK, JJ. Opinion of the Court PER CURIAM. Defendant Spence Brothers, Inc., appeals by leave granted the trial court's order denying its motion to set aside a default in favor of plaintiffs James Shawl (Shawl) and Mary Shawl. On appeal, Spence Brothers argues that the trial court erred as a matter of law by applying the wrong standard in denying its motion to set aside the default. In addition, Spence Brothers argues that the trial court abused its discretion in refusing to set aside the default.",
"We reverse and remand. I. BASIC FACTS AND PROCEDURAL HISTORY Boice Bird and Sons, Inc., employed Shawl as a journeyman painter. Spence Brothers hired Boice as a subcontractor to perform painting work on the Saginaw County Event Center, and in late June 2003, Boice assigned Shawl to work at the Event Center. While painting the lobby area of the Event Center, Shawl was injured. Specifically, according to Shawl, while he was painting a wall in the lobby, a temporary electrical panel fell toward him and struck him in the back. As a result, according to Shawl, three screws projecting from the rear of the panel punctured his \"lumbar spine.\"",
"After the accident, Shawl sued Spence Brothers and J. Ranck Electric, Inc. Shawl's suit alleged that Ranck Electric was negligent by failing to brace safely or attach the electrical panel to the wall and that Spence Brothers, as the general contractor, was negligent for failing to ensure that reasonable steps were taken to guard against the danger that Ranck Electric created. *678 After being served with Shawl's complaint, Spence Brothers forwarded the complaint to its insurer, Amerisure. Amerisure began processing the complaint, but while examining coverage issues as part of the process, Amerisure determined that it needed more time to answer the complaint. Accordingly, in early July 2006, Annette Rigdins, an Amerisure senior claims representative, contacted Shawl's attorney and asked for a 30-day extension. Shawl's attorney agreed to the extension and asked Rigdins to \"put it in writing.\" Rigdins then wrote a letter to Shawl's attorney that stated that the new due date for answering the complaint was August 8, 2006. Spence Brothers failed to answer Shawl's complaint by August 8, 2006.",
"As a result, the trial court entered a default against Spence Brothers on August 16, 2006, pursuant to MCR 2.603(A)(1). Spence Brothers moved to set aside the default under MCR 2.603(D)(1). Spence Brothers argued that the 30-day extension was from the original due date of the answer, July 14, 2006, which, according to Spence Brothers, would have allowed it to answer through the end of the day on August 14, 2006. However, no answer was filed on that date either.",
"Therefore, the trial court denied the motion. Spence Brothers moved for reconsideration, but the trial court also denied that motion. Spence Brothers now appeals. II. \"GOOD FAITH\" VERSUS \"GOOD CAUSE\" A. STANDARD OF REVIEW Spence Brothers argues that the trial court did not apply the MCR 2.603(D)(1) criteria when it considered whether to set aside the default. More specifically, Spence Brothers argues that the trial court erroneously refused to analyze the matter to determine whether there was good cause and a meritorious defense as MCR 2.603(D)(1) requires. With respect to our review of this argument, Spence Brothers relies on Colista v. Thomas[1] to support its assertion that we should apply a de novo standard of review to determine whether the trial court used the appropriate standard under MCR 2.603(D)(1). In Colista, this Court stated that the \"interpretation and application of the court rules, like the interpretation of statutes, is a question of law that is reviewed de novo on appeal. \"[2] However, because the trial court here ultimately explained its use of MCR 2.603(D)(1) and, thus, applied the proper standard, the interpretation and application of the rule are not truly at issue in this case. Therefore, the proper standard of review is the abuse of discretion standard, which applies to review of a trial court's decision on a motion to set aside a default.",
"[3] We also review a trial court's decision to deny a motion for reconsideration for an abuse of discretion. [4] B. THE WORDING OF THE COURT RULE MCR 2.603(D)(1), which governs motions to set aside a default, provides: \"A motion to set aside a default or a default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.\" (emphasis added.) *679 C. THE TRIAL COURT'S DECISION Spence Brothers argues that the trial court applied the wrong legal standard under MCR 2.603(D)(1) because the trial court never spoke explicitly about \"good cause\" or a \"meritorious defense\" at the original hearing on the motion to set aside the default. However, the trial court later provided a fuller explanation in considering Spence Brothers' motion to reconsider the motion to set aside the default.",
"In response to Spence Brothers' concern that the wrong standard was used, the trial court stated: Going back to [MCR] 2.603(D)(1), I was not very artful in saying that I thought that because of this exchange of letters there was not good cause shown. That's what I meant toI think that's the proper standard and not whether they acted in good faith. In addition, the trial court stated: [I]t's important to the rights of your clients that they have a full hearing, and certainly my words were not as required by the court rules and they were entitled to get a little more definitive response I think as to why I ruled to deny the motion.",
"The trial court then went on to deny Spence Brothers' motion to reconsider and stated: I'll deny the motion for reconsideration under MCR 2.603(D)(1) on the basis that the good cause has not been shown. That's primarily why I think this case isis easy, and I think plaintiffs' authorities correctly cite that the public policy of the state is in favor of not setting aside defaults indeed without not only good cause but a meritorious defense. In this regard, the trial court essentially sought to remedy any ambiguity in its prior ruling to deny the motion to set aside default. In addition, the trial court explained that the reference to \"good faith\" from the original hearing was merely to say that Shawl did not act in bad faith.",
"In this regard, the trial court stated: In this case, quite the contrary. [Shawl] requested the letter [from the insurance adjuster] to foreclose any possibility of confusion or mistake [in regard to the 30-day extension]. Thus, the trial court was simply stating that Shawl acted in good faith and that Spence Brothers did not show good cause to set aside the default. Even though the trial court may have originally referred to a good faith standard, ultimately the trial court used the correct standard under MCR 2.603(D)(1). Accordingly, Spence Brothers has not shown an abuse of discretion with regard to this issue because the trial court, in fact, used the proper standard.",
"III. APPLYING MCR 2.603(D)(1) A. STANDARD OF REVIEW Spence Brothers argues that it demonstrated good cause based on procedural irregularities and genuine confusion in the proceedings below. Spence Brothers further argues that it has a meritorious defense that will extinguish liability and that a lesser showing of good cause will suffice where a meritorious defense is strong. As noted, we review a trial court's decision on a motion to set aside a default for an abuse of discretion. [5] Indeed, a trial court's decision in this regard should only be reversed on appeal when there is a clear abuse of that discretion.",
"[6] \"An abuse of discretion involves far more than a difference in judicial opinion. \"[7]*680 \"Rather, an abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes. \"[8] \"Moreover, although the law favors the determination of claims on the merits, it has also been said that the policy of this state is generally against setting aside defaults and default judgments that have been properly entered. \"[9] B. GOOD CAUSE \"Good cause\" can be shown by: \"`\"(1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand. \"'\"[10] Spence Brothers argues that the complex nature of this matter ultimately led to the confusion between it and Amerisure that caused the answer to be late, which constituted good cause. We disagree. (1) PROCEDURAL DEFECT OR IRREGULARITY There was, and is, considerable dispute about the exact date the answer to the complaint was due. Under MCR 2.108(A)(1), Spence Brothers had 21 days to answer after being served with the complaint on June 23, 2006.",
"However, as noted earlier, Shawl's attorney and Amerisure agreed on a 30-day extension, which Shawl contends ran from the date on which Amerisure asked for the extension. Shawl points to the written confirmation stating that the new deadline was August 8, 2006. Despite the letter, Spence Brothers contends that the new deadline was intended to be 30 days from the original deadline to answer, which was July 14, 2006.",
"We conclude that the letter stating the August 8, 2006, date unequivocally set forth the intended expiration of the agreed-upon extension. However, even assuming that the 30-day extension ran from the original deadline to answer, Spence Brothers failed to answer in the time allowed. Thirty days from July 14, 2006, was Sunday, August 13, 2006. Because August 13 was a Sunday, Spence Brothers actually would have had until the end of Monday, August 14, 2006, to answer the complaint. [11] Regardless, Spence Brothers still failed to file an answer within the time allocated. Thus, we conclude that no procedural defect or irregularity was present to support a finding of good cause.",
"(2) REASONABLE EXCUSE We next turn to the second factor of the \"good cause\" test: \"`\"a reasonable excuse for failure to comply with the requirements which created the default. \"'\"[12] With respect to this factor, we initially *681 conclude that Spence Brothers' default was clearly caused by Amerisure's negligence in failing to answer the complaint. There is no dispute that Amerisure's agent knew of, and indeed established, the August 8, 2006, deadline. And, again, even assuming there was some confusion that may have led Amerisure to believe it had until August 14 to file the answer, it has offered no reasonable excuse to explain its ultimate failure to respond. The salient question, however, is whether Amerisure's negligence should be imputed to Spence Brothers. (a) CONFLICTING CASES There is, we believe, a conflict in the pre-November 1990 published opinions[13] of this Court regarding whether to impute the negligence of an insurance company to a defendant. (i) WALTERS We start with Walters v. Arenac Circuit Judge. There, Justice O'HARA, joined by Justices DETHMERS and KELLY, stated, \"It is well settled that the negligence of either the attorney or the litigant is not normally grounds for setting aside a default regularly entered.",
"\"[14] However, in Walters, neither the attorney nor the plaintiff was negligent; rather, the culpable negligence was that of the insurer. Under the circumstances, Justice O'HARA reasoned that the insurer's negligence should not be imputed to the insured, a doctor, and that the circuit court did not abuse its discretion in setting aside the default. More specifically, Justice O'HARA explained: The doctor averred he did what any reasonably prudent person would do under the circumstances when he was personally served. He turned the \"papers\" over to his insurance company. We do not consider him obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do. We find no neglect on his part disclosed by the record before us. The culpable negligence was that of the involved insurer. The question is then whether that negligence of the unnamed defendant liability insurer, should be imputed to and be conclusive upon the defendant doctor.",
"We recognize that in the realities of this situation, irrespective of the named defendant, the real defendant, to the extent of the policy provisions, was the insurer. This conclusion is record-supported by the fact that when counsel received the term calendar showing the named doctor-defendant to be in default, he communicated not with the doctor but with his insurer. It seems an inescapable conclusion that the insurer directed the communicating counsel to appear and answer. On the merits of the main case, the doctor-defendant may have been blameless beyond question. He may have been in legal dimension answerable.",
"The question is not before us. It has not been meritoriously litigated under our system of determination of that issue. The trend of our jurisprudence is toward meritorious determination of issues. The complexities of our economic system placed the named defendant-doctor in the position of having no way to *682 reach trial on the merits because his insurer was negligent. The money judgment, if such resulted, might have to be paid in full or in part by the insurer. Absent doing violence to the rules of the jurisprudential game, we think the doctor should be entitled to his day in court. By this holding we would not be understood to dilute the well-settled law of this jurisdiction that the neglect of a personally served defendant, nor that of his counsel, may not ordinarily be grounds for setting aside a default regularly entered. [[15]] Accordingly, the lead opinion in Walters affirmed the trial court's decision to set aside the default judgment. However, as noted, only Justices O'HARA, DETHMERS, and KELLY took part in the lead opinion.",
"Justices BLACK and SMITH concurred in the result without providing any supporting rationale,[16] and Chief Justice KAVANAGH, joined by Justices SOURIS and ADAMS, dissented. [17] Thus, Walters created no binding precedent because no majority of justices signed the lead opinion. [18] (ii) FREEMAN In Freeman v. Remley, the defendant in an automobile accident suit sent the summons and complaint to his insurer. [19] The defendant heard nothing else about the case until he received notice of the default judgment. The insurer denied all knowledge of the claim. [20] In denying the defendant's motion to set aside the default judgment, the trial court noted that the defendant \"might have had a good and valid defense,\" but found it significant that \"there was at least notice to an agent of the insurer, that the pleadings were properly served and that an additional letter was sent notifying the insurer of commencement of suit. \"[21] On appeal, the defendant contended that the case at hand was \"virtually indistinguishable\" from Walters. [22] However, without directly commenting on the defendant's argument, and while noting that Justice O'HARA'S opinion in Walters \"capture[d] the current trend in the law,\" the Freeman panel concluded without further elucidation that, \"given the facts and circumstances here presented,\" the trial court did not clearly abuse its discretion in refusing to set aside the default judgment. [23] From what we can ascertain from its brief analysis, the Freeman panel essentially chose to employ a strict adherence to the abuse of discretion standard of review rather than follow the rationale provided by the lead opinion in Walters.",
"We further note that, in concluding that the trial court did not abuse its discretion, the Freeman panel cited Hartman v. Roberts-Walby *683 Enterprises, Inc.[24] However, the significance of that citation is questionable in that the Hartman Court declined to reverse the trial courts denial of the defendant's motion to set aside a default because the defendant failed to show a meritorious defense.",
"Yet, in Freeman, the trial court recognized that the defendant \"might have had a good and valid defense[.]\" (iii) ASMUS In Asmus v. Barrett, this Court stated that Freeman had \"ruled by implication that the negligence of an insurer can and would be imputed to the insured,\" and opined that \"[t]o hold otherwise would be to grant insurance companies an automatic right to vacation of all default judgments. \"[25] In analyzing the trial court's refusal to set aside the default, the Asmus panel assumed, but did not decide, that certain personnel problems at the defendants' insurance company constituted good cause for the defendants' failure to timely answer. [26] Ultimately, however, the Asmus panel affirmed the trial court on the ground that the defendants' affidavits did not support a meritorious defense. (iv) LEVITT In Levitt v. Kacy Mfg. Co., a panel of this Court took a slightly different approach with regard to the issue whether the insurer's negligence should be imputed to the defendant.",
"The Levitts sued Kacy Manufacturing Company under a products liability theory. [27] Kacy then apparently sent the summons and complaint to its insurance broker, which in turn passed them on to an insurance management company. However, the insurance management company's relationship with the insurer had been severed earlier that year. The Levitts then filed a default. Shortly thereafter, the insurance management company notified the Levitts' attorney that the insurer was in receivership and that no work would be completed on the case for another month. [28] Approximately a week later, the Levitts moved for a default judgment. Kacy then moved to set aside the default, but the trial court denied the motion because, although the affidavit of facts showed a meritorious defense, Kacy had not shown excusable neglect. The trial court then awarded the Levitts a default judgment. On appeal, the Levitt panel cited Asmus and stated that \"[t]he negligence of an insurer resulting in a default can and will be imputed to the insured. \"[29] Yet, the panel recognized that \"the mere existence of negligence does not prevent a finding of good cause.",
"\"[30] The Levitt panel then reasoned as follows: [The trial judge] did not address the specific negligence that occurred in this case but focused on the problem of companies insulating themselves from default procedures by engaging multiple levels of insurance personnel who must handle suit papers. [The trial judge] would seem to require that a defendant send litigation papers which are served on him directly to his insurer or else proceed \"at their own peril\". We do not believe the specific facts of this case *684 justify the application of such a generalized policy towards this defendant's employment practice. Apparently, when defendant's insurer went into receivership, its relationship with [the insurance management company] was severed without adequate notice to defendant or the insurance management company. Thus, the suit papers were erroneously sent to [an insurance management company representative], who, before the insurer was placed in receivership, had handled the claims during the prelitigation stage. We believe that the errors in providing notice and in handling the suit papers, arising out of the unusual problems associated with the insurer's being in receivership, provide a reasonable excuse for defendant's delay in filing an answer to plaintiff's complaint.",
"[[31]] In sum, although adopting a general rule that the insurer's negligence in failing to answer will be imputed to a defendant, the Levitt panel nevertheless found good cause to set aside the default because of certain special circumstances that constituted a reasonable excuse for Kacy's delay in answering. (v) FEDERSPIEL In Federspiel v. Bourassa, Larry Federspiel was injured when Gerald Bourassa hit him with his automobile. [32] Federspiel filed a complaint alleging negligence against Bourassa and Marcia Holland, whose employee served Bourassa alcohol before the accident. Bourassa settled with Federspiel.",
"Holland forwarded the summons and complaint to her insurer, who then forwarded the summons and complaint to an insurance broker. [33] The insurer, however, was unaware that the insurance broker had gone out of business a couple months before the summons and complaint were sent. [34] Apparently during the process of the insurance broker's records being moved to another agency, Holland's claim was misplaced. Therefore, counsel was never assigned to timely answer the complaint, and, as a result, the trial court entered a default and default judgment against Holland. [35] Holland moved to set aside the default, and the trial court granted the motion on the basis of excusable neglect and good cause. [36] Federspiel appealed, disputing the trial court's finding that the failure of Holland's insurer to provide her with representation constituted good cause to set aside the default. [37] The Federspiel panel first noted that \"Michigan lacks definitive case law on the issue of whether an insurer's or its intermediaries' negligence ought to be imputed to the insured to preclude a finding of `excusable neglect' and `good cause. '\"[38] The panel then adopted the reasoning employed in Walters. [39] The Federspiel panel recognized that the split decision in Walters was not controlling precedent and that Court of Appeals cases issued after Walters \"diluted its impact,\" yet the panel stated that it was nevertheless \"impressed with the logic\" of the Walters \"well-reasoned approach to the problem at hand.",
"\"[40] The Federspiel panel therefore concluded that \"[t]he insured defendant in the present *685 situation should not be denied her day in court because of the insurer's negligence in processing her claim. \"[41] The panel also concluded that the insurer's \"failure to answer for or defend [Holland] was the culmination of events which amounted to excusable neglect. \"[42] Finally, the Federspiel panel found that manifest injustice would result if the default judgment were permitted to stand, noting that evidence supported a meritorious defense that Bourassa was not actually intoxicated at the time of the accident. Accordingly, the panel affirmed the trial court's decision to set aside the default judgment. [43] Notably, the Federspiel panel distinguished the facts presented from other cases where this Court affirmed denials of motions to set aside default judgments: In Freeman, the insurer was reckless in ignoring notice of the suit and this [C]ourt upheld the trial court's exercise of discretion in denying the motion to set aside the default. In both Asmus and Van Haaften [v. Miller-Davis Co., 54 Mich.App.",
"186, 220 N.W.2d 752 (1974) ], the defendants lacked a meritorious defense, which is not the case here. [[44]] (vi) CONCLUSION Unfortunately, now 20-plus years after Federspiel, Michigan still \"lacks definitive case law on the issue of whether an insurer's or its intermediaries' negligence ought to be imputed to the insured to preclude a finding of `excusable neglect' and `good cause. '\"[45] Given this lack of solid precedent on which to rely, and despite the nonbinding nature of the lead opinion in Walters, we, like the Federspiel panel, are persuaded by the logic of Walters. That case clearly articulates the well-reasoned rule that an insurer's negligence should not be conclusive on the procedurally nonnegligent defendant. [46] A defendant who diligently turns over a case to an ultimately negligent insurer should not be denied his or her day in court. The defendant is not \"obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do.",
"\"[47] In following Walters, we specifically reject the rule implied by Freeman, and later taken up by Asmus, that the negligence of the insurer should be presumptively imputed to the defendant. To hold otherwise may result in the unfavorable consequence of denying defendants who \"might have had a good and valid defense\"[48] a chance at the meritorious determination of the issues. \"[T]he law favors the determination of claims on the merits....\"[49] We further believe that employing an analysis like that in Levitt, in which the panel found that \"unusual problems associated with the insurer's being in receivership\" provided a reasonable excuse for the defendant's delay, merely serves to complicate the issue. Whether the insurer's negligence was a mere oversight in failing to meet the filing deadline or whether it is *686 the result of some other complication, the end result is that the nonculpable defendant is unfairly punished for trusting that his or her insurer was doing its job. We are cognizant of the Asmus panel's concern that not to apply a blanket rule imputing the insurer's negligence to the defendant might be viewed as granting \"insurance companies an automatic right to vacation of all default judgments.",
"\"[50] However, our conclusion here that an insurance company's negligence in failing to answer a complaint constitutes a reasonable excuse under the good cause test for setting aside a default does not dilute a defendant's duty to nevertheless show a meritorious defense supported by an affidavit of facts. [51] Indeed, in Asmus, despite ostensibly imputing the insurer's negligence to the defendant, the panel nevertheless decided the case on the ground that the defendant did not demonstrate a meritorious defense. In keeping with Walters, we conclude that Amerisure's negligence should not be imputed to Spence Brothers and that Amerisure's negligence in failing to answer the complaint constituted a reasonable excuse, under the good cause test, to set aside the default. (b) COMMUNICATION BETWEEN ATTORNEY AND INSURANCE REPRESENTATIVE We acknowledge Spence Brothers' argument that Shawl's attorney should not have communicated with Rigdins because she was a \"non-lawyer.\"",
"However, as the trial court stated, \"I see no problem with the insurance agent, the person charged contractually withto act on behalf of the defendant to engage in the extension of time agreements.\" Indeed, Rigdins was a senior claims representative for Amerisure. Therefore, the trial court did not abuse its discretion in determining that the communication between Rigdins and Shawl's attorney was not a reasonable excuse that showed good cause to set aside the default. C. MERITORIOUS DEFENSE Spence Brothers argues that it presented a meritorious defense under MCR 2.603(D)(1). \"[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of `good cause' will be required than if the defense were weaker, in order to prevent a manifest injustice. \"[52] However, as Alken-Ziegler makes clear, the good cause and meritorious defense elements of MCR 2.603(D)(1) are not to be blurred; they are \"separate requirements.",
"\"[53] Thus, Spence Brothers must show a meritorious defense to have the default set aside under MCR 2.603(D)(1). In Michigan, as a matter of public policy, the subcontractors on a job site have a duty to ensure the worksite is safe for their employees. [54] Further, a general contractor is not liable for a subcontractor's negligence. [55] However, a general contractor may be found liable if it failed to take \"reasonable steps within its supervisory and coordinating authority\" to protect workers from \"readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. \"[56] In *687 what is often referred to as the Funk four-part test, a plaintiff must show that (1) the defendant, either the property owner or general contractor, failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area. [[57]] Spence Brothers argues that it is impossible for Shawl to recover under the Funk four-part test.",
"Spence Brothers asserts that its affidavit demonstrates that at least one of the elements under the Funk four-part test is missing and, thus, it has presented a meritorious defense. In its affidavit, Spence Brothers stated that \"[a]ny danger created by the allegedly faulty electrical panel was not readily observable by Spence Brothers.\" Spence Brothers also stated, \"Any danger created by the allegedly faulty electrical panel presented a danger to only a small number of workers since the painting subcontractor, Boice Bird & Sons, requested that the electrical panel be made mobile for purposes of their work.\" If proven, these assertions might well be a defense to Shawl's claim. Therefore, we conclude that Spence Brothers has met its burden by filing an affidavit of facts showing a meritorious defense.",
"D. MANIFEST INJUSTICE The Supreme Court has clarified the manifest injustice factor of the \"good cause\" test as follows: The first two prongs of the Honigman & Hawkins \"good cause\" test are unremarkable and accurately reflect our decisions. It is the third factor, \"manifest injustice,\" that has been problematic. The difficulty has arisen because, properly viewed, \"manifest injustice\" is not a discrete occurrence such as a procedural defect or a tardy filing that can be assessed independently. Rather, manifest injustice is the result that would occur if a default were to be allowed to stand where a party has satisfied the \"meritorious defense\" and \"good cause\" requirements of the court rule. When a party puts forth a meritorious defense and then attempts to satisfy \"good cause\" by showing (1) a procedural irregularity or defect, or (2) a reasonable excuse for failure to comply with the requirements that created the default, the strength of the defense obviously will affect the \"good cause\" showing that is necessary. In other words, if a party states a meritorious defense that would be absolute if proven, a lesser showing of \"good cause\" will be required than if the defense were weaker, in order to prevent a manifest injustice.",
"[[58]] To reiterate, we conclude that Amerisure's negligence should not be imputed to Spence Brothers and that Amerisure's negligence in failing to answer the complaint constituted a reasonable excuse under the good-cause test to set aside the default. We further conclude that Spence Brothers has met its burden by filing an affidavit of facts showing a meritorious defense. Therefore, we conclude that permitting the default to stand, by following a rule that would perfunctorily impute Amerisure's negligence to Spence Brothers, would result in manifest injustice. *688 E. TOTALITY OF THE CIRCUMSTANCES In light of the previously unsettled state of the law on the issue whether an insurer's or its intermediaries' negligence ought to be imputed to the insured to preclude a finding of \"excusable neglect\" and \"good cause,\" we offer additional guidance for future cases. There are multiple types of cases, both civil and criminal, where caselaw provides factors to the trial courts to weigh and balance before reaching a decision based on the totality of the circumstances. [59] Because the grant or denial of a motion to set aside a default judgment is examined under the same standard of review and is similarly fact-intensive, we believe that it would be helpful to the trial courts if we provided additional factors for them to use in their evaluations of \"good cause\" and \"meritorious defense\" under MCR 2.603(D)(1).",
"We emphasize that trial courts should base the final result on the totality of the circumstances. We base the need for a \"totality of the circumstances\" test in part on the broad elements considered in the cases discussed earlier and in part on the Michigan Supreme Court's recognition that although \"good cause\" and a \"meritorious defense\" are separate requirements that may not be blurred and that a party must have both,[60] there is some interplay between the two: \"[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of `good cause' will be required than if the defense were weaker, in order to prevent a manifest injustice. [61] With an already existing relationship between the two requirements, we believe that balancing these factors to come up with an overall assessment under the totality of the circumstances provides a better, more easily applied rule because it supplies a flexibility that takes into consideration the variable, fact-intensive nature of default cases, avoiding bright-line distinctions that fail to balance the dueling public policy issues of having cases decided on the merits and not setting aside properly entered default judgments. With respect to the present facts, such a test avoids the two extremes of automatically imputing an insurer's negligence to a defendant or automatically giving the insurer a free pass to void any default judgment.",
"To reiterate, the following lists are intended to provide guidance to the trial courts in determining whether a party has shown \"good cause\" and a \"meritorious defense\" under MCR 2.603(D)(1) such that setting aside a default judgment is proper under the totality of the circumstances. In determining whether a party has shown good cause, the trial court should consider the following factors: (1) whether the party completely failed to respond or simply missed the deadline to file; *689 (2) if the party simply missed the deadline to file, how long after the deadline the filing occurred; (3) the duration between entry of the default judgment and the filing of the motion to set aside the judgment; (4) whether there was defective process or notice; (5) the circumstances behind the failure to file or file timely; (6) whether the failure was knowing or intentional; (7) the size of the judgment and the amount of costs due under MCR 2.603(D)(4);[62] (8) whether the default judgment results in an ongoing liability (as with paternity or child support); and (9) if an insurer is involved, whether internal policies of the company were followed.",
"In determining whether a defendant has a meritorious defense, the trial court should consider whether the affidavit contains evidence that: (1) the plaintiff cannot prove or defendant can disprove an element of the claim or a statutory requirement; (2) a ground for summary disposition exists under MCR 2.116(C)(2), (3), (5), (6), (7) or (8); or (3) the plaintiff's claim rests on evidence that is inadmissible. Neither of these lists is intended to be exhaustive or exclusive. Additionally, as with the factors provided in other contexts, the trial court should consider only relevant factors, and it is within the trial court's discretion to determine how much weight any single factor should receive. [63] We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.",
"Concurring Opinion by O'CONNELL, J. O'CONNELL, J. (concurring). I concur with the majority opinion that the trial court, when deciding whether to grant or deny a motion to set aside a default judgment, must examine the totality of the circumstances. I also join in the majority's conclusion to reverse the trial court's decision. I write separately to advocate the totality of the circumstances test and to emphasize that the Michigan Court Rules are not \"a procedural tightrope upon which a litigant must balance carefully and perfectly\" or be thrown out of court.",
"Gering v. Anderson Villas, LLC, unpublished opinion per curiam of the Court of Appeals, issued May 13, 2008 (Docket No. 275940), at 3, 2008 WL 2038405. At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority's methodology in resolving this case, but as *690 an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today's law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic. I begin with the proposition that the litigation process is best described as \"conflict within a set of rules.\"",
"Stated another way, lawsuits generally involve a disagreement between conflicting parties, and the Michigan Court Rules provide a set of rules designed to help resolve this conflict. Consequently, a judge's role is to resolve the conflict within the strictures of the Michigan Court Rules. These rules are designed to create consistency and a level playing field for all participants in the dispute resolution process. The law favors the determination of claims on their merits. Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich. 219, 229, 600 N.W.2d 638 (1999). Dismissals and defaults are the system's mechanism for sanctioning those whose conduct does not fall within the confines of the rules. See MCR 2.504(B)(1); MCR 2.313(B)(2)(c); Mink v. Masters, 204 Mich. App. 242, 243-245, 514 N.W.2d 235 (1994).",
"Litigants who purposefully and repeatedly act outside the scope of, or fail to follow clear and concise, rules deserve special and prompt attention from the court. However, if a timely meritorious claim or defense is alleged and the conflict of the parties reasonably falls within the set of rules at issue, the law favors a lesser sanction than default or dismissal. See MCR 2.603(D)(1). But not all cases are meritorious and not all defenses are worth pursuing, particularly if the costs of litigation exceed the benefits or burdens to the parties. That is why, in my opinion, the best manner in which to balance these issues and reach a fair and just decision is to weigh the totality of the circumstances. Every case is different, with factual nuances that must be identified, evaluated, and balanced to reach a proper result.",
"Only an experienced judge with common sense, wisdom, and a sense of justice is empowered by our constitution to make the correct decision. It is the judge who also exercises patience that generally uses the correct process. However, a judge who focuses solely on a single process, to the exclusion of all else, sometimes experiences methodological tunnel vision. [1] The process then becomes perfunctory and often results in unjust, illogical, and incongruous outcomes. *691 I find this occurs most often where, as in this case, \"procedure is substance.\" The merits of the case are left in the wake created by the procedural rules. In such cases, the manner in which the procedural rules are implemented can be more important than the substance of the case. The journey becomes more important that the destination. The totality of the circumstances test is an attempt to distinguish those occasions when the bright-line application of the rules is appropriate (such as dismissal for failure to file within the statute of limitations) with situations where the rules themselves involve abstract concepts of justice (as with the use of the term \"good cause\" in the default judgment context).",
"In the latter case, the art of judging cannot become a mechanical or computer-like process. Indeed, both this Court and our Supreme Court have dismissed the notion of judging as a mechanical process. \"`[Rules of practice and procedure] must be followed but they must also be thought of as guides and standards to the means of achieving justice, not the end of justice itself.'\" Higgins v. Henry Ford Hosp., 384 Mich. 633, 637, 186 N.W.2d 337 (1971),[2] cited with approval in People v. Grove, 455 Mich. 439, 469-470 n. 36, 566 N.W.2d 547 (1997). \"Judging is an art,\" and the role of a judge is not that of a computer plugging facts into a formula and spitting out results. Nippa v. Botsford Gen. Hosp. (On Remand), 257 Mich.App. 387, 393-394 n. 5, 668 N.W.2d 628 (2003). Indeed, the very nature of the rules confirms that \"[n]o computer will ever be able to replace the role of judge in our society, and no computer or mechanical device can function at the level of a judge.\" Id. at 393 n. 5, 668 N.W.2d 628. MCR 1.105 provides that a trial court should construe the rules \"to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.\" Computers input data and spit out results.",
"They cannot comprehend, let alone administer, something as non-formulaic as justice. Accordingly, I conclude that a decision to set aside a default judgment must be based on the totality of the circumstances and an individualized assessment of the facts and conditions of the specific case. Because the majority opinion takes this position into account and, because under the totality of the circumstances test the trial court erred in failing to set aside the default judgment, I concur in the result reached by the majority opinion. NOTES [1] Colista v. Thomas, 241 Mich.App. 529, 616 N.W.2d 249 (2000).",
"[2] Id. at 535, 616 N.W.2d 249. [3] Koy v. Koy, 274 Mich.App. 653, 657, 735 N.W.2d 665 (2007). [4] Churchman v. Rickerson, 240 Mich.App. 223, 233, 611 N.W.2d 333 (2000). [5] Koy, supra at 657, 735 N.W.2d 665. [6] Amco Builders & Developers, Inc. v. Team Ace Joint Venture, 469 Mich. 90, 94-95, 666 N.W.2d 623 (2003). [7] Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich. 219, 227, 600 N.W.2d 638 (1999). [8] Saffian v. Simmons, 477 Mich. 8, 12, 727 N.W.2d 132 (2007).",
"[9] Alken-Ziegler, supra at 229, 600 N.W.2d 638 (internal citation omitted). [10] Levitt v. Kacy Mfg. Co., 142 Mich.App. 603, 608, 370 N.W.2d 4 (1985), quoting Bigelow v. Walraven, 392 Mich. 566, 576 n. 15, 221 N.W.2d 328 (1974), quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed. ), p. 662. [11] MCR 1.108(1) states: The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order.",
"[12] Levitt, supra at 608, 370 N.W.2d 4, quoting Bigelow, supra, quoting Honigman, supra. [13] MCR 7.215(J)(1) (stating that, absent subsequent reversal or modification, this Court is bound to follow the precedent established by Court of Appeals decisions issued on or after November 1, 1990). [14] Walters v. Arenac Circuit Judge, 377 Mich. 37, 46, 138 N.W.2d 751 (1966) (opinion by O'Hara, J., joined by Dethmers and Kelly, JJ.). See also Amco Builders & Developers, Inc., supra at 96, 666 N.W.2d 623 (\"[G]enerally, an attorney's negligence is attributable to that attorney's client[.]\"). [15] Id. at 46-47, 138 N.W.2d 751 (opinion by O'Hara, J., joined by Dethmers and Kelly, JJ.) (citations omitted). [16] Id. at 48, 138 N.W.2d 751 (Black and Smith, JJ., concurring). [17] Id.",
"at 48-56, 138 N.W.2d 751 (Kavanagh, C.J., and Souris and Adams, JJ., dissenting). [18] See Butterworth Hosp. v. Farm Bureau Ins. Co., 225 Mich.App. 244, 248, 570 N.W.2d 304 (1997) (recognizing that a lead opinion of the Michigan Supreme Court signed by only three justices was not binding on this Court). [19] Freeman v. Remley, 23 Mich.App. 441, 443, 178 N.W.2d 816 (1970). [20] Id. at 444, 178 N.W.2d 816. [21] Id. [22] Id. at 446, 178 N.W.2d 816. [23] Id. at 446, 448, 178 N.W.2d 816, citing Walters, supra at 47, 138 N.W.2d 751 (stating that a trial court's decision on a motion to set aside a judgment should not be disturbed absent a clear instance of abuse of discretion). [24] Hartman v. Roberts-Walby Enterprises, Inc., 17 Mich.App. 724, 726, 170 N.W.2d 292 (1969). [25] Asmus v. Barrett, 30 Mich.App. 570, 574-575, 186 N.W.2d 819 (1971).",
"[26] Id. at 574, 186 N.W.2d 819. [27] Levitt, supra at 605, 370 N.W.2d 4. [28] Id. at 606, 370 N.W.2d 4. [29] Id. at 609, 370 N.W.2d 4. [30] Id., citing Walters, supra, and Asmus, supra at 574, 186 N.W.2d 819. [31] Id. at 609-610, 370 N.W.2d 4. [32] Federspiel v. Bourassa, 151 Mich.App. 656, 658, 391 N.W.2d 431 (1986). [33] Id. at 658-659, 661, 391 N.W.2d 431. [34] Id. at 661, 391 N.W.2d 431. [35] Id. at 659, 661, 391 N.W.2d 431. [36] Id. at 658, 659, 391 N.W.2d 431. [37] Id. at 660, 391 N.W.2d 431. [38] Id. at 661, 391 N.W.2d 431. [39] Id.",
"[40] Id. at 663, 391 N.W.2d 431. [41] Id. [42] Id. [43] Id. at 658, 664, 391 N.W.2d 431. [44] Id. at 663 n. 2, 391 N.W.2d 431. [45] Id. at 661, 391 N.W.2d 431. [46] We distinguish procedurally nonnegligent defendants from defendants who are alleged to be negligent with respect to the substance of the plaintiff's claim. [47] Walters, supra at 46, 138 N.W.2d 751. [48] Freeman, supra at 444, 178 N.W.2d 816. [49] Alken-Ziegler, supra at 229, 600 N.W.2d 638. [50] Asmus, supra at 574-575, 186 N.W.2d 819. [51] See MCR 2.603(D)(1). [52] Alken-Ziegler, supra at 233-234, 600 N.W.2d 638. [53] Id. at 230-231, 600 N.W.2d 638. [54] See Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 6, 574 N.W.2d 691 (1997). [55] Signs v. Detroit Edison Co., 93 Mich.App. 626, 632, 287 N.W.2d 292 (1979).",
"[56] Ormsby v. Capital Welding, Inc., 471 Mich. 45, 53-54, 684 N.W.2d 320 (2004), quoting Funk v. Gen. Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641 (1974), overruled in part on another ground in Hardy v. Monsanto Enviro-Chem Sys., Inc., 414 Mich. 29, 323 N.W.2d 270 (1982). [57] Ormsby, supra at 54, 684 N.W.2d 320. [58] Alken-Ziegler, Inc., supra at 233-234, 600 N.W.2d 638. [59] See Sparks v. Sparks, 440 Mich. 141, 158-160, 485 N.W.2d 893 (1992) (determining alimony is within the trial court's discretion and involves consideration of certain enumerated factors); People v. Cipriano, 431 Mich. 315, 334, 429 N.W.2d 781 (1988) (whether a confession is voluntary requires reviewing factors and making a determination on the basis of the totality of the circumstances); People v. Colon, 233 Mich.App.",
"295, 304-305, 591 N.W.2d 692 (1998) (a suggestive identification procedure is only improper where, after reviewing certain relevant factors, the totality of the circumstances indicates a substantial likelihood of misidentification); McCain v. McCain, 229 Mich.App. 123, 124, 580 N.W.2d 485 (1998) (custody determinations are made on the basis of the best interest of the child in light of the trial court's findings with regard to 12 specific factors). [60] Alken-Ziegler, Inc., supra at 230-231, 233-234, 600 N.W.2d 638. [61] Id. at 233-234, 600 N.W.2d 638. [62] For example, it seems illogical to set aside a default judgment where the amount of fees and costs to be awarded under MCR 2.603(D)(4) will be greater than or roughly equal to the amount of the default judgment, as the defendant will pay the same amount, whether in costs if the judgment is set aside or under the judgment if it is not.",
"[63] See Sparks, supra at 159-160, 485 N.W.2d 893 (in determining alimony, the trial court determines what factors are significant and how much weight to assign to each factor; the factors listed are not exclusive); Cipriano, supra at 334-335, 429 N.W.2d 781 (no single factor is conclusive of the issue); People v. Kachar, 400 Mich. 78, 93-94, 97, 252 N.W.2d 807 (1977) (factors used to determine whether an independent basis for an in-court identification exists are not inclusive or exclusive and the weight given to each is within the trial court's discretion); McCain, supra at 131, 580 N.W.2d 485 (a trial court need not give equal weight to all the best-interest factors in child custody decisions). [1] The reader may interpret this statement as a criticism of textualism. It is not. In my opinion, all good judges begin the resolution of a controversy with the text of the statute or court rule.",
"A principled decision with a principled outcome is the goal of any decisionmaking process. I use this language only in the sense that the practical constraints involved in drafting court rules impose what may occasionally resemble methodological tunnel vision. Good judges will have the common sense and wisdom to integrate, where necessary, the rules, the comments to the rules, and caselaw into a fully articulated and intellectual framework. [2] The quotation comes from the official committee comment to GCR 1963, 13 (replaced in 1985 with MCR 1.105) and reads in full: \"Rules of practice and procedure are exactly that. They should create no rights and should be thought of as indicating the way in which justice should be administered. They should give direction to the process of administering justice but their application should not become a fetish to the extent that justice in an individual case is not done.",
"There is a need for guides and standards. They must be followed but they must always be thought of as guides and standards to the means of achieving justice, not the end of justice itself.\" [Higgins, supra.]"
]
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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 .
Drawings The drawings were received on 23 September 2020. These drawings are acceptable.
Election/Restrictions Claim 25 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 22 May 2019.
Claim Interpretation Attention is directed to MPEP 904.01 [R-08.2012]. The breadth of the claims in the application should always be carefully noted; that is, the examiner should be fully aware of what the claims do not call for, as well as what they do require. During patent examination, the claims are given the broadest reasonable interpretation consistent with the specification. See In re Morris, 127 F.3d 1048, 44 USPQ2d 1023 (Fed. Cir. 1997). See MPEP § 2111 - § 2116.01 for case law pertinent to claim analysis.
It is noted with particularity that narrowing limitations found in the specification cannot be inferred in the claims where the elements not set forth in the claims are linchpin of patentability. In re Philips Industries v. State Stove & Mfg. Co, Inc., 186 USPQ 458 (CA6 Ex parte Oetiker, 23 USPQ2d 1641 (BPAI, 1992). In added support of this position, attention is directed to MPEP 2111 [R-11.2013], where, citing In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-51 (CCPA 1969), is stated: The court explained that “reading a claim in light of the specification, to thereby interpret limitations explicitly recited in the claim, is a quite different thing from ‘reading limitations of the specification into a claim,’ to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the claim.” The court found that applicant was advocating the latter, i.e., the impermissible importation of subject matter from the specification into the claim.
Additionally, attention is directed to MPEP 2111.01 [R-07.2015], wherein is stated: II. IT IS IMPROPER TO IMPORT CLAIM LIMITATIONS FROM THE SPECIFICATION
“Though understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.” Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004).
Attention is also directed to MPEP 2111.02 II. As stated herein: II. PREAMBLE STATEMENTS RECITING PURPOSE OR INTENDED USE PNG media_image1.png 18 19 media_image1.png Greyscale
The claim preamble must be read in the context of the entire claim. The determination of whether preamble recitations are structural limitations or mere statements of purpose or use "can be resolved only on review of the entirety of the [record] to gain an understanding of what the inventors actually invented and intended to encompass by the claim." Corning Glass Works, 868 F.2d at 1257, 9 USPQ2d at 1966. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, Rowe v. Dror, 112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997) ("where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation")… (Emphasis added)
Attention is directed to MPEP 2111. As stated therein: During patent examination, the pending claims must be "given their broadest reasonable interpretation consistent with the specification." The Federal Circuit’s en banc decision in Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) expressly recognized that the USPTO employs the "broadest reasonable interpretation" standard:
The Patent and Trademark Office ("PTO") determines the scope of claims in patent applications not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction "in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364[, 70 USPQ2d 1827, 1830] (Fed. Cir. 2004). Indeed, the rules of the PTO require that application claims must "conform to the invention as set forth in the remainder of the specification and the terms and phrases used in the claims must find clear support or antecedent basis in the description so that the meaning of the terms in the claims may be ascertainable by reference to the description." 37 CFR 1.75(d)(1). (Emphasis added).
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.
Standard for Obviousness. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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.
Attention is directed to In re Jung, 98 USPQ2d 1174, 1178 (Fed. Cir. 2011) wherein is stated: There has never been a requirement for an examiner to make an on-the-record claim construction of every term in every rejected claim and to explain every possible difference between the prior art and the claimed invention in order to make out a prima facie rejection. This court declines to create such a burdensome and unnecessary requirement. “[Section 132] does not mandate that in order to establish prima facie anticipation, the PTO must explicitly preempt every possible response to a section 102 rejection. Section 132 merely ensures that an applicant at least be informed of the broad statutory basis for the rejection of his claims, so that he may determine what the issues are on which he can or should produce evidence.” Chester, 906 F.2d at 1578 (internal citation omitted). As discussed above, all that is required of the office to meet its prima facie burden of production is to set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative manner as to meet the notice requirement of § 132. As the statute itself instructs, the examiner must “notify the applicant,” “stating the reasons for such rejection,” “together with such information and references as may be useful in judging the propriety of continuing prosecution of his application.” 35 U.S.C. § 132.
Attention is directed to the decision in KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 (U.S. 2007): When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.
It is further noted that prior art is not limited to the four corners of the documentary prior art being applied. Prior art includes both the specialized understanding of one of ordinary skill in the art, and the common understanding of the layman. It includes “background knowledge possessed by a person having ordinary skill in the art. . . [A] court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1396. Suggestion, teaching or motivation does not have to be explicit and “may be found in any number of sources, including common knowledge, the prior art as a whole or the nature of the problem itself’” Pfizer, Inc. v. Apotex, Inc. 480 F.3d 1348, 82 USPQ2d 1321 (Fed. Cir. 2007) citing Dystar Textilfarben GMBH v. C. H. Patrick Co., 464 F.3d 1356 (Fed. Cir. 2006).
Holding Claims 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over US 2002/0170076 A1 (Dymecki) in view of US 2014/0041066 A1 (Carlson et al.), and US 2014/0031243 A1 (Cai et al.).
Rationale. Dymecki discloses a method of producing site-specific recombination of DNA in a transgenic non-human mammal at chromosomal regions. The method makes “use of site-specific recombinases such as Flp recombinase to accomplish in vivo recombination at engineered chromosomal FRT sites, thereby forming the basis of a genetic system to mark cell populations and lineages, as well as to activate, delete, mutate, or rearrange genes in vivo.” (Emphasis added) Dymecki, at paragraph [0012] teaches: [0012] For example, site-specific recombinases may be used to activate expression of a tracer molecule to mark cell lineages. Factors that influence the determination of these cell lineages can be identified by analyzing these marked cells in the genetic background of various mutations, including mutations generated using the second recombinase system. Additionally, having access to two recombinase systems allows for efficient use of the first recombinase to generate a mutation, and the second recombinase to remove any selectable markers used in generating that mutation which, if left in place, would confound interpretation of the study. A second recombinase system is desired which exploits the ability of Flp recombinase to catalyze FRT-specific recombination in a transgenic non-human mammal which can be used alone or to expand the uses of the CrelloxP system. (Emphasis added)
Dymecki, at paragraph [0049], teach that the lineages may be traced by identifying the presence of these recognition sequences, and that such may be done by in situ hybridization. The aspect of performing in situ hybridization is deemed to meet the limitations of establishing lineage information or a record of molecular events between cells, where the cells are “intact or undisrupted” (claim 1). As disclosed therein: [0049] In a mosaic or a chimeric transgenic non-human mammal, cells that have undergone site-specific recombination between Flp-recognition sequences may contain different numbers of Flp-recognition sequences. In mosaic or chimeric transgenic non-human mammals that have undergone Flp-mediated inversion of a second transgene flanked by Flp-recognition sequences in inverted repeat orientation, cell lineages may be traced by activation (e.g., transcription of the sense strand by a juxtaposed regulatory region) or inactivation (e.g., deletion or separation from a regulatory region) of the second transgene. The second transgene is preferably a histochemical tracing cell lineages, but in situ hybridization of transcripts from the second transgene is a possible method of detecting gene expression. Histochemical markers or reporter genes include alkaline phosphatase, β-galactosidase, choramphenicol acetyltransferase, luciferase, green fluorescent protein, β-glucoronidase, or derivatives thereof (Wasserman and DePamphilis, 1993). For in situ hybridization, radioactive labels may be used, but non-radioactive methods using an enzymatic label as described above and avidin-biotin or digoxygenin-antibody interaction. (Emphasis added)
The aspect of generating mutations in the chromatin of a cell so to allow for tracing of its lineage is deemed to meet a limitation of claims 1 and 20. The aspect of using “site-specific recombinases may be used to activate expression of a tracer molecule to mark cell lineages” is also deemed to meet limitations of claim 7. The aspect of performing in situ hybridization and that the probes can comprise a fluorescent label, is deemed to meet limitations of claims 2, 20, and 22. The aspect of performing the method so to characterize “lineages” speaks to the cells having undergone one or more cell cycle generations. Such is deemed to fairly suggest limitations of claims 9 and 10. Also, the aspect of detecting transcripts via hybridization is also deemed to constitute generation of “a record of molecular events” (claim 1). The aspect of incorporating a “Flp-recognition sequences” into the chromatin of the cell is deemed to meet a limitation of applicants “genetic scratchpad”. Dymecki has not been found to teach incorporating “guide sequence that is recognized by a unique guide molecule” which is “a guide RNA” (claim 6); or is cleaved by the “Cas9 nuclease” (claim 8); or that there may be a plurality of different guide sequences (claims 18 and 19). Similarly, Dymecki has not been found to teach the lengths of the guide molecules (claims 4 and 5). Dymecki has not been found to teach the inclusion of a “barcode sequence”, much less the length of same (claims 14-17).
Carlson et al., teach alternative means for incorporating modifying sequences into cells. As seen at paragraph [0047], one can employ guide sequences, e.g., guide RNA, which, once [0047] For instance, DiCarlo et al. (Nucl. Acids Res. 41(5) (2013)) reported that the CRISPR-Cas components, Cas9 gene and a designer genome targeting CRISPR guide RNA (gRNA), showed robust and specific RNA-guided endonuclease activity at targeted endogenous genomic loci in yeast. Using constitutive Cas9 expression and a transient gRNA cassette, they showed that targeted double-strand breaks increased homologous recombination rates of single- and double-stranded oligonucleotide donors by 5-fold and 130-fold, respectively. In addition, co-transformation of a gRNA plasmid and a donor DNA in cells constitutively expressing Cas9 resulted in near 100% donor DNA recombination frequency. (Emphaasis added)
Carlson et al., at paragraph [0048], teach: [0048] And Cong et al. reported that CRISPR systems and associated Cas9 nucleases could be directed by short RNAs to induce precise cleavage at endogenous genomic loci in human and mouse cells. Cas9 were also converted into a nicking enzyme to facilitate homology-directed repair with minimal mutagenic activity. Finally, multiple guide sequences were capable of being encoded into a single CRISPR array to enable simultaneous editing of several sites within the mammalian genome, demonstrating easy programmability and wide applicability of the CRISPR technology. (Emphasis added)
The aspect of using guide sequences (Cas9 gene) is deemed to meet the limitation of “guide molecule”, and the aspect of using CRISPR guide RNA (gRNA)” which is in turn acted upon by the Cas9 nuclease, is deemed to fairly meet limitations of claims 3-8. The aspect of just how long the length of the guide sequence can be is deemed to constitute an obvious design choice for as seen in paragraph [0047], one is employing a “Cas9 gene and a designer genome targeting CRISPR guide RNA”. The aspect of one employing “multiple guide sequences” which in turn “enable simultaneous editing of several sites within the mammalian genome” are deemed to fairly suggest the use of any desired number of different guide sequences, and that the selection of just how many different guide sequences that one wishes to employ is simply a matter of an obvious design choice. Given such, the above showing is deemed to meet limitations of claims 17-19. Carlson et al., have not been found to teach incorporating a molecular barcode, or the use of different fluorescent labels.
Cai et al., in their abstract, teach: Methods and systems are provided for creating molecular barcodes or indicia for cellular constituents within single cells and for resolving such barcodes or indicia with super-resolution technologies such as super-resolution microscopy. By this approach, numerous molecular species that can be measured simultaneously in single cells. It has been demonstrated that multiple mRNA transcripts can be labeled with a spatially ordered sequence of fluorophores, and that barcodes can be resolved. In addition, alternative splicing events can be characterized by identifying and quantifying mRNA isoforms in an individual cell.
Cai et al., in paragraph [0007], teach: [0007] In various embodiments, the invention teaches a method for characterizing one or more mRNA isoforms in a single cell, including: (i) creating a molecular barcode for each of said one or more mRNA isoforms in the cell, comprising: (a) providing two or more sets of two or more fluorophore-labeled oligonucleotide probes, wherein each set of probes are configured to hybridize with a specific region of one or more mRNA isoforms; and (b) hybridizing, within said cell, a quantity of said one or more mRNA isoforms with a quantity of said probes specific thereto, wherein each mRNA isoform that is hybridized with said fluorophore-labeled oligonucleotide probes emits two or more distinct signals, so as to create the molecular barcode; and (ii) resolving the molecular barcode, comprising resolving the signals emitted from the fluorophore-labeled oligonucleotide probes associated with each of said mRNA isoforms, using super resolution technology, wherein each emitted signal is a component of the barcode associated with said mRNA isoform, and wherein each mRNA isoform is associated with a distinct barcode, such that each mRNA isoform can be characterized. In certain embodiments, centroid fitting is used to determine spatial ordering of the fluorophore-labeled oligonucleotide probes. In some embodiments, the method includes quantifying one or more mRNA isoforms contained in a single cell, by counting the number of times each distinct barcode is detected. In some embodiments, each of the two or more sets of probes includes four or more fluorophore-labeled oligonucleotides. In some embodiments, the mRNA isoform is correlated with a gene associated with neuronal patterning or tumorigenesis. In some embodiments, the method further includes compressing the cell. In some embodiments, the method includes selecting said two or more sets of fluorophore-labeled oligonucleotide probes based upon a characteristic of said one or more mRNA isoforms, wherein said characteristic is selected from the group consisting of sequence, size, abundance level, activity level, two-dimensional structure, three-dimensional structure, and a combination thereof. In some embodiments, the cell is selected from the group consisting of a protist, a fungus, a plant cell, an animal cell, a mammalian cell, a mouse cell, a human cell, a cancer cell, a blood cell, a lymphocyte, an erythrocyte, a white blood cell, an epithelial cell, a pituitary cell, a gut or respiratory tract cell, a gland cell, a thyroid gland cell, a parathyroid gland cell, a adrenal gland cell, a muscle cell, a ciliated cell, an embryonic cell, a sensory transducer cell, a neuron, a glial cell, a lens cell, a kidney cell, a pigment cell, and a pancreatic cell. In some embodiments, the fluorophore is selected from the group consisting of fluorescein, rhodamine, Alexa Fluors, DyLight fluors, ATTO Dyes, and any analogs or derivatives thereof. In some embodiments, the super resolution technology is selected from the group consisting of Stimulated Emission Depletion microscopy (STEDM), Ground State Depletion microscopy (GSDM), Spatially Structured Illumination microscopy (SSIM), Photo-Activated Localization Microscopy (PALM), Fluorescence-PALM (FPALM), Stochastical Optical Reconstruction Microscopy (STORM), Fluorescence Imaging with One-Nanometer Accuracy (FIONA), and combinations thereof. (Emphasis added)
Cai et al., teach of the variety of lengths of barcode sequences. As seen at paragraph [0073]: Creating Molecular Barcodes/Indicia
[0073] As described above, an important aspect of creating a molecular barcode is the selection and creation of the probes that specifically recognize a target cellular constituent. As illustrated above, when the target cellular constituent is an mRNA transcript, the probes that are used to recognize and bind to the mRNA transcript are oligonucleotides, or "oligos." In some embodiments, the oligo probes are 10-mers or longer. In some embodiments, the oligo probes are 15-mers or longer. In some embodiments, the oligos are 20-mers or longer; 25-mers or longer; 30-mers or longer; 40-mers or longer; 50-mers or longer; 70-mers or longer; 100-mers or longer; 150-mers or longer; 200-mers or longer; 250-mers or longer; 300-mers or longer; 500-mers or longer; or 1,000-mers or longer. (Emphasis added)
Cai et al., at paragraphs [0083] – [0086], teach: [0083] It will be understood by one of skill in the art that indicia corresponding to longer, larger or more complex cellular constituents require more sophisticated combination of probes. For example, probes of longer oligonucleotides or more probes are needed to recognize and distinguish mRNA transcripts bearing similar sequences.
[0084] It will be understood by one of skill in the art that the current methods and systems can be applied to a combination of cellular constituents. For example, DNA, RNA and protein can be labeled and analyzed in one single experiment.
[0085] One of skill in the art would also understand that length or size of probes will vary, depending on the target cellular constituents and purposes of the analysis.
Cai et al., in paragraphs [0088] and [0089] teach: [0088] In some embodiments, labels of the present invention comprise one or more fluorescent dyes, including but not limited to fluorescein, rhodamine, Alexa Fluors, DyLight fluors, ATTO Dyes, or any analogs or derivatives thereof.
[0089] In some embodiments, labels of the present invention include but are not limited to fluorescein and chemical derivatives of fluorescein; Eosin; Carboxyfluorescein; Fluorescein isothiocyanate (FITC); Fluorescein amidite (FAM); Erythrosine; Rose Bengal; fluorescein secreted from the bacterium Pseudomonas aeruginosa; Methylene blue; Laser dyes; Rhodamine dyes (e.g., Rhodamine, Rhodamine 6G, Rhodamine B, Rhodamine 123, Auramine O, Sulforhodamine 101, Sulforhodamine B, and Texas Red).
The above showing is deemed to fairly suggest limitations of claims 2, 14-16, and 20-24. In view of the above showing, it would have been obvious to one of ordinary skill in the art to have modified the method of Dymecki whereby one is not only detecting the presence of guide sequences, but that one can generate changes in target site of a cell’s chromatin by using a guide RNA that is recognized by Cas9 nuclease, and which would cleave the hybridized complex, therein creating a change in the target site. It would also have been obvious to said ordinary artisan o have also incorporated the use of a barcode sequence into the target site for by doing such, one can have a plurality of different target sites, and that each can be cleaved as desired, and be detected by way of the combination of fluorescent signals. In view of the well-developed state of the art, the detailed guidance provide, and the great interest in being able to trace lineages of cells and molecular events that occur therein, said In view of the above analysis and in the absence of convincing evidence to the contrary, claims 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over US 2002/0170076 A1 (Dymecki) in view of US 2014/0041066 A1 (Carlson et al.), and US 2014/0031243 A1 (Cai et al.).
Conclusion Objections and/or rejections which appeared in the prior Office action and which have not been repeated hereinabove have been withdrawn. 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 Bradley L. Sisson whose telephone number is (571)272-0751. The examiner can normally be reached on Monday to Thursday, from 6:30 AM to 5 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, Dave Nguyen can be reached on 571-272-0731. 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.
/Bradley L. Sisson/Primary Examiner, Art Unit 1634 | 2021-02-01T05:42:01 | [
"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 . Drawings The drawings were received on 23 September 2020. These drawings are acceptable. Election/Restrictions Claim 25 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 22 May 2019. Claim Interpretation Attention is directed to MPEP 904.01 [R-08.2012]. The breadth of the claims in the application should always be carefully noted; that is, the examiner should be fully aware of what the claims do not call for, as well as what they do require. During patent examination, the claims are given the broadest reasonable interpretation consistent with the specification. See In re Morris, 127 F.3d 1048, 44 USPQ2d 1023 (Fed.",
"Cir. 1997). See MPEP § 2111 - § 2116.01 for case law pertinent to claim analysis. It is noted with particularity that narrowing limitations found in the specification cannot be inferred in the claims where the elements not set forth in the claims are linchpin of patentability. In re Philips Industries v. State Stove & Mfg. Co, Inc., 186 USPQ 458 (CA6 Ex parte Oetiker, 23 USPQ2d 1641 (BPAI, 1992). In added support of this position, attention is directed to MPEP 2111 [R-11.2013], where, citing In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-51 (CCPA 1969), is stated: The court explained that “reading a claim in light of the specification, to thereby interpret limitations explicitly recited in the claim, is a quite different thing from ‘reading limitations of the specification into a claim,’ to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the claim.” The court found that applicant was advocating the latter, i.e., the impermissible importation of subject matter from the specification into the claim.",
"Additionally, attention is directed to MPEP 2111.01 [R-07.2015], wherein is stated: II. IT IS IMPROPER TO IMPORT CLAIM LIMITATIONS FROM THE SPECIFICATION “Though understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.” Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). Attention is also directed to MPEP 2111.02 II. As stated herein: II. PREAMBLE STATEMENTS RECITING PURPOSE OR INTENDED USE PNG media_image1.png 18 19 media_image1.png Greyscale The claim preamble must be read in the context of the entire claim.",
"The determination of whether preamble recitations are structural limitations or mere statements of purpose or use \"can be resolved only on review of the entirety of the [record] to gain an understanding of what the inventors actually invented and intended to encompass by the claim.\" Corning Glass Works, 868 F.2d at 1257, 9 USPQ2d at 1966. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, Rowe v. Dror, 112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir.",
"1997) (\"where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation\")… (Emphasis added) Attention is directed to MPEP 2111. As stated therein: During patent examination, the pending claims must be \"given their broadest reasonable interpretation consistent with the specification.\" The Federal Circuit’s en banc decision in Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) expressly recognized that the USPTO employs the \"broadest reasonable interpretation\" standard: The Patent and Trademark Office (\"PTO\") determines the scope of claims in patent applications not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction \"in light of the specification as it would be interpreted by one of ordinary skill in the art.\"",
"In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364[, 70 USPQ2d 1827, 1830] (Fed. Cir. 2004). Indeed, the rules of the PTO require that application claims must \"conform to the invention as set forth in the remainder of the specification and the terms and phrases used in the claims must find clear support or antecedent basis in the description so that the meaning of the terms in the claims may be ascertainable by reference to the description.\" 37 CFR 1.75(d)(1). (Emphasis added). 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. Standard for Obviousness.",
"The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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. Attention is directed to In re Jung, 98 USPQ2d 1174, 1178 (Fed. Cir. 2011) wherein is stated: There has never been a requirement for an examiner to make an on-the-record claim construction of every term in every rejected claim and to explain every possible difference between the prior art and the claimed invention in order to make out a prima facie rejection.",
"This court declines to create such a burdensome and unnecessary requirement. “[Section 132] does not mandate that in order to establish prima facie anticipation, the PTO must explicitly preempt every possible response to a section 102 rejection. Section 132 merely ensures that an applicant at least be informed of the broad statutory basis for the rejection of his claims, so that he may determine what the issues are on which he can or should produce evidence.” Chester, 906 F.2d at 1578 (internal citation omitted).",
"As discussed above, all that is required of the office to meet its prima facie burden of production is to set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative manner as to meet the notice requirement of § 132. As the statute itself instructs, the examiner must “notify the applicant,” “stating the reasons for such rejection,” “together with such information and references as may be useful in judging the propriety of continuing prosecution of his application.” 35 U.S.C. § 132. Attention is directed to the decision in KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 (U.S. 2007): When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. It is further noted that prior art is not limited to the four corners of the documentary prior art being applied. Prior art includes both the specialized understanding of one of ordinary skill in the art, and the common understanding of the layman.",
"It includes “background knowledge possessed by a person having ordinary skill in the art. . . [A] court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1396. Suggestion, teaching or motivation does not have to be explicit and “may be found in any number of sources, including common knowledge, the prior art as a whole or the nature of the problem itself’” Pfizer, Inc. v. Apotex, Inc. 480 F.3d 1348, 82 USPQ2d 1321 (Fed. Cir. 2007) citing Dystar Textilfarben GMBH v. C. H. Patrick Co., 464 F.3d 1356 (Fed. Cir. 2006). Holding Claims 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over US 2002/0170076 A1 (Dymecki) in view of US 2014/0041066 A1 (Carlson et al.",
"), and US 2014/0031243 A1 (Cai et al.). Rationale. Dymecki discloses a method of producing site-specific recombination of DNA in a transgenic non-human mammal at chromosomal regions. The method makes “use of site-specific recombinases such as Flp recombinase to accomplish in vivo recombination at engineered chromosomal FRT sites, thereby forming the basis of a genetic system to mark cell populations and lineages, as well as to activate, delete, mutate, or rearrange genes in vivo.” (Emphasis added) Dymecki, at paragraph [0012] teaches: [0012] For example, site-specific recombinases may be used to activate expression of a tracer molecule to mark cell lineages. Factors that influence the determination of these cell lineages can be identified by analyzing these marked cells in the genetic background of various mutations, including mutations generated using the second recombinase system. Additionally, having access to two recombinase systems allows for efficient use of the first recombinase to generate a mutation, and the second recombinase to remove any selectable markers used in generating that mutation which, if left in place, would confound interpretation of the study. A second recombinase system is desired which exploits the ability of Flp recombinase to catalyze FRT-specific recombination in a transgenic non-human mammal which can be used alone or to expand the uses of the CrelloxP system.",
"(Emphasis added) Dymecki, at paragraph [0049], teach that the lineages may be traced by identifying the presence of these recognition sequences, and that such may be done by in situ hybridization. The aspect of performing in situ hybridization is deemed to meet the limitations of establishing lineage information or a record of molecular events between cells, where the cells are “intact or undisrupted” (claim 1). As disclosed therein: [0049] In a mosaic or a chimeric transgenic non-human mammal, cells that have undergone site-specific recombination between Flp-recognition sequences may contain different numbers of Flp-recognition sequences.",
"In mosaic or chimeric transgenic non-human mammals that have undergone Flp-mediated inversion of a second transgene flanked by Flp-recognition sequences in inverted repeat orientation, cell lineages may be traced by activation (e.g., transcription of the sense strand by a juxtaposed regulatory region) or inactivation (e.g., deletion or separation from a regulatory region) of the second transgene. The second transgene is preferably a histochemical tracing cell lineages, but in situ hybridization of transcripts from the second transgene is a possible method of detecting gene expression. Histochemical markers or reporter genes include alkaline phosphatase, β-galactosidase, choramphenicol acetyltransferase, luciferase, green fluorescent protein, β-glucoronidase, or derivatives thereof (Wasserman and DePamphilis, 1993). For in situ hybridization, radioactive labels may be used, but non-radioactive methods using an enzymatic label as described above and avidin-biotin or digoxygenin-antibody interaction.",
"(Emphasis added) The aspect of generating mutations in the chromatin of a cell so to allow for tracing of its lineage is deemed to meet a limitation of claims 1 and 20. The aspect of using “site-specific recombinases may be used to activate expression of a tracer molecule to mark cell lineages” is also deemed to meet limitations of claim 7. The aspect of performing in situ hybridization and that the probes can comprise a fluorescent label, is deemed to meet limitations of claims 2, 20, and 22. The aspect of performing the method so to characterize “lineages” speaks to the cells having undergone one or more cell cycle generations. Such is deemed to fairly suggest limitations of claims 9 and 10.",
"Also, the aspect of detecting transcripts via hybridization is also deemed to constitute generation of “a record of molecular events” (claim 1). The aspect of incorporating a “Flp-recognition sequences” into the chromatin of the cell is deemed to meet a limitation of applicants “genetic scratchpad”. Dymecki has not been found to teach incorporating “guide sequence that is recognized by a unique guide molecule” which is “a guide RNA” (claim 6); or is cleaved by the “Cas9 nuclease” (claim 8); or that there may be a plurality of different guide sequences (claims 18 and 19). Similarly, Dymecki has not been found to teach the lengths of the guide molecules (claims 4 and 5). Dymecki has not been found to teach the inclusion of a “barcode sequence”, much less the length of same (claims 14-17). Carlson et al., teach alternative means for incorporating modifying sequences into cells. As seen at paragraph [0047], one can employ guide sequences, e.g., guide RNA, which, once [0047] For instance, DiCarlo et al. (Nucl. Acids Res.",
"41(5) (2013)) reported that the CRISPR-Cas components, Cas9 gene and a designer genome targeting CRISPR guide RNA (gRNA), showed robust and specific RNA-guided endonuclease activity at targeted endogenous genomic loci in yeast. Using constitutive Cas9 expression and a transient gRNA cassette, they showed that targeted double-strand breaks increased homologous recombination rates of single- and double-stranded oligonucleotide donors by 5-fold and 130-fold, respectively. In addition, co-transformation of a gRNA plasmid and a donor DNA in cells constitutively expressing Cas9 resulted in near 100% donor DNA recombination frequency. (Emphaasis added) Carlson et al., at paragraph [0048], teach: [0048] And Cong et al. reported that CRISPR systems and associated Cas9 nucleases could be directed by short RNAs to induce precise cleavage at endogenous genomic loci in human and mouse cells. Cas9 were also converted into a nicking enzyme to facilitate homology-directed repair with minimal mutagenic activity.",
"Finally, multiple guide sequences were capable of being encoded into a single CRISPR array to enable simultaneous editing of several sites within the mammalian genome, demonstrating easy programmability and wide applicability of the CRISPR technology. (Emphasis added) The aspect of using guide sequences (Cas9 gene) is deemed to meet the limitation of “guide molecule”, and the aspect of using CRISPR guide RNA (gRNA)” which is in turn acted upon by the Cas9 nuclease, is deemed to fairly meet limitations of claims 3-8. The aspect of just how long the length of the guide sequence can be is deemed to constitute an obvious design choice for as seen in paragraph [0047], one is employing a “Cas9 gene and a designer genome targeting CRISPR guide RNA”. The aspect of one employing “multiple guide sequences” which in turn “enable simultaneous editing of several sites within the mammalian genome” are deemed to fairly suggest the use of any desired number of different guide sequences, and that the selection of just how many different guide sequences that one wishes to employ is simply a matter of an obvious design choice.",
"Given such, the above showing is deemed to meet limitations of claims 17-19. Carlson et al., have not been found to teach incorporating a molecular barcode, or the use of different fluorescent labels. Cai et al., in their abstract, teach: Methods and systems are provided for creating molecular barcodes or indicia for cellular constituents within single cells and for resolving such barcodes or indicia with super-resolution technologies such as super-resolution microscopy. By this approach, numerous molecular species that can be measured simultaneously in single cells. It has been demonstrated that multiple mRNA transcripts can be labeled with a spatially ordered sequence of fluorophores, and that barcodes can be resolved. In addition, alternative splicing events can be characterized by identifying and quantifying mRNA isoforms in an individual cell. Cai et al., in paragraph [0007], teach: [0007] In various embodiments, the invention teaches a method for characterizing one or more mRNA isoforms in a single cell, including: (i) creating a molecular barcode for each of said one or more mRNA isoforms in the cell, comprising: (a) providing two or more sets of two or more fluorophore-labeled oligonucleotide probes, wherein each set of probes are configured to hybridize with a specific region of one or more mRNA isoforms; and (b) hybridizing, within said cell, a quantity of said one or more mRNA isoforms with a quantity of said probes specific thereto, wherein each mRNA isoform that is hybridized with said fluorophore-labeled oligonucleotide probes emits two or more distinct signals, so as to create the molecular barcode; and (ii) resolving the molecular barcode, comprising resolving the signals emitted from the fluorophore-labeled oligonucleotide probes associated with each of said mRNA isoforms, using super resolution technology, wherein each emitted signal is a component of the barcode associated with said mRNA isoform, and wherein each mRNA isoform is associated with a distinct barcode, such that each mRNA isoform can be characterized.",
"In certain embodiments, centroid fitting is used to determine spatial ordering of the fluorophore-labeled oligonucleotide probes. In some embodiments, the method includes quantifying one or more mRNA isoforms contained in a single cell, by counting the number of times each distinct barcode is detected. In some embodiments, each of the two or more sets of probes includes four or more fluorophore-labeled oligonucleotides. In some embodiments, the mRNA isoform is correlated with a gene associated with neuronal patterning or tumorigenesis. In some embodiments, the method further includes compressing the cell.",
"In some embodiments, the method includes selecting said two or more sets of fluorophore-labeled oligonucleotide probes based upon a characteristic of said one or more mRNA isoforms, wherein said characteristic is selected from the group consisting of sequence, size, abundance level, activity level, two-dimensional structure, three-dimensional structure, and a combination thereof. In some embodiments, the cell is selected from the group consisting of a protist, a fungus, a plant cell, an animal cell, a mammalian cell, a mouse cell, a human cell, a cancer cell, a blood cell, a lymphocyte, an erythrocyte, a white blood cell, an epithelial cell, a pituitary cell, a gut or respiratory tract cell, a gland cell, a thyroid gland cell, a parathyroid gland cell, a adrenal gland cell, a muscle cell, a ciliated cell, an embryonic cell, a sensory transducer cell, a neuron, a glial cell, a lens cell, a kidney cell, a pigment cell, and a pancreatic cell.",
"In some embodiments, the fluorophore is selected from the group consisting of fluorescein, rhodamine, Alexa Fluors, DyLight fluors, ATTO Dyes, and any analogs or derivatives thereof. In some embodiments, the super resolution technology is selected from the group consisting of Stimulated Emission Depletion microscopy (STEDM), Ground State Depletion microscopy (GSDM), Spatially Structured Illumination microscopy (SSIM), Photo-Activated Localization Microscopy (PALM), Fluorescence-PALM (FPALM), Stochastical Optical Reconstruction Microscopy (STORM), Fluorescence Imaging with One-Nanometer Accuracy (FIONA), and combinations thereof. (Emphasis added) Cai et al., teach of the variety of lengths of barcode sequences.",
"As seen at paragraph [0073]: Creating Molecular Barcodes/Indicia [0073] As described above, an important aspect of creating a molecular barcode is the selection and creation of the probes that specifically recognize a target cellular constituent. As illustrated above, when the target cellular constituent is an mRNA transcript, the probes that are used to recognize and bind to the mRNA transcript are oligonucleotides, or \"oligos.\" In some embodiments, the oligo probes are 10-mers or longer. In some embodiments, the oligo probes are 15-mers or longer. In some embodiments, the oligos are 20-mers or longer; 25-mers or longer; 30-mers or longer; 40-mers or longer; 50-mers or longer; 70-mers or longer; 100-mers or longer; 150-mers or longer; 200-mers or longer; 250-mers or longer; 300-mers or longer; 500-mers or longer; or 1,000-mers or longer. (Emphasis added) Cai et al., at paragraphs [0083] – [0086], teach: [0083] It will be understood by one of skill in the art that indicia corresponding to longer, larger or more complex cellular constituents require more sophisticated combination of probes.",
"For example, probes of longer oligonucleotides or more probes are needed to recognize and distinguish mRNA transcripts bearing similar sequences. [0084] It will be understood by one of skill in the art that the current methods and systems can be applied to a combination of cellular constituents. For example, DNA, RNA and protein can be labeled and analyzed in one single experiment. [0085] One of skill in the art would also understand that length or size of probes will vary, depending on the target cellular constituents and purposes of the analysis. Cai et al., in paragraphs [0088] and [0089] teach: [0088] In some embodiments, labels of the present invention comprise one or more fluorescent dyes, including but not limited to fluorescein, rhodamine, Alexa Fluors, DyLight fluors, ATTO Dyes, or any analogs or derivatives thereof. [0089] In some embodiments, labels of the present invention include but are not limited to fluorescein and chemical derivatives of fluorescein; Eosin; Carboxyfluorescein; Fluorescein isothiocyanate (FITC); Fluorescein amidite (FAM); Erythrosine; Rose Bengal; fluorescein secreted from the bacterium Pseudomonas aeruginosa; Methylene blue; Laser dyes; Rhodamine dyes (e.g., Rhodamine, Rhodamine 6G, Rhodamine B, Rhodamine 123, Auramine O, Sulforhodamine 101, Sulforhodamine B, and Texas Red).",
"The above showing is deemed to fairly suggest limitations of claims 2, 14-16, and 20-24. In view of the above showing, it would have been obvious to one of ordinary skill in the art to have modified the method of Dymecki whereby one is not only detecting the presence of guide sequences, but that one can generate changes in target site of a cell’s chromatin by using a guide RNA that is recognized by Cas9 nuclease, and which would cleave the hybridized complex, therein creating a change in the target site. It would also have been obvious to said ordinary artisan o have also incorporated the use of a barcode sequence into the target site for by doing such, one can have a plurality of different target sites, and that each can be cleaved as desired, and be detected by way of the combination of fluorescent signals.",
"In view of the well-developed state of the art, the detailed guidance provide, and the great interest in being able to trace lineages of cells and molecular events that occur therein, said In view of the above analysis and in the absence of convincing evidence to the contrary, claims 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over US 2002/0170076 A1 (Dymecki) in view of US 2014/0041066 A1 (Carlson et al. ), and US 2014/0031243 A1 (Cai et al.). Conclusion Objections and/or rejections which appeared in the prior Office action and which have not been repeated hereinabove have been withdrawn. 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 Bradley L. Sisson whose telephone number is (571)272-0751. The examiner can normally be reached on Monday to Thursday, from 6:30 AM to 5 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, Dave Nguyen can be reached on 571-272-0731. 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. /Bradley L. Sisson/Primary Examiner, Art Unit 1634"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-02-07.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 .
Election/Restrictions Applicant’s election without traverse of Group I, Species I in the reply filed on 5/10/22 is acknowledged. Since the scope of Claim 1 has been added to Claim 20, the combination-subcombination restriction is withdrawn. Therefore, Claims 18 and 19 are withdrawn as a non-elected species and Claims 1-17 and 20 are examined herein.
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 4-12 and 16 is 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 Claim 4, “the contact surface” has no antecedent basis since only “a first couple of contact surfaces” have been recited. This is also true for “abutment surfaces” in Claim 9. If “the abutment surfaces of” were deleted from Claim 9, it would not appear to change the meaning of the claim. Claim 1 recites the centering device “is configured to adjust the position of BOTH of the upper” and lower layers. Claim 7 recites the centering device “is configured to interact with ONLY ONE of the” upper and lowers layers. In is unclear how this can be reconciled since adjusting a layer must require some interaction with said layer, and thus the structure imparted by Claim 7 is unclear. Claim 12 recites “moveable elements for the positioning device” without providing antecedent basis for such as term. It is noted Claim 12 does not depend from Claim 4, wherein such moveable elements were introduced. Examiner has assumed any moveable elements for a positioning device satisfy Claim 12 and they need not have the scope of Claim 4, since it is not dependent thereon. Claim 16 is unclear because the claim appears to set a minimum pressing strength for the press, but lists two separate minimums. Examiner assumes any press capable of pressing over 350 kg/sqm reads on the claim. The remaining claims are rejected as being dependent on an indefinite claim.
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.
Claim(s) 1, 2, 4-12, 14, 16, 17, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cossins (US 2017/0072672) as evidenced by Umeda (5,037,498) and Vaders (US 2003/0098117). Regarding Claims 1, 14 and 17, Cossins et al. teaches pressing equipment comprising a stationary press [100] configured to press an upper layer onto a lower layer (See Fig. 3 and page 2, paragraph [0016], teaching press with platens [120] and [110] for bonding a decorative skin to a core [34] to a core [26], wherein lower platen [110] is a supporting surface to the core or bottom portion to be boned). Cossin et al. further teaches an alignment mechanism [146] and a roller conveyor [134] can position the layers for pressing by adjusting the position of the layers (See Fig. 4 and page 2, paragraph [0016]). Therefore, either of the alignment mechanism [146] or a roller conveyor [124] may be reasonably considered a positioning device or a centering device as claimed. Although Cossins et al. doesn’t specifically teach flooring, the flooring itself isn’t claimed. Note that “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)). An apparatus need merely be capable of performing the claimed functions on the claimed material worked on. Since the press merely need be able to press the flooring materials, Cossins et al. surely could do so, and thus is reasonably said to press any materials including flooring. Further, it is well-known that flooring and doors are made of similar materials and pressed in similar systems that may include impressions (See, for example, Umeda, Abstract and col. 1, lines 7-21, teaching pressing skins to honeycomb, such as is taught in Cossins et al., is utilized to make doors and floors; and/or Vanders et al., page 1, paragraph [0004] and page 2, paragraph [0020], indicating impression pressing systems utilized for doors may also be used to manufacture floors), thus further supporting the contention the press in Cossins et al. is reasonably interpreted as being configured to press flooring, and at the very least rendering obvious use of similar systems for pressing flooring. Regarding Claims 2, 4, 5, 7, 8-12, Cossins et al. teaches the alignment mechanism [146] may be more than one alignment mechanism to adjust laterally, each of which may operate concurrently, i.e. synchronously (See page 3, paragraph [0023] and Fig. 4, wherein the alignment mechanisms are shown as an opposing couple each having movable elements moving the contact/abutment surfaces). As described above, the alignment mechanism may be considered either a positioning device or a centering device as claimed wherein its region making contact are reasonably considered either contact surfaces or abutment surfaces as claimed. Note as described above, the upper decorative layer and lower support layer are material worked on that is not part of the device. Since it would have been possible to put a lower support in the press that is thick such that the alignment mechanisms only interact with such a lower support, it is reasonably said to be configured as in Claim 7. In Claim 12, Examiner submits the roller conveyor [34] can retract (See Fig. 4 and page 3, paragraph [0023]), anything causing said retraction being moveable elements that would clearly operate separately (have independent control) from the alignment mechanism since they are different mechanisms with different functions. It is noted 350 kg/sqm is 0.035 kg/cm2. Cossins et al. teaches the press must crush honeycomb at a force well above this range (See page 2, paragraph [0014), thus clearly indicating it is configured to press to at least 350 kg/sqm. Regarding Claim 20, Cossins et al. teaches adhesive, i.e. glue, must be applied to the layers prior to pressing, i.e. upstream (See page 1, paragraph [0003] and page 2, paragraph [0014], teaching adhesive is applied before stacking the layers in a clearly upstream portion of the process; Examiner submits anything associated with applying said glue, even if it is merely the container housing the glue, is an upstream gluing device as claimed).
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. 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 3 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cossins et al. as applied to Claim 2, and further in view of Coleman et al. (US 5,916,398). Regarding Claim 3, Cossins et al. teaches the method of Claim 3, as described above. Cossins et al. further teaches there may be one or more alignment mechanisms [146] for lateral without specifically limiting the number and further teaches “positioning guides” for longitudinal alignment, without specifically describing their structure. Cossin et al. doesn’t described the positioning guides or indicate they are an opposed couple. However, it is known alignment mechanisms such as in Cossin et al. may be placed at multiple opposed locations for greater precision and control in alignment (See, for example, Coleman et al., col. 11, lines 41-63 and Fig. 6). Thus, it at least would have been obvious to a person having ordinary skill in the art at the time of invention to utilize a separate couple of alignment devices [146] as the positioning guide in the longitudinal direction. Doing so would have predictably provided greater precision and control over the final position of the substrates in both the lateral and longitudinal directions. Regarding Claim 13, Cossin et al. is silent about the device being “linked.” However, Examiner notes even a single alignment mechanism [146] may be considered an positioning device or a centering device as claimed, the other alignment mechanism being the other of the positioning device or centering device. Further, the laterally and longitudinal groupings described as obvious above, could also be one of each for positioning/centering respectively. Although Cossin et al. is silent about whether these devices are linked, it is known that such devices may all share the same support surface, thus effectively linking them (See, for example, Coleman et al., Figs. 6-7, teaching the same table [32] for supporting all alignment devices, thus effectively linking them). Thus, it would have been obvious to a person having ordinary skill in the art at the time of invention to utilize the same support surface for the alignment devices, any of which may be a centering or positioning device, because doing would have predictably been a suitable way to mount them. This support surface “links” them.
Claims 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cossins et al. as applied to Claim 1, and further in view of Vaders. Regarding Claim 15, Cossins et al. teaches the method of Claim 3, as described above. Cossins et al. teaches an upper [120] and lower [110] platen that are multiple pressing elements, and implies some control of at least one press surface, but is silent as to the specific mechanism and whether each are controlled. However, in similar presses, it is known both the upper and lower platen may be controlled, such as via a hydraulic cylinder (See, for example Vaders, page 2, paragraph [0022] and Fig. 2, clearly showing a drive mechanism [42] on both the upper and lower platens, thus at least indicating group control). Thus, it at least would have been obvious to a person having ordinary skill in the art at the time of invention to utilize multiple controllable pressing elements, such as both the upper and lower platen, because doing so is known to be suitable for similar pressing systems.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT W DODDS whose telephone number is (571)270-7653. The examiner can normally be reached M-F 10am-6pm. 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 Orlando can be reached on 5712705038. 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.
/SCOTT W DODDS/Primary Examiner, Art Unit 1746 | 2022-05-29T11:42:28 | [
"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 . Election/Restrictions Applicant’s election without traverse of Group I, Species I in the reply filed on 5/10/22 is acknowledged. Since the scope of Claim 1 has been added to Claim 20, the combination-subcombination restriction is withdrawn. Therefore, Claims 18 and 19 are withdrawn as a non-elected species and Claims 1-17 and 20 are examined herein. 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 4-12 and 16 is 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 Claim 4, “the contact surface” has no antecedent basis since only “a first couple of contact surfaces” have been recited. This is also true for “abutment surfaces” in Claim 9. If “the abutment surfaces of” were deleted from Claim 9, it would not appear to change the meaning of the claim. Claim 1 recites the centering device “is configured to adjust the position of BOTH of the upper” and lower layers. Claim 7 recites the centering device “is configured to interact with ONLY ONE of the” upper and lowers layers.",
"In is unclear how this can be reconciled since adjusting a layer must require some interaction with said layer, and thus the structure imparted by Claim 7 is unclear. Claim 12 recites “moveable elements for the positioning device” without providing antecedent basis for such as term. It is noted Claim 12 does not depend from Claim 4, wherein such moveable elements were introduced. Examiner has assumed any moveable elements for a positioning device satisfy Claim 12 and they need not have the scope of Claim 4, since it is not dependent thereon. Claim 16 is unclear because the claim appears to set a minimum pressing strength for the press, but lists two separate minimums. Examiner assumes any press capable of pressing over 350 kg/sqm reads on the claim.",
"The remaining claims are rejected as being dependent on an indefinite claim. 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. Claim(s) 1, 2, 4-12, 14, 16, 17, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cossins (US 2017/0072672) as evidenced by Umeda (5,037,498) and Vaders (US 2003/0098117). Regarding Claims 1, 14 and 17, Cossins et al. teaches pressing equipment comprising a stationary press [100] configured to press an upper layer onto a lower layer (See Fig. 3 and page 2, paragraph [0016], teaching press with platens [120] and [110] for bonding a decorative skin to a core [34] to a core [26], wherein lower platen [110] is a supporting surface to the core or bottom portion to be boned). Cossin et al.",
"further teaches an alignment mechanism [146] and a roller conveyor [134] can position the layers for pressing by adjusting the position of the layers (See Fig. 4 and page 2, paragraph [0016]). Therefore, either of the alignment mechanism [146] or a roller conveyor [124] may be reasonably considered a positioning device or a centering device as claimed. Although Cossins et al. doesn’t specifically teach flooring, the flooring itself isn’t claimed. Note that “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)). An apparatus need merely be capable of performing the claimed functions on the claimed material worked on.",
"Since the press merely need be able to press the flooring materials, Cossins et al. surely could do so, and thus is reasonably said to press any materials including flooring. Further, it is well-known that flooring and doors are made of similar materials and pressed in similar systems that may include impressions (See, for example, Umeda, Abstract and col. 1, lines 7-21, teaching pressing skins to honeycomb, such as is taught in Cossins et al., is utilized to make doors and floors; and/or Vanders et al., page 1, paragraph [0004] and page 2, paragraph [0020], indicating impression pressing systems utilized for doors may also be used to manufacture floors), thus further supporting the contention the press in Cossins et al. is reasonably interpreted as being configured to press flooring, and at the very least rendering obvious use of similar systems for pressing flooring. Regarding Claims 2, 4, 5, 7, 8-12, Cossins et al. teaches the alignment mechanism [146] may be more than one alignment mechanism to adjust laterally, each of which may operate concurrently, i.e. synchronously (See page 3, paragraph [0023] and Fig. 4, wherein the alignment mechanisms are shown as an opposing couple each having movable elements moving the contact/abutment surfaces).",
"As described above, the alignment mechanism may be considered either a positioning device or a centering device as claimed wherein its region making contact are reasonably considered either contact surfaces or abutment surfaces as claimed. Note as described above, the upper decorative layer and lower support layer are material worked on that is not part of the device. Since it would have been possible to put a lower support in the press that is thick such that the alignment mechanisms only interact with such a lower support, it is reasonably said to be configured as in Claim 7. In Claim 12, Examiner submits the roller conveyor [34] can retract (See Fig. 4 and page 3, paragraph [0023]), anything causing said retraction being moveable elements that would clearly operate separately (have independent control) from the alignment mechanism since they are different mechanisms with different functions. It is noted 350 kg/sqm is 0.035 kg/cm2.",
"Cossins et al. teaches the press must crush honeycomb at a force well above this range (See page 2, paragraph [0014), thus clearly indicating it is configured to press to at least 350 kg/sqm. Regarding Claim 20, Cossins et al. teaches adhesive, i.e. glue, must be applied to the layers prior to pressing, i.e. upstream (See page 1, paragraph [0003] and page 2, paragraph [0014], teaching adhesive is applied before stacking the layers in a clearly upstream portion of the process; Examiner submits anything associated with applying said glue, even if it is merely the container housing the glue, is an upstream gluing device as claimed). 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. 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 3 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cossins et al. as applied to Claim 2, and further in view of Coleman et al. (US 5,916,398). Regarding Claim 3, Cossins et al. teaches the method of Claim 3, as described above. Cossins et al. further teaches there may be one or more alignment mechanisms [146] for lateral without specifically limiting the number and further teaches “positioning guides” for longitudinal alignment, without specifically describing their structure. Cossin et al. doesn’t described the positioning guides or indicate they are an opposed couple. However, it is known alignment mechanisms such as in Cossin et al.",
"may be placed at multiple opposed locations for greater precision and control in alignment (See, for example, Coleman et al., col. 11, lines 41-63 and Fig. 6). Thus, it at least would have been obvious to a person having ordinary skill in the art at the time of invention to utilize a separate couple of alignment devices [146] as the positioning guide in the longitudinal direction. Doing so would have predictably provided greater precision and control over the final position of the substrates in both the lateral and longitudinal directions.",
"Regarding Claim 13, Cossin et al. is silent about the device being “linked.” However, Examiner notes even a single alignment mechanism [146] may be considered an positioning device or a centering device as claimed, the other alignment mechanism being the other of the positioning device or centering device. Further, the laterally and longitudinal groupings described as obvious above, could also be one of each for positioning/centering respectively. Although Cossin et al. is silent about whether these devices are linked, it is known that such devices may all share the same support surface, thus effectively linking them (See, for example, Coleman et al., Figs. 6-7, teaching the same table [32] for supporting all alignment devices, thus effectively linking them).",
"Thus, it would have been obvious to a person having ordinary skill in the art at the time of invention to utilize the same support surface for the alignment devices, any of which may be a centering or positioning device, because doing would have predictably been a suitable way to mount them. This support surface “links” them. Claims 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cossins et al. as applied to Claim 1, and further in view of Vaders. Regarding Claim 15, Cossins et al. teaches the method of Claim 3, as described above. Cossins et al.",
"teaches an upper [120] and lower [110] platen that are multiple pressing elements, and implies some control of at least one press surface, but is silent as to the specific mechanism and whether each are controlled. However, in similar presses, it is known both the upper and lower platen may be controlled, such as via a hydraulic cylinder (See, for example Vaders, page 2, paragraph [0022] and Fig. 2, clearly showing a drive mechanism [42] on both the upper and lower platens, thus at least indicating group control).",
"Thus, it at least would have been obvious to a person having ordinary skill in the art at the time of invention to utilize multiple controllable pressing elements, such as both the upper and lower platen, because doing so is known to be suitable for similar pressing systems. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT W DODDS whose telephone number is (571)270-7653. The examiner can normally be reached M-F 10am-6pm. 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 Orlando can be reached on 5712705038. 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. /SCOTT W DODDS/Primary Examiner, Art Unit 1746"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-05.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.28
TRUSTEE ACKNOWLEDGEMENT
November 30, 2010
Reference is made to that Base Indenture dated as of September 1, 2002 (the “Base Indenture”), between the Conn Funding II, L.P. (the “Issuer”) and the undersigned, as trustee (in such capacity, the “Trustee”), as supplemented by (i) the First Supplemental Indenture dated as of October 29, 2004 (the “First Supplemental Indenture”), (ii) the Second Supplemental Indenture dated as of June 1, 2006 (the “Second Supplemental Indenture”), (iii) the Third Supplemental Indenture dated as of June 28, 2007 (the “Third Supplemental Indenture”), (iv) the Fourth Supplemental Indenture dated as of August 14, 2008 (the “Fourth Supplemental Indenture”), (v) the Fifth Supplemental Indenture dated as of July 2, 2010 (the “Fifth Supplemental Indenture”), (vi) the Sixth Supplemental Indenture dated as of the date hereof (the “Sixth Supplemental Indenture”), (vi) the Amended and Restated Series 2002-A Supplement dated as of September 10, 2007 (as amended, the “2002-A Supplement”), as amended by (a) Supplement No. 1 to Series 2002-A Supplement dated as of August 14, 2008 (“Supplement No. 1”), and (b) Supplement No. 2 to Series 2002-A Supplement dated as of March 16, 2010 (“Supplement No. 2”), pursuant to which the Issuer’s Series 2002-A Notes (the “Series 2002-A Notes”) were issued, and (vii) the Series 2006-A Series Supplement dated as of August 1, 2006 (the “2006-A Supplement” and, together with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the 2002-A Supplement, the “Indenture”), pursuant to which the Issuer’s Series 2006-A Notes were issued (the “Series 2006-A Notes”, and together with the Series 2002-A Notes, the “Notes”).
Pursuant to Section 12.1 of the Base Indenture, the Trustee hereby acknowledges that the Issuer’s obligations under the Indenture have been discharged except for those surviving obligations specified in Section 12.1 of the Base Indenture.
[Remainder of page intentionally left blank]
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, I have hereunto set my hand as of the date first written above.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By: /s/ Kristen L. Puttin Name: Kristen L. Puttin Title: Vice President
Trustee Acknowledgment - Section 12.1 Base Indenture Conn Funding II, L.P. - Signature Page | [
"Exhibit 10.28 TRUSTEE ACKNOWLEDGEMENT November 30, 2010 Reference is made to that Base Indenture dated as of September 1, 2002 (the “Base Indenture”), between the Conn Funding II, L.P. (the “Issuer”) and the undersigned, as trustee (in such capacity, the “Trustee”), as supplemented by (i) the First Supplemental Indenture dated as of October 29, 2004 (the “First Supplemental Indenture”), (ii) the Second Supplemental Indenture dated as of June 1, 2006 (the “Second Supplemental Indenture”), (iii) the Third Supplemental Indenture dated as of June 28, 2007 (the “Third Supplemental Indenture”), (iv) the Fourth Supplemental Indenture dated as of August 14, 2008 (the “Fourth Supplemental Indenture”), (v) the Fifth Supplemental Indenture dated as of July 2, 2010 (the “Fifth Supplemental Indenture”), (vi) the Sixth Supplemental Indenture dated as of the date hereof (the “Sixth Supplemental Indenture”), (vi) the Amended and Restated Series 2002-A Supplement dated as of September 10, 2007 (as amended, the “2002-A Supplement”), as amended by (a) Supplement No. 1 to Series 2002-A Supplement dated as of August 14, 2008 (“Supplement No.",
"1”), and (b) Supplement No. 2 to Series 2002-A Supplement dated as of March 16, 2010 (“Supplement No. 2”), pursuant to which the Issuer’s Series 2002-A Notes (the “Series 2002-A Notes”) were issued, and (vii) the Series 2006-A Series Supplement dated as of August 1, 2006 (the “2006-A Supplement” and, together with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the 2002-A Supplement, the “Indenture”), pursuant to which the Issuer’s Series 2006-A Notes were issued (the “Series 2006-A Notes”, and together with the Series 2002-A Notes, the “Notes”). Pursuant to Section 12.1 of the Base Indenture, the Trustee hereby acknowledges that the Issuer’s obligations under the Indenture have been discharged except for those surviving obligations specified in Section 12.1 of the Base Indenture.",
"[Remainder of page intentionally left blank] -------------------------------------------------------------------------------- IN WITNESS WHEREOF, I have hereunto set my hand as of the date first written above. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Kristen L. Puttin Name: Kristen L. Puttin Title: Vice President Trustee Acknowledgment - Section 12.1 Base Indenture Conn Funding II, L.P. - Signature Page"
]
| https://github.com/TheAtticusProject/cuad | 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 action is written in response to the amendment filed 07/25/2022 Claims 13-18, 20-25 and 27-30 have been amended and claims 31-33 have been added Claims 13-18, 20-25 and 27-33 are presented for examination This action is Final
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. Claim(s) 13-18, 20-25 and 27-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Penprase (GB 2526868) in view of Woolf (US 2015/0101280) in view of Walker (US 6,397,550).
13, 20, 28: Penprase discloses a shipping container 2 comprising a top side beam 15 for a shipping container (pg. 10-11; fig. 8, 18 and 19).
Penprase fails to disclose specifics to the claimed beam. Woolf teaches the vertical web plate comprising a stiffener 16/18 extending a length of the web plate (fig. 1 and 2). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the web of Sadkin to reinforce the flat sides of the web.
Penprase-Woolf fails to disclose a web folding back on itself. Walker teaches the top side beam comprising:
an open-sided beam comprising a web 32 which includes: a vertical web plate that extends vertically along a height direction of the container;
a lower wing plate connected to a lower portion of the vertical web plate,
a first portion of the lower wing plate being substantially flat and extending perpendicular to the vertical web plate in a horizontal direction towards an inside portion of the container, and
the lower wing plate further comprising a second portion being connected to the first portion and being rolled back towards the vertical web plate and downward onto the first portion; and an upper wing plate connected to an upper portion of the vertical web plate,
the upper wing plate being substantially flat and extending perpendicular to the vertical web plate in a horizontal direction towards the inside portion of the container (see annotated figure below). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the beam of Penprase -Woolf to include the web of Walker to reinforce the flat sides of the web.
PNG media_image1.png 443 442 media_image1.png Greyscale
14: Penprase-Woolf-Walker discloses the shipping container of claim 13, wherein the upper wing plate extends further towards the inside portion of the container than the lower wing plate (Woolf’ fig. 5).
15: Penprase-Woolf-Walker discloses the shipping container of claim 13, wherein the stiffener 16 is a first stiffener, and
wherein the vertical web plate further comprises a second stiffener 17 offset from the first stiffener and which extends the length of the web plate (Woolf; [0067], fig. 1).
16: Penprase-Woolf-Walker discloses the shipping container of claim 22 wherein Woolf teaches a web having stiffeners 16, 17 with a V-shaped profile [0020]. Since Applicant has not expressed criticality for the stiffeners to have a specific shape. Modifying the V-shape to have a trapezoidal profile would be obvious to one having ordinary skill in the art.
It is noted that it would have been an obvious matter of design choice to change the V-shape stiffener into a trapezoidal shape, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey 357 F.2d 669, 149 USPQ 47 (CCPA 1966) MPEP 214.04 IV B
17: Penprase-Woolf-Walker discloses shipping container of claim 15, wherein the first stiffener 17 extends further into the inside portion of the container than the second stiffener 16 (Woolf; fig. 1).
18, 29-30: Penprase-Woolf-Walker discloses the web having a height used to determine placement of the components of the web but fails to disclose the vertical height of the top side beam is at least 100 mm. It would have been obvious to one of ordinary skill in the art at the time the effective filing date of the invention was made to adjust the vertical height to a minimum of 100 mm, since where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. The motivation for doing so would be to adjust the beam height to change the stress handling capabilities of the beam while maintaining an approved overall height of the container for shipping concerns.
21: Penprase-Woolf-Walker discloses the shipping container of claim 20, wherein the stiffener is a first stiffener 16, and wherein the vertical web plate comprises a second stiffener 17 extending the length of the web plate (Woolf; [0067]; fig. 1).
22: Penprase-Woolf-Walker discloses the shipping container of claim 21, wherein each of the first stiffener and the second stiffener is configured to extend into the container (Woolf; fig. 1).
23: Penprase-Woolf-Walker discloses the shipping container of claim 22 having stiffeners 16, 17 with a V-shaped profile (Woolf; [0020]). Since Applicant has not expressed criticality for the stiffeners to have a specific shape. Modifying the V-shape to have a rectangular profile would be obvious to one having ordinary skill in the art.
It is noted that it would have been an obvious matter of design choice to change the V-shape stiffener into a rectangular shape, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey 357 F.2d 669, 149 USPQ 47 (CCPA 1966) MPEP 214.04 IV B
24: Penprase-Woolf-Walker discloses the shipping container of claim 23, wherein the first and second stiffeners are equal in size (Woolf; fig. 1).
25: Penprase-Woolf-Walker discloses the shipping container of claim 24, wherein the upper and lower wing plates 12, 13 are substantially flat (Walker; fig. 2).
27: Penprase-Woolf-Walker discloses a web having a height used to determine placement of the components of the web but fails to disclose the vertical height of the top side beam is at least 100 mm. It would have been obvious to one of ordinary skill in the art at the time the effective filing date of the invention was made to adjust the vertical height to a minimum of 100 mm, since where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. The motivation for doing so would be to adjust the beam height to change the stress handling capabilities of the beam while maintaining an approved overall height of the container for shipping concerns.
31-33: Penprase-Woolf-Walker discloses the shipping container of claim 13, wherein the lower wing plate is fixedly connected to a side plate of the container, and wherein the upper wing plate is fixedly connected to a top plate of the container (Penprase; pg. 10).
Response to Arguments Applicant's arguments with respect to the claims have been considered but in view of the amendment the search has been updated, new prior art has been identified and applied, and a new rejection has been made.
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 RAVEN COLLINS whose telephone number is (571)270-1672. The examiner can normally be reached Monday-Friday 8:30am to 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, ANTHONY STASHICK can be reached on 571-272-4561. 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.
/RAVEN COLLINS/Examiner, Art Unit 3735
/Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735 | 2022-08-18T22:05:13 | [
"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 action is written in response to the amendment filed 07/25/2022 Claims 13-18, 20-25 and 27-30 have been amended and claims 31-33 have been added Claims 13-18, 20-25 and 27-33 are presented for examination This action is Final 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. Claim(s) 13-18, 20-25 and 27-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Penprase (GB 2526868) in view of Woolf (US 2015/0101280) in view of Walker (US 6,397,550).",
"13, 20, 28: Penprase discloses a shipping container 2 comprising a top side beam 15 for a shipping container (pg. 10-11; fig. 8, 18 and 19). Penprase fails to disclose specifics to the claimed beam. Woolf teaches the vertical web plate comprising a stiffener 16/18 extending a length of the web plate (fig. 1 and 2). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the web of Sadkin to reinforce the flat sides of the web.",
"Penprase-Woolf fails to disclose a web folding back on itself. Walker teaches the top side beam comprising: an open-sided beam comprising a web 32 which includes: a vertical web plate that extends vertically along a height direction of the container; a lower wing plate connected to a lower portion of the vertical web plate, a first portion of the lower wing plate being substantially flat and extending perpendicular to the vertical web plate in a horizontal direction towards an inside portion of the container, and the lower wing plate further comprising a second portion being connected to the first portion and being rolled back towards the vertical web plate and downward onto the first portion; and an upper wing plate connected to an upper portion of the vertical web plate, the upper wing plate being substantially flat and extending perpendicular to the vertical web plate in a horizontal direction towards the inside portion of the container (see annotated figure below).",
"It would have been obvious to one having ordinary skill in the art at the time of the effective filing date of the invention to modify the beam of Penprase -Woolf to include the web of Walker to reinforce the flat sides of the web. PNG media_image1.png 443 442 media_image1.png Greyscale 14: Penprase-Woolf-Walker discloses the shipping container of claim 13, wherein the upper wing plate extends further towards the inside portion of the container than the lower wing plate (Woolf’ fig.",
"5). 15: Penprase-Woolf-Walker discloses the shipping container of claim 13, wherein the stiffener 16 is a first stiffener, and wherein the vertical web plate further comprises a second stiffener 17 offset from the first stiffener and which extends the length of the web plate (Woolf; [0067], fig. 1). 16: Penprase-Woolf-Walker discloses the shipping container of claim 22 wherein Woolf teaches a web having stiffeners 16, 17 with a V-shaped profile [0020]. Since Applicant has not expressed criticality for the stiffeners to have a specific shape. Modifying the V-shape to have a trapezoidal profile would be obvious to one having ordinary skill in the art.",
"It is noted that it would have been an obvious matter of design choice to change the V-shape stiffener into a trapezoidal shape, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey 357 F.2d 669, 149 USPQ 47 (CCPA 1966) MPEP 214.04 IV B 17: Penprase-Woolf-Walker discloses shipping container of claim 15, wherein the first stiffener 17 extends further into the inside portion of the container than the second stiffener 16 (Woolf; fig. 1).",
"18, 29-30: Penprase-Woolf-Walker discloses the web having a height used to determine placement of the components of the web but fails to disclose the vertical height of the top side beam is at least 100 mm. It would have been obvious to one of ordinary skill in the art at the time the effective filing date of the invention was made to adjust the vertical height to a minimum of 100 mm, since where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. The motivation for doing so would be to adjust the beam height to change the stress handling capabilities of the beam while maintaining an approved overall height of the container for shipping concerns. 21: Penprase-Woolf-Walker discloses the shipping container of claim 20, wherein the stiffener is a first stiffener 16, and wherein the vertical web plate comprises a second stiffener 17 extending the length of the web plate (Woolf; [0067]; fig. 1). 22: Penprase-Woolf-Walker discloses the shipping container of claim 21, wherein each of the first stiffener and the second stiffener is configured to extend into the container (Woolf; fig.",
"1). 23: Penprase-Woolf-Walker discloses the shipping container of claim 22 having stiffeners 16, 17 with a V-shaped profile (Woolf; [0020]). Since Applicant has not expressed criticality for the stiffeners to have a specific shape. Modifying the V-shape to have a rectangular profile would be obvious to one having ordinary skill in the art. It is noted that it would have been an obvious matter of design choice to change the V-shape stiffener into a rectangular shape, since such a modification would have involved a mere change in the shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. In re Dailey 357 F.2d 669, 149 USPQ 47 (CCPA 1966) MPEP 214.04 IV B 24: Penprase-Woolf-Walker discloses the shipping container of claim 23, wherein the first and second stiffeners are equal in size (Woolf; fig.",
"1). 25: Penprase-Woolf-Walker discloses the shipping container of claim 24, wherein the upper and lower wing plates 12, 13 are substantially flat (Walker; fig. 2). 27: Penprase-Woolf-Walker discloses a web having a height used to determine placement of the components of the web but fails to disclose the vertical height of the top side beam is at least 100 mm. It would have been obvious to one of ordinary skill in the art at the time the effective filing date of the invention was made to adjust the vertical height to a minimum of 100 mm, since where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.",
"The motivation for doing so would be to adjust the beam height to change the stress handling capabilities of the beam while maintaining an approved overall height of the container for shipping concerns. 31-33: Penprase-Woolf-Walker discloses the shipping container of claim 13, wherein the lower wing plate is fixedly connected to a side plate of the container, and wherein the upper wing plate is fixedly connected to a top plate of the container (Penprase; pg. 10). Response to Arguments Applicant's arguments with respect to the claims have been considered but in view of the amendment the search has been updated, new prior art has been identified and applied, and a new rejection has been made. 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 RAVEN COLLINS whose telephone number is (571)270-1672.",
"The examiner can normally be reached Monday-Friday 8:30am to 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, ANTHONY STASHICK can be reached on 571-272-4561. 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. /RAVEN COLLINS/Examiner, Art Unit 3735 /Anthony D Stashick/Supervisory Patent Examiner, Art Unit 3735"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Frankfurter took no part in the consideration or decision of this case. | 11-27-2022 | [
"Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Frankfurter took no part in the consideration or decision of this case."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8934436/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
916 So. 2d 238 (2005) George VINCENT v. Corbe MILLIGAN, Dr. Harper, Defendant Doe and State of Louisiana Through Board of Supervisors of Louisiana State University and Agriculture and Mechanical College, Health Care Services Division and Health Science Center Earl K. Long Regional Medical Center No. 2004 CA 1207. Court of Appeal of Louisiana, First Circuit. June 10, 2005. *240 Karl J. Koch, Baton Rouge, Counsel for Plaintiff/Appellant George Vincent. Charles E. Foti, Jr. Marjorie G. O'Connor, Baton Rouge, Counsel for Defendant/Appellee Board of Supervisors of Louisiana State University and Agricultural and Mechanical College. Before: CARTER, C.J., PETTIGREW and McDONALD, JJ. McDONALD, J. In this suit for damages for emotional distress, one of the defendants, the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Health Care Services Division of the Louisiana State University Health Services Center-Earl K. Long Regional Medical Center (the state), filed a peremptory exception raising the objection of no cause of action based on a claim of statutory immunity. The trial court granted the exception and dismissed the suit against the state. The plaintiff appealed. We affirm in part, reverse in part, and remand.
PROCEDURAL BACKGROUND AND FACTS On November 18, 2003, Mr. George Vincent filed suit for damages against the state, and individually against Dr. Corbe Milligan, a "Dr. Harper," and an unnamed defendant identified as "Doe." The petition requested service on the state and Dr. Milligan, but directed that all other service be held. According to the petition, the individual defendants worked at Earl K. Long Regional Medical Center. On June 21, 2003, Mr. Vincent brought his minor daughter to the medical center's emergency room, where she was examined by Dr. Milligan, a medical center physician. A urine specimen was taken for testing. Allegedly, Doe, also a state employee, incorrectly identified bacteria in the urine as "nonmotile sperm cells." That finding was reported to and confirmed by Dr. Harper. Subsequently, Dr. Milligan also confirmed the finding and made a report of suspected child abuse to the police and office of community services in the city of Baton Rouge. The petition further stated that a police investigation ensued and word of the alleged abuse spread throughout the community. Mr. Vincent asked for damages for emotional distress caused by the actions of the defendants. The state filed a peremptory exception raising the objection of no cause of action. See La. C.C.P. art. 927 A(4). The state argued that the defendants were immune from suit under Louisiana Children's Code article 611, which grants statutory immunity to those who in good faith report suspected child abuse or neglect. The trial court agreed. By a judgment signed on April 2, 2004, the trial court granted the state's exception of no cause of action and dismissed the suit against it. Plaintiff, Mr. Vincent, appealed. Mr. Vincent asserts two assignments of error. First, he complains of the trial court's failure to deny immunity to Dr. Harper and Doe, who allegedly performed negligent testing, but did not directly report the abuse. Second, Mr. Vincent notes that he did not allege that the defendants acted in "good faith." From these assertions, he argues that the requirements of *241 article 611, a good faith report made to the proper authorities, were not met. Thus, immunity for the defendants cannot be found on the face of the petition. In his brief, Mr. Vincent argues that he stated a cause of action against the state based on the alleged acts of its employees, and the trial court erred in dismissing the state from the suit. Contrarily, the state argues that all three individual defendants contributed to the report of suspected abuse finally made by Dr. Milligan to the authorities. Thus, the state asserts that statutory immunity applies to all the defendants. In answer to the argument that the petition lacks the requisite allegation of good faith, the state cites Dugas v. Talley, 109 So. 2d 300 (La.App. 1st Cir.1959), a fraudulent transfer of property case. In Dugas, this court held that good faith is always presumed and the plaintiff has the burden to allege defendants acted in bad faith. Dugas, 109 So.2d at 302.
APPLICABLE LEGAL PRECEPTS An exception of no cause of action is used to test the legal sufficiency of a petition. No evidence may be introduced on an exception of no cause of action, and the petition's well-pleaded allegations of facts are accepted as true. La. C.C.P. art. 931; Jackson v. State, Dept. of Corrections, 2000-2882, p. 3 (La.5/15/01), 785 So. 2d 803, 806. Failure to state a cause of action in the petition may be recognized by a court on its own motion. La. C.C.P. art. 927 B. However, if the grounds for the objection can be removed by amending the petition, the court "shall order such amendment . . . ." La. C.C.P. art. 934. Any doubts are to be resolved in favor of the sufficiency of the petition. Lambert v. Riverboat Gaming Enforcement Division, 96-1856, p. 4 (La.App. 1st Cir.12/29/97), 706 So. 2d 172, 175, writ denied, 98-0297 (La.3/20/98), 715 So. 2d 1221. On appeal, the appellate court reviews the petition to determine whether the plaintiff is legally entitled to the relief sought based on the accepted facts. This review of a question of law is made de novo. Jackson, 2000-2882 at pp. 3-4, 785 So.2d at 806. Certain classes of individuals, including health practitioners, are mandated by statute to report reasonably suspected child abuse or neglect to the proper authorities. See La. Ch.C. arts. 603(13) & 609-610. Louisiana Children's Code article 611 A(1)(a) provides statutory immunity for a "[p]erson who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter." Although questions underlying claims of immunity are often better suited to motions for summary judgment, which allow for the presentation of evidence, the legal issue of whether immunity is applicable may be raised and reviewed through an exception of no cause of action. Lambert, 96-1856 at pp. 6-7 & n. 2, 706 So.2d at 176 & n. 2; see Jackson, 2000-2882 at pp. 7-10, 785 So.2d at 808-10; Talbert v. Louisiana State Board of Nursing, XXXX-XXXX, pp. 3-4 (La.App. 1st Cir.12/31/03), 868 So. 2d 729, 730-31.
STATE IMMUNITY Resolution of the state's direct claim of immunity is not dependent on the acts, or presence, of its alleged employees. Louisiana Children's Code article 611, contained in Title VI, "CHILD IN NEED OF CARE," confers immunity on a "person" who makes a good faith report of suspected abuse. Article 603, which provides definitions for the terms relevant to Title VI, specifically defines "person" as "any individual, partnership, association, agency, or *242 corporation, and specifically shall include city, parish, or state law enforcement agencies, and a parish or city school board or a person employed by a parish or city school board." La. Ch.C. art. 603(16). While we note that the word "agency" is used in article 603, it appears within a list of common types of business organizations, for example, corporations. Thus, we do not find that the legislature's use of the word "agency" was meant to confer immunity on all political subdivisions of this state, or so-called state agencies. Along with the general reference to "agency," the legislature could have easily chosen to include the phrase "any state agency," but it did not. Further support for a limited interpretation of "agency" is provided by the legislature's explanation concerning "law enforcement agencies." From the legislature's perceived need to make such a specific reference, it is reasonable to conclude that "agency" does not automatically include all arms of the state. For these reasons, we find that the state defendant at issue here has no independent claim to the statutory immunity afforded by that article. See Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 18-19 (La.7/5/94), 639 So. 2d 730, 745-46; Kyle v. Civil Service Commission, 588 So. 2d 1154, 1159 n. 5 (La.App. 1st Cir.1991), writ denied, 595 So. 2d 654 (La.1992); Hawkins v. State, Department of Health and Human Resources, 543 So. 2d 1052, 1057 (La.App. 4th Cir.1989). The state, however, may have incurred liability vicariously for the acts of its employees. See La. C.C. art. 2320.
CAUSES OF ACTION BASED ON ACTS OF STATE EMPLOYEES The factual allegations related in Mr. Vincent's petition clearly state one cause of action and may have been intended to state a second. The first is based on the Milligan report of abuse; the second on the negligent testing or identification made by Doe, and possibly by Drs. Harper and Milligan.[1] Initially, we find that good faith is presumed and the plaintiff has the burden to allege the facts needed to defeat statutory immunity. Lambert, 96-1856 at pp. 5-8, 706 So.2d at 175-77; Kyle v. Civil Service Commission, 588 So.2d at 1158-60; Corley v. Village of Florien, 2004-853 (La.App. 3rd Cir.12/8/04), 889 So. 2d 364; see Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 18-22 (La.7/5/94), 639 So. 2d 730, 745-47; While the arguments on whether immunity is conferred on persons in the chain of reporting are also intriguing, discussion of that issue is not necessary in this case. Instead, we find that only Dr. Milligan actually reported the suspected abuse, and thus, under the particular facts here, only Dr. Milligan could be liable for any damages resulting from the community's knowledge of that report of abuse. Neither Doe nor Dr. Harper disseminated the information to the police or the community. However, on the face of the petition, Dr. Milligan is protected by the immunity granted by Louisiana Children's Code article 611. He was a health care practitioner who made a good faith report of suspected child abuse based on a lab test showing the presence of sperm cells in a child's urine. Thus, Mr. Vincent's petition fails to state a cause of action for damage from the mandatory report made by Dr. Milligan. In the absence of liability on the part of the state's employees, the state is not vicariously liable. See Smith *243 v. Our Lady of the Lake Hospital, 96-1837 (La.9/27/96), 680 So. 2d 1163, 1164 (per curiam); Kyser v. Metro Ambulance, Inc., 33,600, pp. 4-8 (La.App. 2nd Cir.6/21/00), 764 So. 2d 215, 218-220, writ denied, 2000-2212 (La.10/27/00), 772 So. 2d 650. Having found no cause of action has been stated for damages arising from the formal report, we affirm, in part, the grant of the exception of no cause of action. However, we find that Mr. Vincent should be afforded an opportunity to amend his petition to remove the grounds for the exception, if he can, by alleging specific facts that would support a claim that Dr. Milligan made the report in bad faith. The potential second cause of action arises from Mr. Vincent's allegation that he was directly harmed by the negligent identification of the material in his daughter's urine as sperm cells. Such a cause of action is unaffected by statutory immunity triggered by the separate act of an actual report of abuse or neglect to the appropriate authorities. However, Mr. Vincent failed to allege additional key elements; for example, whether the results of the test were made known to him before the Milligan report of abuse to the authorities, and how any damages differed from the harm attributed to the report of abuse. If Mr. Vincent can prove that he suffered actionable emotional distress from an earlier, direct report made to him, that action would be separate from the later Milligan report. See Barrino v. East Baton Rouge Parish School Board, 96-1824, p. 13 (La.App. 1st Cir.6/20/97), 697 So. 2d 27, 34 (damages limited to serious mental distress arising from special circumstances); Hand v. Hand, 99-2420, p. 4 (La.App. 1st Cir.12/20/02), 834 So. 2d 619, 622, writ denied, XXXX-XXXX (La.5/2/03), 842 So. 2d 1103 (where separate causes of action are pled, one may be reserved even though another has been dismissed). Because the petition has articulable potential for a second, separate cause of action, and the defect may be removed by amending the petition, the trial court shall allow Mr. Vincent the opportunity to amend his petition. See La. C.C.P. art. 934. Any doubts are to be resolved in favor of the sufficiency of the petition. Lambert, 96-1856 at p. 4, 706 So.2d at 175. If any of the state's employees are found liable under a second cause of action, for which there is no immunity, the state may be liable as well. La. C.C. art. 2320. For these reasons, we reverse the complete dismissal of the state, we affirm the grant of the exception of no cause of action based on the Milligan report, and remand for further proceedings consistent with this opinion. The costs of $375.73 are assessed equally to Mr. Vincent and to defendant, the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Health Care Services Division of the Louisiana State University Health Services Center-Earl K. Long Regional Medical Center. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. NOTES [1] The petition alleges confirmation by the physicians. It is not clear whether the confirmation was mere acceptance of Doe's test results or involved independent analysis of their own. | 10-30-2013 | [
"916 So. 2d 238 (2005) George VINCENT v. Corbe MILLIGAN, Dr. Harper, Defendant Doe and State of Louisiana Through Board of Supervisors of Louisiana State University and Agriculture and Mechanical College, Health Care Services Division and Health Science Center Earl K. Long Regional Medical Center No. 2004 CA 1207. Court of Appeal of Louisiana, First Circuit. June 10, 2005. *240 Karl J. Koch, Baton Rouge, Counsel for Plaintiff/Appellant George Vincent. Charles E. Foti, Jr. Marjorie G. O'Connor, Baton Rouge, Counsel for Defendant/Appellee Board of Supervisors of Louisiana State University and Agricultural and Mechanical College. Before: CARTER, C.J., PETTIGREW and McDONALD, JJ. McDONALD, J. In this suit for damages for emotional distress, one of the defendants, the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Health Care Services Division of the Louisiana State University Health Services Center-Earl K. Long Regional Medical Center (the state), filed a peremptory exception raising the objection of no cause of action based on a claim of statutory immunity. The trial court granted the exception and dismissed the suit against the state.",
"The plaintiff appealed. We affirm in part, reverse in part, and remand. PROCEDURAL BACKGROUND AND FACTS On November 18, 2003, Mr. George Vincent filed suit for damages against the state, and individually against Dr. Corbe Milligan, a \"Dr. Harper,\" and an unnamed defendant identified as \"Doe.\" The petition requested service on the state and Dr. Milligan, but directed that all other service be held. According to the petition, the individual defendants worked at Earl K. Long Regional Medical Center. On June 21, 2003, Mr. Vincent brought his minor daughter to the medical center's emergency room, where she was examined by Dr. Milligan, a medical center physician. A urine specimen was taken for testing. Allegedly, Doe, also a state employee, incorrectly identified bacteria in the urine as \"nonmotile sperm cells.\" That finding was reported to and confirmed by Dr. Harper.",
"Subsequently, Dr. Milligan also confirmed the finding and made a report of suspected child abuse to the police and office of community services in the city of Baton Rouge. The petition further stated that a police investigation ensued and word of the alleged abuse spread throughout the community. Mr. Vincent asked for damages for emotional distress caused by the actions of the defendants.",
"The state filed a peremptory exception raising the objection of no cause of action. See La. C.C.P. art. 927 A(4). The state argued that the defendants were immune from suit under Louisiana Children's Code article 611, which grants statutory immunity to those who in good faith report suspected child abuse or neglect. The trial court agreed. By a judgment signed on April 2, 2004, the trial court granted the state's exception of no cause of action and dismissed the suit against it. Plaintiff, Mr. Vincent, appealed. Mr. Vincent asserts two assignments of error.",
"First, he complains of the trial court's failure to deny immunity to Dr. Harper and Doe, who allegedly performed negligent testing, but did not directly report the abuse. Second, Mr. Vincent notes that he did not allege that the defendants acted in \"good faith.\" From these assertions, he argues that the requirements of *241 article 611, a good faith report made to the proper authorities, were not met. Thus, immunity for the defendants cannot be found on the face of the petition. In his brief, Mr. Vincent argues that he stated a cause of action against the state based on the alleged acts of its employees, and the trial court erred in dismissing the state from the suit. Contrarily, the state argues that all three individual defendants contributed to the report of suspected abuse finally made by Dr. Milligan to the authorities. Thus, the state asserts that statutory immunity applies to all the defendants. In answer to the argument that the petition lacks the requisite allegation of good faith, the state cites Dugas v. Talley, 109 So.",
"2d 300 (La.App. 1st Cir.1959), a fraudulent transfer of property case. In Dugas, this court held that good faith is always presumed and the plaintiff has the burden to allege defendants acted in bad faith. Dugas, 109 So.2d at 302. APPLICABLE LEGAL PRECEPTS An exception of no cause of action is used to test the legal sufficiency of a petition. No evidence may be introduced on an exception of no cause of action, and the petition's well-pleaded allegations of facts are accepted as true. La. C.C.P. art. 931; Jackson v. State, Dept. of Corrections, 2000-2882, p. 3 (La.5/15/01), 785 So. 2d 803, 806. Failure to state a cause of action in the petition may be recognized by a court on its own motion. La. C.C.P. art. 927 B. However, if the grounds for the objection can be removed by amending the petition, the court \"shall order such amendment . . . .\" La. C.C.P. art.",
"934. Any doubts are to be resolved in favor of the sufficiency of the petition. Lambert v. Riverboat Gaming Enforcement Division, 96-1856, p. 4 (La.App. 1st Cir.12/29/97), 706 So. 2d 172, 175, writ denied, 98-0297 (La.3/20/98), 715 So. 2d 1221. On appeal, the appellate court reviews the petition to determine whether the plaintiff is legally entitled to the relief sought based on the accepted facts. This review of a question of law is made de novo. Jackson, 2000-2882 at pp. 3-4, 785 So.2d at 806. Certain classes of individuals, including health practitioners, are mandated by statute to report reasonably suspected child abuse or neglect to the proper authorities. See La. Ch.C. arts. 603(13) & 609-610. Louisiana Children's Code article 611 A(1)(a) provides statutory immunity for a \"[p]erson who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter.\" Although questions underlying claims of immunity are often better suited to motions for summary judgment, which allow for the presentation of evidence, the legal issue of whether immunity is applicable may be raised and reviewed through an exception of no cause of action.",
"Lambert, 96-1856 at pp. 6-7 & n. 2, 706 So.2d at 176 & n. 2; see Jackson, 2000-2882 at pp. 7-10, 785 So.2d at 808-10; Talbert v. Louisiana State Board of Nursing, XXXX-XXXX, pp. 3-4 (La.App. 1st Cir.12/31/03), 868 So. 2d 729, 730-31. STATE IMMUNITY Resolution of the state's direct claim of immunity is not dependent on the acts, or presence, of its alleged employees. Louisiana Children's Code article 611, contained in Title VI, \"CHILD IN NEED OF CARE,\" confers immunity on a \"person\" who makes a good faith report of suspected abuse. Article 603, which provides definitions for the terms relevant to Title VI, specifically defines \"person\" as \"any individual, partnership, association, agency, or *242 corporation, and specifically shall include city, parish, or state law enforcement agencies, and a parish or city school board or a person employed by a parish or city school board.\" La. Ch.C. art. 603(16). While we note that the word \"agency\" is used in article 603, it appears within a list of common types of business organizations, for example, corporations. Thus, we do not find that the legislature's use of the word \"agency\" was meant to confer immunity on all political subdivisions of this state, or so-called state agencies. Along with the general reference to \"agency,\" the legislature could have easily chosen to include the phrase \"any state agency,\" but it did not.",
"Further support for a limited interpretation of \"agency\" is provided by the legislature's explanation concerning \"law enforcement agencies.\" From the legislature's perceived need to make such a specific reference, it is reasonable to conclude that \"agency\" does not automatically include all arms of the state. For these reasons, we find that the state defendant at issue here has no independent claim to the statutory immunity afforded by that article. See Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 18-19 (La.7/5/94), 639 So. 2d 730, 745-46; Kyle v. Civil Service Commission, 588 So. 2d 1154, 1159 n. 5 (La.App. 1st Cir.1991), writ denied, 595 So. 2d 654 (La.1992); Hawkins v. State, Department of Health and Human Resources, 543 So. 2d 1052, 1057 (La.App. 4th Cir.1989). The state, however, may have incurred liability vicariously for the acts of its employees. See La.",
"C.C. art. 2320. CAUSES OF ACTION BASED ON ACTS OF STATE EMPLOYEES The factual allegations related in Mr. Vincent's petition clearly state one cause of action and may have been intended to state a second. The first is based on the Milligan report of abuse; the second on the negligent testing or identification made by Doe, and possibly by Drs. Harper and Milligan. [1] Initially, we find that good faith is presumed and the plaintiff has the burden to allege the facts needed to defeat statutory immunity. Lambert, 96-1856 at pp. 5-8, 706 So.2d at 175-77; Kyle v. Civil Service Commission, 588 So.2d at 1158-60; Corley v. Village of Florien, 2004-853 (La.App. 3rd Cir.12/8/04), 889 So. 2d 364; see Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 18-22 (La.7/5/94), 639 So. 2d 730, 745-47; While the arguments on whether immunity is conferred on persons in the chain of reporting are also intriguing, discussion of that issue is not necessary in this case.",
"Instead, we find that only Dr. Milligan actually reported the suspected abuse, and thus, under the particular facts here, only Dr. Milligan could be liable for any damages resulting from the community's knowledge of that report of abuse. Neither Doe nor Dr. Harper disseminated the information to the police or the community. However, on the face of the petition, Dr. Milligan is protected by the immunity granted by Louisiana Children's Code article 611. He was a health care practitioner who made a good faith report of suspected child abuse based on a lab test showing the presence of sperm cells in a child's urine.",
"Thus, Mr. Vincent's petition fails to state a cause of action for damage from the mandatory report made by Dr. Milligan. In the absence of liability on the part of the state's employees, the state is not vicariously liable. See Smith *243 v. Our Lady of the Lake Hospital, 96-1837 (La.9/27/96), 680 So. 2d 1163, 1164 (per curiam); Kyser v. Metro Ambulance, Inc., 33,600, pp. 4-8 (La.App. 2nd Cir.6/21/00), 764 So. 2d 215, 218-220, writ denied, 2000-2212 (La.10/27/00), 772 So. 2d 650. Having found no cause of action has been stated for damages arising from the formal report, we affirm, in part, the grant of the exception of no cause of action.",
"However, we find that Mr. Vincent should be afforded an opportunity to amend his petition to remove the grounds for the exception, if he can, by alleging specific facts that would support a claim that Dr. Milligan made the report in bad faith. The potential second cause of action arises from Mr. Vincent's allegation that he was directly harmed by the negligent identification of the material in his daughter's urine as sperm cells. Such a cause of action is unaffected by statutory immunity triggered by the separate act of an actual report of abuse or neglect to the appropriate authorities. However, Mr. Vincent failed to allege additional key elements; for example, whether the results of the test were made known to him before the Milligan report of abuse to the authorities, and how any damages differed from the harm attributed to the report of abuse. If Mr. Vincent can prove that he suffered actionable emotional distress from an earlier, direct report made to him, that action would be separate from the later Milligan report. See Barrino v. East Baton Rouge Parish School Board, 96-1824, p. 13 (La.App.",
"1st Cir.6/20/97), 697 So. 2d 27, 34 (damages limited to serious mental distress arising from special circumstances); Hand v. Hand, 99-2420, p. 4 (La.App. 1st Cir.12/20/02), 834 So. 2d 619, 622, writ denied, XXXX-XXXX (La.5/2/03), 842 So. 2d 1103 (where separate causes of action are pled, one may be reserved even though another has been dismissed). Because the petition has articulable potential for a second, separate cause of action, and the defect may be removed by amending the petition, the trial court shall allow Mr. Vincent the opportunity to amend his petition.",
"See La. C.C.P. art. 934. Any doubts are to be resolved in favor of the sufficiency of the petition. Lambert, 96-1856 at p. 4, 706 So.2d at 175. If any of the state's employees are found liable under a second cause of action, for which there is no immunity, the state may be liable as well. La. C.C. art. 2320. For these reasons, we reverse the complete dismissal of the state, we affirm the grant of the exception of no cause of action based on the Milligan report, and remand for further proceedings consistent with this opinion. The costs of $375.73 are assessed equally to Mr. Vincent and to defendant, the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Health Care Services Division of the Louisiana State University Health Services Center-Earl K. Long Regional Medical Center.",
"AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. NOTES [1] The petition alleges confirmation by the physicians. It is not clear whether the confirmation was mere acceptance of Doe's test results or involved independent analysis of their own."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1620840/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SWOFFORD, Judge. The appellant (hereafter defendant) was charged in separate indictments with Murder First Degree and with Robbery First Degree, arising from the death by gunshot of Russell Mestdagh, a member of the Kansas City, Missouri police department, during the course of an armed robbery of Traxler’s Pharmacy, 59th and Holmes, Kansas City, Missouri, on January 2, 1975. The separate indictments were consolidated for trial by agreement of the defense and the state. A jury found the defendant guilty of Murder First Degree and assessed his penalty at life imprisonment. In a separate verdict, the jury found the defendant guilty of Robbery First Degree, but were unable to agree upon the punishment. After an unavailing motion for a new trial, the defendant was sentenced to life imprisonment on the murder charge, and a term of forty (40) years on the robbery charge, such sentences to run consecutively. The defendant raises three assignments of error on this appeal. First, he asserts that the trial court erred in failing to provide the defendant with a panel of 47 prospective jurors, as required by Section 546.-180 RSMo 1969. Second, he charges that the trial court erred in overruling his motion for acquittal at the close of the evidence on the charge of murder in the first degree because the evidence did not establish that defendant shot and killed Officer Mestdagh. Third, he asserts that the court erred in failing to dismiss the entire jury panel upon motion by defendant following an incident during voir dire examination of the panel where the trial court, in an attempt to answer a prospective juror’s question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done. Section 546.180 RSMo 1969, provides that in all cities having a population of over one hundred thousand inhabitants, a defendant indicted for a criminal offense shall be entitled to peremptory challenges of jurors, as follows: “2. (l)(a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty and no more; [[Image here]] The statute further provides: “(2) In all such trials, the state shall be entitled to the following number of peremptory challenges: (a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of fifteen, and no more; * * ” This statute, of course, was applicable to the jury selection proceedings in the trial of the defendant. However, the record shows that the original panel of prospective jurors called in the trial of defendant numbered 45, and six of these were excused for cause *308during voir dire examination, leaving a ve-nire panel for the exercise of peremptory challenges of 39. No additional persons were called (nor were such requested) to bring the panel to the number of 47, so that the defendant and the state could exercise the full statutory peremptory challenges afforded by Section 546.180. From the remaining panel of 39, a jury of twelve and one alternate was selected to try the defendant. The record does not reveal how the peremptory challenges were allocated between the defendant and the state, but it is obvious that the defendant could not have been afforded his statutory peremptory challenge to 20 of the prospective jurors and therein rests his complaint in Point I of this appeal. However, the defendant’s trial counsel (not his counsel on this appeal) made no objection to the size of the original venire panel of 45; made no request initially or after it was reduced by excuses for cause to 39, that it be augmented by calling additional persons as prospective jurors; made no objection to any reduction of the number of peremptory challenges afforded him; made no objection as to the final jury because of the selection process employed; did not at any time move to quash the venire panel; and, did not raise this point in his motion for a new trial. His point as to the method employed in the selection of the trial jury is raised for the first time on this appeal, and thus comes too late. Since the first year of the present century, the rule governing the situation here presented has been clearly stated and often iterated. In State v. Bell, 166 Mo. 106, 65 S.W. 736, 737 (1901), it was said: “ * * * The matter of failing to provide a complete general panel before calling on a party defendant to make his challenges is a matter of exception, pure and simple; and if such party fail to except at the proper time, and to properly preserve such his (sic) exception, any redress for him is out of reach of judicial interposition * * * ” In State v. Nichols, 165 S.W.2d 674, 675[7] (Mo.1942), it was held that a defendant’s right to a statutory venire was a right which could be waived and that a failure to object to an inadequate venire until after a jury was sworn constituted such a waiver. The problem presented is one of error and exception “pure and simple” and not of jurisdiction. See also: State v. Donnell, 387 S.W.2d 508, 514[10,11] (Mo.1965); State v. Cox, 392 S.W.2d 265-266[1] (Mo.1965); State v. Thomas, 433 S.W.2d 537, 540[5] (Mo.1968); State v. Turnbough, 498 S.W.2d 567, 570[1] (Mo.1973); and, State v. Thomas, 530 S.W.2d 265, 267 (Mo.App.1975). The cases relied upon by defendant [State v. Kinne, 372 S.W.2d 62 (Mo.1963), and State v. Williams, 515 S.W.2d 544 (Mo.1974)] are distinguishable in that in each the defendant lodged proper and timely objections to the lack of a statutory venire and, upon request, the courts refused to bring the venire up to the statutory number. Defendant’s first point on appeal is ruled against him. At the close of the state’s evidence, the defendant filed a Motion for Directed Verdict of Acquittal, which generally attacked the state’s case as supported by insufficient evidence on both the charge of first degree felony-murder and the charge of robbery first degree. The trial court overruled this motion. The defendant then testified in his own behalf and rested. The defendant’s second point on this appeal, as above noted, is that the court erred in overruling his motion “for a judgment of acquittal at the close of all the evidence” (emphasis supplied) on the charge of murder in the first degree. The record of the trial before this court fails to reveal that such a motion was filed by the defendant or adversely ruled by the trial court. However, since the omission from the record may have been the result of a preparation mistake, and in view of the severity of the sentences and the fact that the state has joined issue in its brief on the assignment of error, it will be briefly considered. *309Since this second point goes to the sufficiency of the evidence to support the murder charge, this court must review the evidence in its light most favorable to the state to support the conviction and all evidence and inferences to be drawn therefrom to the contrary must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975); State v. Jones, 524 S.W.2d 186, 187[1] (Mo.App.1975). When so viewed, the evidence produced by the state presents facts from which the jury could reasonably find that the defendant and one Eugene Minor, and a third person, Kenneth Johnson, acting in concert and with a common purpose, robbed the proprietor of Traxler’s Pharmacy by putting Traxler and some store customers in fear by .means of at least one firearm on January 2, 1975, at about 3:00-3:30 p. m. The jury could further reasonably find from the evidence that the defendant and Minor had visited the location of the Traxler Pharmacy at 59th and Holmes, Kansas City, Jackson County, Missouri, on the forenoon of that day and had returned there just before the robbery in a blue van motor vehicle, apparently with Kenneth Johnson, which was parked beside the Traxler Pharmacy and in which van latent fingerprints of the defendant were later discovered; that Minor and the defendant entered the store and at gunpoint forced Traxler and a customer to lie on the floor;1 and, the two black men thereupon looted the cash register and collected other drugs and sundries which were placed in a pillowcase. During the course of these activities, a young boy and a lady customer entered the store, and were also forced to lie on the floor.2 During the course of the robbery, the victim testified that the defendant shouted a warning that the police had arrived, and he and his companion ran to the storeroom at the back of the pharmacy. Thomas M. Gaugh, a member of the Kansas City, Missouri police department, and his partner, Russell Mestdagh, were patrolling in an unmarked police car and received an alert that a robbery was in progress at Traxler’s. Upon arrival at the store, they entered the front door but immediately Gaugh went to the outside back of the premises to prevent an escape from the back door, and Mestdagh proceeded to the back storeroom. Gaugh at the outside rear door (which he found locked from the inside) said he heard loud noises and commotion from the back of the building followed by three shots. Traxler and his customers within the store also heard this, and thereupon, the two black men emerged from the back room and left the store by the front entrance. The defendant left the store first and was immediately apprehended by another arriving police officer and placed in a “frisk” position against the building. Minor then emerged from the store with a gun in hand and fled. The officer, holding the defendant in custody, thereupon started to pursue Minor on foot and overtook him and placed him in restraint. In the meantime, the defendant ran east on 59th Street to Rockhill Road, where he attempted to commandeer the vehicle of a passing motorist. During these attempts, however, he was placed under a citizen’s arrest by one Cummins, also a passerby, who was employed by the Automobile Recovery Bureau. Cummins handcuffed the defendant and returned him to the scene of the robbery. Residents of the neighborhood testified that during this period of excitement, the blue van previously parked beside Traxler’s Pharmacy was driven away, presumably by the third member of the trio. Officer Mestdagh was found in the rear storeroom of Traxler’s Pharmacy with multiple gunshot wounds, from which he died that same afternoon. There was state’s *310evidence that some of his wounds, and perhaps the fatal one, resulted from shots from his own service revolver, although this evidence is somewhat obscure. While in custody of the police later that day and the following morning, the defendant gave many divergent oral accounts of his connection with this matter. Emerging therefrom, however, is the fact that he admitted his presence in the area of Traxler’s Pharmacy at the time of the robbery, and his participation to various degrees in its perpetration. He denied, however, that he was armed and that he shot Officer Mes-tdagh. On the witness stand at trial, he denied any connection with the robbery, but stated that he had stopped at Traxler’s to call his girl friend and became an innocent bystander in the events above summarized. On this appeal, the thrust of his second point centers exclusively on the argument that he cannot be convicted of first degree felony-murder for the reason that the state’s evidence “did not establish that defendant shot and killed the victim of the alleged murder.” It is true that there was no direct evidence that the defendant actually fired one or more of the shots that resulted in the death of Officer Mestdagh while he, the defendant, and Minor, were in the back storeroom at Traxler’s Pharmacy, but such proof was not necessary to support the conviction once the fact of defendant’s participation in the robbery was established. Following earlier authorities, this principle is stated in Dickson v. State, 449 S.W.2d 576, 581[5] (Mo.1970): «* * * ‘The defendant’s connection with the crime was through his association with the other men in the attempt to rob the bank, in which attempt the murder was committed. It was murder in the first degree if he was there with the others engaged in that enterprise’ even though there was no proof of a conspiracy or that he fired a shot. * * * ” (Emphasis supplied) See also: State v. Paxton, 453 S.W.2d 923, 925[2] (Mo.1970); State v. Ford, 495 S.W.2d 408, 416[10] (Mo. banc 1973); Hayes v. State, 501 S.W.2d 508, 512[12, 13] (Mo.App.1973); State v. Williams, 522 S.W.2d 327, 329[2] (Mo.App.1975); State v. Johnson, 524 S.W.2d 97, 99-100[4] (Mo. banc 1975). There is no merit to defendant’s second point. The defendant’s third and final point hinges on an incident which occurred during voir dire examination of the prospective jurors. The record reflects the following: “MR. DAKOPOLOS: (Prosecutor) * * * Under the crime of Murder in the First Degree our State Legislature has provided that that crime shall be punished by life in prison. That’s the only sentence that can be given by a jury on the crime of Murder in the First Degree, should the defendant be found guilty. I would ask if any members of the jury panel have any reservations or argument or quarrel with this punishment as has been provided by the State Legislature? JOSEPH L. STROBL: (Venireman-raising hand.) MR. DAKOPOLOS: Yes, Mr. Strobl? JOSEPH L. STROBL: What is considered life imprisonment? Fifteen years? MR. DAKOPOLOS: Well, unfortunately I’m not permitted to interpret that and I don’t think the court is either. THE COURT: Well, not specifically. The law in Missouri however is, I think I probably can tell you this much, anyone being confined in the custody of the Missouri Department of Corrections may be paroled from custody whenever the Department of Corrections concludes that it • should be done. It’s up to them. Nobody else has any control over it. MR. RODARTE: (Defense counsel) I have a comment to make to the Court whenever you are finished, Judge. (COUNSEL APPROACHED THE BENCH AND THE FOLLOWING PROCEEDINGS WERE HAD:) *311MR. RODARTE: Your Honor, at this time I’m going to move that you dismiss the entire panel for the reason that the inquiry that was made by Mr. Strobl was not responsive to the question submitted by the prosecuting attorney and that his question has influenced and prejudiced the entire panel in that by his commenting — or his question raised an issue that perhaps a life sentence would only carry a term of fifteen years. THE COURT: Well, the fact of the matter is that’s the truth. MR. RODARTE: Well, Judge, I know that, but I don’t think that this would influence — I think that this would influence this panel and the members that are selected from that in determining what sentence that they should give, not only on the Count of Murder but also on the other count. THE COURT: Overruled. (THE PROCEEDINGS RETURNED TO OPEN COURT.) MR. DAKOPOLOS: Mr. Strobl, with the information you received, would that have any bearing on your ability to sit as a juror in this case? MR. STROBL: What goes through my mind, counsel, at the present time is a man is convicted of armed robbery and he can get a bigger sentence and have to serve a bigger sentence than one for murder. MR. DAKOPOLOS: Well, that may be true and I’ll get into that in just a minute, but my question is right now, does the fact that Murder in the First Degree in Missouri carries a mandatory sentence of life imprisonment cause you any problem in sitting as a juror in this particular case? JOSEPH L. STROBL: Yes, sir, it would for this one reason that while the judge can sentence a man to life imprisonment you say the pardon board can let him out in two years, and that’s what you told me. Now, if I read you wrong let me know. THE COURT: That’s possible. It doesn’t happen but it’s possible. JOSEPH L. STROBL: It’s possible. There is always the possibility? THE COURT: Oh, yes. Anything is possible, I suppose. MR. DAKOPOLOS: Now, knowing that, and keeping in mind that I‘m going to talk about robbery in just a minute, Robbery in the First Degree, knowing what has been discussed about Murder in the First Degree, does that pose any problem to you sitting as a juror in this particular case? JOSEPH L. STROBL: No.” No further discussion of this subject appears during voir dire, no further objection to the panel or request for its discharge was made, and no request of the court to excuse Joseph L. Strobl for cause was made. He was not, however, selected as one of the twelve jurors to try the case, although it does not appear which party exercised a peremptory challenge resulting in his elimination from the jury. The defendant’s Motion for a New Trial included the following: “3. That the Court erred in overruling defendant’s motion for a mistrial and discharging the jury panel when a member of said panel gave unresponsive answers to inquires (sic) made by the prosecuting attorney and made statements that prejudiced the other members of the jury panel regarding the length of punishment for murder and robbery.” The defendant’s brief couches this assignment of error in the following terms: “HI The court erred in failing to dismiss the entire jury panel upon motion of the defendant after the court, in an attempt to answer a juror’s question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone being confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done.” It is true, as the state contends, that the review of an alleged assignment of er*312ror in this court is limited to the objections made at trial and preserved at that level in a motion for a new trial. State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974); State v. Lang, 515 S.W.2d 507, 511[8] (Mo.1974); State v. Davis, 482 S.W.2d 486, 489[6] (Mo.1972); State v. Johnson, 483 S.W.2d 65, 67, 68[5] (Mo.1972), and cases cited therein. While the grounds for the objection and request for discharge of the venire panel, the reason stated in defendant’s motion for a new trial and point three of his brief are couched in somewhat varying terminology, it is clear that the essence of his complaint throughout is that the above-quoted colloquy during the voir dire examination of venireman Strobl somehow prejudiced the defendant’s right to a fair and impartial trial before the jury ultimately selected. This court is not unmindful of those authorities that have held it to be improper for a prosecutor to argue to a jury the possibility of a prisoner parole in order to enhance a penalty, State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294, 296[6] (1938); 23A C.J.S. Criminal Law § 1107, page 208; or for a trial judge to instruct a jury during its deliberations that a sentence imposed by its verdict may be shortened by means of parole, State v. Cornett, 381 S.W.2d 878, 881[2] (Mo. banc 1964), and cases cited therein. The parties do not cite, nor has independent research disclosed, any decision applying this rule to incidents such as the voir dire examination of venireman Strobl. Generally, it is the rule that a trial judge is vested with broad discretion in controlling voir dire, and his conduct and rulings will not be disturbed unless a clear, manifest and prejudicial abuse of that discretion appears. State v. Yowell, 513 S.W.2d 397, 403[4] (Mo. banc 1974); Barnes v. Marshall, 467 S.W.2d 70, 76[3] (Mo.1971). Further, a real probability of injury and prejudice to the complaining party must appear. State v. Scott, 515 S.W.2d 524, 527[1] (Mo.1974); State v. Clark, 509 S.W.2d 740, 742[1-3] (Mo.App.1974). While it is not recommended that trial courts indulge in colloquies such as revealed in this record, during the voir dire of Mr. Strobl, the defendant has failed to carry his burden to establish that he was in any way injured or prejudiced thereby. The trial court here said nothing that would indicate any personal belief that the defendant was guilty; the state presented a strong, convincing case to support its charge of first degree murder against the defendant; and, the jury having found him guilty of that offense, had no choice under the applicable statute but to assess his punishment at imprisonment for life. That the voir dire incident did not prejudice the jury against the defendant in its consideration of the first degree robbery charge as to the assessment of punishment is apparent from the fact that it was unable to agree as to the punishment on such charge and left the assessment thereof to the trial judge. The three authorities relied upon by defendant in support of this point are inappo-site to the case here under review. In State v. Castino, 264 S.W.2d 372, 375[3] (Mo.1954), the court held it was reversible error for a trial court to advise a panel during voir dire that a person originally jointly charged with the defendant had pleaded guilty to the offense. In State v. Martin, 506 S.W.2d 473, 474[4] (Mo.App.1974), the trial court told the venire prior to voir dire that the defendant was charged under the Habitual Criminal Act. In State v. Fenton, 499 S.W.2d 813, 816[8] (Mo.App.1973), the prosecutor during opening statement advised the jury that defendant’s accomplice had pleaded guilty to the charge. The defendant’s third point is ruled against him. The judgment is affirmed. All concur.
. The customer positively and unequivocally identified the defendant as one of the two robbers, both at a police lineup and in the trial, and Traxler did likewise as to Eugene Minor. The customer had opportunity and conditions during the robbery to make such identification, and stated that the defendant was carrying a handgun while she observed him in the store.
. The young boy also positively identified the defendant as one of the robbers. | 10-01-2021 | [
"SWOFFORD, Judge. The appellant (hereafter defendant) was charged in separate indictments with Murder First Degree and with Robbery First Degree, arising from the death by gunshot of Russell Mestdagh, a member of the Kansas City, Missouri police department, during the course of an armed robbery of Traxler’s Pharmacy, 59th and Holmes, Kansas City, Missouri, on January 2, 1975. The separate indictments were consolidated for trial by agreement of the defense and the state. A jury found the defendant guilty of Murder First Degree and assessed his penalty at life imprisonment. In a separate verdict, the jury found the defendant guilty of Robbery First Degree, but were unable to agree upon the punishment.",
"After an unavailing motion for a new trial, the defendant was sentenced to life imprisonment on the murder charge, and a term of forty (40) years on the robbery charge, such sentences to run consecutively. The defendant raises three assignments of error on this appeal. First, he asserts that the trial court erred in failing to provide the defendant with a panel of 47 prospective jurors, as required by Section 546.-180 RSMo 1969. Second, he charges that the trial court erred in overruling his motion for acquittal at the close of the evidence on the charge of murder in the first degree because the evidence did not establish that defendant shot and killed Officer Mestdagh. Third, he asserts that the court erred in failing to dismiss the entire jury panel upon motion by defendant following an incident during voir dire examination of the panel where the trial court, in an attempt to answer a prospective juror’s question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done.",
"Section 546.180 RSMo 1969, provides that in all cities having a population of over one hundred thousand inhabitants, a defendant indicted for a criminal offense shall be entitled to peremptory challenges of jurors, as follows: “2. (l)(a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty and no more; [[Image here]] The statute further provides: “(2) In all such trials, the state shall be entitled to the following number of peremptory challenges: (a) If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of fifteen, and no more; * * ” This statute, of course, was applicable to the jury selection proceedings in the trial of the defendant. However, the record shows that the original panel of prospective jurors called in the trial of defendant numbered 45, and six of these were excused for cause *308during voir dire examination, leaving a ve-nire panel for the exercise of peremptory challenges of 39.",
"No additional persons were called (nor were such requested) to bring the panel to the number of 47, so that the defendant and the state could exercise the full statutory peremptory challenges afforded by Section 546.180. From the remaining panel of 39, a jury of twelve and one alternate was selected to try the defendant. The record does not reveal how the peremptory challenges were allocated between the defendant and the state, but it is obvious that the defendant could not have been afforded his statutory peremptory challenge to 20 of the prospective jurors and therein rests his complaint in Point I of this appeal. However, the defendant’s trial counsel (not his counsel on this appeal) made no objection to the size of the original venire panel of 45; made no request initially or after it was reduced by excuses for cause to 39, that it be augmented by calling additional persons as prospective jurors; made no objection to any reduction of the number of peremptory challenges afforded him; made no objection as to the final jury because of the selection process employed; did not at any time move to quash the venire panel; and, did not raise this point in his motion for a new trial. His point as to the method employed in the selection of the trial jury is raised for the first time on this appeal, and thus comes too late.",
"Since the first year of the present century, the rule governing the situation here presented has been clearly stated and often iterated. In State v. Bell, 166 Mo. 106, 65 S.W. 736, 737 (1901), it was said: “ * * * The matter of failing to provide a complete general panel before calling on a party defendant to make his challenges is a matter of exception, pure and simple; and if such party fail to except at the proper time, and to properly preserve such his (sic) exception, any redress for him is out of reach of judicial interposition * * * ” In State v. Nichols, 165 S.W.2d 674, 675[7] (Mo.1942), it was held that a defendant’s right to a statutory venire was a right which could be waived and that a failure to object to an inadequate venire until after a jury was sworn constituted such a waiver. The problem presented is one of error and exception “pure and simple” and not of jurisdiction.",
"See also: State v. Donnell, 387 S.W.2d 508, 514[10,11] (Mo.1965); State v. Cox, 392 S.W.2d 265-266[1] (Mo.1965); State v. Thomas, 433 S.W.2d 537, 540[5] (Mo.1968); State v. Turnbough, 498 S.W.2d 567, 570[1] (Mo.1973); and, State v. Thomas, 530 S.W.2d 265, 267 (Mo.App.1975). The cases relied upon by defendant [State v. Kinne, 372 S.W.2d 62 (Mo.1963), and State v. Williams, 515 S.W.2d 544 (Mo.1974)] are distinguishable in that in each the defendant lodged proper and timely objections to the lack of a statutory venire and, upon request, the courts refused to bring the venire up to the statutory number. Defendant’s first point on appeal is ruled against him. At the close of the state’s evidence, the defendant filed a Motion for Directed Verdict of Acquittal, which generally attacked the state’s case as supported by insufficient evidence on both the charge of first degree felony-murder and the charge of robbery first degree. The trial court overruled this motion. The defendant then testified in his own behalf and rested.",
"The defendant’s second point on this appeal, as above noted, is that the court erred in overruling his motion “for a judgment of acquittal at the close of all the evidence” (emphasis supplied) on the charge of murder in the first degree. The record of the trial before this court fails to reveal that such a motion was filed by the defendant or adversely ruled by the trial court. However, since the omission from the record may have been the result of a preparation mistake, and in view of the severity of the sentences and the fact that the state has joined issue in its brief on the assignment of error, it will be briefly considered. *309Since this second point goes to the sufficiency of the evidence to support the murder charge, this court must review the evidence in its light most favorable to the state to support the conviction and all evidence and inferences to be drawn therefrom to the contrary must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo.",
"banc 1975); State v. Jones, 524 S.W.2d 186, 187[1] (Mo.App.1975). When so viewed, the evidence produced by the state presents facts from which the jury could reasonably find that the defendant and one Eugene Minor, and a third person, Kenneth Johnson, acting in concert and with a common purpose, robbed the proprietor of Traxler’s Pharmacy by putting Traxler and some store customers in fear by .means of at least one firearm on January 2, 1975, at about 3:00-3:30 p. m. The jury could further reasonably find from the evidence that the defendant and Minor had visited the location of the Traxler Pharmacy at 59th and Holmes, Kansas City, Jackson County, Missouri, on the forenoon of that day and had returned there just before the robbery in a blue van motor vehicle, apparently with Kenneth Johnson, which was parked beside the Traxler Pharmacy and in which van latent fingerprints of the defendant were later discovered; that Minor and the defendant entered the store and at gunpoint forced Traxler and a customer to lie on the floor;1 and, the two black men thereupon looted the cash register and collected other drugs and sundries which were placed in a pillowcase. During the course of these activities, a young boy and a lady customer entered the store, and were also forced to lie on the floor.2 During the course of the robbery, the victim testified that the defendant shouted a warning that the police had arrived, and he and his companion ran to the storeroom at the back of the pharmacy.",
"Thomas M. Gaugh, a member of the Kansas City, Missouri police department, and his partner, Russell Mestdagh, were patrolling in an unmarked police car and received an alert that a robbery was in progress at Traxler’s. Upon arrival at the store, they entered the front door but immediately Gaugh went to the outside back of the premises to prevent an escape from the back door, and Mestdagh proceeded to the back storeroom. Gaugh at the outside rear door (which he found locked from the inside) said he heard loud noises and commotion from the back of the building followed by three shots. Traxler and his customers within the store also heard this, and thereupon, the two black men emerged from the back room and left the store by the front entrance. The defendant left the store first and was immediately apprehended by another arriving police officer and placed in a “frisk” position against the building. Minor then emerged from the store with a gun in hand and fled. The officer, holding the defendant in custody, thereupon started to pursue Minor on foot and overtook him and placed him in restraint.",
"In the meantime, the defendant ran east on 59th Street to Rockhill Road, where he attempted to commandeer the vehicle of a passing motorist. During these attempts, however, he was placed under a citizen’s arrest by one Cummins, also a passerby, who was employed by the Automobile Recovery Bureau. Cummins handcuffed the defendant and returned him to the scene of the robbery. Residents of the neighborhood testified that during this period of excitement, the blue van previously parked beside Traxler’s Pharmacy was driven away, presumably by the third member of the trio. Officer Mestdagh was found in the rear storeroom of Traxler’s Pharmacy with multiple gunshot wounds, from which he died that same afternoon. There was state’s *310evidence that some of his wounds, and perhaps the fatal one, resulted from shots from his own service revolver, although this evidence is somewhat obscure. While in custody of the police later that day and the following morning, the defendant gave many divergent oral accounts of his connection with this matter. Emerging therefrom, however, is the fact that he admitted his presence in the area of Traxler’s Pharmacy at the time of the robbery, and his participation to various degrees in its perpetration.",
"He denied, however, that he was armed and that he shot Officer Mes-tdagh. On the witness stand at trial, he denied any connection with the robbery, but stated that he had stopped at Traxler’s to call his girl friend and became an innocent bystander in the events above summarized. On this appeal, the thrust of his second point centers exclusively on the argument that he cannot be convicted of first degree felony-murder for the reason that the state’s evidence “did not establish that defendant shot and killed the victim of the alleged murder.” It is true that there was no direct evidence that the defendant actually fired one or more of the shots that resulted in the death of Officer Mestdagh while he, the defendant, and Minor, were in the back storeroom at Traxler’s Pharmacy, but such proof was not necessary to support the conviction once the fact of defendant’s participation in the robbery was established. Following earlier authorities, this principle is stated in Dickson v. State, 449 S.W.2d 576, 581[5] (Mo.1970): «* * * ‘The defendant’s connection with the crime was through his association with the other men in the attempt to rob the bank, in which attempt the murder was committed. It was murder in the first degree if he was there with the others engaged in that enterprise’ even though there was no proof of a conspiracy or that he fired a shot.",
"* * * ” (Emphasis supplied) See also: State v. Paxton, 453 S.W.2d 923, 925[2] (Mo.1970); State v. Ford, 495 S.W.2d 408, 416[10] (Mo. banc 1973); Hayes v. State, 501 S.W.2d 508, 512[12, 13] (Mo.App.1973); State v. Williams, 522 S.W.2d 327, 329[2] (Mo.App.1975); State v. Johnson, 524 S.W.2d 97, 99-100[4] (Mo. banc 1975). There is no merit to defendant’s second point. The defendant’s third and final point hinges on an incident which occurred during voir dire examination of the prospective jurors. The record reflects the following: “MR. DAKOPOLOS: (Prosecutor) * * * Under the crime of Murder in the First Degree our State Legislature has provided that that crime shall be punished by life in prison. That’s the only sentence that can be given by a jury on the crime of Murder in the First Degree, should the defendant be found guilty.",
"I would ask if any members of the jury panel have any reservations or argument or quarrel with this punishment as has been provided by the State Legislature? JOSEPH L. STROBL: (Venireman-raising hand.) MR. DAKOPOLOS: Yes, Mr. Strobl? JOSEPH L. STROBL: What is considered life imprisonment? Fifteen years? MR. DAKOPOLOS: Well, unfortunately I’m not permitted to interpret that and I don’t think the court is either. THE COURT: Well, not specifically. The law in Missouri however is, I think I probably can tell you this much, anyone being confined in the custody of the Missouri Department of Corrections may be paroled from custody whenever the Department of Corrections concludes that it • should be done. It’s up to them.",
"Nobody else has any control over it. MR. RODARTE: (Defense counsel) I have a comment to make to the Court whenever you are finished, Judge. (COUNSEL APPROACHED THE BENCH AND THE FOLLOWING PROCEEDINGS WERE HAD:) *311MR. RODARTE: Your Honor, at this time I’m going to move that you dismiss the entire panel for the reason that the inquiry that was made by Mr. Strobl was not responsive to the question submitted by the prosecuting attorney and that his question has influenced and prejudiced the entire panel in that by his commenting — or his question raised an issue that perhaps a life sentence would only carry a term of fifteen years. THE COURT: Well, the fact of the matter is that’s the truth. MR. RODARTE: Well, Judge, I know that, but I don’t think that this would influence — I think that this would influence this panel and the members that are selected from that in determining what sentence that they should give, not only on the Count of Murder but also on the other count. THE COURT: Overruled. (THE PROCEEDINGS RETURNED TO OPEN COURT.)",
"MR. DAKOPOLOS: Mr. Strobl, with the information you received, would that have any bearing on your ability to sit as a juror in this case? MR. STROBL: What goes through my mind, counsel, at the present time is a man is convicted of armed robbery and he can get a bigger sentence and have to serve a bigger sentence than one for murder. MR. DAKOPOLOS: Well, that may be true and I’ll get into that in just a minute, but my question is right now, does the fact that Murder in the First Degree in Missouri carries a mandatory sentence of life imprisonment cause you any problem in sitting as a juror in this particular case?",
"JOSEPH L. STROBL: Yes, sir, it would for this one reason that while the judge can sentence a man to life imprisonment you say the pardon board can let him out in two years, and that’s what you told me. Now, if I read you wrong let me know. THE COURT: That’s possible. It doesn’t happen but it’s possible. JOSEPH L. STROBL: It’s possible. There is always the possibility? THE COURT: Oh, yes. Anything is possible, I suppose. MR. DAKOPOLOS: Now, knowing that, and keeping in mind that I‘m going to talk about robbery in just a minute, Robbery in the First Degree, knowing what has been discussed about Murder in the First Degree, does that pose any problem to you sitting as a juror in this particular case?",
"JOSEPH L. STROBL: No.” No further discussion of this subject appears during voir dire, no further objection to the panel or request for its discharge was made, and no request of the court to excuse Joseph L. Strobl for cause was made. He was not, however, selected as one of the twelve jurors to try the case, although it does not appear which party exercised a peremptory challenge resulting in his elimination from the jury. The defendant’s Motion for a New Trial included the following: “3. That the Court erred in overruling defendant’s motion for a mistrial and discharging the jury panel when a member of said panel gave unresponsive answers to inquires (sic) made by the prosecuting attorney and made statements that prejudiced the other members of the jury panel regarding the length of punishment for murder and robbery.” The defendant’s brief couches this assignment of error in the following terms: “HI The court erred in failing to dismiss the entire jury panel upon motion of the defendant after the court, in an attempt to answer a juror’s question as to whether or not life imprisonment amounted to 15 years, advised the juror that anyone being confined in the Missouri Department of Corrections might be paroled whenever the Department of Corrections concluded that it should be done.” It is true, as the state contends, that the review of an alleged assignment of er*312ror in this court is limited to the objections made at trial and preserved at that level in a motion for a new trial. State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974); State v. Lang, 515 S.W.2d 507, 511[8] (Mo.1974); State v. Davis, 482 S.W.2d 486, 489[6] (Mo.1972); State v. Johnson, 483 S.W.2d 65, 67, 68[5] (Mo.1972), and cases cited therein.",
"While the grounds for the objection and request for discharge of the venire panel, the reason stated in defendant’s motion for a new trial and point three of his brief are couched in somewhat varying terminology, it is clear that the essence of his complaint throughout is that the above-quoted colloquy during the voir dire examination of venireman Strobl somehow prejudiced the defendant’s right to a fair and impartial trial before the jury ultimately selected. This court is not unmindful of those authorities that have held it to be improper for a prosecutor to argue to a jury the possibility of a prisoner parole in order to enhance a penalty, State v. Kaempfer, 342 Mo.",
"1007, 119 S.W.2d 294, 296[6] (1938); 23A C.J.S. Criminal Law § 1107, page 208; or for a trial judge to instruct a jury during its deliberations that a sentence imposed by its verdict may be shortened by means of parole, State v. Cornett, 381 S.W.2d 878, 881[2] (Mo. banc 1964), and cases cited therein. The parties do not cite, nor has independent research disclosed, any decision applying this rule to incidents such as the voir dire examination of venireman Strobl. Generally, it is the rule that a trial judge is vested with broad discretion in controlling voir dire, and his conduct and rulings will not be disturbed unless a clear, manifest and prejudicial abuse of that discretion appears. State v. Yowell, 513 S.W.2d 397, 403[4] (Mo.",
"banc 1974); Barnes v. Marshall, 467 S.W.2d 70, 76[3] (Mo.1971). Further, a real probability of injury and prejudice to the complaining party must appear. State v. Scott, 515 S.W.2d 524, 527[1] (Mo.1974); State v. Clark, 509 S.W.2d 740, 742[1-3] (Mo.App.1974). While it is not recommended that trial courts indulge in colloquies such as revealed in this record, during the voir dire of Mr. Strobl, the defendant has failed to carry his burden to establish that he was in any way injured or prejudiced thereby. The trial court here said nothing that would indicate any personal belief that the defendant was guilty; the state presented a strong, convincing case to support its charge of first degree murder against the defendant; and, the jury having found him guilty of that offense, had no choice under the applicable statute but to assess his punishment at imprisonment for life. That the voir dire incident did not prejudice the jury against the defendant in its consideration of the first degree robbery charge as to the assessment of punishment is apparent from the fact that it was unable to agree as to the punishment on such charge and left the assessment thereof to the trial judge. The three authorities relied upon by defendant in support of this point are inappo-site to the case here under review.",
"In State v. Castino, 264 S.W.2d 372, 375[3] (Mo.1954), the court held it was reversible error for a trial court to advise a panel during voir dire that a person originally jointly charged with the defendant had pleaded guilty to the offense. In State v. Martin, 506 S.W.2d 473, 474[4] (Mo.App.1974), the trial court told the venire prior to voir dire that the defendant was charged under the Habitual Criminal Act. In State v. Fenton, 499 S.W.2d 813, 816[8] (Mo.App.1973), the prosecutor during opening statement advised the jury that defendant’s accomplice had pleaded guilty to the charge. The defendant’s third point is ruled against him. The judgment is affirmed. All concur. .",
"The customer positively and unequivocally identified the defendant as one of the two robbers, both at a police lineup and in the trial, and Traxler did likewise as to Eugene Minor. The customer had opportunity and conditions during the robbery to make such identification, and stated that the defendant was carrying a handgun while she observed him in the store. . The young boy also positively identified the defendant as one of the robbers."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5046595/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FOURTH DIVISION
1-02-1006 June 12, 2003
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ROBERT LOFFREDI and KEVIN LOFFREDI, ) Honorable
) James F. Henry,
Defendants-Appellants. ) Judge Presiding.
JUSTICE HARTMAN delivered the opinion of the court:
A collection action was brought by plaintiff law firm, Barack Ferrazzano Kirschbaum Perlman and Nagelberg (plaintiff), seeking to recover attorney fees and costs for services it rendered on behalf of defendants, Robert and Kevin Loffredi (defendants), in a National Association of Securities Dealers, Inc. (NASD) arbitration proceeding. The circuit court granted summary judgment in plaintiff's favor based on the doctrine of judicial estoppel. Defendants appeal on the ground that the court erred in applying judicial estoppel to the circumstances of this case. The facts set forth below emanate from the pleadings and affidavits filed in the circuit court proceedings. (footnote: 1)
Defendants were representatives of a broker registered with NASD. On July 28, 1999, Robert Loffredi retained plaintiff to provide legal services and represent defendants in an arbitration action before the NASD against James Dreher and Dreher & Associates (collectively Dreher) on the ground that Dreher terminated defendants' registration status as representatives with the NASD and conspired to steal defendants' customers from them, accounts valued at more than $6 million. Because of their perceived loss of customers, defendants asked plaintiff to seek emergency injunctive relief and monetary damages. Plaintiff alleged that defendants agreed to pay plaintiff's standard legal fees at an hourly rate to be charged monthly, as well as expenses. According to defendants' pleadings, however, Ray Rezner, one of plaintiff's partners, estimated for Robert that the fees and expenses to pursue the action would total between $25,000 and $30,000. Defendants denied that plaintiff disclosed to Robert plaintiff's hourly rates.
Plaintiff immediately began investigating defendants' claim by reviewing documents and interviewing witnesses. On August 3, 1999, plaintiff filed a statement of claim on behalf of defendants initiating an NASD arbitration action against Dreher and two former employees of Raymond Financial Group, Inc., a corporation in which Robert is sole shareholder. Plaintiff also moved on defendants' behalf for an immediate interim injunction, which it pursued with the NASD. Plaintiff drafted and filed a pre-hearing memorandum and prepared for the injunction hearing. At an evidentiary hearing on defendants' motion, which was held before an NASD arbitration panel, plaintiff examined and cross-examined various witnesses.
The NASD arbitration panel granted defendants an interim injunction. Defendants admittedly were "ecstatic" with the injunction because it required Dreher to transfer immediately Loffredi's customers to their new broker-dealer. Thereafter, plaintiff sent defendants separate bills, copies of which are contained in an exhibit attached to the complaint. Plaintiff's bills are dated August 26, 1999, September 21, 1999, October 21, 1999, November 19, 1999, December 21, 1999, January 25, 2000, February 25, 2000, and March 23, 2000. The bill sent in August 1999 reflected the sum of $16,870.05 in charges; the September 1999 bill for attorney fees showed a sum due of $83,999. Nothing in the record reveals defendants disputing or complaining about the sums showing as being owed and due after the bills were received, nor challenging the bills after their receipt as having exceeded the alleged estimate. No credits and payments were shown to have been made by defendants. Despite non-payment, plaintiff continued to represent defendants in settlement negotiations to resolve the remaining claims in the NASD proceeding. In May 2000, plaintiff withdrew as defendants' counsel for nonpayment of plaintiff's fees.
Defendants thereafter retained the law firm of Schuyler Roche & Swirner, P.C. (Schuyler) to appear on their behalf. The NASD arbitration continued after plaintiff's withdrawal, primarily to adjudicate defendants' claims for damages.
On June 12, 2000, plaintiff filed their initial complaint in the circuit court of Cook County to recover attorney fees and expenses totaling $124,628.36, later amending it to allege two counts each against Robert for breach of contract and quantum meruit . Attached to the amended complaint was the exhibit consisting of plaintiff's periodic billing for legal services rendered by plaintiff to defendants, plus costs and advances. The exhibits attached to both the original and the amended complaint detailed specific dates, hours, activities and identities of the attorneys and clients involved in the billing of fees. Plaintiff also alleged two counts claiming quantum meruit against Kevin.
Defendants filed their answer and affirmative defenses to plaintiff's amended complaint, denying the allegation that they agreed to pay plaintiff's standard hourly rate for its services. Defendants admitted receiving plaintiff's fee statements for services rendered and admitted never paying the bills. In an affirmative defense, defendants alleged that plaintiff may recover only the reasonable value of its services and that the legal fees sought by plaintiff were unreasonable in their totality. Defendants also asserted that plaintiff failed to disclose its hourly fee rates within a reasonable time after commencing its representation, citing Rule 1.5(b) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.5(b)). In addition, defendants denied that they owed plaintiff the amount sought because plaintiff failed to disclose in a timely manner that the fees and expenses incurred had exceeded greatly the original estimate of $25,000 to $30,000 for prosecution of the NASD case. Defendants generally denied that they never objected to any of the statements for legal services and expenses sent them; however, they made no claim that they objected to the fee amounts for having been redundant, unnecessary or inaccurate.
While the state court proceedings were pending, through Schuyler, defendants' other attorneys, defendants petitioned for attorney fees and costs in the NASD arbitration under the Uniform Deceptive Trade Practices Act (Act) (815 ILCS 510/1 et seq . (West 2000)). Defendants sought from Dreher reimbursement of all fees and expenses for both plaintiff and Schuyler which, they asserted, totaled $157,239.90. Defendants' NASD petition made no claim that plaintiff's fees and expenses did not represent the services rendered and expenses incurred, or that they were unnecessary, that they were redundant or otherwise inaccurate or were unreasonable in whole or in part. Paragraphs 7 and 8 of defendants' NASD fee petition are of particular importance, stating:
"7. Claimants [defendants here] were initially represented by the firm of Barack Ferrazzano Kirshbaum Perlman and Nagelberg ("BFKPN") [plaintiff here]. BFKPN prepared and filed the Statement of Claim and related papers in July and August 1999 and represented claimants at the interim injunctive hearing on August 24 and 25, 1999. BFKPN continued in its representation of claimants through May 10, 2000, at which time BFKPN withdrew.
8. Ray G. Rezner was the attorney principally responsible for claimants' representation by BFKPN. Attached as Exhibit A hereto are the Affidavit of Ray G. Rezner and the bills submitted by BFKPN to claimants in connection with this arbitration. These bills show that the total attorney's fees incurred by claimants for work performed by BFKPN in connection with this arbitration are $115,830.00. The costs were $8,639.36. Accordingly, total attorney's fees and costs for work performed by BFKPN are $124,469.36." (Emphasis added.)
Further, and notwithstanding their denial in the state court proceedings that they agreed to pay plaintiff's standard hourly rates and expenses, and their affirmative defense, defendants attached Rezner's affidavit to their NASD fee petition, which stated:
"6. Bills to claimants were prepared on the basis of the normal hourly rates charged by BFKPN for each attorney or paralegal who worked on this matter.
7. During the time that BFKPN represented claimants, my standard hourly rate was $390 per hour before October 1, 1999, and $420 per hour after October 1, 1999. The hourly rates of other billing professionals who have worked on this matter are as follows: W. Scott Porterfield - $300/hour before October 1, 1999, and $325/hour after October 1, 1999; Gayle Fisher - $195/hour before October 1, 1999, and $230/hour after October 1, 1999; Heather Green - $120/hour."
Attached to Rezner's affidavit were the same itemized bills detailing plaintiff's fees and expenses that defendants admitted they received in their pleadings.
On July 30, 2001, the NASD arbitration panel filed its written decision regarding defendants' case. No damages were awarded to defendants; however, the findings stated, "[i]n deciding to award attorneys' fees, the panel considered the arguments of the parties, as well as the pleadings[,] briefs and caselaw filed on their behalf, and determined that authority existed for an award of attorney's [ sic ] fees to [defendants]. [Dreher is] jointly and severally liable for and shall pay to the [defendants] the following attorneys' fees in the amount of $70,000.00." In addition, the panel stated, " [e]xcept as specified otherwise herein, each party shall bear its own costs and attorney's [sic] fees. " (Emphasis added.)
Following the NASD arbitration panel's decision and award, plaintiff moved for summary judgment in the circuit court, asserting that defendants' judicial admissions established that an attorney-client relationship existed with plaintiff for the purposes of the NASD proceedings and that defendants were estopped judicially from contesting the entire amount of plaintiff's bill.
Defendants responded to plaintiff's motion, arguing that judicial estoppel did not apply and, because the NASD arbitration panel already had determined that the reasonable attorney fees for the work performed by both plaintiff and Schuyler was $70,000, the doctrine of res judicata barred plaintiff from seeking a recovery against defendants in excess of the fee award. (footnote: 2)
On December 6, 2001, the circuit court entered summary judgment in plaintiff's favor in the amount of $124,469.36, the entire amount of billed fees and expenses. Defendants' emergency motion to reconsider and vacate the summary judgment order was denied. Defendants timely appeal.
Before addressing the merits of the instant case, the appropriate standard of review must be determined. Defendants argue that the appropriate standard of review is de novo because they are not challenging the circuit court's discretionary authority to invoke the doctrine of judicial estoppel, but instead contest its determination that they satisfied the elements of judicial estoppel as a matter of law. Plaintiff responds that, after this court considers the application of judicial estoppel under an abuse of discretion standard, the order granting summary judgment then is reviewed de novo .
In Bidani v. Lewis , 285 Ill. App. 3d 545, 549, 675 N.E.2d 647 (1996) ( Bidani ), the circuit court entered summary judgment for defendants based upon the doctrine of judicial estoppel. There, the appellate court reviewed application of the doctrine under an abuse of discretion standard . Bidani , 285 Ill. App. 3d at 550. (footnote: 3) We elect to follow Bidani with respect to the standard of review as to judicial estoppel.
Summary judgment will be granted only when the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). When reviewing the grant of a summary judgment motion, this court may consider pleadings, depositions and admissions on file, together with any affidavits. 735 ILCS 5/2-1005(c) (West 2000). Review of the decision to grant summary judgment in the instant case is de novo . Anderson v. Alberto-Culver USA, Inc. , 317 Ill. App. 3d 1104, 1110, 740 N.E.2d 819 (2000).
I
Defendants identify error in the circuit court's grant of summary judgment in plaintiff's favor, claiming the court improperly held that judicial estoppel barred their challenge to the reasonableness of attorney fees where they sought the same fees in a separate petition filed with the NASD, which resulted in a partial fee award of $70,000. According to defendants, the partial fee award should be construed as a finding by the NASD arbitration panel that the remaining fees of $87,239.90 were rejected as unreasonable.
Plaintiff responds that the circuit court properly applied the doctrine of judicial estoppel and, therefore, correctly entered summary judgment in its favor as a matter of law. Plaintiff asserts that the NASD arbitration panel did not rule on the issue of reasonable attorney fees in its findings and, even if it had, defendants' petition for statutory fee-shifting before the NASD is different from an independent court action for fees by an attorney against a former client. Plaintiff maintains that if a fee-shifting petition partially is granted, as in the instant case, the attorney nevertheless is entitled to receive the remaining payment of fees, costs and expenses incurred from the client, as the NASD award provides.
The doctrine of judicial estoppel postulates that "a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding." Bidani , 285 Ill. App. 3d at 550. The purpose of the doctrine is "to promote the truth and to protect the integrity of the court system by preventing litigants from deliberately shifting positions to suit the exigencies of the moment." Bidani , 285 Ill. App. 3d at 550. The five elements necessary for the application of judicial estoppel , include the following: "the party to be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intended for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it." People v. Caballero , No. 88784, slip op. at 11 (Ill. Oct. 18, 2002) ( Caballero ). Except for the third element, (footnote: 4) elements one, two, four and five of the doctrine contested in their application by defendants will be addressed.
A
Defendants challenge application of the first and second judicial estoppel elements, maintaining that, in the arbitration proceeding before the NASD, their fee petition did not assert the position that all of plaintiff's legal fees were reasonable, while before the circuit court, defendants contended the fees were unreasonable. Defendants insist they did not argue two inconsistent positions as required in order to apply the judicial estoppel doctrine, but simply took advantage of the fee-shifting provision of the Act in seeking their fees. Defendants maintain specifically that their entitlement to an award of attorney fees in the arbitration was governed by "section 3 of the Uniform Deceptive Trade Practices Act, a statutory fee shifting provision" and, since the arbitration panel awarded $70,000 to both law firms representing them in the arbitration proceedings, the balance of fees remaining, which plaintiff claims in this action, "must perforce be deemed unreasonable," relying on J.B. Esker & Sons v. Cle-Pa's Partnership , 325 Ill. App. 3d 276, 282, 757 N.E.2d 1271 (2001) ( Esker ).
The issues raised in this appeal will be determined by the pleadings filed by the parties, rather then from inferences sought to be drawn from unspoken words or findings not made. A reviewing court can affirm the decision of the court below for any reason or ground appearing in the record, regardless of whether the reasons given by the nisi prius court or specific findings made are correct or sound. Material Service Corp. v. Department of Revenue , 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983); Estate of Johnson v. Contell Memorial Hospital , 119 Ill. 2d 496, 502, 520 N.E.2d 37 (1988); King v. City of Chicago , 324 Ill. App. 2d 856, 859, 755 N.E.2d 143 (2001). Whether the unreasonableness of plaintiff's fees was challenged effectively by defendants before the NASD, or not, need not be decided here, since the decision of the circuit court must be affirmed for other reasons appearing in the record.
Section 3 (815 ILCS 510/3 (West 2000) (section 3)) of the Act, only partially quoted by defendants in their principal brief, goes on to provide:
"The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this State." (Emphasis added.)
Equally in contradistinction to defendants' theory, is the award language of the arbitration panel stating, at paragraph 4, in part, that " each party shall bear its own costs and attorney's [sic] fees ." (Emphasis added.) Nothing in Esker , which involved a private fee-shifting arrangement, is analogous to the statutory and NASD award language recognizing the right to additional fees, as are involved in the present case. (footnote: 5) The record shows that defendants demonstrably took two contrary positions before the two different tribunals. In their response to plaintiff's first amended complaint in the circuit court, filed before they petitioned the NASD, defendants denied that they agreed to pay plaintiff's legal fees on an hourly rate to be charged on a monthly basis in representing defendants in the NASD action. Defendants specifically denied that they "incurred" the amount sought by plaintiff. (footnote: 6) As detailed earlier in this opinion, defendants' NASD petition sought to recover all outstanding attorney fees from Dreher, submitting in its support the Rezner affidavit, outlining hourly rates for attorneys and staff assigned to defendant's case and plaintiff's particularization of the legal services plaintiff performed, including the number of hours, and costs incurred, and sought, "an award of the reasonable attorneys' [sic] fees and costs they have incurred in this matter." (Emphasis added.)
Defendants' submission of plaintiff's detailed legal and expense billing could have had only the purpose and intended effect of persuading the NASD arbitration panel to accept plaintiff's affidavit as true and, based upon the truth and accuracy of its submission, that the arbitration panel would grant the remedy requested. If the purpose and intent of defendants' submission were otherwise, it would have run afoul of several Illinois Rules of Professional Conduct. (footnote: 7)
In Galena Park Home v. Krughoff , 183 Ill. App. 3d 206, 208, 538 N.E.2d 1366 (1989) ( Galena Park ), defendant stated in a previously filed, verified complaint against a non-party, Blue Cross/Blue Shield, that he personally was liable for the costs of his father's care and that he had expended the amount on his father's bill. As a result of that proceeding, he and his attorney received payment on the bill. In the second proceeding, defendant stated that he was not responsible for the full amount of the unpaid bill, but only was required to pay the amount he received after the deduction of attorney fees. The Galena Park court ruled that defendant's two positions were inconsistent and affirmed the circuit court's finding under the doctrine of judicial estoppel. 183 Ill. App. 3d at 208-09. To the same effect are People v. Wisbrock , 223 Ill. App. 3d 173, 175, 584 N.E.2d 513 (1991) and McDonald's Corp. v. American Motorists Insurance Co. , 321 Ill. App. 3d 972, 987, 748 N.E.2d 771 (2001).
The detailed information submitted by defendants as contained in plaintiff's attorney's affidavit seeking payment for "the total attorney's fees incurred" is analogous to the "deliberate, detailed and unequivocal" assertion of a judicial admission. In Van's Material Co. v. Department of Revenue , 131 Ill. 2d 196, 212-13, 545 N.E.2d 695 (1989) ( Van's Material Co. ) the supreme court observed:
"The Department attempts to distinguish Hansen by asserting that its answer did not involve a fact and was additionally not unequivocal. While it may be more than a matter of semantics as to what constitutes a fact, we are not persuaded by the Department's arguments. The question posed to the Department did not ask for a conclusion; rather, it asked the Department to identify its 'contentions.' The Department would be the only body able to answer that question; its beliefs or contentions are peculiarly and completely within its own determinations. (See Hansen , 155 Ill. App. 3d at 482.) ***
Additionally, current arguments that the answer was not unequivocal are without merit. While the court in Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, as the Department correctly notes, did recognize that deposition testimony is ordinarily an evidentiary admission that may be controverted, the court also went on to acknowledge and apply the reasoning expressed by the court in Young v. Pease (1983), 114 Ill. App. 3d 120, wherein the court noted that '"[t]here may be cases in which admissions at pre-trial depositions are so deliberate, detailed and unequivocal, as to matters within the party's personal knowledge, that they will conclusively bind the party-deponent, and he will not be heard to contradict the admission at the trial"' ( Young , 114 Ill. App. 3d at 122-23)."
Here, of course, the matter of fees for which they were charged and which they represented to the arbitrators that they had incurred were within defendants' personal knowledge. Having submitted plaintiff's charges as those they admitted having incurred, which were the same amounts for which they sought reimbursement from the NASD panel, defendants will not be heard to contradict that position at a subsequent judicial proceeding. Van's Material Co. , 131 Ill. 2d at 213.
Based upon the foregoing, the circuit court did not abuse its discretion in finding defendants have asserted two diametrically opposed positions for the purposes of satisfying the first two elements of the judicial estoppel doctrine.
B
Defendants next challenge the circuit court's finding with respect to the fourth element of the judicial estoppel doctrine, arguing that their fee petition was not submitted under oath, and that the absence of the oath alone is sufficient to require reversal of the court’s grant of summary judgment.
Contrary to defendants' insistence, in Caballero , the requirement of an oath was not included among the five judicial estoppel elements. All that is required to satisfy this element is that the party being estopped must intend for the trier of fact to accept the truth of the facts alleged, the fourth element set forth in Caballero .
Although defendants alleged plaintiff's fees were unreasonable before the circuit court, as previously discussed, the issue of reasonableness with respect to those fees need not be decided for the purposes of applying judicial estoppel to the circumstances in the instant case. In court, defendants plead that they did not agree to pay plaintiff's standard hourly rates; in their petition for fees before the NASD arbitrators, however, they presented plaintiff's statement of fees for the same hours to show the fees they incurred in an attempt to recover all attorney fees due and owing to plaintiff. Previously noted in footnote 7 are the constraints imposed by the Illinois Rules of Professional conduct upon submissions made to courts and other tribunals by attorneys. Nothing is found in the nature of fee-shifting procedures which would contemplate, encourage or condone mendacity or disingenuousness in submitting fee petitions by officers of the court to a tribunal of justice, whether under oath, or not. (footnote: 8) Moreover, defendants' argument impugns their own veracity. By making the assertion that judicial estoppel cannot be applied because their two alleged inconsistent positions were not submitted under oath, they are challenging, in effect, whether their own statements are true, as opposed to the facts in Caballero , where defendant challenged the truth of the positions submitted by the opposing party, the State.
Defendants here intended that both the NASD arbitration panel and the circuit court accept the truth of the allegations made in their respective pleadings. Therefore, the fourth element of the judicial estoppel doctrine is satisfied, as the circuit court properly held.
C
Defendants next contest the fifth element of the judicial estoppel doctrine, asserting that they were "spectacularly unsuccessful" in establishing that the $124,496.36 in fees incurred were due plaintiff because defendants received less than that amount from the NASD arbitration panel.
Defendants again contradict their own argument. They first insist that their fee petition did not claim that all plaintiff's fees as delineated in plaintiff's billing statement represented the amount due plaintiff. Then, in order to overcome the fifth element of judicial estoppel, defendants argue that only the fees actually awarded by the NASD arbitration panel were owed plaintiff and the balance "must perforce be deemed unreasonable," because they were either unnecessary or excessive. Defendants further assert that once the NASD panel ruled that their request for attorney fees would be allowed only in the amount of $70,000, it was not inconsistent for defendants to contest those fees exceeding that amount in the circuit court. As previously noted, the NASD award makes no finding or suggestion that it was limiting fees due plaintiff and Schuyler to the $70,000 amount; instead, the language expressly requires the parties to bear their own costs and attorney fees. Of further significance in the circuit court proceedings, defendants contested the entire amount of plaintiff's fees, not merely any amount that might remain.
Defendants "hoist themselves upon their own petard." Both section 3 of the Act and the arbitration award specifically contemplate by their language that more than the statutory award may be merited, contrary to defendants' argument. If a petition seeking fees pursuant to a fee-shifting clause is denied, the successful litigant's attorney nevertheless is entitled to payment from his own client. Wildman, Harrold, Allen & Dixon v. Gaylord , 317 Ill. App. 3d 590, 595, 740 N.E.2d 501 (2000). Defendants were awarded $70,000 from the NASD panel, but plaintiff nevertheless is entitled to seek payment of its remaining fees.
The Seventh Circuit Court of Appeals has explained that the doctrine of judicial estoppel is "intended to prevent the perversion of the judicial process. [Citation.] It is to be applied where 'intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum designed for suitors seeking justice,' [citation], to prevent litigants from 'playing fast and loose with the courts.'" In re Cassidy , 892 F.2d 637, 641 (7th Cir. 1990), quoting Scarano v. Central R. Co. of New Jersey , 203 F.2d 510, 513 (3d Cir. 1953). Here, defendants give the appearance of playing "fast and loose" with the circuit court by denying responsibility for payment of the attorney fees, yet attempting to recover the entire amount of attorney fees which it owed to plaintiff from the NASD arbitration panel via a fee-shifting petition. Defendants' position accordingly is rejected.
All the requirements for application of the judicial estoppel doctrine have been met. The circuit court did not abuse its discretion in this aspect of the case.
II
Next to be considered is the grant of summary judgment in this case. Defendants are judicially estopped from attempting to create a question of fact for purposes of summary judgment by contradicting their previous positions. There was no genuine, triable issue of fact remaining for the instant circuit court to decide. Spirit of Excellence, Ltd. v. Intercargo Co. , 334 Ill. App. 3d 136, 144, 777 N.E.2d 660 (2002). The court properly granted plaintiff's summary judgment motion.
For the reasons stated above, the decision of the circuit court of Cook County to apply the doctrine of judicial estoppel to the circumstances of this case and grant summary judgment in favor of plaintiff is affirmed.
Affirmed.
THEIS, P.J., and KARNEZIS, J., concur.
FOOTNOTES 1:Defendants attempt to supplement the record with materials developed before the NASD panel, which never were filed in the circuit court proceedings nor considered by the court. Their motion to so supplement the record, therefore, has been denied in a separate order. The contents of the proposed supplemental record are not determinative in reaching the result of the instant appeal.
2:Defendants do not assert a res judicata argument on appeal.
3:In noting the standard of review, the Bidani court cited Ceres Terminals, Inc. v. Chicago City Bank & Trust Co. , 259 Ill. App. 3d 836, 850, 635 N.E.2d 485 (1994) , a case which did not involve summary judgment. The supreme court in People v. Caballero , No. 88784, slip op. at 11 (Ill. Oct. 18, 2002) , citing Bidani , also recently reviewed application of the doctrine under an abuse of discretion standard. No summary judgment issues were involved in that case.
4:Defendants do not contest application of the third element of the judicial estoppel doctrine, as stated in their briefs.
5:Defendant's reliance upon Blackenship v. Dialist International Corp. , 209 Ill. App. 3d 920, 568 N.E.2d 503 (1991) also is misplaced. The statute there (Ill. Rev. Stat. 1985, ch. 121½, par. 721(1)) specifically required consideration of "reasonable attorney's fees" as part of its award to the prevailing party. Under the instant statute authorizing attorney fees, nothing precluded the arbitrators from awarding less than the total of reasonable fees due the attorney, which explains the additional award language, "each party shall bear its own costs and attorney's [ sic ] fees," which is an additional remedy "otherwise available against the same conduct under the common law ***." 815 ILCS 510/3 (West 2000).
6:Defendants seek to gloss over their choice of the word "incurred" by explaining that the amounts set forth were only "billed"; however, their petition before the NASD arbitrators reflects their liability for the fees. Anest v. Audino , 332 Ill. App. 3d 468, 480, 773 N.E.2d 202 (2002); Black's Law Dictionary 771 (7 th ed. 1999).
7:For example:
"Rule 1.2. Scope of Representation
***
(g) A lawyer who knows a client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.
***
Rule 3.1. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous ***.
***
Rule 3.3. Conduct Before a Tribunal
(a) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(1) make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false;
(2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
***
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures;
(5) participate in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false;
***
Rule 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not:
(a) make a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6." 134 Ill. 2d Rs. 1.2, 3.1, 3.3, 4.1.
8:Further, in Department of Transportation v. Coe , 112 Ill. App. 3d 506, 510, 445 N.E.2d 506 (1983) ( Coe ), the appellate court discarded the technical requirement of an oath in administrative proceedings, stating that the judicial estoppel doctrine should apply in cases where the party "intended the trier to accept the truth of the party's position" regardless of whether the prior position was made under oath. The Coe court also noted that "application of the doctrine in administrative proceedings necessitates that the formal oath be eliminated. *** It would be totally illogical to allow parties to take one position in an agency proceeding and then allow them to take an inconsistent position in subsequent court proceedings simply because the first position was not taken under formal oath." 112 Ill. App. 3d at 510-11. | 10-22-2015 | [
"FOURTH DIVISION 1-02-1006 June 12, 2003 BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) ROBERT LOFFREDI and KEVIN LOFFREDI, ) Honorable ) James F. Henry, Defendants-Appellants. ) Judge Presiding. JUSTICE HARTMAN delivered the opinion of the court: A collection action was brought by plaintiff law firm, Barack Ferrazzano Kirschbaum Perlman and Nagelberg (plaintiff), seeking to recover attorney fees and costs for services it rendered on behalf of defendants, Robert and Kevin Loffredi (defendants), in a National Association of Securities Dealers, Inc. (NASD) arbitration proceeding. The circuit court granted summary judgment in plaintiff's favor based on the doctrine of judicial estoppel. Defendants appeal on the ground that the court erred in applying judicial estoppel to the circumstances of this case. The facts set forth below emanate from the pleadings and affidavits filed in the circuit court proceedings. (footnote: 1) Defendants were representatives of a broker registered with NASD.",
"On July 28, 1999, Robert Loffredi retained plaintiff to provide legal services and represent defendants in an arbitration action before the NASD against James Dreher and Dreher & Associates (collectively Dreher) on the ground that Dreher terminated defendants' registration status as representatives with the NASD and conspired to steal defendants' customers from them, accounts valued at more than $6 million. Because of their perceived loss of customers, defendants asked plaintiff to seek emergency injunctive relief and monetary damages. Plaintiff alleged that defendants agreed to pay plaintiff's standard legal fees at an hourly rate to be charged monthly, as well as expenses. According to defendants' pleadings, however, Ray Rezner, one of plaintiff's partners, estimated for Robert that the fees and expenses to pursue the action would total between $25,000 and $30,000. Defendants denied that plaintiff disclosed to Robert plaintiff's hourly rates.",
"Plaintiff immediately began investigating defendants' claim by reviewing documents and interviewing witnesses. On August 3, 1999, plaintiff filed a statement of claim on behalf of defendants initiating an NASD arbitration action against Dreher and two former employees of Raymond Financial Group, Inc., a corporation in which Robert is sole shareholder. Plaintiff also moved on defendants' behalf for an immediate interim injunction, which it pursued with the NASD. Plaintiff drafted and filed a pre-hearing memorandum and prepared for the injunction hearing. At an evidentiary hearing on defendants' motion, which was held before an NASD arbitration panel, plaintiff examined and cross-examined various witnesses. The NASD arbitration panel granted defendants an interim injunction. Defendants admittedly were \"ecstatic\" with the injunction because it required Dreher to transfer immediately Loffredi's customers to their new broker-dealer. Thereafter, plaintiff sent defendants separate bills, copies of which are contained in an exhibit attached to the complaint. Plaintiff's bills are dated August 26, 1999, September 21, 1999, October 21, 1999, November 19, 1999, December 21, 1999, January 25, 2000, February 25, 2000, and March 23, 2000. The bill sent in August 1999 reflected the sum of $16,870.05 in charges; the September 1999 bill for attorney fees showed a sum due of $83,999.",
"Nothing in the record reveals defendants disputing or complaining about the sums showing as being owed and due after the bills were received, nor challenging the bills after their receipt as having exceeded the alleged estimate. No credits and payments were shown to have been made by defendants. Despite non-payment, plaintiff continued to represent defendants in settlement negotiations to resolve the remaining claims in the NASD proceeding. In May 2000, plaintiff withdrew as defendants' counsel for nonpayment of plaintiff's fees. Defendants thereafter retained the law firm of Schuyler Roche & Swirner, P.C. (Schuyler) to appear on their behalf. The NASD arbitration continued after plaintiff's withdrawal, primarily to adjudicate defendants' claims for damages.",
"On June 12, 2000, plaintiff filed their initial complaint in the circuit court of Cook County to recover attorney fees and expenses totaling $124,628.36, later amending it to allege two counts each against Robert for breach of contract and quantum meruit . Attached to the amended complaint was the exhibit consisting of plaintiff's periodic billing for legal services rendered by plaintiff to defendants, plus costs and advances. The exhibits attached to both the original and the amended complaint detailed specific dates, hours, activities and identities of the attorneys and clients involved in the billing of fees.",
"Plaintiff also alleged two counts claiming quantum meruit against Kevin. Defendants filed their answer and affirmative defenses to plaintiff's amended complaint, denying the allegation that they agreed to pay plaintiff's standard hourly rate for its services. Defendants admitted receiving plaintiff's fee statements for services rendered and admitted never paying the bills. In an affirmative defense, defendants alleged that plaintiff may recover only the reasonable value of its services and that the legal fees sought by plaintiff were unreasonable in their totality.",
"Defendants also asserted that plaintiff failed to disclose its hourly fee rates within a reasonable time after commencing its representation, citing Rule 1.5(b) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.5(b)). In addition, defendants denied that they owed plaintiff the amount sought because plaintiff failed to disclose in a timely manner that the fees and expenses incurred had exceeded greatly the original estimate of $25,000 to $30,000 for prosecution of the NASD case. Defendants generally denied that they never objected to any of the statements for legal services and expenses sent them; however, they made no claim that they objected to the fee amounts for having been redundant, unnecessary or inaccurate. While the state court proceedings were pending, through Schuyler, defendants' other attorneys, defendants petitioned for attorney fees and costs in the NASD arbitration under the Uniform Deceptive Trade Practices Act (Act) (815 ILCS 510/1 et seq . (West 2000)).",
"Defendants sought from Dreher reimbursement of all fees and expenses for both plaintiff and Schuyler which, they asserted, totaled $157,239.90. Defendants' NASD petition made no claim that plaintiff's fees and expenses did not represent the services rendered and expenses incurred, or that they were unnecessary, that they were redundant or otherwise inaccurate or were unreasonable in whole or in part. Paragraphs 7 and 8 of defendants' NASD fee petition are of particular importance, stating: \"7. Claimants [defendants here] were initially represented by the firm of Barack Ferrazzano Kirshbaum Perlman and Nagelberg (\"BFKPN\") [plaintiff here]. BFKPN prepared and filed the Statement of Claim and related papers in July and August 1999 and represented claimants at the interim injunctive hearing on August 24 and 25, 1999.",
"BFKPN continued in its representation of claimants through May 10, 2000, at which time BFKPN withdrew. 8. Ray G. Rezner was the attorney principally responsible for claimants' representation by BFKPN. Attached as Exhibit A hereto are the Affidavit of Ray G. Rezner and the bills submitted by BFKPN to claimants in connection with this arbitration. These bills show that the total attorney's fees incurred by claimants for work performed by BFKPN in connection with this arbitration are $115,830.00. The costs were $8,639.36. Accordingly, total attorney's fees and costs for work performed by BFKPN are $124,469.36.\" (Emphasis added.) Further, and notwithstanding their denial in the state court proceedings that they agreed to pay plaintiff's standard hourly rates and expenses, and their affirmative defense, defendants attached Rezner's affidavit to their NASD fee petition, which stated: \"6. Bills to claimants were prepared on the basis of the normal hourly rates charged by BFKPN for each attorney or paralegal who worked on this matter.",
"7. During the time that BFKPN represented claimants, my standard hourly rate was $390 per hour before October 1, 1999, and $420 per hour after October 1, 1999. The hourly rates of other billing professionals who have worked on this matter are as follows: W. Scott Porterfield - $300/hour before October 1, 1999, and $325/hour after October 1, 1999; Gayle Fisher - $195/hour before October 1, 1999, and $230/hour after October 1, 1999; Heather Green - $120/hour.\" Attached to Rezner's affidavit were the same itemized bills detailing plaintiff's fees and expenses that defendants admitted they received in their pleadings.",
"On July 30, 2001, the NASD arbitration panel filed its written decision regarding defendants' case. No damages were awarded to defendants; however, the findings stated, \"[i]n deciding to award attorneys' fees, the panel considered the arguments of the parties, as well as the pleadings[,] briefs and caselaw filed on their behalf, and determined that authority existed for an award of attorney's [ sic ] fees to [defendants]. [Dreher is] jointly and severally liable for and shall pay to the [defendants] the following attorneys' fees in the amount of $70,000.00.\" In addition, the panel stated, \" [e]xcept as specified otherwise herein, each party shall bear its own costs and attorney's [sic] fees. \" (Emphasis added.) Following the NASD arbitration panel's decision and award, plaintiff moved for summary judgment in the circuit court, asserting that defendants' judicial admissions established that an attorney-client relationship existed with plaintiff for the purposes of the NASD proceedings and that defendants were estopped judicially from contesting the entire amount of plaintiff's bill.",
"Defendants responded to plaintiff's motion, arguing that judicial estoppel did not apply and, because the NASD arbitration panel already had determined that the reasonable attorney fees for the work performed by both plaintiff and Schuyler was $70,000, the doctrine of res judicata barred plaintiff from seeking a recovery against defendants in excess of the fee award. (footnote: 2) On December 6, 2001, the circuit court entered summary judgment in plaintiff's favor in the amount of $124,469.36, the entire amount of billed fees and expenses. Defendants' emergency motion to reconsider and vacate the summary judgment order was denied. Defendants timely appeal. Before addressing the merits of the instant case, the appropriate standard of review must be determined. Defendants argue that the appropriate standard of review is de novo because they are not challenging the circuit court's discretionary authority to invoke the doctrine of judicial estoppel, but instead contest its determination that they satisfied the elements of judicial estoppel as a matter of law. Plaintiff responds that, after this court considers the application of judicial estoppel under an abuse of discretion standard, the order granting summary judgment then is reviewed de novo .",
"In Bidani v. Lewis , 285 Ill. App. 3d 545, 549, 675 N.E.2d 647 (1996) ( Bidani ), the circuit court entered summary judgment for defendants based upon the doctrine of judicial estoppel. There, the appellate court reviewed application of the doctrine under an abuse of discretion standard . Bidani , 285 Ill. App. 3d at 550. (footnote: 3) We elect to follow Bidani with respect to the standard of review as to judicial estoppel. Summary judgment will be granted only when the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). When reviewing the grant of a summary judgment motion, this court may consider pleadings, depositions and admissions on file, together with any affidavits.",
"735 ILCS 5/2-1005(c) (West 2000). Review of the decision to grant summary judgment in the instant case is de novo . Anderson v. Alberto-Culver USA, Inc. , 317 Ill. App. 3d 1104, 1110, 740 N.E.2d 819 (2000). I Defendants identify error in the circuit court's grant of summary judgment in plaintiff's favor, claiming the court improperly held that judicial estoppel barred their challenge to the reasonableness of attorney fees where they sought the same fees in a separate petition filed with the NASD, which resulted in a partial fee award of $70,000. According to defendants, the partial fee award should be construed as a finding by the NASD arbitration panel that the remaining fees of $87,239.90 were rejected as unreasonable. Plaintiff responds that the circuit court properly applied the doctrine of judicial estoppel and, therefore, correctly entered summary judgment in its favor as a matter of law. Plaintiff asserts that the NASD arbitration panel did not rule on the issue of reasonable attorney fees in its findings and, even if it had, defendants' petition for statutory fee-shifting before the NASD is different from an independent court action for fees by an attorney against a former client.",
"Plaintiff maintains that if a fee-shifting petition partially is granted, as in the instant case, the attorney nevertheless is entitled to receive the remaining payment of fees, costs and expenses incurred from the client, as the NASD award provides. The doctrine of judicial estoppel postulates that \"a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding.\" Bidani , 285 Ill. App. 3d at 550. The purpose of the doctrine is \"to promote the truth and to protect the integrity of the court system by preventing litigants from deliberately shifting positions to suit the exigencies of the moment.\" Bidani , 285 Ill. App. 3d at 550.",
"The five elements necessary for the application of judicial estoppel , include the following: \"the party to be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intended for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it.\" People v. Caballero , No. 88784, slip op. at 11 (Ill. Oct. 18, 2002) ( Caballero ). Except for the third element, (footnote: 4) elements one, two, four and five of the doctrine contested in their application by defendants will be addressed. A Defendants challenge application of the first and second judicial estoppel elements, maintaining that, in the arbitration proceeding before the NASD, their fee petition did not assert the position that all of plaintiff's legal fees were reasonable, while before the circuit court, defendants contended the fees were unreasonable.",
"Defendants insist they did not argue two inconsistent positions as required in order to apply the judicial estoppel doctrine, but simply took advantage of the fee-shifting provision of the Act in seeking their fees. Defendants maintain specifically that their entitlement to an award of attorney fees in the arbitration was governed by \"section 3 of the Uniform Deceptive Trade Practices Act, a statutory fee shifting provision\" and, since the arbitration panel awarded $70,000 to both law firms representing them in the arbitration proceedings, the balance of fees remaining, which plaintiff claims in this action, \"must perforce be deemed unreasonable,\" relying on J.B. Esker & Sons v. Cle-Pa's Partnership , 325 Ill. App. 3d 276, 282, 757 N.E.2d 1271 (2001) ( Esker ). The issues raised in this appeal will be determined by the pleadings filed by the parties, rather then from inferences sought to be drawn from unspoken words or findings not made.",
"A reviewing court can affirm the decision of the court below for any reason or ground appearing in the record, regardless of whether the reasons given by the nisi prius court or specific findings made are correct or sound. Material Service Corp. v. Department of Revenue , 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983); Estate of Johnson v. Contell Memorial Hospital , 119 Ill. 2d 496, 502, 520 N.E.2d 37 (1988); King v. City of Chicago , 324 Ill. App. 2d 856, 859, 755 N.E.2d 143 (2001). Whether the unreasonableness of plaintiff's fees was challenged effectively by defendants before the NASD, or not, need not be decided here, since the decision of the circuit court must be affirmed for other reasons appearing in the record. Section 3 (815 ILCS 510/3 (West 2000) (section 3)) of the Act, only partially quoted by defendants in their principal brief, goes on to provide: \"The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this State.\"",
"(Emphasis added.) Equally in contradistinction to defendants' theory, is the award language of the arbitration panel stating, at paragraph 4, in part, that \" each party shall bear its own costs and attorney's [sic] fees .\" (Emphasis added.) Nothing in Esker , which involved a private fee-shifting arrangement, is analogous to the statutory and NASD award language recognizing the right to additional fees, as are involved in the present case. (footnote: 5) The record shows that defendants demonstrably took two contrary positions before the two different tribunals. In their response to plaintiff's first amended complaint in the circuit court, filed before they petitioned the NASD, defendants denied that they agreed to pay plaintiff's legal fees on an hourly rate to be charged on a monthly basis in representing defendants in the NASD action. Defendants specifically denied that they \"incurred\" the amount sought by plaintiff. (footnote: 6) As detailed earlier in this opinion, defendants' NASD petition sought to recover all outstanding attorney fees from Dreher, submitting in its support the Rezner affidavit, outlining hourly rates for attorneys and staff assigned to defendant's case and plaintiff's particularization of the legal services plaintiff performed, including the number of hours, and costs incurred, and sought, \"an award of the reasonable attorneys' [sic] fees and costs they have incurred in this matter.\"",
"(Emphasis added.) Defendants' submission of plaintiff's detailed legal and expense billing could have had only the purpose and intended effect of persuading the NASD arbitration panel to accept plaintiff's affidavit as true and, based upon the truth and accuracy of its submission, that the arbitration panel would grant the remedy requested. If the purpose and intent of defendants' submission were otherwise, it would have run afoul of several Illinois Rules of Professional Conduct. (footnote: 7) In Galena Park Home v. Krughoff , 183 Ill. App. 3d 206, 208, 538 N.E.2d 1366 (1989) ( Galena Park ), defendant stated in a previously filed, verified complaint against a non-party, Blue Cross/Blue Shield, that he personally was liable for the costs of his father's care and that he had expended the amount on his father's bill.",
"As a result of that proceeding, he and his attorney received payment on the bill. In the second proceeding, defendant stated that he was not responsible for the full amount of the unpaid bill, but only was required to pay the amount he received after the deduction of attorney fees. The Galena Park court ruled that defendant's two positions were inconsistent and affirmed the circuit court's finding under the doctrine of judicial estoppel. 183 Ill. App. 3d at 208-09. To the same effect are People v. Wisbrock , 223 Ill. App. 3d 173, 175, 584 N.E.2d 513 (1991) and McDonald's Corp. v. American Motorists Insurance Co. , 321 Ill. App. 3d 972, 987, 748 N.E.2d 771 (2001). The detailed information submitted by defendants as contained in plaintiff's attorney's affidavit seeking payment for \"the total attorney's fees incurred\" is analogous to the \"deliberate, detailed and unequivocal\" assertion of a judicial admission.",
"In Van's Material Co. v. Department of Revenue , 131 Ill. 2d 196, 212-13, 545 N.E.2d 695 (1989) ( Van's Material Co. ) the supreme court observed: \"The Department attempts to distinguish Hansen by asserting that its answer did not involve a fact and was additionally not unequivocal. While it may be more than a matter of semantics as to what constitutes a fact, we are not persuaded by the Department's arguments. The question posed to the Department did not ask for a conclusion; rather, it asked the Department to identify its 'contentions.' The Department would be the only body able to answer that question; its beliefs or contentions are peculiarly and completely within its own determinations. (See Hansen , 155 Ill. App. 3d at 482.)",
"*** Additionally, current arguments that the answer was not unequivocal are without merit. While the court in Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, as the Department correctly notes, did recognize that deposition testimony is ordinarily an evidentiary admission that may be controverted, the court also went on to acknowledge and apply the reasoning expressed by the court in Young v. Pease (1983), 114 Ill. App. 3d 120, wherein the court noted that '\"[t]here may be cases in which admissions at pre-trial depositions are so deliberate, detailed and unequivocal, as to matters within the party's personal knowledge, that they will conclusively bind the party-deponent, and he will not be heard to contradict the admission at the trial\"' ( Young , 114 Ill. App. 3d at 122-23).\"",
"Here, of course, the matter of fees for which they were charged and which they represented to the arbitrators that they had incurred were within defendants' personal knowledge. Having submitted plaintiff's charges as those they admitted having incurred, which were the same amounts for which they sought reimbursement from the NASD panel, defendants will not be heard to contradict that position at a subsequent judicial proceeding. Van's Material Co. , 131 Ill. 2d at 213.",
"Based upon the foregoing, the circuit court did not abuse its discretion in finding defendants have asserted two diametrically opposed positions for the purposes of satisfying the first two elements of the judicial estoppel doctrine. B Defendants next challenge the circuit court's finding with respect to the fourth element of the judicial estoppel doctrine, arguing that their fee petition was not submitted under oath, and that the absence of the oath alone is sufficient to require reversal of the court’s grant of summary judgment. Contrary to defendants' insistence, in Caballero , the requirement of an oath was not included among the five judicial estoppel elements. All that is required to satisfy this element is that the party being estopped must intend for the trier of fact to accept the truth of the facts alleged, the fourth element set forth in Caballero . Although defendants alleged plaintiff's fees were unreasonable before the circuit court, as previously discussed, the issue of reasonableness with respect to those fees need not be decided for the purposes of applying judicial estoppel to the circumstances in the instant case.",
"In court, defendants plead that they did not agree to pay plaintiff's standard hourly rates; in their petition for fees before the NASD arbitrators, however, they presented plaintiff's statement of fees for the same hours to show the fees they incurred in an attempt to recover all attorney fees due and owing to plaintiff. Previously noted in footnote 7 are the constraints imposed by the Illinois Rules of Professional conduct upon submissions made to courts and other tribunals by attorneys. Nothing is found in the nature of fee-shifting procedures which would contemplate, encourage or condone mendacity or disingenuousness in submitting fee petitions by officers of the court to a tribunal of justice, whether under oath, or not. (footnote: 8) Moreover, defendants' argument impugns their own veracity. By making the assertion that judicial estoppel cannot be applied because their two alleged inconsistent positions were not submitted under oath, they are challenging, in effect, whether their own statements are true, as opposed to the facts in Caballero , where defendant challenged the truth of the positions submitted by the opposing party, the State.",
"Defendants here intended that both the NASD arbitration panel and the circuit court accept the truth of the allegations made in their respective pleadings. Therefore, the fourth element of the judicial estoppel doctrine is satisfied, as the circuit court properly held. C Defendants next contest the fifth element of the judicial estoppel doctrine, asserting that they were \"spectacularly unsuccessful\" in establishing that the $124,496.36 in fees incurred were due plaintiff because defendants received less than that amount from the NASD arbitration panel. Defendants again contradict their own argument. They first insist that their fee petition did not claim that all plaintiff's fees as delineated in plaintiff's billing statement represented the amount due plaintiff. Then, in order to overcome the fifth element of judicial estoppel, defendants argue that only the fees actually awarded by the NASD arbitration panel were owed plaintiff and the balance \"must perforce be deemed unreasonable,\" because they were either unnecessary or excessive.",
"Defendants further assert that once the NASD panel ruled that their request for attorney fees would be allowed only in the amount of $70,000, it was not inconsistent for defendants to contest those fees exceeding that amount in the circuit court. As previously noted, the NASD award makes no finding or suggestion that it was limiting fees due plaintiff and Schuyler to the $70,000 amount; instead, the language expressly requires the parties to bear their own costs and attorney fees.",
"Of further significance in the circuit court proceedings, defendants contested the entire amount of plaintiff's fees, not merely any amount that might remain. Defendants \"hoist themselves upon their own petard.\" Both section 3 of the Act and the arbitration award specifically contemplate by their language that more than the statutory award may be merited, contrary to defendants' argument. If a petition seeking fees pursuant to a fee-shifting clause is denied, the successful litigant's attorney nevertheless is entitled to payment from his own client. Wildman, Harrold, Allen & Dixon v. Gaylord , 317 Ill. App. 3d 590, 595, 740 N.E.2d 501 (2000). Defendants were awarded $70,000 from the NASD panel, but plaintiff nevertheless is entitled to seek payment of its remaining fees.",
"The Seventh Circuit Court of Appeals has explained that the doctrine of judicial estoppel is \"intended to prevent the perversion of the judicial process. [Citation.] It is to be applied where 'intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum designed for suitors seeking justice,' [citation], to prevent litigants from 'playing fast and loose with the courts.'\" In re Cassidy , 892 F.2d 637, 641 (7th Cir. 1990), quoting Scarano v. Central R. Co. of New Jersey , 203 F.2d 510, 513 (3d Cir. 1953). Here, defendants give the appearance of playing \"fast and loose\" with the circuit court by denying responsibility for payment of the attorney fees, yet attempting to recover the entire amount of attorney fees which it owed to plaintiff from the NASD arbitration panel via a fee-shifting petition. Defendants' position accordingly is rejected. All the requirements for application of the judicial estoppel doctrine have been met.",
"The circuit court did not abuse its discretion in this aspect of the case. II Next to be considered is the grant of summary judgment in this case. Defendants are judicially estopped from attempting to create a question of fact for purposes of summary judgment by contradicting their previous positions. There was no genuine, triable issue of fact remaining for the instant circuit court to decide. Spirit of Excellence, Ltd. v. Intercargo Co. , 334 Ill. App. 3d 136, 144, 777 N.E.2d 660 (2002). The court properly granted plaintiff's summary judgment motion. For the reasons stated above, the decision of the circuit court of Cook County to apply the doctrine of judicial estoppel to the circumstances of this case and grant summary judgment in favor of plaintiff is affirmed. Affirmed. THEIS, P.J., and KARNEZIS, J., concur. FOOTNOTES 1:Defendants attempt to supplement the record with materials developed before the NASD panel, which never were filed in the circuit court proceedings nor considered by the court.",
"Their motion to so supplement the record, therefore, has been denied in a separate order. The contents of the proposed supplemental record are not determinative in reaching the result of the instant appeal. 2:Defendants do not assert a res judicata argument on appeal. 3:In noting the standard of review, the Bidani court cited Ceres Terminals, Inc. v. Chicago City Bank & Trust Co. , 259 Ill. App. 3d 836, 850, 635 N.E.2d 485 (1994) , a case which did not involve summary judgment. The supreme court in People v. Caballero , No.",
"88784, slip op. at 11 (Ill. Oct. 18, 2002) , citing Bidani , also recently reviewed application of the doctrine under an abuse of discretion standard. No summary judgment issues were involved in that case. 4:Defendants do not contest application of the third element of the judicial estoppel doctrine, as stated in their briefs. 5:Defendant's reliance upon Blackenship v. Dialist International Corp. , 209 Ill. App. 3d 920, 568 N.E.2d 503 (1991) also is misplaced. The statute there (Ill. Rev. Stat. 1985, ch. 121½, par. 721(1)) specifically required consideration of \"reasonable attorney's fees\" as part of its award to the prevailing party. Under the instant statute authorizing attorney fees, nothing precluded the arbitrators from awarding less than the total of reasonable fees due the attorney, which explains the additional award language, \"each party shall bear its own costs and attorney's [ sic ] fees,\" which is an additional remedy \"otherwise available against the same conduct under the common law ***.\"",
"815 ILCS 510/3 (West 2000). 6:Defendants seek to gloss over their choice of the word \"incurred\" by explaining that the amounts set forth were only \"billed\"; however, their petition before the NASD arbitrators reflects their liability for the fees. Anest v. Audino , 332 Ill. App. 3d 468, 480, 773 N.E.2d 202 (2002); Black's Law Dictionary 771 (7 th ed. 1999). 7:For example: \"Rule 1.2. Scope of Representation *** (g) A lawyer who knows a client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication. *** Rule 3.1. Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous ***.",
"*** Rule 3.3. Conduct Before a Tribunal (a) In appearing in a professional capacity before a tribunal, a lawyer shall not: (1) make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false; (2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; *** (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; (5) participate in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false; *** Rule 4.1. Truthfulness in Statements to Others In the course of representing a client a lawyer shall not: (a) make a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.\" 134 Ill. 2d Rs.",
"1.2, 3.1, 3.3, 4.1. 8:Further, in Department of Transportation v. Coe , 112 Ill. App. 3d 506, 510, 445 N.E.2d 506 (1983) ( Coe ), the appellate court discarded the technical requirement of an oath in administrative proceedings, stating that the judicial estoppel doctrine should apply in cases where the party \"intended the trier to accept the truth of the party's position\" regardless of whether the prior position was made under oath. The Coe court also noted that \"application of the doctrine in administrative proceedings necessitates that the formal oath be eliminated. *** It would be totally illogical to allow parties to take one position in an agency proceeding and then allow them to take an inconsistent position in subsequent court proceedings simply because the first position was not taken under formal oath.\" 112 Ill. App. 3d at 510-11."
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| https://www.courtlistener.com/api/rest/v3/opinions/3144559/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. 9th Cir. | 11-27-2022 | [
"C. A. 9th Cir."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8981079/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
JUSTICE HUNT delivered the Opinion of the Court. The natural parents of R.H., a youth in need of care, appeal from an order of the Eighth Judicial District Court, Cascade County, terminating their parental rights. We affirm. The following issues are raised on appeal: 1. Did the District Court err in finding that the court-ordered treatment plan was appropriate? 2. Was the court-ordered treatment plan ambiguous so as to deny the parents due process? The natural parents had four children: L.H., J.H., R.H., and V.H. The oldest child, L.H., began to live with her paternal grandmother in the mid-1970s. In 1975, the second child, J.H., was placed in foster care. Five years later, the parents voluntarily relinquished custody of J.H. to the State. On April 28, 1986, the State first became directly involved with R.H. At that time, it petitioned for temporary investigative authority and custody of R.H. and his brother, V.H. The affidavit in support of *166the petition outlined severe developmental delays of V.H. caused by lack of stimulation by the parents, R.H.’s withdrawn behavior, and apparent physical neglect of both children. Following a hearing, the District Court ordered the parents to undergo psychological evaluations. The evaluations, prepared by Dr. Monty Kuka, Ph.D., a clinical psychologist, were admitted at the show cause hearing on the petition. In the evaluations, Dr. Kuka found that both parents had borderline intellectual abilities. Dr. Kuka’s assessment of the mother’s parenting skills resulted in a fairly bleak picture. The doctor found that she had limited insight into herself and her relationships and that she did not recognize even the most obvious characteristics of being a good mother. He was pessimistic about her ability to benefit from supportive services, as well as her ability to make any long-term changes. Dr. Kuka found that the father’s overall adjustment was fairly good; he appeared kind and sensitive to his wife and children. Dr. Kuka concluded, however, that it was doubtful that the father could offset the significant negative factors exhibited by the mother because the father was not assertive and put the mother’s needs before those of the children. The show cause hearing was held on July 25, 1986. Following the hearing, the District Court ordered that the State maintain temporary legal custody of V.H. and R.H., with V.H. residing with an aunt and uncle, and R.H. residing with his parents. The court further ordered the mother to attend New Directions classes and the father to attend counseling with R.H. as needed. Shortly after the hearing, the parents and R.H. moved to Washington. This move was prompted by the mother’s desire to avoid the pressures she felt from her family, who resided in Montana, and by the father’s desire to live closer to his father, who resided in Washington. In November 1986, after her grandmother’s death, L.H. joined her parents in Washington. While the family lived in Washington, a social worker and a teacher reported suspected abuse of the children to Montana authorities. In March 1987, when the family returned to Great Falls to pick up some stored items, L.H. called the Crisis Line and asked to be removed from the parents’ home. R.H. and L.H. told social workers that the mother used a leather belt to spank R.H. on the face, legs, and buttocks. She threatened L.H. with a knife and held a knife against *167R.H.’s throat. Frequently, there was not enough to eat in the house, and L.H. often had to babysit R.H. in the evening while the mother worked. The State petitioned for temporary custody of L.H. and permanent custody of V.H. and R.H. At the custody hearing, the parties stipulated and the court-ordered the termination of the parental rights to L.H. and V.H. The State was granted permanent custody of L.H. and the aunt and uncle were granted permanent custody of V.H. The court also ordered that the State maintain temporary custody of R.H., who would be placed in the foster home where J.H. had been living for several years. In addition, the court directed the parents to attend and successfully complete parenting classes. They were also ordered to undergo psychological evaluations and to follow through with all recommendations made in those evaluations. The order provided for future review to determine whether the parents were able to resume custody of R.H. In March 1988, counsel for the State, counsel for the parents, and counsel for R.H. entered into another stipulation, which was adopted by the District Court. The stipulation left temporary custody of R.H. with the State and established a new treatment plan for the parents. The treatment plan required the parents to provide the State with written reports about their progress in parenting classes. It also required the parents to begin psychological counseling immediately, to disclose the name of the therapist to the State, and to provide the State with progress reports from the therapist. For one and one-half years, the mother attended parenting classes in Washington. The father attended the classes for one year. The parents also sought family counseling but learned that such counseling was of little use without R.H.’s participation. They did not obtain individual therapy. However, they underwent psychological evaluations. From June 1987 to September 1988, the parents did not contact R.H. In September 1988, the social worker in charge of the case initiated a visit between R.H. and the parents. All appeared happy to see each other during the meeting, which lasted about 2 hours and 15 minutes. R.H. seemed to have a warm relationship with the father, but interacted only slightly with the mother. After the visit, R.H. was anxious and more disruptive at home and school. A second visit took place later that month, during which R.H. spent the night with the parents. After the visit, R.H.’s behavior deteriorated dramatically. He became very hostile and confused. He *168began wetting and messing his bed. He cut hunks out of his hair. He refused to shower or wear clean clothes. His grades dropped from As and Bs to Ds and Fs. His behavior gradually stabilized until January, when he received a Christmas card and gift from his parents. He began acting out again. R.H. was evaluated by Dr. Edward Trontel, Ph.D., a clinical psychologist, on February 7, 1989. Dr. Trontel found that R.H. was very depressed. The doctor also found that R.H. had great difficulty with mother figures. The doctor concluded that R.H. had difficulty paying attention in school because he was so worried about the possibility he would be returned to his parents. R.H. told him that, although he wished to be with his parents, he was terribly frightened of his mother and was afraid she might kill him if he said the wrong thing. He believed his father could not protect him from her. In Dr. Trontel’s opinion, even under the circumstances of this case, the mother’s threats and lack of empathy for R.H. were unusual. On July 13,1989, the State petitioned for permanent legal custody of R.H. and termination of parental rights. Three hearings were held on the matter. Dr. Trontel testified regarding his evaluation of R.H. Dr. Kuka testified concerning his 1986 evaluations of the parents. He compared his evaluations with those completed by Dr. Panek in Washington in 1988. Dr. Kuka stated that Dr. Panek’s findings were even more negative and extreme than his own two years earlier. The doctor concluded that there was not any realistic hope that the parents would develop the kind of dramatic changes needed at this point to be able to parent effectively. R.H. did not testify at any of the hearings, but was interviewed in chambers by the District Court. R.H., then 12 years old, told the judge he enjoyed living with his foster family, he was afraid of his mother because quite often she would strike him with a leather belt, and, although he did not mind visiting his parents, he did not wish to live with them. The parents testified at the hearing that they were adequate parents and, while they had attempted to comply with the treatment plan, they did not believe they truly needed to do the things the State told them to do. Following the hearing, the District Court issued findings of fact, conclusions of law, and an order terminating the parental rights of the parents and awarding permanent custody, with right to consent to adoption, to the State. The parents appeal. *169The statute for terminating parental rights provides in pertinent part: “(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection ... 1(c), as follows, exist: “(c) the child is an adjudicated youth in need of care and both of the following exist: “(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and “(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. (Emphasis added.)” Section 41-3-609, MCA. The parents argue that the State failed to meet its burden of proof because it neglected to show that the court-ordered treatment plan was appropriate. The State counters that it was not required to prove that the plan was appropriate because the parents, through counsel, stipulated to the plan. The termination of parental rights implicates fundamental liberty interests. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Therefore, the State bears the burden of proving by clear and convincing evidence all of the statutory criteria needed to terminate parental rights, including the appropriateness of the treatment plan. Santosky, 455 U.S. at 769, 102 S.Ct. at 1403, 71 L.Ed.2d at 616; In re L.W.K., 236 Mont. 14, 18, 767 P.2d 1338, 1341 (1989). The fact that the parents, while represented by counsel, stipulated to the plan adds some weight to the inquiry. However, that fact does not in and of itself prove that the plan was appropriate. Parents claim that the plan was deficient because the State’s witness, Dr. Kuka, testified that the parents needed to attend parenting classes, psychotherapy sessions, and group therapy meetings in order to develop insights into themselves and improve their parenting skills. The parents point out that the treatment plan contained only two of the three components cited by Dr. Kuka as necessary for successful treatment: parenting classes and individual psychotherapy sessions. Although the plan did not possess every element that Dr. Kuka believed was important for treatment, we hold that, under the facts of this case, it was not inappropriate. Dr. Kuka stressed that the most *170significant component was psychotherapy, while parenting classes and group therapy were secondary considerations. Because the treatment plan contained the most important element, as well as one of the others, the plan was appropriate. Furthermore, the parents do not argue that the parenting and psychotherapy elements that comprised the treatment plan were inappropriate, only that the plan was deficient. We note, however, that the parents neglected to comply with the parts of the program that were admittedly appropriate. We fail to see how adding a third requirement, group therapy, would have spurred them on to comply with the most important element of the program, individual therapy. Substantial credible evidence supports the District Court finding that the treatment plan was appropriate. The District Court did not err in making the finding. The parents next contend that they were denied due process because the treatment plan was ambiguous. We do not agree. The final treatment plan was the third version attempted with the parents. The stipulation adopting the plan states in pertinent part as follows: “1. On May 5, 1987, the above parties [the State and the parents] stipulated to the following arrangement for [R.H.]: “d) [The parents] would attend and successfully complete parenting classes. “e) [The parents] would undergo psychological counseling. “4. At the time set for hearing [the State] had not received any written reports concerning parenting classes or counseling. “The above-referenced parties now stipulate to the following disposition of the case: “2. [The parents] must take the necessary steps to see that [the State] receive[s] written reports about their progress in parenting classes. [The State] must receive the reports by June 15, 1988. “3. [The parents] must take the necessary steps to see that [the State] receive[s] a progress report from their therapist in Washington. [The State] must receive the report by June 15, 1988. [The parents] must also disclose the name of their therapist to [the State] by May 15, 1988. *171“4. If [the parents] have not been undergoing psychological counseling they must do so immediately and must disclose the name of their therapist to [the State] by May 15, 1988. “5. [The State] will petition the Court for the appropriate relief after it receives the above information from [the parents]. In the event [the State] do[es] not receive the requested information by June 15, 1988, [the State] will request the Court to set a final dispositional hearing and will proceed without the requested information. (Emphasis added.)” The treatment plan was not ambiguous. Aplain reading of the plan establishes that the parents were required to attend parenting classes and receive psychological counseling. In fact, paragraph 4 of the plan emphasizes the importance of the psychotherapy requirement by directing the parents to obtain counseling immediately. The problems concerning ambiguity arose when the parents began to hedge the plan. Rather than follow the clear terms of the plan, the parents’ attorney contacted the social worker in charge of the case to see if the parenting classes fulfilled the counseling component. The social worker indicated that the parenting classes essentially fulfilled this condition. Although the State may assist the parents in completing the treatment program, the parents retain the ultimate responsibility for complying with the plan. L.W.K., 236 Mont. at 19, 767 P.2d at 1342. In this case, even though the final program mandated individual psychotherapy, the parents attempted to find ways to bypass the requirement. Indeed, the conversation with the social worker may well have muddied the terms of the plan. However, the parents themselves invited the ambiguity by refusing to follow the plain requirements of the program. They cannot now claim that they were denied due process. Affirmed. JUSTICES GRAY, HARRISON, McDONOUGH and TRIEWEILER concur. | 09-09-2022 | [
"JUSTICE HUNT delivered the Opinion of the Court. The natural parents of R.H., a youth in need of care, appeal from an order of the Eighth Judicial District Court, Cascade County, terminating their parental rights. We affirm. The following issues are raised on appeal: 1. Did the District Court err in finding that the court-ordered treatment plan was appropriate? 2. Was the court-ordered treatment plan ambiguous so as to deny the parents due process? The natural parents had four children: L.H., J.H., R.H., and V.H. The oldest child, L.H., began to live with her paternal grandmother in the mid-1970s. In 1975, the second child, J.H., was placed in foster care. Five years later, the parents voluntarily relinquished custody of J.H.",
"to the State. On April 28, 1986, the State first became directly involved with R.H. At that time, it petitioned for temporary investigative authority and custody of R.H. and his brother, V.H. The affidavit in support of *166the petition outlined severe developmental delays of V.H. caused by lack of stimulation by the parents, R.H.’s withdrawn behavior, and apparent physical neglect of both children. Following a hearing, the District Court ordered the parents to undergo psychological evaluations. The evaluations, prepared by Dr. Monty Kuka, Ph.D., a clinical psychologist, were admitted at the show cause hearing on the petition. In the evaluations, Dr. Kuka found that both parents had borderline intellectual abilities. Dr. Kuka’s assessment of the mother’s parenting skills resulted in a fairly bleak picture. The doctor found that she had limited insight into herself and her relationships and that she did not recognize even the most obvious characteristics of being a good mother. He was pessimistic about her ability to benefit from supportive services, as well as her ability to make any long-term changes. Dr. Kuka found that the father’s overall adjustment was fairly good; he appeared kind and sensitive to his wife and children.",
"Dr. Kuka concluded, however, that it was doubtful that the father could offset the significant negative factors exhibited by the mother because the father was not assertive and put the mother’s needs before those of the children. The show cause hearing was held on July 25, 1986. Following the hearing, the District Court ordered that the State maintain temporary legal custody of V.H. and R.H., with V.H. residing with an aunt and uncle, and R.H. residing with his parents. The court further ordered the mother to attend New Directions classes and the father to attend counseling with R.H. as needed. Shortly after the hearing, the parents and R.H. moved to Washington. This move was prompted by the mother’s desire to avoid the pressures she felt from her family, who resided in Montana, and by the father’s desire to live closer to his father, who resided in Washington.",
"In November 1986, after her grandmother’s death, L.H. joined her parents in Washington. While the family lived in Washington, a social worker and a teacher reported suspected abuse of the children to Montana authorities. In March 1987, when the family returned to Great Falls to pick up some stored items, L.H. called the Crisis Line and asked to be removed from the parents’ home. R.H. and L.H. told social workers that the mother used a leather belt to spank R.H. on the face, legs, and buttocks. She threatened L.H. with a knife and held a knife against *167R.H.’s throat. Frequently, there was not enough to eat in the house, and L.H. often had to babysit R.H. in the evening while the mother worked. The State petitioned for temporary custody of L.H. and permanent custody of V.H.",
"and R.H. At the custody hearing, the parties stipulated and the court-ordered the termination of the parental rights to L.H. and V.H. The State was granted permanent custody of L.H. and the aunt and uncle were granted permanent custody of V.H. The court also ordered that the State maintain temporary custody of R.H., who would be placed in the foster home where J.H. had been living for several years. In addition, the court directed the parents to attend and successfully complete parenting classes.",
"They were also ordered to undergo psychological evaluations and to follow through with all recommendations made in those evaluations. The order provided for future review to determine whether the parents were able to resume custody of R.H. In March 1988, counsel for the State, counsel for the parents, and counsel for R.H. entered into another stipulation, which was adopted by the District Court. The stipulation left temporary custody of R.H. with the State and established a new treatment plan for the parents. The treatment plan required the parents to provide the State with written reports about their progress in parenting classes. It also required the parents to begin psychological counseling immediately, to disclose the name of the therapist to the State, and to provide the State with progress reports from the therapist. For one and one-half years, the mother attended parenting classes in Washington.",
"The father attended the classes for one year. The parents also sought family counseling but learned that such counseling was of little use without R.H.’s participation. They did not obtain individual therapy. However, they underwent psychological evaluations. From June 1987 to September 1988, the parents did not contact R.H. In September 1988, the social worker in charge of the case initiated a visit between R.H. and the parents. All appeared happy to see each other during the meeting, which lasted about 2 hours and 15 minutes. R.H. seemed to have a warm relationship with the father, but interacted only slightly with the mother. After the visit, R.H. was anxious and more disruptive at home and school. A second visit took place later that month, during which R.H. spent the night with the parents.",
"After the visit, R.H.’s behavior deteriorated dramatically. He became very hostile and confused. He *168began wetting and messing his bed. He cut hunks out of his hair. He refused to shower or wear clean clothes. His grades dropped from As and Bs to Ds and Fs. His behavior gradually stabilized until January, when he received a Christmas card and gift from his parents. He began acting out again. R.H. was evaluated by Dr. Edward Trontel, Ph.D., a clinical psychologist, on February 7, 1989. Dr. Trontel found that R.H. was very depressed. The doctor also found that R.H. had great difficulty with mother figures. The doctor concluded that R.H. had difficulty paying attention in school because he was so worried about the possibility he would be returned to his parents.",
"R.H. told him that, although he wished to be with his parents, he was terribly frightened of his mother and was afraid she might kill him if he said the wrong thing. He believed his father could not protect him from her. In Dr. Trontel’s opinion, even under the circumstances of this case, the mother’s threats and lack of empathy for R.H. were unusual. On July 13,1989, the State petitioned for permanent legal custody of R.H. and termination of parental rights. Three hearings were held on the matter. Dr. Trontel testified regarding his evaluation of R.H. Dr. Kuka testified concerning his 1986 evaluations of the parents. He compared his evaluations with those completed by Dr. Panek in Washington in 1988. Dr. Kuka stated that Dr. Panek’s findings were even more negative and extreme than his own two years earlier. The doctor concluded that there was not any realistic hope that the parents would develop the kind of dramatic changes needed at this point to be able to parent effectively. R.H. did not testify at any of the hearings, but was interviewed in chambers by the District Court.",
"R.H., then 12 years old, told the judge he enjoyed living with his foster family, he was afraid of his mother because quite often she would strike him with a leather belt, and, although he did not mind visiting his parents, he did not wish to live with them. The parents testified at the hearing that they were adequate parents and, while they had attempted to comply with the treatment plan, they did not believe they truly needed to do the things the State told them to do. Following the hearing, the District Court issued findings of fact, conclusions of law, and an order terminating the parental rights of the parents and awarding permanent custody, with right to consent to adoption, to the State.",
"The parents appeal. *169The statute for terminating parental rights provides in pertinent part: “(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection ... 1(c), as follows, exist: “(c) the child is an adjudicated youth in need of care and both of the following exist: “(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and “(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. (Emphasis added.",
")” Section 41-3-609, MCA. The parents argue that the State failed to meet its burden of proof because it neglected to show that the court-ordered treatment plan was appropriate. The State counters that it was not required to prove that the plan was appropriate because the parents, through counsel, stipulated to the plan. The termination of parental rights implicates fundamental liberty interests. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Therefore, the State bears the burden of proving by clear and convincing evidence all of the statutory criteria needed to terminate parental rights, including the appropriateness of the treatment plan. Santosky, 455 U.S. at 769, 102 S.Ct. at 1403, 71 L.Ed.2d at 616; In re L.W.K., 236 Mont. 14, 18, 767 P.2d 1338, 1341 (1989). The fact that the parents, while represented by counsel, stipulated to the plan adds some weight to the inquiry. However, that fact does not in and of itself prove that the plan was appropriate.",
"Parents claim that the plan was deficient because the State’s witness, Dr. Kuka, testified that the parents needed to attend parenting classes, psychotherapy sessions, and group therapy meetings in order to develop insights into themselves and improve their parenting skills. The parents point out that the treatment plan contained only two of the three components cited by Dr. Kuka as necessary for successful treatment: parenting classes and individual psychotherapy sessions. Although the plan did not possess every element that Dr. Kuka believed was important for treatment, we hold that, under the facts of this case, it was not inappropriate. Dr. Kuka stressed that the most *170significant component was psychotherapy, while parenting classes and group therapy were secondary considerations. Because the treatment plan contained the most important element, as well as one of the others, the plan was appropriate. Furthermore, the parents do not argue that the parenting and psychotherapy elements that comprised the treatment plan were inappropriate, only that the plan was deficient. We note, however, that the parents neglected to comply with the parts of the program that were admittedly appropriate.",
"We fail to see how adding a third requirement, group therapy, would have spurred them on to comply with the most important element of the program, individual therapy. Substantial credible evidence supports the District Court finding that the treatment plan was appropriate. The District Court did not err in making the finding. The parents next contend that they were denied due process because the treatment plan was ambiguous. We do not agree. The final treatment plan was the third version attempted with the parents. The stipulation adopting the plan states in pertinent part as follows: “1. On May 5, 1987, the above parties [the State and the parents] stipulated to the following arrangement for [R.H.]: “d) [The parents] would attend and successfully complete parenting classes. “e) [The parents] would undergo psychological counseling.",
"“4. At the time set for hearing [the State] had not received any written reports concerning parenting classes or counseling. “The above-referenced parties now stipulate to the following disposition of the case: “2. [The parents] must take the necessary steps to see that [the State] receive[s] written reports about their progress in parenting classes. [The State] must receive the reports by June 15, 1988. “3. [The parents] must take the necessary steps to see that [the State] receive[s] a progress report from their therapist in Washington.",
"[The State] must receive the report by June 15, 1988. [The parents] must also disclose the name of their therapist to [the State] by May 15, 1988. *171“4. If [the parents] have not been undergoing psychological counseling they must do so immediately and must disclose the name of their therapist to [the State] by May 15, 1988. “5. [The State] will petition the Court for the appropriate relief after it receives the above information from [the parents]. In the event [the State] do[es] not receive the requested information by June 15, 1988, [the State] will request the Court to set a final dispositional hearing and will proceed without the requested information.",
"(Emphasis added. )” The treatment plan was not ambiguous. Aplain reading of the plan establishes that the parents were required to attend parenting classes and receive psychological counseling. In fact, paragraph 4 of the plan emphasizes the importance of the psychotherapy requirement by directing the parents to obtain counseling immediately. The problems concerning ambiguity arose when the parents began to hedge the plan. Rather than follow the clear terms of the plan, the parents’ attorney contacted the social worker in charge of the case to see if the parenting classes fulfilled the counseling component. The social worker indicated that the parenting classes essentially fulfilled this condition. Although the State may assist the parents in completing the treatment program, the parents retain the ultimate responsibility for complying with the plan. L.W.K., 236 Mont. at 19, 767 P.2d at 1342.",
"In this case, even though the final program mandated individual psychotherapy, the parents attempted to find ways to bypass the requirement. Indeed, the conversation with the social worker may well have muddied the terms of the plan. However, the parents themselves invited the ambiguity by refusing to follow the plain requirements of the program. They cannot now claim that they were denied due process. Affirmed. JUSTICES GRAY, HARRISON, McDONOUGH and TRIEWEILER concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8027872/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
998 F.2d 548 UNITED STATES of America, Plaintiff-Appellee,v.Neil Virgil COYLE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Mark Edward SWEDZINSKI, Defendant-Appellant. Nos. 92-2300, 92-2630. United States Court of Appeals,Eighth Circuit. Submitted Nov. 9, 1992.Decided March 15, 1993.*Rehearing and Rehearing En Banc Deniedin No. 92-2300 April 13, 1993. As Modified on Denial of Rehearing andRehearing En Banc July 7, 1993. C.A.8 (Minn.) 1993.
Offense of carrying firearm in relation to drug trafficking crime is not specific intent offense. 18 U.S.C.A. § 924(c)(1). Virginia G. Villa, Minneapolis, MN, argued (Scott F. Tilsen and Virginia G. Villa, on the brief), for Neil Virgil Coyle. John P. Sheehy, Minneapolis, MN, argued (John P. Sheehy and Daniel C. Guerrero on the brief), for Mark Edward Swedzinski. Nathan P. Petterson, Minneapolis, MN, argued (Thomas B. Heffelfinger and Nathan P. Petterson on the brief), for U.S. Before JOHN R. GIBSON and MAGILL, Circuit Judges, and VAN SICKLE,** Senior District Judge. JOHN R. GIBSON, Circuit Judge.
1 Coyle and Swedzinski appeal their convictions for aiding and abetting and conspiracy to grow marijuana. Swedzinski also appeals his conviction for carrying a firearm in relation to the drug offense. Coyle raises an insufficiency of evidence argument and Swedzinski argues that the district court1 erred in refusing to instruct the jury on intent. We affirm the convictions.
2 On September 20, 1991, agents of the Minnesota Bureau of Criminal Apprehension discovered a plot of cultivated marijuana in Lincoln County, Minnesota. The agents placed the area under surveillance and, on September 23, 1991, observed Swedzinski enter the plot and inspect the marijuana plants. The agents arrested Swedzinski, who was carrying a loaded .22-caliber pistol in a holster. The agents found that the plot contained 178 cultivated marijuana plants, and had been "booby trapped" with strands of barbed wire and camouflaged pitchfork heads.
3 The BCA agents then searched the homes of Swedzinski and Coyle. At Swedzinski's home, they found small marijuana plants, a book entitled "Marijuana Growers Guide," two firearms, a small scale, and fluorescent lights. On Coyle's property, they found numerous small marijuana plants under a timed lighting system, bags of processed marijuana, marijuana residue, a digital scale, plant food, books containing information on marijuana growing, three firearms, and photographs of Coyle displaying marijuana. Coyle arrived during the search, was arrested, and was carrying $1,269 cash. The search of Coyle's van revealed rolling papers, a roach clip, and three pitchforks.
4 Both Coyle and Swedzinski were charged with one count of manufacturing marijuana plants in violation of 21 U.S.C. § 841 (1988) and 18 U.S.C. § 2 (1988). The men were also charged with one count of conspiracy to manufacture 100 or more marijuana plants in violation of 21 U.S.C. § 846 (1988). Swedzinski was charged with carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (1988). A jury found both men guilty on all counts.
I.
5 Coyle argues that there was insufficient evidence to establish that he either aided or abetted in the manufacture of marijuana plants or conspired with Swedzinski in the manufacture of marijuana plants. The standard of review for sufficiency of evidence is very clear:
6 In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict. We then uphold the conviction only if it is supported by substantial evidence.
7 United States v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir.1991) (citations omitted); see also Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942).2
8 The physical evidence seized at Coyle's home and introduced at trial establishes beyond any doubt that Coyle was an experienced marijuana grower. The government introduced evidence of frequent telephone calls between Coyle and Swedzinski during the months preceding the arrests. One of the government's witnesses, a woman who rented a house on the property where the marijuana plot was located, testified that she had seen Coyle on the property with Swedzinski on several occasions, the most recent being approximately one week before the arrests. The witness also testified that Coyle was with Swedzinski when Swedzinski asked her to keep hunters away from the area of the property where the marijuana plot was located. Coyle's van contained three pitchforks similar to those used to "booby trap" the marijuana plot. We conclude that it is reasonable to infer from these facts that Coyle assisted Swedzinski in maintaining the marijuana growing operation. The direct evidence and the reasonable inferences from that evidence constitute substantial evidence supporting both of Coyle's convictions.
II.
9 Swedzinski argues that the district court erred in refusing to add language on "specific intent" or "intent" to the jury instruction on the gun charge. Swedzinski's trial counsel argued that the jury was required to find that Swedzinski had actually intended to use or carry the gun in relation to the drug offense, and requested the jury be so instructed.
10 The district court gave an instruction which recited the language of the statute, and then stated:
11 The phrase "uses or carries a firearm" means having a firearm available to assist or aid in the commission of the crime alleged in Count I of the indictment.
12 In determining whether defendant Mark Swedzinski used or carried a firearm during and in relation to a drug trafficking crime, you may consider all the factors received in evidence in the case, including the nature of the underlying crime of drug trafficking alleged, the proximity of the defendant Mark Swedzinski to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.
13 During the instruction conference, Judge Doty pointed out that this instruction was virtually the same instruction that he had given in United States v. Michaels, 911 F.2d 131 (8th Cir.1990), cert. denied, 498 U.S. 1094, 111 S. Ct. 981, 112 L. Ed. 2d 1066 (1991). This court approved the instruction given in the Michaels case, pointing out that it "required the jury to find, at the very least, that the gun was available to the defendant, and that its availability facilitated the carrying out of the drug trafficking crime." Id. at 132.
14 There was no error in giving this instruction. The instruction directs the jury to consider whether the weapon was available to assist or aid in the commission of the underlying crime. We have previously recognized that the presence and availability of a weapon permits a jury to infer an intent to use the weapon should there be an "evident need." United States v. Thomas, 964 F.2d 836, 838 (8th Cir.), cert. denied, --- U.S. ----, 113 S. Ct. 265, 121 L. Ed. 2d 195 (1992). However, neither Thomas nor any other decision of this court establishes intent as a separate element of the weapons offense. A specific instruction on intent is therefore not required, and the district court did not err in instructing the jury on this point.
15 Swedzinski particularly argues that our decision in United States v. Lyman, 892 F.2d 751 (8th Cir.1989), cert. denied, 498 U.S. 810, 111 S. Ct. 45, 112 L. Ed. 2d 21 (1990), requires submission of specific intent. He argues that a jury can only properly infer intent if it is instructed that intent is an element of the charge. We do not so read then Chief Judge Lay's opinion in Lyman. Lyman discusses sufficiency of the evidence and makes clear that section 924(c)(1) required more than mere possession:
16 The legislative history makes clear that the key is whether the circumstances indicate "that the defendant intended to use the gun if a contingency arose or to make his escape." This court has held that the intent to use a weapon or weapons in connection with a drug trafficking offense may be inferred by their "presence and availability in light of the evident need."
17 Id. at 753 (citations omitted).
18 The court concluded that the totality of the circumstances provided a sufficient basis for an inference of Lyman's intent to use the gun. Id. at 754. The foundation for concluding sufficiency of the evidence in Lyman consists of precisely those elements contained in the instruction set out above.
19 The Sixth Circuit in United States v. Brown, 915 F.2d 219 (6th Cir.1990), analyzed section 924(c)(1) in great detail and determined that it is not a specific intent offense. Id. at 227. In Brown the issue was the sufficiency of the evidence and Brown had argued that the "used in relation to a drug crime" language required proof that he carried the gun with the specific intent of using it in relation to the underlying charge. Id. at 224. This is precisely what Swedzinski claims should have been in the jury instructions. The reasoning in Brown persuades us that section 924(c)(1) is not a specific intent offense, and this is an additional reason for rejecting Swedzinski's argument.
20 Swedzinski also argues that there was insufficient evidence to convict him of the drug offenses, and that the district court erred in refusing both to sever the gun charge from the case and to suppress evidence obtained in the search of Swedzinski's house. We have considered these arguments and conclude that they are without merit.
21 We affirm the convictions of both Swedzinski and Coyle.
* Opinion originally published at 988 F.2d 831
** The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation
1 The Honorable David S. Doty, United States District Judge for the District of Minnesota
2 Coyle also argues that there is a conflict between our more recent sufficiency of evidence decisions, which hold that we will not disturb a conviction when the evidence "rationally supports two conflicting hypotheses," United States v. O'Connell, 841 F.2d 1408, 1424 (8th Cir.1988), cert. denied, 488 U.S. 1011, 109 S. Ct. 799, 102 L. Ed. 2d 790 (1989), and our earlier decisions, which hold that a "conviction cannot rest on evidence that no more supports guilt than innocence." United States v. Hepp, 656 F.2d 350, 353 (8th Cir.1981); cf. United States v. Jones, 545 F.2d 1112, 1115-16 (8th Cir.1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 814, 50 L. Ed. 2d 793 (1977) Coyle argues that we must apply the standard found in the earlier cases. We are not sure that the earlier cases remain valid after Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See United States v. Moya, 721 F.2d 606, 609-10 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S. Ct. 1312, 79 L. Ed. 2d 709 (1984), and United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983). We declined an invitation to examine the validity of this early rule in United States v. Shahane, 517 F.2d 1173, 1177-78 (8th Cir.), cert. denied, 423 U.S. 893, 96 S. Ct. 191, 46 L. Ed. 2d 124 (1975), as we were convinced that regardless of the standard applied, there was sufficient evidence to convict. The situation before us is the same, and we need not explore the issue further. | 08-23-2011 | [
"998 F.2d 548 UNITED STATES of America, Plaintiff-Appellee,v.Neil Virgil COYLE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Mark Edward SWEDZINSKI, Defendant-Appellant. Nos. 92-2300, 92-2630. United States Court of Appeals,Eighth Circuit. Submitted Nov. 9, 1992.Decided March 15, 1993. *Rehearing and Rehearing En Banc Deniedin No. 92-2300 April 13, 1993. As Modified on Denial of Rehearing andRehearing En Banc July 7, 1993. C.A.8 (Minn.) 1993. Offense of carrying firearm in relation to drug trafficking crime is not specific intent offense. 18 U.S.C.A. § 924(c)(1). Virginia G. Villa, Minneapolis, MN, argued (Scott F. Tilsen and Virginia G. Villa, on the brief), for Neil Virgil Coyle. John P. Sheehy, Minneapolis, MN, argued (John P. Sheehy and Daniel C. Guerrero on the brief), for Mark Edward Swedzinski. Nathan P. Petterson, Minneapolis, MN, argued (Thomas B. Heffelfinger and Nathan P. Petterson on the brief), for U.S. Before JOHN R. GIBSON and MAGILL, Circuit Judges, and VAN SICKLE,** Senior District Judge.",
"JOHN R. GIBSON, Circuit Judge. 1 Coyle and Swedzinski appeal their convictions for aiding and abetting and conspiracy to grow marijuana. Swedzinski also appeals his conviction for carrying a firearm in relation to the drug offense. Coyle raises an insufficiency of evidence argument and Swedzinski argues that the district court1 erred in refusing to instruct the jury on intent. We affirm the convictions. 2 On September 20, 1991, agents of the Minnesota Bureau of Criminal Apprehension discovered a plot of cultivated marijuana in Lincoln County, Minnesota. The agents placed the area under surveillance and, on September 23, 1991, observed Swedzinski enter the plot and inspect the marijuana plants. The agents arrested Swedzinski, who was carrying a loaded .22-caliber pistol in a holster. The agents found that the plot contained 178 cultivated marijuana plants, and had been \"booby trapped\" with strands of barbed wire and camouflaged pitchfork heads. 3 The BCA agents then searched the homes of Swedzinski and Coyle.",
"At Swedzinski's home, they found small marijuana plants, a book entitled \"Marijuana Growers Guide,\" two firearms, a small scale, and fluorescent lights. On Coyle's property, they found numerous small marijuana plants under a timed lighting system, bags of processed marijuana, marijuana residue, a digital scale, plant food, books containing information on marijuana growing, three firearms, and photographs of Coyle displaying marijuana. Coyle arrived during the search, was arrested, and was carrying $1,269 cash. The search of Coyle's van revealed rolling papers, a roach clip, and three pitchforks. 4 Both Coyle and Swedzinski were charged with one count of manufacturing marijuana plants in violation of 21 U.S.C. § 841 (1988) and 18 U.S.C. § 2 (1988). The men were also charged with one count of conspiracy to manufacture 100 or more marijuana plants in violation of 21 U.S.C.",
"§ 846 (1988). Swedzinski was charged with carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (1988). A jury found both men guilty on all counts. I. 5 Coyle argues that there was insufficient evidence to establish that he either aided or abetted in the manufacture of marijuana plants or conspired with Swedzinski in the manufacture of marijuana plants. The standard of review for sufficiency of evidence is very clear: 6 In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict. We then uphold the conviction only if it is supported by substantial evidence.",
"7 United States v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir.1991) (citations omitted); see also Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942).2 8 The physical evidence seized at Coyle's home and introduced at trial establishes beyond any doubt that Coyle was an experienced marijuana grower. The government introduced evidence of frequent telephone calls between Coyle and Swedzinski during the months preceding the arrests.",
"One of the government's witnesses, a woman who rented a house on the property where the marijuana plot was located, testified that she had seen Coyle on the property with Swedzinski on several occasions, the most recent being approximately one week before the arrests. The witness also testified that Coyle was with Swedzinski when Swedzinski asked her to keep hunters away from the area of the property where the marijuana plot was located. Coyle's van contained three pitchforks similar to those used to \"booby trap\" the marijuana plot. We conclude that it is reasonable to infer from these facts that Coyle assisted Swedzinski in maintaining the marijuana growing operation. The direct evidence and the reasonable inferences from that evidence constitute substantial evidence supporting both of Coyle's convictions. II.",
"9 Swedzinski argues that the district court erred in refusing to add language on \"specific intent\" or \"intent\" to the jury instruction on the gun charge. Swedzinski's trial counsel argued that the jury was required to find that Swedzinski had actually intended to use or carry the gun in relation to the drug offense, and requested the jury be so instructed. 10 The district court gave an instruction which recited the language of the statute, and then stated: 11 The phrase \"uses or carries a firearm\" means having a firearm available to assist or aid in the commission of the crime alleged in Count I of the indictment. 12 In determining whether defendant Mark Swedzinski used or carried a firearm during and in relation to a drug trafficking crime, you may consider all the factors received in evidence in the case, including the nature of the underlying crime of drug trafficking alleged, the proximity of the defendant Mark Swedzinski to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm. 13 During the instruction conference, Judge Doty pointed out that this instruction was virtually the same instruction that he had given in United States v. Michaels, 911 F.2d 131 (8th Cir.1990), cert. denied, 498 U.S. 1094, 111 S. Ct. 981, 112 L. Ed. 2d 1066 (1991).",
"This court approved the instruction given in the Michaels case, pointing out that it \"required the jury to find, at the very least, that the gun was available to the defendant, and that its availability facilitated the carrying out of the drug trafficking crime.\" Id. at 132. 14 There was no error in giving this instruction. The instruction directs the jury to consider whether the weapon was available to assist or aid in the commission of the underlying crime. We have previously recognized that the presence and availability of a weapon permits a jury to infer an intent to use the weapon should there be an \"evident need.\"",
"United States v. Thomas, 964 F.2d 836, 838 (8th Cir. ), cert. denied, --- U.S. ----, 113 S. Ct. 265, 121 L. Ed. 2d 195 (1992). However, neither Thomas nor any other decision of this court establishes intent as a separate element of the weapons offense. A specific instruction on intent is therefore not required, and the district court did not err in instructing the jury on this point. 15 Swedzinski particularly argues that our decision in United States v. Lyman, 892 F.2d 751 (8th Cir.1989), cert. denied, 498 U.S. 810, 111 S. Ct. 45, 112 L. Ed. 2d 21 (1990), requires submission of specific intent. He argues that a jury can only properly infer intent if it is instructed that intent is an element of the charge. We do not so read then Chief Judge Lay's opinion in Lyman. Lyman discusses sufficiency of the evidence and makes clear that section 924(c)(1) required more than mere possession: 16 The legislative history makes clear that the key is whether the circumstances indicate \"that the defendant intended to use the gun if a contingency arose or to make his escape.\"",
"This court has held that the intent to use a weapon or weapons in connection with a drug trafficking offense may be inferred by their \"presence and availability in light of the evident need.\" 17 Id. at 753 (citations omitted). 18 The court concluded that the totality of the circumstances provided a sufficient basis for an inference of Lyman's intent to use the gun. Id. at 754. The foundation for concluding sufficiency of the evidence in Lyman consists of precisely those elements contained in the instruction set out above. 19 The Sixth Circuit in United States v. Brown, 915 F.2d 219 (6th Cir.1990), analyzed section 924(c)(1) in great detail and determined that it is not a specific intent offense.",
"Id. at 227. In Brown the issue was the sufficiency of the evidence and Brown had argued that the \"used in relation to a drug crime\" language required proof that he carried the gun with the specific intent of using it in relation to the underlying charge. Id. at 224. This is precisely what Swedzinski claims should have been in the jury instructions. The reasoning in Brown persuades us that section 924(c)(1) is not a specific intent offense, and this is an additional reason for rejecting Swedzinski's argument. 20 Swedzinski also argues that there was insufficient evidence to convict him of the drug offenses, and that the district court erred in refusing both to sever the gun charge from the case and to suppress evidence obtained in the search of Swedzinski's house.",
"We have considered these arguments and conclude that they are without merit. 21 We affirm the convictions of both Swedzinski and Coyle. * Opinion originally published at 988 F.2d 831 ** The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation 1 The Honorable David S. Doty, United States District Judge for the District of Minnesota 2 Coyle also argues that there is a conflict between our more recent sufficiency of evidence decisions, which hold that we will not disturb a conviction when the evidence \"rationally supports two conflicting hypotheses,\" United States v. O'Connell, 841 F.2d 1408, 1424 (8th Cir.1988), cert.",
"denied, 488 U.S. 1011, 109 S. Ct. 799, 102 L. Ed. 2d 790 (1989), and our earlier decisions, which hold that a \"conviction cannot rest on evidence that no more supports guilt than innocence.\" United States v. Hepp, 656 F.2d 350, 353 (8th Cir.1981); cf. United States v. Jones, 545 F.2d 1112, 1115-16 (8th Cir.1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 814, 50 L. Ed. 2d 793 (1977) Coyle argues that we must apply the standard found in the earlier cases. We are not sure that the earlier cases remain valid after Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See United States v. Moya, 721 F.2d 606, 609-10 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S. Ct. 1312, 79 L. Ed. 2d 709 (1984), and United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L. Ed.",
"2d 638 (1983). We declined an invitation to examine the validity of this early rule in United States v. Shahane, 517 F.2d 1173, 1177-78 (8th Cir. ), cert. denied, 423 U.S. 893, 96 S. Ct. 191, 46 L. Ed. 2d 124 (1975), as we were convinced that regardless of the standard applied, there was sufficient evidence to convict. The situation before us is the same, and we need not explore the issue further."
]
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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 . Continued Examination Under 37 CFR 1.114 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 9/18/20 has been entered. Election/Restrictions Claims 1, 3-10, 14 are directed to an allowable product. Pursuant to the procedures set forth in MPEP § 821.04(B), claims 11 and 12, directed to the process of making or using an allowable product, previously withdrawn from consideration as a result of a restriction requirement, are hereby rejoined and fully examined for patentability under 37 CFR 1.104. Because all claims previously withdrawn from consideration under 37 CFR 1.142 have been rejoined, the restriction requirement as set forth in the Office action mailed on 10/21/19 is hereby withdrawn. In view of the withdrawal of the restriction requirement as to the rejoined inventions, applicant(s) are advised that if any claim presented in a continuation or divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application. Once the restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable. See In re Ziegler, 443 F.2d 1211, 1215, 170 USPQ 129, 131-32 (CCPA 1971). See also MPEP § 804.01.
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. Authorization for this examiner’s amendment was given in an interview with Matthew Stanford On 4/21/21. The application has been amended as follows: In the claims: 11. A manufacturing method of a covering with respect to a metallic component, the manufacturing method comprising: forming, in a surface of the metallic component, a concave surface by applying blast processing, the concave surface including a plurality of triangular recesses formed into the concave surface, the plurality of triangular recesses being formed of a plurality of inner wall surfaces that are convex and protrude towards each other, and the plurality of inner wall surfaces of each respective triangular recess intersect at a bottom of the respective triangular recess; and -4-Application No. 15/883,295covering the concave surface by a covering material before an internal stress generated on the metallic component by forming the concave surface deforms and eliminates an opening formed on the surface by the concave surface in a manner to close the opening[[.]], wherein after the covering material is applied to the concave surface to cover the plurality of triangular recesses, the plurality of inner wall surfaces of the plurality of triangular recesses are configured to transition from an initial shape, where the plurality of inner wall surfaces of each respective triangular recess are straight, to the convex shape, where the plurality of inner wall surfaces of each respective triangular recess protrude inward towards each other by the plurality of inner wall surfaces moving inward towards each other. Reasons for Allowance
The following is an examiner’s statement of reasons for allowance: Applicant’s arguments, filed 9/18/20 with respect to the drawings objections have been fully considered and are persuasive. Therefore, the objection has been withdrawn. . 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 MIKAIL A MANNAN whose telephone number is (571)270-1879. The examiner can normally be reached on M-F 10-6. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Darwin Erezo can be reached on (571)272-4695. 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.
/M. M./ Examiner, Art Unit 3771
/KATRINA M STRANSKY/Primary Examiner, Art Unit 3771 | 2021-04-25T09:48:07 | [
"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 . Continued Examination Under 37 CFR 1.114 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 9/18/20 has been entered. Election/Restrictions Claims 1, 3-10, 14 are directed to an allowable product. Pursuant to the procedures set forth in MPEP § 821.04(B), claims 11 and 12, directed to the process of making or using an allowable product, previously withdrawn from consideration as a result of a restriction requirement, are hereby rejoined and fully examined for patentability under 37 CFR 1.104. Because all claims previously withdrawn from consideration under 37 CFR 1.142 have been rejoined, the restriction requirement as set forth in the Office action mailed on 10/21/19 is hereby withdrawn. In view of the withdrawal of the restriction requirement as to the rejoined inventions, applicant(s) are advised that if any claim presented in a continuation or divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application.",
"Once the restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable. See In re Ziegler, 443 F.2d 1211, 1215, 170 USPQ 129, 131-32 (CCPA 1971). See also MPEP § 804.01. 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. Authorization for this examiner’s amendment was given in an interview with Matthew Stanford On 4/21/21. The application has been amended as follows: In the claims: 11.",
"A manufacturing method of a covering with respect to a metallic component, the manufacturing method comprising: forming, in a surface of the metallic component, a concave surface by applying blast processing, the concave surface including a plurality of triangular recesses formed into the concave surface, the plurality of triangular recesses being formed of a plurality of inner wall surfaces that are convex and protrude towards each other, and the plurality of inner wall surfaces of each respective triangular recess intersect at a bottom of the respective triangular recess; and -4-Application No.",
"15/883,295covering the concave surface by a covering material before an internal stress generated on the metallic component by forming the concave surface deforms and eliminates an opening formed on the surface by the concave surface in a manner to close the opening[[. ]], wherein after the covering material is applied to the concave surface to cover the plurality of triangular recesses, the plurality of inner wall surfaces of the plurality of triangular recesses are configured to transition from an initial shape, where the plurality of inner wall surfaces of each respective triangular recess are straight, to the convex shape, where the plurality of inner wall surfaces of each respective triangular recess protrude inward towards each other by the plurality of inner wall surfaces moving inward towards each other. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Applicant’s arguments, filed 9/18/20 with respect to the drawings objections have been fully considered and are persuasive. Therefore, the objection has been withdrawn. .",
"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 MIKAIL A MANNAN whose telephone number is (571)270-1879. The examiner can normally be reached on M-F 10-6. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Darwin Erezo can be reached on (571)272-4695. 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.",
"/M. M./ Examiner, Art Unit 3771 /KATRINA M STRANSKY/Primary Examiner, Art Unit 3771"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-02.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The relator claims exemption from the duty of working on the Lands-,ford road, because he was a warner of the hands op the Lanier’s ferry road. It will be perceived by the special verdict, that he was actually at work on the former road, and was summoned to work there again the next week, at the time he received his appointment of warner on the Lanier’s ferry road, and that he immediately ceased to woik — and he was fined for the whole time he did not work. The same questions arise as in the former cases. Was the relator, by necessary implication or operation of law, exempted from the duty of working on the Landsford road, so as to exclude him altogether from the jurisdiction of the board 1 If not exempted, has the board decided against Taw, or otherwise transgressed its proper bounds! And here it will perhaps be sufficient to refer to the cases already decided, for the general .views applicable to this case. It is obvious enough, from the finding itself, that the duty required of the relator as warner on the Lanier’s ferry road, was not necessarily incompatible with the duty of working on the Landsford road, for the remainder of the time he was required to work, as well the second as the first week. Nor do I perceive any good ground for a distinction between them, as his Honor.the presiding judge has made. It does not appear when the duty as warner .was required to be performed. But did the appointment constitute a legal exemption 1 The learned judge seems to put it on the ground of established custom. The Act of '.1825 does not sq provide. The relator, at the time hq received the appoint*323íhent, was under summons to work, and was at work, on the Landsford road ; and although a penalty is provided :of twelve dollars for refusing the appointment, yet he incurred a penalty if he refused to work — ;and for default in both cases, he was subject for trial to the jurisdiction of the same board, of which the commissioner who summoned him to work, and the commissioner who appointed him warner, were members. To that tribunal his excuse for not working, and also for not accepting the appointment of warner, had to be rendered. To it he has rendered his excuse for not working, and they have deemed it insufficient. The custom relied on, that the appointment of warner excused from working, (however a custom may affect contracts, or matters of private right between individuáis,) cannot, I app'rehend, supercede a public statute. And it was a proper subject for the consideration of the board, whether the relator had re^ ceived and accepted the appointment of warner in good faith, and under such circumstances as ought to affoid him the benefit of that custom. If it was so offered and accepted, without design to interfere with the labor already going on upon the Landsford road, it would seem to have been a reasonable excuse, and the commissioners ought to have excused him. But it cannot be said that they were legally bound to do so, or that this cóiirü will compel them. The question is not whether they have done what in reason and propriety they ought to have done, but have they done what they had á right to do ? If we should interfere in such a case, this court would erect itself into a Court of appeal and review from every inferior tribunal in tbé State — and set itself up to judge of the facts constituting the excuse, and of the sufficiency of the excuse; in every cáse of default, let the tribunal be what it may. Motion granted, and judgment awarded in favor of the commissioners, with leave to collect the Whole of the finés. Richardson, Evans, and Butler, JJ., concurred. | 07-29-2022 | [
"The relator claims exemption from the duty of working on the Lands-,ford road, because he was a warner of the hands op the Lanier’s ferry road. It will be perceived by the special verdict, that he was actually at work on the former road, and was summoned to work there again the next week, at the time he received his appointment of warner on the Lanier’s ferry road, and that he immediately ceased to woik — and he was fined for the whole time he did not work. The same questions arise as in the former cases. Was the relator, by necessary implication or operation of law, exempted from the duty of working on the Landsford road, so as to exclude him altogether from the jurisdiction of the board 1 If not exempted, has the board decided against Taw, or otherwise transgressed its proper bounds! And here it will perhaps be sufficient to refer to the cases already decided, for the general .views applicable to this case.",
"It is obvious enough, from the finding itself, that the duty required of the relator as warner on the Lanier’s ferry road, was not necessarily incompatible with the duty of working on the Landsford road, for the remainder of the time he was required to work, as well the second as the first week. Nor do I perceive any good ground for a distinction between them, as his Honor.the presiding judge has made. It does not appear when the duty as warner .was required to be performed. But did the appointment constitute a legal exemption 1 The learned judge seems to put it on the ground of established custom.",
"The Act of '.1825 does not sq provide. The relator, at the time hq received the appoint*323íhent, was under summons to work, and was at work, on the Landsford road ; and although a penalty is provided :of twelve dollars for refusing the appointment, yet he incurred a penalty if he refused to work — ;and for default in both cases, he was subject for trial to the jurisdiction of the same board, of which the commissioner who summoned him to work, and the commissioner who appointed him warner, were members. To that tribunal his excuse for not working, and also for not accepting the appointment of warner, had to be rendered. To it he has rendered his excuse for not working, and they have deemed it insufficient. The custom relied on, that the appointment of warner excused from working, (however a custom may affect contracts, or matters of private right between individuáis,) cannot, I app'rehend, supercede a public statute. And it was a proper subject for the consideration of the board, whether the relator had re^ ceived and accepted the appointment of warner in good faith, and under such circumstances as ought to affoid him the benefit of that custom.",
"If it was so offered and accepted, without design to interfere with the labor already going on upon the Landsford road, it would seem to have been a reasonable excuse, and the commissioners ought to have excused him. But it cannot be said that they were legally bound to do so, or that this cóiirü will compel them. The question is not whether they have done what in reason and propriety they ought to have done, but have they done what they had á right to do ? If we should interfere in such a case, this court would erect itself into a Court of appeal and review from every inferior tribunal in tbé State — and set itself up to judge of the facts constituting the excuse, and of the sufficiency of the excuse; in every cáse of default, let the tribunal be what it may. Motion granted, and judgment awarded in favor of the commissioners, with leave to collect the Whole of the finés.",
"Richardson, Evans, and Butler, JJ., concurred."
]
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09-2732-cr (L) United States v. James and Mallay
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2011
4 (Argued: October 3, 2011; Final submission: July 16, 2012;* 5 Decided: March 28, 2013)
6 Docket Nos. 09-2732-cr (Lead), 09-2804-cr (Con)
7 -------------------------------------
8 United States,
9 Appellee,
10 - v -
11 Richard James and Ronald Mallay,
12 Defendants-Appellants.
13 -------------------------------------
14 Before: SACK and RAGGI, Circuit Judges, and EATON, Judge.**
15 Appeal from judgments of the United States District
16 Court for the Eastern District of New York (Sterling Johnson,
17 Judge) convicting defendants on various counts of an indictment
18 including murder, mail fraud, and murder in aid of racketeering,
19 and imposing mandatory life sentences. We find no error in the
20 admission of an autopsy report and a toxicology report without
21 the presence of the individuals who prepared those reports
* The Court's consideration of this appeal was suspended pending the Supreme Court's decision in Williams v. Illinois, 132 S. Ct. 2221 (2012), and the parties' subsequent supplemental briefing directed to the significance, if any, of that decision here. ** Judge Richard K. Eaton of the United States Court of International Trade, sitting by designation. 1 inasmuch as they were not testimonial statements because they
2 were not made with the primary purpose of creating a record for
3 use at a criminal trial, and therefore did not require that the
4 defendants have the opportunity to confront the authors of the
5 reports. We further conclude that: there was no error in the
6 district court's decision to exclude the prosecutor's rebuttal
7 statement in a prior, related trial; the district court did not
8 abuse its discretion in disallowing as impeachment evidence
9 statements made by a cooperating witness outside of the jury's
10 presence; the district court's denial of defendant Richard
11 James's severance motion did not warrant vacatur of the verdict;
12 there was no Sixth Amendment violation in the admission of
13 surreptitious recordings made by a government informant; it was
14 proper to admit that recording as a co-conspirator statement
15 against defendant Mallay; there was no error in denying a motion
16 for a new trial based upon post-trial allegations of
17 prosecutorial misconduct; and there was no cumulative error
18 warranting reversal.
19 Affirmed. Judge Eaton concurs in a separate opinion.
20 JAMES G. McGOVERN, Susan Corkery, Robert 21 L. Capers, for Loretta E. Lynch, United 22 States Attorney for the Eastern District 23 of New York, Brooklyn, New York, for 24 Appellee.
25 STEVE ZISSOU, Esq., Bayside, New York, 26 for Defendant-Appellant Richard James.
27 MICHAEL K. BACHRACH, Esq., New York, New 28 York, for Defendant-Appellant Ronald 29 Mallay.
2 1 SACK, Circuit Judge:
2 Richard James and Ronald Mallay appeal from judgments
3 of conviction based on their participation in a wide-ranging
4 conspiracy that involved fraudulently obtained life insurance
5 policies for members of their extended families and others in the
6 Guyanese and Guyanese-American community, and, in several
7 instances, murder of the insured in order to collect on those
8 policies.
9 BACKGROUND
10 After a jury trial in the United States District Court
11 for the Eastern District of New York (Sterling Johnson, Judge),
12 James and Mallay were each sentenced to mandatory terms of life
13 in prison after they were convicted of racketeering, in violation
14 of 18 U.S.C. § 1962(c); racketeering conspiracy, in violation of
15 18 U.S.C. § 1962(d); murder in aid of racketeering, in violation
16 of 18 U.S.C. § 1959(a)(1); conspiracy to commit murder in aid of
17 racketeering, in violation of 18 U.S.C. § 1959(a)(5); mail fraud,
18 in violation of 18 U.S.C. § 1341; conspiracy to commit mail
19 fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit
20 money laundering, in violation of 18 U.S.C. § 1956(h). In
21 addition, Mallay was convicted of murder for hire and conspiracy
22 to commit murder for hire, in violation of 18 U.S.C. § 1958.
23 James was also convicted of attempted murder for hire, in
24 violation of 18 U.S.C. § 1958, and solicitation of murder in aid
25 of racketeering, in violation of 18 U.S.C. §§ 373 and 1959(a)(1).
3 1 These charges revolved around the murders of four people: Vernon
2 Peter, Alfred Gobin, Hardeo Sewnanan, and Basdeo Somaipersaud.
3 While Mallay was charged in relation to all four murders, James
4 was charged in connection with only the murders of Sewnanan and
5 Somaipersaud. Mallay was convicted on every count with which he
6 had been charged; James was convicted on all counts with which he
7 had been charged, with the exception of those alleging conspiracy
8 and murder for hire in connection with the deaths of Sewnanan and
9 Somaipersaud. The defendants were eligible for the death
10 penalty, but because the jury was unable to reach a unanimous
11 verdict as to that punishment, a sentence of life imprisonment
12 was imposed.
13 On appeal, the defendants do not contest the
14 sufficiency of the evidence of insurance fraud. The issues on
15 these appeals relate largely to the convictions of the defendants
16 for committing four murders that were allegedly part of this
17 scheme, and particularly the murders of Sewnanan and
18 Somaipersaud, both of whom were poisoned to death. Accordingly,
19 we review only that evidence necessary to explain our decision to
20 affirm all counts of conviction.
21 Vernon Peter
22 In 1991, Mallay was convicted of theft from the postal
23 service, for which he worked as a postal carrier, and sentenced
24 to 15 months' imprisonment. See Memorandum & Order, United
25 States v. James, No. 02 Cr 0778, 2009 WL 763612, at *1, 2009 U.S.
26 Dist. LEXIS 23706, at *3 (E.D.N.Y. Mar. 18, 2009) ("James I").
4 1 While Mallay was incarcerated, his mother died of a heart attack.
2 Id. Mallay blamed his arrest and conviction on his sister's
3 husband, Vernon Peter, known as "Dilly." Id. He told his
4 sister, Betty Peter, to keep Dilly's life insurance current
5 because he planned to get even. Id., 2009 U.S. Dist. LEXIS
6 23706, at *4. In 1993, after Mallay was released from prison, he
7 asked his nephew Baskinand Motillal if he would kill Dilly for
8 Mallay. Id. at *2, 2009 U.S. Dist. LEXIS 23706, at *4. Motillal
9 declined but introduced Mallay to another person, to whom Mallay
10 paid $10,000 to commit the crime. He also gave that person $500
11 with which to purchase a weapon. Id. That person in turn
12 recruited three others to help him carry out the murder. Id. On
13 the morning of July 28, 1993, the four murdered Dilly as he
14 walked out of his home. Id.
15 Betty Peter collected $400,000 on an insurance policy
16 on Dilly's life. Id., 2009 U.S. Dist. LEXIS 23706, at *5. She
17 then loaned at least $60,000 of those proceeds to Mallay.1 Id.,
18 2009 U.S. Dist. LEXIS 23706, at *5.
19 Alfred Gobin
20 In September 1993, Mallay met with James, then an
21 insurance agent with MetLife, and Gulabie Gobin, Mallay's
1 Betty Peter and Baskinand Motillal's trials were severed from James and Mallay's trial. Peter was convicted of charges including obstructing the investigation into the murder of her husband in aid of racketeering, and sentenced principally to 60 months' imprisonment. United States v. James, 322 F. App'x 32, 32-33 (2d Cir. 2009). Peter cooperated with the government subsequent to her conviction, and testified at the trial leading to the convictions appealed here. Id. at 35.
5 1 longtime mistress. Id., 2009 U.S. Dist. LEXIS 23706, at *6.
2 James and Mallay persuaded Gobin to take out two insurance
3 policies on her father, Alfred Gobin, who was murdered in Guyana
4 in January 1996. Id. Gulabie and her family received more than
5 $200,000 from the policies, and lent James and Mallay nearly
6 $60,000. Id.
7 Basdeo Somaipersaud
8 James encouraged a friend of his, Satyanand Arjun, to
9 purchase an insurance policy on the life of Somaipersaud, a heavy
10 drinker who sometimes lived with Arjun. Id., 2009 U.S. Dist.
11 LEXIS 23706, at *6-*7. In October 1994, James obtained a
12 $100,000 policy on Somaipersaud's life, with double indemnity if
13 Somaipersaud died accidentally. It named James's sister as a
14 beneficiary. Id.
15 During the fall of 1997, James offered $10,000 to
16 Kenrick Hassan, a member of James's extended family, to kill
17 Somaipersaud. Id. Although Hassan declined the offer, on
18 January 23, 1998, Somaipersaud was found dead in a park in the
19 Borough of Queens, New York City. The New York City Office of
20 the Chief Medical Examiner ("OCME") determined that Somaipersaud
21 had died of acute alcoholism in combination with a dose of the
22 drug chlorpromazine.2 Id. James contacted Arjun to tell him of
2 Chlorpromazine [brand name: Thorazine] is used to "[t]reat[] mental disorders, severe behavior disorders, severe hiccups, severe nausea and vomiting, and certain types of porphyria. . . ." See PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009582/?report=deta ils (last visited Mar. 22, 2013).
6 1 Somaipersaud's death, which Arjun found surprising because he was
2 not aware of any connection between James and Somaipersaud and
3 because he had not spoken to James since he had purchased the
4 insurance policy. Id. James's girlfriend and Arjun received
5 insurance payments as a result of Somaipersaud's death. Id.
6 Hardeo Sewnanan
7 In October 1996, James arranged for the purchase of two
8 $250,000 life insurance policies for Hardeo Sewnanan, who was
9 Mallay's nephew, with Betty Peter, Mallay's wife, and Mallay's
10 mistress's daughter named as beneficiaries. Id., at *3, 2009
11 U.S. Dist. LEXIS 23706, at *8. William Mallay, who shared an
12 address with the defendant Ronald Mallay, paid the premiums on
13 the policy. Id. In 1999, Ronald Mallay asked Kenrick Hassan to
14 kill Sewnanan, who again declined to do so. This time he put
15 Mallay in touch with Kenrick's brother, Derick Hassan. Id.
16 Mallay traveled to Guyana to meet with Derick, paying him $10,000
17 to kill Sewnanan. But Derick Hasan ultimately decided not to do
18 so. Id. Mallay later told Derick that he had hired others to
19 commit the murder. Id.
20 On January 8, 1999, Sewnanan died in Guyana of what the
21 Guyanese medical examiner determined to be ammonia poisoning.
22 Id.; see also Memorandum & Order, United States v. James, No. 02
23 Cr 0778, 2007 WL 2702449, at *1, 2007 U.S. Dist. LEXIS 67538, at
24 *2 (E.D.N.Y. Sept. 12, 2007) ("James II"). Mallay collected
25 $400,000 on the policy on Sewnanan's life. James I, 2009 WL
26 763612, at *3, 2009 U.S. Dist. LEXIS 23706, at *8.
7 1 Appeals
2 The defendants raise eight separate issues on their
3 appeals: First, whether a new trial is required based on the
4 district court's error under the Sixth Amendment’s Confrontation
5 Clause in admitting forensic reports relating to the deaths of
6 Sewnanan and Somaipersaud -- specifically, the issues are whether
7 one member of the OCME was properly allowed to testify regarding
8 an autopsy conducted by another member of that office in which
9 the witness had not participated, and whether a medical examiner
10 from Guyana was properly allowed to testify to the results of
11 toxicology tests which he had ordered but did not conduct;
12 second, whether the district court erred in excluding the
13 prosecution's statement in the prior criminal trial of Betty
14 Peter, a cooperating witness in the current trial, suggesting
15 greater culpability on her part for Vernon Peter's murder; third,
16 whether the district court abused its discretion in refusing to
17 permit the defendants to impeach Betty Peter's testimony with
18 prior inconsistent statements; fourth, whether James is entitled
19 to a new trial because the district court's refusal to order
20 severance deprived him of a fair trial; fifth, whether the
21 defendants had been deprived of a fair trial because of the
22 district court's refusal to suppress statements elicited from
23 James by a government informant after James's indictment; sixth,
24 whether the district court erred in admitting, against Mallay as
25 a coconspirator, recorded statements of James made
26 surreptitiously by a third party; seventh, whether the district
8 1 court erred in denying a new trial based on allegations by a
2 cooperating witness of prosecutorial misconduct and coercion; and
3 eighth, whether there has been cumulative error sufficient to
4 warrant a new trial.
5 DISCUSSION
6 I. The Confrontation Clause
7 The defendants raise two separate Confrontation Clause
8 issues on their appeals. First, they contend that one member of
9 the OCME could not constitutionally have been permitted to
10 testify as to the results of Somaipersaud's autopsy, which was
11 conducted by another member of that office. Second, they urge
12 that allowing the Guyanese medical examiner who conducted
13 Sewnanan's autopsy to testify to the results of forensic tests
14 conducted by a colleague ran afoul of the Confrontation Clause.
15 The Sixth Amendment provides, among other things, that
16 "[i]n all criminal prosecutions, the accused shall enjoy the
17 right . . . to be confronted with the witnesses against him."
18 U.S. Const. amend. VI. The landscape of Confrontation Clause
19 jurisprudence has changed considerably since the Supreme Court's
20 decision in Crawford v. Washington, 541 U.S. 36 (2004). Even
21 after Crawford, however, this court reaffirmed its settled
22 holding that autopsy reports could be admitted as business
23 records without violating the Confrontation Clause. See United
24 States v. Feliz, 467 F.3d 227, 230 (2d Cir. 2006). Defendants
25 urge us to reconsider this precedent in light of Supreme Court
9 1 decisions since Feliz limning the contours of what constitutes a
2 "testimonial" statement in the context of a laboratory analysis.
3 See Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Melendez-
4 Diaz v. Massachusetts, 557 U.S. 305 (2009). We conclude that
5 even if these cases cast doubt on any categorical designation of
6 certain forensic reports as admissible in all cases, the autopsy
7 reports in this case are nevertheless not testimonial –- and
8 therefore do not implicate the Confrontation Clause –- because
9 they were not created "for the purpose of establishing or proving
10 some fact at trial." Melendez-Diaz, 557 U.S. at 324; see also
11 Bullcoming, 131 S. Ct. at 2719-20 (Sotomayor, J., concurring)
12 ("When the 'primary purpose' of a statement is 'not to create a
13 record for trial,' 'the admissibility of the statement is the
14 concern of state and federal rules of evidence, not the
15 Confrontation Clause.'" (quoting Bryant, 131 S. Ct. at 1155)).
16 A. Confrontation Clause post-Crawford
17 In Crawford, the Court considered whether a tape-
18 recorded statement to police made by the wife of a man being
19 prosecuted for stabbing another man could be entered into
20 evidence against the alleged perpetrator even though he had no
21 opportunity to cross-examine the witness. She could not be
22 compelled to testify against her husband under the state's
23 marital privilege.
24 The Court's analysis relied heavily on the
25 Confrontation Clause's historical background. The Court
26 explained that the Confrontation Clause was designed to protect
10 1 against the "principal evil" of using ex parte statements against
2 the accused. Id. at 50. Thus, the proper Confrontation Clause
3 inquiry should focus not on reliability as contemplated by the
4 law of evidence, but on the “witnesses against the accused - in
5 other words, those who bear testimony.” See id. at 51. The
6 Crawford Court determined that the statement at issue was
7 "testimonial," having been made against an identified suspect
8 while the witness herself was in police custody, and therefore
9 either confrontation, or unavailability and a prior opportunity
10 for cross-examination, was required. Id. at 65-66. But the
11 Court "le[ft] for another day any effort to spell out a
12 comprehensive definition of 'testimonial,'" to which its rule
13 applied. Id. at 68. In any event, "[w]hatever else the term
14 covers, it applies at a minimum to prior testimony at a
15 preliminary hearing, before a grand jury, or at a former trial;
16 and to police interrogations. These are the modern practices
17 with the closest kinship to the abuses at which the Confrontation
18 Clause was directed."3 Id.
3 Elsewhere in Crawford, the Court offered a more complete definition of "testimonial": Various formulations of this core class of "testimonial" statements exist: ex parte in-court testimony or its functional equivalent –- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits,
11 1 In Feliz, we concluded, in light of Crawford, that
2 "autopsy reports are not testimonial . . . and, thus, do not come
3 within the ambit of the Confrontation Clause[.]" Feliz, 467 F.3d
4 at 229. We examined a situation raising issues strikingly
5 similar to those raised here -– one member of the OCME testified
6 as to the findings of another member, and the testifying medical
7 examiner had not participated in the autopsy at issue. Id. We
8 remarked upon the sea change that Crawford brought about, but
9 reasoned that it had "declined to 'spell out a comprehensive
10 definition of 'testimonial.'" Feliz, 467 F.3d at 232 (quoting
11 Crawford, 541 U.S. at 68). Crawford, we explained, "indicated
12 that a statement produced through the 'involvement of government
13 officers' and with an 'eye towards trial' is testimonial because
14 it 'presents a unique potential for prosecutorial abuse –- a fact
15 borne out time and again through a history with which the Framers
16 were keenly familiar.'" Feliz, 467 F.3d at 232 (quoting
17 Crawford, 541 U.S. at 56 n.7) (brackets omitted). We observed
18 that among the classes of statements that Crawford concluded
depositions, prior testimony, or confessions; [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition -- for example, ex parte testimony at a preliminary hearing. Id. at 51-52 (citations and internal quotation marks omitted).
12 1 would be testimonial were those "made under circumstances which
2 would lead an objective witness reasonably to believe that the
3 statement would be available for use at a later trial." Id. at
4 233 (quoting Crawford, 467 F.3d at 52).
5 We concluded that autopsy reports would nonetheless be
6 admissible as business records under Federal Rule of Evidence
7 803(6) because "a business record is fundamentally inconsistent
8 with what the Supreme Court has suggested comprise the defining
9 characteristics of testimonial evidence." Feliz, 467 F.3d at
10 233-34. Because the business records exception "requires
11 business records to be kept in the regular course of a business
12 activity, records created in anticipation of litigation do not
13 fall within its definition." Id. at 234.
14 We rejected the argument that "autopsy reports must be
15 testimonial because a medical examiner preparing such a report
16 must have a reasonable expectation the reports may be available
17 for use in a subsequent trial." Id. Because "the Supreme Court
18 did not opt for an expansive definition [of testimonial] that
19 depended on a declarant's expectations," we said, "we are
20 hesitant to do so here." Id. at 236. We concluded that business
21 records fell outside Crawford's definition of testimonial "even
22 where the declarant is aware that it may be available for later
23 use at trial," Feliz, 467 F.3d at 236, and that autopsy reports
24 were business records within the meaning of Rule 803(6), as
25 thousands of autopsies were conducted every year "without regard
26 to the likelihood of their use at trial." Id. We further
13 1 concluded that autopsy reports would be equally admissible as
2 public, rather than business, records because Rule 803(8)(A)-(B),
3 which defines public records, excludes documents prepared in
4 anticipation of litigation and matters observed by police
5 officers. Id. at 237. "These factors suggest that public
6 records, like business records, 'bear[] little resemblance to the
7 civil-law abuses the Confrontation Clause targeted.'" Id.
8 (quoting Crawford, 541 U.S. at 51).
9 In 2009, however, the Supreme Court cast doubt on our
10 post-Crawford jurisprudence in this area. In Melendez-Diaz v.
11 Massachusetts, 557 U.S. 305 (2009), the Court concluded that
12 "certificates of analysis" identifying a seized substance as an
13 illicit drug should not have been introduced against the
14 defendant absent an opportunity for the defendant to confront the
15 person who prepared the certificate. The Melendez-Diaz Court
16 reached this conclusion in part because the certificates "are
17 quite plainly affidavits: declarations of facts written down and
18 sworn to by the declarant before an officer authorized to
19 administer oaths." Id. at 310 (internal quotation marks
20 omitted). "The 'certificates' are functionally identical to
21 live, in-court testimony, doing 'precisely what a witness does on
22 direct examination.'" Id. at 310-11 (quoting Davis v.
23 Washington, 547 U.S. 813, 830 (2006)). "We can safely assume
24 that the analysts were aware of the affidavits' evidentiary
25 purpose, since that purpose –- as stated in the relevant state-
26 law provision –- was reprinted on the affidavits themselves."
14 1 Id. at 311. The Court once again declined to spell out a
2 comprehensive definition of testimonial.
3 The Melendez-Diaz Court rejected the government's
4 argument that the evidence should be admitted because it was a
5 business record –- the hearsay exception upon which we relied in
6 Feliz –- because that exception had never applied "if the
7 regularly conducted business activity is the production of
8 evidence for use at trial." Id. at 321. The Court concluded:
9 Business and public records are generally 10 admissible absent confrontation, not because 11 they qualify under an exception to the 12 hearsay rules, but because -- having been 13 created for the administration of an entity's 14 affairs and not for the purpose of 15 establishing or proving some fact at trial -- 16 they are not testimonial. Whether or not 17 they qualify as business or official records, 18 the analysts' statements here -- prepared 19 specifically for use at petitioner's trial -- 20 were testimony against petitioner, and the 21 analysts were subject to confrontation under 22 the Sixth Amendment.
23 Id. at 324. 24 25 Justice Kennedy, in dissent, criticized the majority
26 for "disregard[ing] a century of jurisprudence" in favor of
27 "formalistic and wooden rules, divorced from precedent, common
28 sense, and the underlying purpose of the Clause." Id. at 330-31
29 (Kennedy, J., dissenting). In explaining why the analyst reports
30 at issue did not implicate the Confrontation Clause, Justice
31 Kennedy asserted:
32 First, a conventional witness recalls events 33 observed in the past, while an analyst's 34 report contains near-contemporaneous 35 observations of the test. . . . Second, an
15 1 analyst observes neither the crime nor any 2 human action related to it. . . . The 3 analyst's distance from the crime and the 4 defendant, in both space and time, suggests 5 the analyst is not a witness against the 6 defendant in the conventional sense. Third, 7 a conventional witness responds to questions 8 under interrogation. . . . Put differently, 9 out-of-court statements should only "require 10 confrontation if they are produced by, or 11 with the involvement of, adversarial 12 government officials responsible for 13 investigating or prosecuting crime."
14 Id. at 345-46 (quoting Carolyn Zabrycki, Comment, Toward a
15 Definition of "Testimonial": How Autopsy Reports Do Not Embody
16 the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093,
17 1118 (2008)).
18 In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011),
19 the question presented was whether a "certificate of analyst"
20 containing the results of a blood-alcohol test administered
21 pursuant to a DUI arrest required the testimony of the analyst
22 who conducted the gas chromatograph test. Id. at 2710-11. The
23 trial court had admitted the test as a business record, and
24 allowed its introduction through the testimony of "an analyst who
25 did not sign the certification or personally perform or observe
26 the performance of the test reported in the certification." Id.
27 at 2713. The Court rejected the suggestion that the report was
28 nontestimonial:
29 In all material respects, the laboratory 30 report in this case resembles those in 31 Melendez-Diaz. Here, as in Melendez-Diaz, a 32 law-enforcement officer provided seized 33 evidence to a state laboratory required by 34 law to assist in police investigations. Like
16 1 the analysts in Melendez-Diaz, [the analyst] 2 tested the evidence and prepared a 3 certificate concerning the result of his 4 analysis. Like the Melendez-Diaz 5 certificate, [the certificate here] is 6 "formalized" in a signed document. . . . In 7 sum, the formalities attending the "report of 8 blood alcohol analysis" are more than 9 adequate to qualify [the analyst's] 10 assertions as testimonial.
11 Id. at 2717 (citations omitted).
12 Justice Sotomayor concurred, relying largely on a
13 Confrontation Clause opinion she had written earlier in the term
14 in Michigan v. Bryant, 131 S. Ct. 1143 (2011) (concluding that
15 statements made by a dying man to police could be admitted
16 without requiring confrontation). "To determine if a statement
17 is testimonial, we must decide whether it has 'a primary purpose
18 of creating an out-of-court substitute for trial testimony.'
19 When the 'primary purpose' of a statement is 'not to create a
20 record for trial,' 'the admissibility of the statement is the
21 concern of the state and federal rules of evidence, not the
22 Confrontation Clause.'" Bullcoming, 131 S. Ct. at 2720
23 (Sotomayor, J., concurring) (quoting Bryant, 131 S. Ct. at 1155).
24 Noting that Bullcoming was "not a case in which the State
25 suggested an alternate purpose, much less an alternate primary
26 purpose, for the BAC report," such as to provide for medical
27 treatment, Justice Sotomayor concluded that the primary purpose
28 "is clearly to serve as evidence" and its introduction without
29 confrontation was therefore in error. Id. at 2722-23.
17 1 Last term, in Williams v. Illinois, 132 S. Ct. 2221
2 (2012), the Court returned to consideration of the Confrontation
3 Clause, this time to determine whether it was a violation to
4 allow an expert to testify in a rape case that "a DNA profile
5 produced by an outside laboratory, Cellmark, matched a profile
6 produced by the state police lab using a sample of petitioner's
7 blood." Id. at 2227. The defendant argued that the expert "went
8 astray when she referred to the DNA profile provided by Cellmark
9 as having been produced from semen found on the victim's vaginal
10 swabs," even though she did not conduct or observe any of the
11 work that Cellmark had done in deducing a male DNA profile. Id.
12 at 2227, 2230. The Court came to no clear consensus as to what
13 constituted a testimonial statement in this context, however,
14 issuing a plurality opinion, two concurrences, and a dissent.
15 The plurality opinion by Justice Alito, joined by Chief
16 Justice Roberts, Justice Kennedy, and Justice Breyer -- the
17 dissenters in Melendez-Diaz and Bullcoming -- concluded that the
18 testimony did not run afoul of the Confrontation Clause using two
19 separate paths. First, it noted that "[i]t has long been
20 accepted that an expert witness may voice an opinion based on
21 facts concerning the events at issue in a particular case even if
22 the expert lacks first-hand knowledge of those facts." Id. at
23 2233. Under the Illinois and federal rules, "an expert may base
24 an opinion on facts that are 'made known to the expert at or
25 before the hearing,'" even if those facts themselves are
18 1 inadmissible. Id. at 2234 (quoting Ill. R. Evid. 703; Fed. R.
2 Evid. 703).
3 While in a jury trial the expert would be prohibited
4 from disclosing those underlying facts, in a bench trial, such as
5 that in Williams, the judge would be trusted to understand that
6 those facts were not offered for their truth. Id. at 2234-35.
7 The plurality concluded that "it is clear that the putatively
8 offending phrase . . . was not admissible for the purpose of
9 proving the truth of the matter asserted," and "there is no
10 reason to think that the trier of fact took [the testimony] as
11 substantive evidence to establish where the DNA profiles came
12 from." Id. at 2237. Because other evidence also established the
13 origin of the DNA profile, and because the trial judge was
14 presumed not to have considered the evidence for its truth, the
15 plurality concluded that there had been no Confrontation Clause
16 violation. Id. at 2240. The plurality noted that in Bullcoming
17 and Melendez-Diaz, "there is no question" but that the test
18 results were offered for their truth, whereas in Williams, the
19 report was offered "only for the distinctive and limited purpose
20 of seeing whether it matched something else." Id. at 2240
21 (internal quotation marks omitted).
22 The plurality next considered whether, even if the
23 testimony had been offered for its truth, there would have been
24 no Confrontation Clause violation. "The abuses that the Court
25 has identified as prompting the adoption of the Confrontation
26 Clause shared the following two characteristics: (a) they
19 1 involved out-of-court statements having the primary purpose of
2 accusing a targeted individual of engaging in criminal conduct
3 and (b) they involved formalized statements such as affidavits,
4 depositions, prior testimony, or confessions." Id. at 2242. The
5 plurality asserted that "[t]he Cellmark report is very different
6 from the sort of extrajudicial statements, such as affidavits,
7 depositions, prior testimony, and confessions, that the
8 Confrontation Clause was originally understood to reach. The
9 report was produced before any suspect was identified. The
10 report was sought not for the purpose of obtaining evidence to be
11 used against petitioner, who was not even under suspicion at the
12 time, but for the purpose of finding a rapist who was on the
13 loose." Id. at 2228. The plurality concluded that the admission
14 of the report did not run afoul of the Confrontation Clause
15 because these purposes were not of the same type that the clause
16 had been enacted to protect against. Id.
17 In a concurring opinion, Justice Breyer said that he
18 would have set the case for reargument in order to answer the
19 question of what constitutes a "testimonial statement" with
20 regard to "the panoply of crime laboratory reports and underlying
21 technical statements written by (or otherwise made by) laboratory
22 technicians." Id. at 2244-45 (Breyer, J., concurring). He
23 criticized the Court's evolving Confrontation Clause
24 jurisprudence as offering "no logical stopping place between
25 requiring the prosecution to call as a witness one of the
26 laboratory experts who worked on the matter and requiring the
20 1 prosecution to call all of the laboratory experts who did so."
2 Id. at 2246 (emphasis in original).
3 Justice Breyer did not himself offer a comprehensive
4 definition of testimonial, but said he would continue to adhere
5 to the dissenting views in Bullcoming and Melendez-Diaz. "[T]he
6 need for cross-examination is considerably diminished when the
7 out-of-court statement was made by an accredited laboratory
8 employee operating at a remove from the investigation in the
9 ordinary course of professional work." Id. at 2249. Justice
10 Breyer asserted that "to bar admission of the out-of-court
11 records at issue here could undermine, not fortify, the accuracy
12 of factfinding at a criminal trial," because it would potentially
13 bar autopsy reports:
14 Autopsies, like the DNA report in this case, 15 are often conducted when it is not yet clear 16 whether there is a particular suspect or 17 whether the facts found in the autopsy will 18 ultimately prove relevant in a criminal 19 trial. Autopsies are typically conducted 20 soon after death. And when, say, a victim's 21 body has decomposed, repetition of the 22 autopsy may not be possible. What is to 23 happen if the medical examiner dies before 24 trial? Is the Confrontation Clause 25 effectively to function as a statute of 26 limitations for murder?
27 Id. at 2251 (citations and internal quotation marks omitted).
28 Justice Breyer proposed as a solution a rebuttable
29 presumption that DNA reports of the type at issue be admissible,
30 with the defendant able to call the technician if he would choose
31 to do so, or to require confrontation upon a showing of a reason
32 to doubt the laboratory's competence or honesty. Id. at 2251-52.
21 1 Justice Thomas concurred only in the judgment, and,
2 consistent with his prior opinions on the subject, did so because
3 the Cellmark report "lacks the solemnity of an affidavit or
4 deposition, for it is neither a sworn nor a certified declaration
5 of fact. Nowhere does the report attest that its statements
6 accurately reflect the DNA testing processes used or the results
7 obtained." Id. at 2260 (Thomas, J., concurring in the judgment).
8 Further, Justice Thomas explicitly rejected the plurality's
9 requirement that the primary purpose of the statements concern a
10 targeted individual, noting that "[t]here is no textual
11 justification, however, for limiting the confrontation right to
12 statements made after the accused's identity became known." Id.
13 at 2262 (Thomas, J., concurring).
14 In dissent, Justice Kagan, joined by Justices Scalia,
15 Ginsburg, and Sotomayor, characterized Williams as an "open-and-
16 shut case": "The State of Illinois prosecuted Sandy Williams for
17 rape based in part on a DNA profile created in Cellmark's
18 laboratory. Yet the State did not give Williams a chance to
19 question the analyst who produced that evidence." Id. at 2265
20 (Kagan, J., dissenting). Taking note of the fact that the
21 judgment had been affirmed without a majority settling on a
22 "reason why," Justice Kagan averred that "in all except its
23 disposition, [Justice Alito's plurality] opinion is a dissent."
24 Id. Likening the expert's testimony in Williams to the
25 "surrogate testimony" in Bullcoming, Justice Kagan asked, "Have
26 we not already decided this case?" Id. at 2267.
22 1 Justice Kagan's opinion roundly rejected the idea that
2 the expert's testimony had not been offered for its truth, noting
3 recent scholarship and case law suggesting that the entire
4 concept of "basis evidence" is illusory. "[A]dmission of the
5 out-of-court statement in this context has no purpose separate
6 from its truth; the factfinder can do nothing with it except
7 assess its truth and so the credibility of the conclusion it
8 serves to buttress." Id. at 2269 (emphasis in original).
9 Justice Kagan then turned to the plurality's conclusion
10 that the DNA report was nontestimonial, joining Justice Thomas's
11 criticism of the reformulated primary purpose test as having no
12 basis in constitutional text, history, or the Court's prior
13 precedents. "We have previously asked whether a statement was
14 made for the primary purpose of establishing past events
15 potentially relevant to later criminal prosecution –- in other
16 words, for the purpose of providing evidence. None of our cases
17 has ever suggested that, in addition, the statement must be meant
18 to accuse a previously identified individual." Id. at 2273-74.
19 The dissenters also rejected the plurality's suggestion
20 that the purpose of the DNA testing was "to respond to an ongoing
21 emergency, rather than to create evidence for trial," id. at 2274
22 (internal quotation marks omitted), noting that the expert
23 herself had testified that the DNA report was conducted "'for
24 this criminal investigation . . . and for the purpose of the
25 eventual litigation' –- in other words, for the purpose of
23 1 producing evidence, not enabling emergency responders." Id.
2 (citation omitted).
3 Summarizing the current state of Confrontation Clause
4 jurisprudence, Justice Kagan noted that the five Justices who
5 agreed on the judgment "agree on very little," and "have left
6 significant confusion in their wake." Id. at 2277.
7 What comes out of four Justices' desire to 8 limit Melendez-Diaz and Bullcoming in 9 whatever way possible, combined with one 10 Justice's one-justice view of those holdings, 11 is –- to be frank –- who knows what. Those 12 decisions apparently no longer mean all that 13 they say. Yet no one can tell in what way or 14 to what extent they are altered because no 15 proposed limitation commands the support of a 16 majority. 17 Id.
18 B. Controlling Law
19 We are confronted in this case with the puzzle Justice
20 Kagan described: Which of the foregoing principles enunciated by
21 various members of the Supreme Court controls here?
22 We begin by looking to our holding in Feliz -- a case
23 decided on facts very similar to these -- to determine how and to
24 what extent the Supreme Court's intervening decisions have
25 altered the rule we established in that case. There, we
26 concluded that autopsy reports were nontestimonial based in large
27 part on their status as business records. Feliz, 467 F.3d at
28 236. But, as we have explained, Melendez-Diaz and Bullcoming,
29 and to a lesser extent Williams, call this categorical conclusion
30 into doubt.
24 1 In each of these cases, the records were, in some
2 sense, business records –- all were made in the course of the
3 regular business that the laboratory in question conducts:
4 forensic testing. Yet, in Melendez-Diaz and Bullcoming, the
5 Supreme Court concluded that the results of the tests were
6 testimonial because they were completed "for the purpose of
7 establishing or proving some fact at trial," Melendez-Diaz, 557
8 U.S. at 324, or were "affirmations made for the purpose of
9 establishing or proving some fact in a criminal proceeding,"
10 Bullcoming, 131 S. Ct. at 2716 (internal quotation marks
11 omitted).4 As the Melendez-Diaz Court explained, "[b]usiness and
12 public records are generally admissible absent confrontation not
13 because they qualify under an exception to the hearsay rules, but
14 because –- having been created for the administration of an
15 entity's affairs and not for the purpose of establishing or
16 proving some fact at trial –- they are not testimonial." 557
17 U.S. at 324. The reports at issue in that case, having been
18 "prepared specifically for use at . . . trial[,]" were
19 testimonial "[w]hether or not they qualif[ied] as business or
20 official records." Id.
4 No conclusion was reached in Feliz as to whether the autopsy reports were similarly completed for the purpose of establishing a fact at trial, in part because we did not then think that "the reasonable expectation of the declarant should be what distinguishes testimonial from nontestimonial statements," Feliz, 467 F.3d at 235, rendering that factual inquiry unnecessary.
25 1 We distill from this pre-Williams case law the
2 principle that a laboratory analysis is testimonial if the
3 circumstances under which the analysis was prepared, viewed
4 objectively, establish that the primary purpose of a reasonable
5 analyst in the declarant's position would have been to create a
6 record for use at a later criminal trial. See Melendez-Diaz, 557
7 U.S. at 324; Bryant, 131 S. Ct. at 1155-56 (explaining
8 application of the primary purpose standard); see also
9 Bullcoming, 131 S. Ct. at 2720 (Sotomayor, J., concurring) ("To
10 determine if a statement is testimonial, we must decide whether
11 it has 'a primary purpose of creating an out-of-court substitute
12 for trial testimony.' When the 'primary purpose' of a statement
13 is 'not to create a record for trial,' 'the admissibility of the
14 statement is the concern of state and federal rules of evidence,
15 not the Confrontation Clause.'" (quoting Bryant, 131 S. Ct. at
16 1155)).
17 The question then becomes whether the Court's later
18 decision in Williams changed that rule. We agree with Justice
19 Kagan that this problem is intractable. No single rationale
20 disposing of the Williams case enjoys the support of a majority
21 of the Justices. Ordinarily, "[w]hen a fragmented Court decides
22 a case and no single rationale explaining the result enjoys the
23 assent of five Justices, the holding of the Court may be viewed
24 as the position taken by those members who concurred in the
25 judgments on the narrowest grounds." Marks v. United States, 430
26 1 U.S. 188, 193 (1977) (internal quotation marks omitted). But
2 what is the narrowest ground in the disposition in Williams?
3 The Williams plurality's first rationale -- that the
4 laboratory report there was offered as basis evidence, and not
5 for its truth -- was roundly rejected by five Justices.
6 Williams, 132 S. Ct. at 2258-59 (Thomas, J., concurring in the
7 judgment); Id. at 2268-69 (Kagan, J., dissenting). In any event,
8 we are hard-pressed to read this rationale as controlling this
9 case because the facts before us are in significant respects
10 different from those presented in Williams.5
11 Nor do we think we can apply the plurality's narrowed
12 definition of testimonial, which would require that the analyst
13 had "the primary purpose of accusing a targeted individual of
14 engaging in criminal conduct[.]" Id. at 2242. Again, five
15 Justices disagreed with this rationale, and it would appear to
16 conflict directly with Melendez-Diaz, which rejected a related
5 For example, Corinne Ambrosi, the OCME's deputy chief medical examiner for Queens County, testified in order to establish Somaipersaud's cause of death, which was not at all obvious and was clearly relevant to the charges against the defendants. No other testimony established that Somaipersaud died of poisoning. By contrast, in Williams, other admissible evidence established that the sample tested by Cellmark came from the victim's vaginal swab. See Williams, 132 S. Ct. at 2239.
Also, the plurality in Williams relied at least in part on the fact that Williams was a bench trial, noting that the "[t]he dissent's argument would have force if petitioner had elected to have a jury trial." Williams, 132 S. Ct. at 2236. The case before us was tried to a jury, leaving us less confident that the factfinder would understand the conceptual distinction between basis evidence and evidence offered for its truth.
27 1 argument. See Williams, 132 S. Ct. at 2274 (Kagan, J.,
2 dissenting). For similar reasons –- lack of support among the
3 Justices and conflict with prior precedents that did command
4 majority support –- we do not think either Justice Thomas's
5 concurrence on the ground that the analysis was not sufficiently
6 "formalized," or Justice Breyer's new approach to application of
7 the Confrontation Clause, is controlling.
8 Williams does not, as far as we can determine, using
9 the Marks analytic approach, yield a single, useful holding
10 relevant to the case before us. It is therefore for our purposes
11 confined to the particular set of facts presented in that case.
12 We think it sufficient to conclude that we must rely on Supreme
13 Court precedent before Williams to the effect that a statement
14 triggers the protections of the Confrontation Clause when it is
15 made with the primary purpose of creating a record for use at a
16 later criminal trial.7 See Melendez-Diaz, 557 U.S. at 310-11;
17 Bryant, 131 S. Ct. at 1155; see also Bullcoming, 131 S. Ct. at
18 2716; Davis v. Washington, 547 U.S. 813, 822 (2006); Crawford,
19 541 U.S. at 51-52.
7 Although the law is not well developed in the area of testimonial versus nontestimonial statements, a close analogue may be found in cases examining the applicability of the attorney work-product privilege, which applies when documents are created by an attorney "in anticipation of litigation." See, e.g., Matter of Grand Jury Subpoenas Dated Oct. 22, 1991 and Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992).
28 1 C. Testimony Related to Somaipersaud's Death
2 We address first the defendants' argument that allowing
3 surrogate testimony concerning the autopsy report in
4 Somaipersaud's death was error. This purported error was not
5 objected to at trial. We review challenges on appeal that the
6 defendants did not raise at trial for plain error. A finding of
7 "plain error" requires that
8 (1) there is an error; (2) the error is 9 plain, that is, the error is clear or 10 obvious, rather than subject to reasonable 11 dispute; (3) the error affected the 12 appellant's substantial rights, which in the 13 ordinary case means it affected the outcome 14 of the district court proceedings; and (4) 15 the error seriously affects the fairness, 16 integrity or public reputation of judicial 17 proceedings.
18 United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal
19 quotation marks and bracket omitted).
20 1. Testimony at trial. Corinne Ambrosi, the OCME's
21 deputy chief medical examiner for Queens County, testified at
22 trial regarding Somaipersaud's death. She explained that the
23 OCME generally performs autopsies "where people died in
24 unexpected circumstances, unnatural deaths, unexpected deaths.
25 Those come to the attention of the medical examiner." Trial Tr.
26 4655:18-20. Ambrosi had previously testified as an expert
27 witness on cause and manner of death 106 times. She testified
28 that she did not perform or participate in Somaipersaud's
29 autopsy, which was conducted by Dr. Heda Jindrak, who at the time
30 of trial was no longer employed by the OCME. Ambrosi described
29 1 at length the results of toxicology tests ordered by Jindrak,
2 which informed the autopsy report. These tests were performed by
3 technicians at the OCME's main office in Manhattan. Ambrosi
4 explained that the tests showed that Somaipersaud had elevated
5 levels of alcohol as well as chlorpromazine, which is sometimes
6 used as an antipsychotic drug. She offered her own opinion that
7 the level of alcohol revealed by the tests would not alone have
8 been enough to have killed Somaipersaud. She testified that the
9 chlorpromazine levels were, however, significant -- more than she
10 would have expected to see from someone regularly taking the drug
11 as medication for a psychiatric illness. Ambrosi further
12 testified that the level of chlorpromazine detected in the
13 victim's body combined with the level of blood alcohol in the
14 body would have been enough to have killed the victim, and that
15 the combination had indeed been determined to be the cause of
16 Somaipersaud's death.
17 The toxicology report was admitted as an exhibit at
18 trial. It indicated .26 blood alcohol content and 1.9 milligrams
19 per kilogram chlorpromazine levels. Ambrosi explained that the
20 chlorpromazine levels appeared to be acute because the level in
21 the liver was 75.7 milligrams per kilogram, whereas in someone
22 who was prescribed the drug therapeutically it would not normally
23 be more than 10 milligrams per kilogram. Ambrosi further
24 explained that she did not recall ever having seen levels of
25 chlorpromazine in a person that high. She also testified as to
26 Jindrak's autopsy determination that the cause of death was
30 1 "[a]cute intoxication by the ethynel or alcohol and
2 chlorpromazine," and that she agreed with that assessment. Trial
3 Tr. 4678:20-21. "[H]ypertensive and arteriosclerotic
4 cardiovascular disease" were also contributing factors. Trial
5 Tr. 4679:2-3.
6 On cross-examination, Ambrosi confirmed that she had
7 not participated in the autopsy. Her testimony was based on her
8 review of the case file before testifying.
9 2. Analysis. To resolve this case we must determine
10 whether, under the circumstances, the autopsy report (including
11 the toxicology report) was prepared with the primary purpose of
12 creating a record for use at a later criminal trial.8 As we
8 It is worth noting that courts throughout the country have applied various approaches and reached differing conclusions when considering Confrontation Clause challenges to the introduction of autopsy reports. Compare United States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011)(concluding that Chief Medical Examiner's surrogate testimony on autopsy reports prepared by others violated the Confrontation Clause where law enforcement officers observed the autopsies and participated in the creation of the reports -- circumstances that "would have signaled to the medical examiner that the autopsy might bear on a criminal investigation" -- and each autopsy "found the manner of death to be a homicide caused by gunshot wounds") with State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009)("Thus, when the State seeks to introduce [autopsy reports], absent a showing that the analysts are unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them such evidence is inadmissible under Crawford."(quotation marks, citation, and brackets omitted)).
There is also academic debate on the subject. Compare Zabrycki, supra, cited by the Supreme Court in both Melendez-Diaz and Williams, in which the author proposed a definition of testimonial similar to that endorsed by the Williams plurality, proposing that "out-of-court statements are testimonial and thus require confrontation if they are produced by, or with the involvement of, adversarial government officials responsible for
31 1 explained in United States v. Burden, 600 F.3d 204 (2d Cir.
2 2010), the examples of testimonial statements outlined in
3 Crawford, are not "more than a set of guideposts [for] courts
4 [to] work through, case-by-case . . . . [N]o court can say
5 whether a particular kind of statement is testimonial until it
6 has considered that kind of statement in an actual case." Id. at
7 224.
8 Key to determining the resolution of the case before us
9 is the particular relationship between the OCME and law
10 enforcement both generally and in this particular case. While
11 the OCME is an independent agency,9 the police are required to
12 notify it when someone has died "from criminal violence, by
investigating and prosecuting crime," 96 CAL. L. REV. 96 CAL. L. REV. 1118, but arguing that medical examiners are "public health officials," rather than law enforcement officers, and therefore, unless the medical examiner "writes an autopsy report in response to police interrogation," the report is non-testimonial, id. at 1128-29, with Professor Richard Friedman, who argued in a petition for writ of certiorari from a decision of the Supreme Court of Ohio, State v. Craig, 110 Ohio St.3d 306, 853 N.E.2d 621 (2006), cert. denied, 549 U.S. 1255 (2007), that while "[t]here are, of course, situations in which coroners write autopsy reports without anticipation that they will likely be used in forensic proceedings, and for other purposes . . . ," id. at *13- *14, "where, as here, the coroner concludes that the decedent was clearly a victim of homicide, there can be no genuine doubt that a reasonable person in the position of the coroner understands that there will be forensic proceedings and intends that the report will be used in them," id. at *14, and they are therefore testimonial. 9 See People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 453 (2008) (concluding than an autopsy report was not testimonial, in part because the OCME is "by law, independent of and not subject to the control of the office of the prosecutor" and "not a law enforcement agency" (internal quotation marks omitted)); People v. Hall, 84 A.D.3d 79, 83, 923 N.Y.S.2d 428, 431 (1st Dep't 2011).
32 1 accident, by suicide, suddenly when in apparent health, when
2 unattended by a physician, in a correctional facility or in any
3 suspicious or unusual manner or where an application is made
4 pursuant to law for a permit to cremate a body of a person."
5 N.Y.C. Charter § 557(a),(f)(1); see also N.Y.C. Admin Code § 17-
6 202. The OCME is required to "take charge of the dead body" in
7 such instances, and must "fully investigate the essential facts
8 concerning the circumstances of the death" and interview
9 witnesses and collect evidence that "may be useful in
10 establishing the cause of death." N.Y.C. Admin. Code § 17-
11 202(a).
12 It is the OCME that determines whether to conduct an
13 autopsy based on whether "it may be concluded with reasonable
14 certainty that death occurred from natural causes or obvious
15 traumatic injury[.]" N.Y.C. Admin Code § 17-203. Whenever an
16 autopsy is deemed necessary, it "shall include toxicologic,
17 histologic, microbiologic and serologic examinations," the
18 results of which must be written down and filed with the OCME,
19 regardless of whether any further investigation results. Id.
20 "Such medical examiner, medical investigator or lay medical
21 investigator shall take possession of any portable objects which,
22 in his or her opinion, may be useful in establishing the cause of
23 death, and except as provided in subdivision c hereof [relating
33 1 to suicide notes], shall deliver them to the police
2 department."10 Id. § 202(a).
3 Because the defendants failed to object to the
4 introduction of Ambrosi's testimony during trial, there is scant
5 record of the circumstances under which Jindrak produced her
6 autopsy report. In its written ruling on the defendants'
7 objections to the testimony of Dr. Vivikand Brijmohan -- whose
8 testimony on the cause of death of another victim, Sewnanan, is
10 We similarly explained in United States v. Rosa, 11 F.3d 315 (2d Cir. 1993), that the Medical Examiner's Office is required simply to investigate unnatural deaths; it refers a death bearing any indicium of criminality to the appropriate district attorney and has no responsibility for enforcing any laws. The chief medical examiner and his assistants are required to be physicians and pathologists; there is no requirement in the Charter that they be attorneys or that any employees of the office have any law enforcement training. Even when a matter is referred to the district attorney because of an indication of criminality, the Charter does not give the medical examiner any responsibility for collecting evidence or determining the identity of the perpetrator. Further, though law enforcement activities are typically accusatory and adversarial in nature, a medical examiner's reported observations as to a body's condition are normally made as part of an independent effort to determine a cause of death. Indeed, "a medical examiner, although often called a forensic expert, bears more similarity to a treating physician than he does to one who is merely rendering an opinion for use in the trial of a case." Id. at 332 (2d Cir. 1993)(citation omitted) (quoting Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) (internal quotation marks omitted)).
34 1 discussed below -- the district court noted that "Jindrak
2 conducted an internal and external examination as well as a
3 toxicology analysis," and that Ambrosi described these steps as
4 "routine." James II, 2007 WL 2702449, at *2 n.1. The defendants
5 do not argue in either of their briefs, or in the supplemental
6 letter briefs submitted in response to the request by this Court
7 after Williams, that Somaipersaud's autopsy was anything other
8 than routine –- there is no suggestion that Jindrak or anyone
9 else involved in this autopsy process suspected that Somaipersaud
10 had been murdered and that the medical examiner's report would be
11 used at a criminal trial. Ambrosi testified that causes of death
12 are often undetermined in cases like this because it could have
13 been a recreational drug overdose or a suicide. The autopsy
14 report itself refers to the cause of death as "undetermined" and
15 attributes it both to "acute mixed intoxication with alcohol and
16 chlorpromazine" combined with "hypertensive and arteriosclerotic
17 cardiovascular disease."
18 The autopsy was completed on January 24, 1998, and the
19 report was signed June 16, 1998, substantially before any
20 criminal investigation into Somaipersaud's death had begun.
21 During the course of Ambrosi's lengthy trial testimony, neither
22 the government nor defense counsel elicited any information
23 suggesting that law enforcement was ever notified that
24 Somaipersaud's death was suspicious, or that any medical examiner
25 expected a criminal investigation to result from it. Indeed,
35 1 there is reason to believe that none is pursued in the case of
2 most autopsies.11
3 In short, the autopsy report was not testimonial
4 because it was not prepared primarily to create a record for use
5 at a criminal trial.12 There was therefore no error, much less
6 plain error, in admitting the autopsy report into evidence, or
7 allowing Ambrosi to testify regarding it, although she did not
8 conduct it herself.
9 D. Testimony Related to Sewnanan's Death
10 In contrast to Ambrosi's testimony relating to
11 Somaipersaud's death, the defendants vigorously objected to Dr.
12 Vivikand Brijmohan's testimony as to a toxicology test relating
11 The OCME performs an average of 5,500 autopsies each year, and in 2010, for example, 533 New York City residents' causes of death were listed as homicides. See OCME, General Information Booklet, http://www.nyc.gov/html/ocme/downloads/pdf/ General%20Information/OCME%20General%20Information%20Booklet.pdf (last visited Mar. 22, 2013); Deaths and Death Rates by Selected Causes New York City - 2010, http://www.health.ny.gov/statistics/ vital_statistics/2010/table33c.htm (last visited Mar. 22, 2013). This suggests, although the data is of course insufficient to demonstrate conclusively, that something in the order of ten percent of deaths investigated by the OCME lead to criminal investigations. The statistics from Los Angeles tell a similar story: "In 2004, the Los Angeles Medical Examiner's office conducted 4,180 complete autopsies out of 9,465 cases taken by the office. Of the 9,465 total cases, 1,121 died from homicide, 709 from suicide, 3,090 from accidents, and 4,256 from natural causes." Zabrycki, 96 Cal. L. Rev. at 1125. 12 No contrary conclusion is warranted by United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012). Although that case holds that "[f]orensic reports constitute testimonial evidence," id. at 1230, the decision was based in part on the fact that the Florida Medical Examiner's Office "was created and exists within the Department of Law Enforcement," id. at 1231. Here, the OCME is a wholly independent office.
36 1 to the death of Hardeo Sewnanan, which was based on forensic
2 testing conducted by Dr. Leslie Mootoo. When analyzing error
3 that the defendants did raise at trial, we review for
4 harmlessness, which requires us to ask whether we are satisfied
5 "upon a review of the entire record . . . beyond a reasonable
6 doubt that the error complained of . . . did not contribute to
7 the verdict obtained." United States v. Lee, 549 F.3d 84, 90 (2d
8 Cir. 2008) (internal quotation marks omitted). "In other words,
9 to find the [error] harmless we must be able to conclude that the
10 evidence would have been unimportant in relation to everything
11 else the jury considered on the issue in question, as revealed in
12 the record." Id. (internal quotation marks and citations
13 omitted). We consider "(1) the overall strength of the
14 prosecution's case; (2) the prosecutor's conduct with respect to
15 the improperly admitted evidence; (3) the importance of the
16 wrongly admitted testimony; (4) whether such evidence was
17 cumulative of other properly admitted evidence." Id. (internal
18 quotation marks omitted).
19 1. Testimony at trial. Brijmohan testified regarding
20 Sewnanan's cause of death, in part based on toxicology tests
21 conducted by Mootoo, who had died between his performance of the
22 test and the time of trial. Brijmohan was the chief forensic
23 pathologist for the region of Guyana where Sewnanan's death
24 occurred. Brijmohan testified that he would normally be informed
25 of the need for an autopsy by a coroner affiliated with the
26 police department. Typically, autopsies in Guyana are performed
37 1 when there are "unnatural deaths," i.e., "accidents, murders,
2 strangulations, drowning, . . . and of course including cases of
3 poisoning." Trial Tr. 3266:12-17. Brijmohan explained that in
4 conducting Sewnanan's internal examination, he discovered
5 "extensive submucosal hemorrhages," which "is not definitely a
6 normal finding. Whenever such a finding occurs, one immediately
7 thinks of extraneous ingestion and one thinks definitely of
8 poisoning." Trial Tr. 3265:13-14, 22-24.
9 Brijmohan then sent the post-mortem contents of
10 Sewnanan's stomach for toxicology testing. He testified that the
11 contents were taken by a police officer to the Guyanese police
12 laboratory, the stamp of which appeared on the resultant
13 toxicology report. Brijmohan further testified that he did not
14 know who actually performed the toxicology test. While Dr.
15 Mootoo may have played some role in the testing, Brijmohan was
16 apparently not sure whether Mootoo had conducted the testing
17 himself.
18 Brijmohan testified, based on "the scientific evidence
19 of my examination and the toxicology report, that the cause of
20 death of Hardeo Sewnanan was the consequence of the ingestion of
21 a toxic substance with ammoniacal compound." Trial Tr. 3299:7-
22 10. Brijmohan said it was probably hydrocyanic acid, or
23 potassium and sodium cyanide, in which case there would have been
24 no symptoms prior to death. Brijmohan further testified that the
25 toxicology report indicated death resulted from ammonia poisoning
38 1 and, over continued objections, explained that the toxicology
2 report on Sewnanan's stomach indicated ammonia poisoning.13
3 On cross-examination, Brijmohan was questioned
4 extensively as to whether the ammonia found in Sewnanan's body
5 could have been naturally occurring, inasmuch as ammonia often
6 occurs naturally in the human body after death. Brijmohan
7 testified that his knowledge that it was commercially produced
8 was based on the laboratory report. His conclusion that Sewnanan
9 died of commercially-produced ammonia "was based essentially on
10 my observation of the stomach, with the hemorrhages, the
11 laboratory reports that was brought to my attention." Trial Tr.
12 3382:23-25.
13 2. The district court's decision. The district court
14 rejected the defendants' argument that allowing introduction of
15 the toxicology report into evidence would violate the
16 Confrontation Clause. See Mem. & Order, United States v. James,
17 2007 WL 2792449, at *1, 2007 U.S. Dist. LEXIS 39585, at *3-*4
18 (E.D.N.Y. May 31, 2007). The district court relied on Feliz in
19 allowing introduction of the report, but its decision preceded
20 the Supreme Court decisions in Bullcoming, Melendez-Diaz, and
21 Williams.
13 Over repeated objections, Brijmohan testified that test results from two bottles sent to the police lab, one of which tested positive for ammonia, informed his analysis. The record does not conclusively reveal whether the contents of the bottles derived from the victim's body – though that appears the logical inference.
39 1 The district court did base its decision, however, in
2 large part on its conclusion that the toxicology report was not a
3 "'chemist's' report created by 'law enforcement.'" Id. at *2.
4 While acknowledging that the defendants had described the "close
5 proximity" between the medical examiner's office and the Guyanese
6 police station, and the cooperation between those two agencies,
7 the court concluded that "the critical inquiry is not the
8 physical proximity of two agencies, or their level of
9 cooperation, but rather whether the agency that created the
10 report can be characterized by its duties and purposes as law
11 enforcement." Id. The district court cited Rosa's dictum to the
12 effect that the OCME is not a law enforcement agency, and then,
13 noting that the Guyanese medical examiner operates as part of the
14 Guyanese Ministry of Health and Georgetown Hospital, observed
15 that "[t]here is no indication that Dr. Mootoo was employed by a
16 law enforcement agency or was responsible for enforcing any
17 laws. . . . [I]t appears that the Guyanese Office of Forensic
18 Medicine, for which Drs. Brijmohan and Mootoo worked, is directly
19 analogous to the [OCME]." Id.
20 The court therefore concluded that the forensic records
21 did not fall under the "law enforcement" exception to the
22 business records rule that permits admission of the documentary
23 evidence despite the absence of the document's preparer. Id.
24 Furthermore, the court noted that a toxicology report is "not
25 separate and distinct" from the autopsy report, which bolstered
26 its admissibility as a business record. Id.
40 1 3. Analysis. First, in light of the foregoing
2 analysis, it is apparent to us that the district court's
3 rationale for allowing the forensic report into evidence is of
4 questionable validity because of the doubt subsequent Supreme
5 Court jurisprudence has cast on Feliz, on which the district
6 court relied. Nevertheless, we think the district court's
7 conclusion sound.
8 There is no indication in Brijmohan's testimony or
9 elsewhere in the record that a criminal investigation was
10 contemplated during the inquiry into the cause of Sewnanan's
11 death.14 For example, Brijmohan testified that "the rate of
12 poisons taken is pretty high . . . within the East Indian
13 community," Trial Tr. 3253:15-17, suggesting accidental ingestion
14 or suicide rather than homicide.15 During the course of the
15 autopsy, Brijmohan observed symptoms consistent with poisoning,
16 including congestion in the lungs and hemorrhaging in the
17 stomach, and ordered toxicology tests on that basis. Brijmohan
14 We note, as did the district court, that the police were unquestionably involved in the Guyanese autopsy process, including, for example, transporting forensic samples for testing. As five Justices in Williams made clear, however, the involvement of "adversarial officials" in an investigation is not dispositive as to whether or not a statement is testimonial. In this case, it appears that was simply the routine procedure employed by the Guyanese medical examiner in investigating all unnatural deaths, and does not indicate that a criminal investigation was contemplated. 15 Brijmohan was interviewed by a publication called "Hinduism Today" regarding the high rate of suicides, particularly among East Indian males, in Guyana, which he attributed to "cultural problem[s]" and alcoholism. Trial Tr. 3375:15-3377:12.
41 1 further noted that there were other potential "natural" causes of
2 the types of symptoms that led him to suspect poisoning in
3 general -- not murder in particular -- including alcoholism. In
4 short, we see nothing to indicate that the toxicology report was
5 completed primarily to generate evidence for use at a subsequent
6 criminal trial. We conclude that the toxicology report was
7 nontestimonial, and the district court therefore did not err in
8 allowing its introduction without requiring confrontation of the
9 individual who prepared it.
10 As Justice Breyer pointed out in Williams, it is still
11 unsettled under the Court's recent Confrontation Clause
12 jurisprudence whether there is a "logical stopping place between
13 requiring the prosecution to call as a witness one of the
14 laboratory experts who worked on the matter and requiring the
15 prosecution to call all of the laboratory experts who did so."
16 Williams, 132 S. Ct. at 2246 (Breyer, J. concurring). While
17 Brijmohan's testimony implicates that question -- he suggested
18 that someone other than Mootoo may also have participated in the
19 preparation of the toxicology report -- we find it unnecessary to
20 answer it in light of our conclusions as to the nature of the
21 report. To the extent that question implicates the evidentiary
22 rules regarding "basis evidence," we also decline to decide
23 whether the toxicology test was properly offered as such here,
24 where the testifying expert had personal involvement in the
25 autopsy process, and he himself ordered the toxicology tests at
26 issue.
42 1 II. Exclusion of the Government's Prior Jury Argument
2 The defendants contend that the district court abused
3 its discretion in denying their request to introduce an excerpt
4 of the prosecutor's rebuttal summation in the trial of Betty
5 Peter, a cooperating witness, which largely blamed her, and not
6 the defendants in the instant case, for Vernon Peter's murder.
7 "The defense is allowed to introduce a prosecutor's statement
8 from a prior trial when: (1) the prosecution offered an
9 inconsistent assertion of fact at the prior trial; and (2) the
10 prosecution can offer no 'innocent' explanation for the
11 contradiction." United States v. Orena, 32 F.3d 704, 716 (2d
12 Cir. 1994)(citations omitted); see also Fed. R. Evid. 801(d)(2);
13 United States v. McKeon, 738 F.2d 26, 32-33 (2d Cir. 1984).
14 In McKeon, upon which the defendants principally rely,
15 the court's reasoning was based in large part upon the fact that
16 it was the same defendant on trial in a subsequent proceeding.
17 McKeon, 738 F.2d at 31 (noting the relationship to admissions of
18 a party-opponent in civil proceedings). In any event, McKeon
19 requires that, in order to admit such evidence, the district
20 court must "determine by a preponderance of the evidence that the
21 inference the [party] seeks to draw from the inconsistency is a
22 fair one and that an innocent explanation for the inconsistency
23 does not exist. Where the evidence is in equipoise or the
24 preponderance favors an innocent explanation, the . . . statement
25 should be excluded." Id. at 33. Here, the government explained
43 1 that the change in its view towards Peter resulted from a series
2 of proffer sessions after her conviction on various charges
3 including mail fraud, money laundering, and obstruction of
4 justice. The information gleaned from these sessions and
5 corroborated by other witnesses led the government to a different
6 view as to her culpability for Vernon Peter's murder.
7 We conclude that the district court did not commit
8 clear error in deciding by a preponderance of the evidence that
9 there was an "innocent explanation" for the inconsistency between
10 the government's stated position at the trial of Peter and that
11 in the instant case. The district court therefore did not abuse
12 its discretion in excluding the prior statement. See, e.g.,
13 United States v. GAF Corp., 928 F.2d 1253, 1261 n.3 (2d Cir.
14 1991) (affirming exclusion of a prior bill of particulars where
15 the "the inconsistency is plain, the inferences are clear, and
16 the government itself has offered an explanation -- that it no
17 longer believes that the evidence demonstrates" what it had
18 previously).
19 Finally, the defendants' argument that a post-trial
20 letter from a cooperating witness implicating Betty Peter in her
21 husband's murder somehow affects the propriety of the district
22 court's ruling is misplaced. The letter was not before the
23 district court at the time it made the ruling. It therefore does
24 not suggest either that the district court's factual finding as
25 to the government's explanation was clearly erroneous, or that it
44 1 abused its discretion in excluding the prosecution's rebuttal
2 statement.
3 III. Limitation on Cross-Examination
4 The defendants argue that the district court abused its
5 discretion in curtailing their impeachment of Betty Peter with
6 prior inconsistent statements concerning (1) a conversation she
7 had with a member of Sewnanan's family16 and (2) her
8 understanding of the term "double indemnity." In particular,
9 Peter testified at trial that she had not spoken to Patricia
10 Sewnanan after Hardeo's death, and that she did not know the
11 meaning of the term "double indemnity."
12 We review for abuse of discretion a district court's
13 decision to preclude evidence offered to impeach a witness. See
14 United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010). A
15 district court "is 'accorded broad discretion in controlling the
16 scope and extent of cross-examination.'" United States v.
17 Caracappa, 614 F.3d 30, 42 (2d Cir. 2010) (quoting United States
18 v. Wilkerson, 361 F.3d 717, 734 (2d Cir.), cert. denied, 543 U.S.
19 908 (2004)); accord, e.g., United States v. Whitten, 610 F.3d
20 168, 182 (2d Cir. 2010). Therefore, a "district court may impose
21 'reasonable limits' on cross-examination to protect against,
22 e.g., harassment, prejudice, confusion, and waste." United
23 States v. Cedeno, 644 F.3d 79, 82 (2d Cir. 2011) (quoting
24 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). "In the
16 Precisely what her relationship to Hardeo Sewnanan was is not reflected in the record.
45 1 exercise of discretion, a district court should consider the need
2 to 'ascertain [the] truth,' 'avoid needless consumption of time,'
3 and 'protect witnesses from harassment or undue embarrassment.'"
4 Whitten, 610 F.3d at 182-83 (quoting Fed. R. Evid. 611(a)).
5 A district court should afford "wide latitude to a
6 defendant in a criminal case to cross-examine government
7 witnesses," Cedeno, 644 F.3d at 82 (internal quotation marks
8 omitted), because the Confrontation Clause gives a defendant the
9 right not only to cross-examination, but to effective cross-
10 examination, see United States v. Figueroa, 548 F.3d 222, 227 (2d
11 Cir. 2008). But "[i]t does not follow, of course, that the
12 Confrontation Clause prevents a trial judge from imposing any
13 limits on defense counsel's inquiry [in cross-examining] a
14 prosecution witness." Figueroa, 548 F.3d at 227 (quoting Van
15 Arsdall, 475 U.S. at 679) (emphasis added).
16 The defense sought to introduce evidence that the
17 Sewnanan family bribed the medical examiner to change Hardeo
18 Sewnanan's cause of death to poisoning, rather than disease, so
19 that they could collect on the insurance policy's double
20 indemnity clause. The district court excluded evidence
21 supporting this theory, however, which the defendants do not
22 challenge. Peter's denial that she spoke with Patricia Sewnanan,
23 a member of Sewnanan's family, was therefore irrelevant, because
24 the subject of her discussion was not to be introduced in any
25 event. Moreover, because the subject of Peter's discussion with
26 Sewnanan's family member would not have been in front of the
46 1 jury, her inconsistency on this collateral matter (whether or not
2 she spoke with the family member) was unlikely to influence the
3 jury's assessment of her credibility, because they were already
4 aware that she was a convicted felon who had begun cooperating
5 with the government.
6 For similar reasons, impeachment of Peter concerning
7 her understanding of the term "double indemnity" would have had
8 little probative value. In any event, the cross-examination did
9 indeed elicit testimony from Peter in which she explained that
10 she received $400,000 on her husband's $200,000 life insurance
11 policy because "when anybody died accidentally or something, they
12 pay double." Eliciting from Peter that she had been inconsistent
13 in recognizing the term "double indemnity," when it was clear she
14 understood the concept, would therefore also not have affected
15 the jury's assessment of her credibility.
16 IV. Motion to Sever
17 Defendant James contends that the district court's
18 denial of his motions for severance of his trial from that of his
19 co-defendant Mallay deprived him of a fair trial. "[T]he court
20 may . . . sever the defendants' trials . . . [if] consolidation
21 for trial appears to prejudice a defendant." Fed. R. Crim. P.
22 14(a). "Considerations of efficiency and consistency militate in
23 favor of trying jointly defendants who were indicted together,
24 [and] [j]oint trials are often particularly appropriate in
25 circumstances where the defendants are charged with participating
47 1 in the same criminal conspiracy . . . ." United States v.
2 Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted).
3 "The decision to sever a joint trial of federal defendants is
4 committed to the sound discretion of the trial judge[, and is
5 c]onsidered virtually unreviewable." United States v. Diaz, 176
6 F.3d 52, 102 (2d Cir. 1999) (internal quotation marks and
7 citations omitted). "[T]o compel reversal, the defendant has the
8 heavy burden to show prejudice so severe that his conviction
9 constituted a miscarriage of justice." United States v.
10 Ferguson, 676 F.3d 260, 286-87 (2d Cir. 2011) (internal quotation
11 marks omitted).
12 James argues that jointly trying him with Mallay, who
13 was also charged with two murders with which James was not
14 charged –- those of Vernon Peter and Alfred Gobin –- caused him
15 prejudice. That evidence, however, was relevant to the
16 racketeering charges against James to prove the formation,
17 existence, and nature of the racketeering enterprise, which
18 involved the murder of individuals to collect on their insurance
19 policies, as well as to show the pattern of racketeering
20 activity. See Diaz, 176 F.3d at 103; United States v. Stewart,
21 590 F.3d 93, 123-24 (2d Cir. 2009) ("[T]he fact that testimony
22 against a codefendant may be harmful is not a ground for
23 severance if that testimony would also be admissible against the
24 moving defendant tried separately." (internal quotation marks
25 omitted)).
48 1 James's argument that there was an irreconcilable
2 conflict between him and Mallay based on Mallay's initial
3 opposition to the introduction of evidence regarding a plot to
4 bribe the Guyanese medical examiner is also without merit.
5 Mallay later joined James in seeking to introduce that evidence.
6 And in any case, "[t]o obtain a severance on the ground of
7 antagonistic defenses, a defendant must show that the conflict is
8 so irreconcilable that acceptance of one defendant's defense
9 requires that the testimony offered on behalf of a codefendant be
10 disbelieved." United States v. Benitez, 920 F.2d 1080, 1085-86
11 (2d Cir. 1990) (internal quotation marks and citation omitted).
12 That is not the case here.
13 V. Refusal to Suppress Recorded Statements
14 The defendants object to the denial of a motion to
15 suppress statements made by James to Derick Hassan, a government
16 informant wearing a recording device, concerning a plot to murder
17 John Narinesingh. The defendants argue that because James was
18 already subject to a sealed indictment at the time those
19 statements were recorded, doing so violated his Sixth Amendment
20 right to counsel.
21 The defendants waived this argument by failing to
22 object to the magistrate judge's recommendation that the motion
23 to suppress be denied, which was adopted by the district court.
24 United States v. James, 415 F. Supp. 2d 132, 137 (E.D.N.Y. 2006).
25 See also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,
49 1 Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.
2 2010) ("[A] party waives appellate review of a decision in a
3 magistrate judge's Report and Recommendation if the party fails
4 to file timely objections designating the particular issue.").
5 Even so, as Magistrate Judge Pollack explained at
6 length, the Sixth Amendment right is "offense specific," and the
7 statements James made to the informant were not used to support
8 the charge for which he had been indicted at the time he made
9 those statements -- that charge was subsequently dropped. James,
10 415 F. Supp. 2d at 158-61. Therefore, the Sixth Amendment did
11 not bar their introduction into evidence.
12 VI. Admission of Recorded Statements against Mallay
13 Defendant Mallay contends that the conversation between
14 James and Hassan, recorded by Hassan -- also referred to in the
15 previous section -- should not have been admitted against him
16 because that conversation indicates Mallay's withdrawal from the
17 conspiracy, and thus is not admissible as a co-conspirator
18 statement. "A statement . . . is not hearsay if . . . [t]he
19 statement is offered against an opposing party and . . . was made
20 by the party’s coconspirator during and in furtherance of the
21 conspiracy." Fed. R. Evid. 801(d)(2)(E). "To admit an out-of-
22 court declaration under this rule, the district court must find
23 by a preponderance of the evidence '(a) that there was a
24 conspiracy, (b) that its members included the declarant and the
25 party against whom the statement is offered, and (c) that the
50 1 statement was made during the course of and in furtherance of the
2 conspiracy.'" United States v. Farhane, 634 F.3d 127, 161 (2d
3 Cir. 2011) (quoting United States v. Al-Moayad, 545 F.3d 139, 173
4 (2d Cir. 2008)). These three factual predicates must be
5 determined by the district court by "a preponderance of the
6 evidence." In re Terrorist Bombings of U.S. Embassies in E.
7 Africa, 552 F.3d 93, 137 (2d Cir. 2008) (citing Fed. R. Evid.
8 104(a)). We review the district court's findings as to each for
9 clear error. See id.
10 First, the conspiracy must be proven by a preponderance
11 of the evidence to involve both the declarant and the defendant.
12 The district court "may properly find the existence of a criminal
13 conspiracy where the evidence is sufficient to establish, by a
14 preponderance of the evidence, that 'the . . . alleged
15 coconspirators entered into a joint enterprise with consciousness
16 of its general nature and extent.'" In re Terrorist Bombings,
17 552 F.3d at 137-38. Although Rule 801(d)(2)(E) "'requires that
18 both the declarant and the party against whom the statement is
19 offered be members of the conspiracy, there is no requirement
20 that the person to whom the statement is made also be a member.'"
21 Id. at 139 (quoting United States v. Beech-Nut Nutrition Corp.,
22 871 F.2d 1181, 1199 (2d Cir. 1989).
23 Second, to be admissible, the statement must be made
24 "in furtherance of the conspiracy." In general, "'the statements
25 must in some way have been designed to promote or facilitate
26 achievement of the goals of the ongoing conspiracy[.]'" United
51 1 States v. Diaz, 176 F.3d at 85 (quoting United States v. Tracy,
2 12 F.3d 1186, 1196 (2d Cir. 1993)). The ways in which a
3 statement might "promote or facilitate" the conspiracy include,
4 among others, "seeking to induce a coconspirator's assistance,"
5 id.; "informing coconspirators as to the progress or status of
6 the conspiracy," id.; and prompting a non-coconspirator to
7 respond in some way that "promotes or facilitates the carrying
8 out of a criminal activity," Tracy, 12 F.3d at 1196. See
9 generally, e.g., In re Terrorist Bombings, 552 F.3d at 139; Diaz,
10 176 F.3d at 85; United States v. Gigante, 166 F.3d 75, 82 (2d
11 Cir. 1999). "Because what constitutes a statement that is in
12 furtherance of a conspiracy is essentially a question of fact, we
13 will reverse a decision to admit co-conspirator statements only
14 if it is clearly erroneous." In re Terrorist Bombings, 552 F.3d
15 at 139 (internal quotation marks omitted).
16 Mallay contends that at the time of James's and
17 Hassan's conversation regarding the possible murder of
18 Narinesingh he was no longer part of the conspiracy. As proof,
19 James notes the indication on the tape recorded statement that he
20 is no longer talking to Mallay, and that the two have had a
21 falling out. That members of a conspiracy have had a
22 disagreement or a falling out is not, however, sufficient to
23 establish withdrawal from the conspiracy. See, e.g., United
24 States v. Jackson, 335 F.3d 170, 182 (2d Cir. 2003) ("To withdraw
25 from a conspiracy, a person must take some affirmative action
26 either by making a clean breast to the authorities or
52 1 communicating the abandonment in a manner reasonably calculated
2 to reach co-conspirators." (internal quotation marks and
3 citations omitted)); United States v. Spero, 331 F.3d 57, 60 (2d
4 Cir. 2003) ("[A conspiracy] is presumed to exist until there has
5 been an affirmative showing that it has been terminated," and its
6 members "continue to be conspirators until there has been an
7 affirmative showing that they have withdrawn." (internal
8 quotation marks omitted)). "An internal dispute among members of
9 a conspiracy can itself be compelling evidence that the
10 conspiracy is ongoing and that the rivals are members of it."
11 United States v. Amato, 15 F.3d 230, 234 (2d Cir. 1994). Hassan
12 testified that the reason Mallay and James were not talking to
13 one another at the time was not that Mallay had withdrawn from
14 the conspiracy, but rather that Mallay had just undergone heart
15 surgery, a fact stipulated to by the parties. Shortly before his
16 surgery, Mallay procured insurance policies on two persons for
17 more than $2 million, indicating that he continued to participate
18 in the conspiracy at the time of the recorded conversation
19 between Hassan and James. We therefore find no error in the
20 admission of this recording against Mallay.
21 VII. Denial of New Trial Motion
22 The defendants argue that a post-trial letter from
23 Camuldeen Allie, a cooperating witness, alleging prosecutorial
24 misconduct required a new trial, or at least an evidentiary
53 1 hearing, and that the district court erred in not granting their
2 requests for either.
3 We review the denial of a Rule 33 motion for a new
4 trial for abuse of discretion. See United States v. McCourty,
5 562 F.3d 458, 475 (2d Cir. 2009). Federal Rule of Criminal
6 Procedure 33(a) provides that "[u]pon the defendant's motion, the
7 court may vacate any judgment and grant a new trial if the
8 interest of justice so requires." In deciding a Rule 33 motion,
9 "[t]he test is whether it would be a manifest injustice to let
10 the guilty verdict stand." United States v. Lin Guang, 511 F.3d
11 110, 119 (2d Cir. 2007) (internal quotation marks omitted). "For
12 a trial judge to grant a Rule 33 motion, he must harbor a real
13 concern that an innocent person may have been convicted." Id.
14 (internal quotation marks omitted). To merit relief based on a
15 claim of newly discovered evidence, the burden is on the
16 defendant to satisfy five elements: (1) that the evidence is
17 "newly discovered after trial"; (2) that "facts are alleged from
18 which the court can infer due diligence on the part of the movant
19 to obtain the evidence"; (3) that "the evidence is material"; (4)
20 that the evidence "is not merely cumulative or impeaching"; and
21 (5) that "the evidence would likely result in an acquittal."
22 United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007) (internal
23 citations omitted).
24 The district court concluded that the allegations
25 contained in Allie's letter –- that an Assistant United States
26 Attorney had coerced him into testifying –- were "a fabrication."
54 1 James I, 2009 WL 763612, at *7, 2009 U.S. Dist. LEXIS 23706, at
2 *21. The court found that the AUSA Allie accused of coercing him
3 had not yet joined the U.S. Attorney's Office at the time when
4 Allie alleges he was coerced, that Allie had testified that no
5 members of the prosecution team in this case were present during
6 the negotiations that led to his cooperation, and that Allie was
7 represented by counsel when he decided to cooperate. Id., 2009
8 U.S. Dist. LEXIS 23706, at *20-*21. Furthermore, in his letter,
9 Allie does not ever disclaim his testimony, or suggest it was
10 anything but truthful. Id. at *8, 2009 U.S. Dist. LEXIS 23706,
11 at *21. Finally, the defendants knew that Allie had a motive to
12 cooperate with the government because it was elicited on cross-
13 examination that the government might let the state parole board
14 know of his cooperation. Id., 2009 U.S. Dist. LEXIS 23706, at
15 *21-*22.
16 While it may be that the contents of the letter provide
17 a reason to doubt Allie's credibility, "a new trial is not
18 required when the suppressed impeachment evidence merely
19 furnishes an additional basis on which to impeach a witness whose
20 credibility has already been shown to be questionable." United
21 States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) (internal
22 quotation marks omitted). In any event, there is no "reasonable
23 probability" that the outcome of the defendants' trial would have
24 been different had the contents of Allie's letter been disclosed,
25 even if believed. See In re Terrorist Bombings of U.S. Embassies
26 in E. Africa, 552 F.3d at 146.
55 1 VIII. Cumulative Error
2 Finally, having concluded that there has been no error
3 in the defendants' trial, it follows that we must reject their
4 claim of cumulative error. "[That] doctrine finds no foothold in
5 th[ese] appeal[s]." United States v. Fell, 531 F.3d 197, 233 (2d
6 Cir. 2008) (internal quotation marks omitted).
7 CONCLUSION
8 For the foregoing reasons, we affirm the judgments of
9 the district court.
56
Case # 09-2732-cr (L) United States v. James
EATON, Judge, concurring:
Because of the unsettled state of the law, I agree that the admission into evidence of the
autopsy report prepared by Dr. Jindrak did not constitute plain error. United States v. Gamez,
577 F.3d 394, 400 (2d Cir. 2009) (“Typically, we will not find plain error ‘where the operative
legal question is unsettled.’”) (citations omitted). I respectfully part company with the majority,
however, on its conclusion that the autopsy report was “not testimonial” for purposes of the
Confrontation Clause.
The majority reads recent Supreme Court cases as holding that “a statement triggers the
protections of the Confrontation Clause when it is made with the primary purpose of creating a
record for use at a later criminal trial.” This formulation, however, appears to place too much
emphasis on future use in a criminal trial being the primary purpose for the creation of a
testimonial statement. I would not find that this “primary purpose” is the common thread in the
Supreme Court’s jurisprudence.1 Rather, I would find that a testimonial statement is one having
1 The Supreme Court’s use of the “criminal trial” language, while not entirely consistent, tends toward the same idea. Compare Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (quoting Davis’ “’potentially relevant to a later criminal prosecution’” language in the context of a blood-alcohol test requested by the prosecutor), Michigan v. Bryant, 131 S. Ct. 1143, 1148 (2011) (employing Davis’ “’potentially relevant to a later criminal prosecution’” language in the context of a police interrogation), and Davis v. Washington, 547 U.S. 813, 822 (2006) (articulating the “potentially relevant to a later criminal prosecution” language in the context of a 911 call), with Melendez–Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (quoting Crawford’s “‘available for use at a later trial’” language in the context of a laboratory report requested by the police), and Crawford v. Washington, 541 U.S. 36, 51–52 (2004) (listing “available for use at a later trial” among the “[v]arious formulations” of the “core class” of testimonial statements).
1
an evidentiary purpose, declared in a solemn manner, and made under circumstances that would
lead a reasonable declarant to understand that it would be available for use prosecutorially.
The point of departure for this analysis is Crawford. As I read that case and those that
follow it, there are three key considerations for determining if a statement is testimonial. First,
“[t]estimony” is “a solemn declaration or affirmation made for the purpose of establishing or
proving some fact.”2 Crawford v. Washington, 541 U.S. 36, 51 (2004) (citation and internal
quotation marks omitted). Thus, at the time of its making, the statement must have an
“evidentiary purpose.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011); Melendez–
Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). In other words, to be testimonial the
declarant must make the statement to “prove past events.” Davis v. Washington, 547 U.S. 813,
822 (2006). Statements relating ongoing events made to achieve some other purpose, such as
receiving medical or police assistance, and forward-looking statements, such as those made in
furtherance of a conspiracy or to elicit inculpatory statements from others, lack the required
purpose. Michigan v. Bryant, 131 S. Ct. 1143, 1157 (2011) (statement made by a mortally
wounded victim in need of medical attention did not have an evidentiary purpose); Davis, 547
2 Interestingly, not only did “several early American authorities flatly reject[] any special status for coroner statements,” the historical precursors of modern medical examiners’ reports, one of the cases cited in Crawford also stands for the proposition that evidence produced by coroners’ investigations requires confrontation, even though the purpose of those investigations was not a purely prosecutorial one. Crawford, 541 U.S. at 47 n.2 (citing State v. Campbell, 30 S.C.L. 124, 130 (S.C. App. L. 1844) (“The general object, at least, of our Act, would seem to be, to record the whole of the information obtained upon any inquest concerning the sudden or violent death of a man, for the purpose of a prosecution, for satisfaction, or any investigation of the public, or of individuals concerned. So much is due to the living and the dead. Sudden and unnatural deaths shock us all. . . . And let me here observe, that the information and publication of the kind of death, the wound, time and manner, place and circumstances, may often lead to unlooked for charges against unsuspected persons, and even of men abroad. And shall they all be assumed . . . [not to require] cross-examination? Because our Act is general for all inquests, the examination public, and of high respectability? On the contrary, is there not too much of mere formula, if not fiction, in such a notion?”).
2
U.S. at 822 (statements about ongoing events during a 911 call did not have an evidentiary
purpose); United States v. Farhane, 634 F.3d 127, 131–32, 162–63 (2d Cir. 2011) (statements
promising future aid in a conspiracy did not have an evidentiary purpose); United States v.
Burden, 600 F.3d 204, 225 (2d Cir. 2010) (recorded statements of a cooperating witness made to
induce a confession did not have an evidentiary purpose); cf. United States v. Logan, 419 F.3d
172, 178 (2d. Cir. 2005) (finding alibi statements made to police were testimonial).
Second, the statement must have been made in a way that is sufficiently solemn so as to
make it more like “‘a formal statement to government officers’” rather than “‘a casual remark
[made] to an acquaintance.’” Bryant, 131 S. Ct. at 1153 (quoting Crawford, 541 U.S. at 51);
Davis, 547 U.S. at 822 (quoting Crawford, 541 U.S. at 51). This does not mean that the
statement must be contained in a formal written document, but merely that the circumstances
surrounding its utterance must be such that a reasonable declarant would be aware of the serious
nature of his or her declaration. Davis, 547 U.S. at 826 (citing Crawford, 541 U.S. at 51).
Finally, the statement must reasonably be understood as being “available for use at a later
trial.” Melendez–Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 52). That is, the
speaker need not expect that the statement will be used in a criminal trial, or even that it is
objectively likely that the statement will be used in a criminal trial, only that it is foreseeable that
the statement could be used prosecutorially. Bryant, 131 S. Ct. at 1169 (Scalia, J. dissenting)
(“[H]e must make the statement with the understanding that it may be used to invoke the
coercive machinery of the State.”); see also Melendez–Diaz, 129 S. Ct. at 2532 (“[T]he affidavits
[were] ‘made under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’” (quoting Crawford, 541 U.S. at
52)).
3
Applying this formulation, it is evident that the admission of Dr. Jindrak’s report
triggered the Confrontation Clause. First, the autopsy report was, inarguably, created to establish
facts regarding the death of Mr. Somaipersaud. The report and its incorporated laboratory
analyses contain five final diagnoses, two statements of cause of death, detailed descriptions of
various portions of Mr. Somaipersaud’s body, and calculated levels of toxins, all of which are
factual statements.
Second, the report is sufficiently solemn. All reports generated by the New York City
Office of Chief Medical Examiner (“OCME”) are required to “be signed by the medical
examiner performing the autopsy.” N.Y.C. Admin. Code § 17-203 (1998). These reports are
made by government officials for use by government officials. See United States v. Feliz, 467
F.3d 227, 2337 (2d Cir. 2006) (observing that OCME reports would qualify for the public
records hearsay exception, which requires that the statement be made by a public officer or
agency). Indeed, even if OCME did not have a long history of cooperation with law
enforcement, all autopsy reports would remain statements made directly to law enforcement
insofar as they are statutorily required to be available to law enforcement officers and
prosecutors. N.Y.C. Admin. Code § 17-205 (1998) (“The appropriate district attorney and the
police commissioner of the city may require from [OCME] such further records, and such daily
information, as they may deem necessary.”) Moreover, like the reports in Bullcoming and
Melendez–Diaz, Dr. Jindrak’s report contains a certification.
Third, it could have reasonably been anticipated that the autopsy report would be
available for use in a criminal trial. Medical examiners working for OCME are statutorily
obligated to make conclusions as to causes of death, to record the reasons for those conclusions,
and to preserve those records for future use. N.Y.C. Admin. Code § 17-203 (“A detailed
4
description of [those] findings . . . shall be written or dictated. . . . The findings of the
investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and
microbiologic examinations, and the conclusions drawn therefrom shall be filed in the office of
chief medical examiner.”).
Even if it could not have been reasonably foreseen at the outset of the autopsy that the
report’s results would be used in a later trial, it seems clear that, at some point during her
examination, Dr. Jindrak would reasonably have anticipated that it could be used later in a
criminal prosecution. That is, once she certified that the primary cause of death was “acute
mixed intoxication with alcohol and chlorpromazine,” i.e., that Mr. Somaipersaud had been
poisoned, a reasonable medical examiner would have anticipated that the autopsy report could be
used prosecutorially. See Bryant, 131 S. Ct. at 1159 (observing that non-testimonial statements
may “evolve into testimonial statements” as more information is provided (quoting Davis, 547
U.S. at 828 (internal quotation marks omitted))).
When a statement such as Dr. Jindrak’s autopsy report is introduced against a defendant
at a criminal trial, that evidence is “functionally identical to live, in-court testimony, because [it
does] ‘precisely what a witness does on direct examination,’” rendering its declarant a “witness”
and triggering the protections of the Confrontation Clause. Melendez–Diaz, 129 S. Ct. at 2532
(quoting Davis, 547 U.S. at 830); see also Bullcoming, 131 S. Ct. at 2712; Crawford, 541 U.S. at
51.
James was both charged with and convicted of murder and conspiracy to commit murder.
The prosecution’s theory was that Mr. Somaipersaud had been poisoned. The prosecution
offered the autopsy report to establish the very same facts, prejudicial to Mr. James, about which
Dr. Jindrak would have been expected to testify at trial. Indeed, on direct examination, Dr.
5
Ambrosi was asked both to identify Dr. Jindrak’s conclusions as to cause of death and to state
whether she agreed with those conclusions.
Moreover, I believe that the admission of any medical examiner’s report prepared by
OCME would trigger the protections of the Confrontation Clause.3 Dr. Jindrak’s report was not
unique in the sense that the characteristics that made it testimonial are present in all autopsy
reports prepared by OCME that are introduced against a defendant at a criminal trial. All such
reports are made to establish facts about the cause of death of the decedent; they are made by and
to government officials in a formalized recording; they contain statements a medical examiner
could reasonably foresee would be used in a criminal prosecution; and if a prosecutor seeks to
introduce a report for its truth, it would substitute for live testimony adverse to the defendant.
As noted, I believe that the majority’s approach goes astray by suggesting that to trigger
the Confrontation Clause the “primary purpose” of an autopsy report must be use “at a later
criminal trial.” This formulation postulates the existence of a medical examiner who gives
adverse testimony but who is not a “witness” for Confrontation Clause purposes because he or
she did not prepare the autopsy report primarily for use in criminal proceedings. In doing so, the
opinion creates the very “third category of witnesses, helpful to the prosecution, but somehow
immune from confrontation” that Melendez–Diaz expressly says does not exist. Melendez–Diaz,
129 S. Ct. at 2534.
3 At least two other federal circuits and a number of state courts of last resort have reached a similar conclusion regarding particular reports prepared by the equivalent of OCME in their jurisdictions. See, e.g., United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012); United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011); State v. Navarette, 294 P.3d 435 (N.M. 2013); State v. Kennedy, 735 S.E.2d 905 (W. Va. 2012); Conners v. State, 92 So.3d 676 (Miss. 2012) (noting a pre-Crawford decision that held admission of an autopsy report required confrontation); State v. Locklear, 681 S.E.2d 293 (N.C. 2009); see also People v. Lewis, 806 N.W.2d 295 (Mich. 2011) (vacating lower court’s holding that an autopsy report was non- testimonial but holding the error harmless without significant discussion); Wood v. State, 299 S.W.3d 200 (Tex. Ct. App. 2009), review denied, 2010 Tex.Crim.App. LEXIS 115 (2010). 6
Finally, as the Eleventh Circuit points out, “[m]edical examiners are not mere scriveners”
and “autopsy reports are the product of the skill, methodology, and judgment of the highly
trained examiners who actually performed the autopsy.” United States v. Ignasiak, 667 F.3d
1217, 1232 (11th Cir. 2012) (holding autopsy reports to be testimonial and requiring
confrontation) (citing Bullcoming, 131 S. Ct. at 2714). Both Bullcoming and Melendez–Diaz
hold that a laboratory analyst’s report of sufficient solemnity triggers the protections of the
Confrontation Clause. It would be incongruous indeed, if an autopsy report requiring numerous
skilled judgments on the part of a medical examiner, did not require the same confrontation.
7 | 03-28-2013 | [
"09-2732-cr (L) United States v. James and Mallay 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: October 3, 2011; Final submission: July 16, 2012;* 5 Decided: March 28, 2013) 6 Docket Nos. 09-2732-cr (Lead), 09-2804-cr (Con) 7 ------------------------------------- 8 United States, 9 Appellee, 10 - v - 11 Richard James and Ronald Mallay, 12 Defendants-Appellants. 13 ------------------------------------- 14 Before: SACK and RAGGI, Circuit Judges, and EATON, Judge. ** 15 Appeal from judgments of the United States District 16 Court for the Eastern District of New York (Sterling Johnson, 17 Judge) convicting defendants on various counts of an indictment 18 including murder, mail fraud, and murder in aid of racketeering, 19 and imposing mandatory life sentences. We find no error in the 20 admission of an autopsy report and a toxicology report without 21 the presence of the individuals who prepared those reports * The Court's consideration of this appeal was suspended pending the Supreme Court's decision in Williams v. Illinois, 132 S. Ct. 2221 (2012), and the parties' subsequent supplemental briefing directed to the significance, if any, of that decision here. ** Judge Richard K. Eaton of the United States Court of International Trade, sitting by designation. 1 inasmuch as they were not testimonial statements because they 2 were not made with the primary purpose of creating a record for 3 use at a criminal trial, and therefore did not require that the 4 defendants have the opportunity to confront the authors of the 5 reports.",
"We further conclude that: there was no error in the 6 district court's decision to exclude the prosecutor's rebuttal 7 statement in a prior, related trial; the district court did not 8 abuse its discretion in disallowing as impeachment evidence 9 statements made by a cooperating witness outside of the jury's 10 presence; the district court's denial of defendant Richard 11 James's severance motion did not warrant vacatur of the verdict; 12 there was no Sixth Amendment violation in the admission of 13 surreptitious recordings made by a government informant; it was 14 proper to admit that recording as a co-conspirator statement 15 against defendant Mallay; there was no error in denying a motion 16 for a new trial based upon post-trial allegations of 17 prosecutorial misconduct; and there was no cumulative error 18 warranting reversal.",
"19 Affirmed. Judge Eaton concurs in a separate opinion. 20 JAMES G. McGOVERN, Susan Corkery, Robert 21 L. Capers, for Loretta E. Lynch, United 22 States Attorney for the Eastern District 23 of New York, Brooklyn, New York, for 24 Appellee. 25 STEVE ZISSOU, Esq., Bayside, New York, 26 for Defendant-Appellant Richard James. 27 MICHAEL K. BACHRACH, Esq., New York, New 28 York, for Defendant-Appellant Ronald 29 Mallay. 2 1 SACK, Circuit Judge: 2 Richard James and Ronald Mallay appeal from judgments 3 of conviction based on their participation in a wide-ranging 4 conspiracy that involved fraudulently obtained life insurance 5 policies for members of their extended families and others in the 6 Guyanese and Guyanese-American community, and, in several 7 instances, murder of the insured in order to collect on those 8 policies. 9 BACKGROUND 10 After a jury trial in the United States District Court 11 for the Eastern District of New York (Sterling Johnson, Judge), 12 James and Mallay were each sentenced to mandatory terms of life 13 in prison after they were convicted of racketeering, in violation 14 of 18 U.S.C.",
"§ 1962(c); racketeering conspiracy, in violation of 15 18 U.S.C. § 1962(d); murder in aid of racketeering, in violation 16 of 18 U.S.C. § 1959(a)(1); conspiracy to commit murder in aid of 17 racketeering, in violation of 18 U.S.C. § 1959(a)(5); mail fraud, 18 in violation of 18 U.S.C. § 1341; conspiracy to commit mail 19 fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit 20 money laundering, in violation of 18 U.S.C. § 1956(h). In 21 addition, Mallay was convicted of murder for hire and conspiracy 22 to commit murder for hire, in violation of 18 U.S.C. § 1958. 23 James was also convicted of attempted murder for hire, in 24 violation of 18 U.S.C. § 1958, and solicitation of murder in aid 25 of racketeering, in violation of 18 U.S.C. §§ 373 and 1959(a)(1). 3 1 These charges revolved around the murders of four people: Vernon 2 Peter, Alfred Gobin, Hardeo Sewnanan, and Basdeo Somaipersaud.",
"3 While Mallay was charged in relation to all four murders, James 4 was charged in connection with only the murders of Sewnanan and 5 Somaipersaud. Mallay was convicted on every count with which he 6 had been charged; James was convicted on all counts with which he 7 had been charged, with the exception of those alleging conspiracy 8 and murder for hire in connection with the deaths of Sewnanan and 9 Somaipersaud. The defendants were eligible for the death 10 penalty, but because the jury was unable to reach a unanimous 11 verdict as to that punishment, a sentence of life imprisonment 12 was imposed. 13 On appeal, the defendants do not contest the 14 sufficiency of the evidence of insurance fraud.",
"The issues on 15 these appeals relate largely to the convictions of the defendants 16 for committing four murders that were allegedly part of this 17 scheme, and particularly the murders of Sewnanan and 18 Somaipersaud, both of whom were poisoned to death. Accordingly, 19 we review only that evidence necessary to explain our decision to 20 affirm all counts of conviction. 21 Vernon Peter 22 In 1991, Mallay was convicted of theft from the postal 23 service, for which he worked as a postal carrier, and sentenced 24 to 15 months' imprisonment. See Memorandum & Order, United 25 States v. James, No. 02 Cr 0778, 2009 WL 763612, at *1, 2009 U.S. 26 Dist. LEXIS 23706, at *3 (E.D.N.Y.",
"Mar. 18, 2009) (\"James I\"). 4 1 While Mallay was incarcerated, his mother died of a heart attack. 2 Id. Mallay blamed his arrest and conviction on his sister's 3 husband, Vernon Peter, known as \"Dilly.\" Id. He told his 4 sister, Betty Peter, to keep Dilly's life insurance current 5 because he planned to get even. Id., 2009 U.S. Dist. LEXIS 6 23706, at *4. In 1993, after Mallay was released from prison, he 7 asked his nephew Baskinand Motillal if he would kill Dilly for 8 Mallay. Id. at *2, 2009 U.S. Dist. LEXIS 23706, at *4. Motillal 9 declined but introduced Mallay to another person, to whom Mallay 10 paid $10,000 to commit the crime. He also gave that person $500 11 with which to purchase a weapon. Id. That person in turn 12 recruited three others to help him carry out the murder. Id. On 13 the morning of July 28, 1993, the four murdered Dilly as he 14 walked out of his home. Id.",
"15 Betty Peter collected $400,000 on an insurance policy 16 on Dilly's life. Id., 2009 U.S. Dist. LEXIS 23706, at *5. She 17 then loaned at least $60,000 of those proceeds to Mallay.1 Id., 18 2009 U.S. Dist. LEXIS 23706, at *5. 19 Alfred Gobin 20 In September 1993, Mallay met with James, then an 21 insurance agent with MetLife, and Gulabie Gobin, Mallay's 1 Betty Peter and Baskinand Motillal's trials were severed from James and Mallay's trial. Peter was convicted of charges including obstructing the investigation into the murder of her husband in aid of racketeering, and sentenced principally to 60 months' imprisonment. United States v. James, 322 F. App'x 32, 32-33 (2d Cir. 2009). Peter cooperated with the government subsequent to her conviction, and testified at the trial leading to the convictions appealed here. Id.",
"at 35. 5 1 longtime mistress. Id., 2009 U.S. Dist. LEXIS 23706, at *6. 2 James and Mallay persuaded Gobin to take out two insurance 3 policies on her father, Alfred Gobin, who was murdered in Guyana 4 in January 1996. Id. Gulabie and her family received more than 5 $200,000 from the policies, and lent James and Mallay nearly 6 $60,000. Id. 7 Basdeo Somaipersaud 8 James encouraged a friend of his, Satyanand Arjun, to 9 purchase an insurance policy on the life of Somaipersaud, a heavy 10 drinker who sometimes lived with Arjun. Id., 2009 U.S. Dist. 11 LEXIS 23706, at *6-*7. In October 1994, James obtained a 12 $100,000 policy on Somaipersaud's life, with double indemnity if 13 Somaipersaud died accidentally.",
"It named James's sister as a 14 beneficiary. Id. 15 During the fall of 1997, James offered $10,000 to 16 Kenrick Hassan, a member of James's extended family, to kill 17 Somaipersaud. Id. Although Hassan declined the offer, on 18 January 23, 1998, Somaipersaud was found dead in a park in the 19 Borough of Queens, New York City. The New York City Office of 20 the Chief Medical Examiner (\"OCME\") determined that Somaipersaud 21 had died of acute alcoholism in combination with a dose of the 22 drug chlorpromazine.2 Id. James contacted Arjun to tell him of 2 Chlorpromazine [brand name: Thorazine] is used to \"[t]reat[] mental disorders, severe behavior disorders, severe hiccups, severe nausea and vomiting, and certain types of porphyria.",
". . .\" See PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009582/?report=deta ils (last visited Mar. 22, 2013). 6 1 Somaipersaud's death, which Arjun found surprising because he was 2 not aware of any connection between James and Somaipersaud and 3 because he had not spoken to James since he had purchased the 4 insurance policy. Id. James's girlfriend and Arjun received 5 insurance payments as a result of Somaipersaud's death. Id. 6 Hardeo Sewnanan 7 In October 1996, James arranged for the purchase of two 8 $250,000 life insurance policies for Hardeo Sewnanan, who was 9 Mallay's nephew, with Betty Peter, Mallay's wife, and Mallay's 10 mistress's daughter named as beneficiaries. Id., at *3, 2009 11 U.S. Dist. LEXIS 23706, at *8.",
"William Mallay, who shared an 12 address with the defendant Ronald Mallay, paid the premiums on 13 the policy. Id. In 1999, Ronald Mallay asked Kenrick Hassan to 14 kill Sewnanan, who again declined to do so. This time he put 15 Mallay in touch with Kenrick's brother, Derick Hassan. Id. 16 Mallay traveled to Guyana to meet with Derick, paying him $10,000 17 to kill Sewnanan. But Derick Hasan ultimately decided not to do 18 so. Id. Mallay later told Derick that he had hired others to 19 commit the murder. Id. 20 On January 8, 1999, Sewnanan died in Guyana of what the 21 Guyanese medical examiner determined to be ammonia poisoning. 22 Id. ; see also Memorandum & Order, United States v. James, No.",
"02 23 Cr 0778, 2007 WL 2702449, at *1, 2007 U.S. Dist. LEXIS 67538, at 24 *2 (E.D.N.Y. Sept. 12, 2007) (\"James II\"). Mallay collected 25 $400,000 on the policy on Sewnanan's life. James I, 2009 WL 26 763612, at *3, 2009 U.S. Dist. LEXIS 23706, at *8. 7 1 Appeals 2 The defendants raise eight separate issues on their 3 appeals: First, whether a new trial is required based on the 4 district court's error under the Sixth Amendment’s Confrontation 5 Clause in admitting forensic reports relating to the deaths of 6 Sewnanan and Somaipersaud -- specifically, the issues are whether 7 one member of the OCME was properly allowed to testify regarding 8 an autopsy conducted by another member of that office in which 9 the witness had not participated, and whether a medical examiner 10 from Guyana was properly allowed to testify to the results of 11 toxicology tests which he had ordered but did not conduct; 12 second, whether the district court erred in excluding the 13 prosecution's statement in the prior criminal trial of Betty 14 Peter, a cooperating witness in the current trial, suggesting 15 greater culpability on her part for Vernon Peter's murder; third, 16 whether the district court abused its discretion in refusing to 17 permit the defendants to impeach Betty Peter's testimony with 18 prior inconsistent statements; fourth, whether James is entitled 19 to a new trial because the district court's refusal to order 20 severance deprived him of a fair trial; fifth, whether the 21 defendants had been deprived of a fair trial because of the 22 district court's refusal to suppress statements elicited from 23 James by a government informant after James's indictment; sixth, 24 whether the district court erred in admitting, against Mallay as 25 a coconspirator, recorded statements of James made 26 surreptitiously by a third party; seventh, whether the district 8 1 court erred in denying a new trial based on allegations by a 2 cooperating witness of prosecutorial misconduct and coercion; and 3 eighth, whether there has been cumulative error sufficient to 4 warrant a new trial.",
"5 DISCUSSION 6 I. The Confrontation Clause 7 The defendants raise two separate Confrontation Clause 8 issues on their appeals. First, they contend that one member of 9 the OCME could not constitutionally have been permitted to 10 testify as to the results of Somaipersaud's autopsy, which was 11 conducted by another member of that office. Second, they urge 12 that allowing the Guyanese medical examiner who conducted 13 Sewnanan's autopsy to testify to the results of forensic tests 14 conducted by a colleague ran afoul of the Confrontation Clause.",
"15 The Sixth Amendment provides, among other things, that 16 \"[i]n all criminal prosecutions, the accused shall enjoy the 17 right . . . to be confronted with the witnesses against him.\" 18 U.S. Const. amend. VI. The landscape of Confrontation Clause 19 jurisprudence has changed considerably since the Supreme Court's 20 decision in Crawford v. Washington, 541 U.S. 36 (2004). Even 21 after Crawford, however, this court reaffirmed its settled 22 holding that autopsy reports could be admitted as business 23 records without violating the Confrontation Clause. See United 24 States v. Feliz, 467 F.3d 227, 230 (2d Cir. 2006). Defendants 25 urge us to reconsider this precedent in light of Supreme Court 9 1 decisions since Feliz limning the contours of what constitutes a 2 \"testimonial\" statement in the context of a laboratory analysis. 3 See Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Melendez- 4 Diaz v. Massachusetts, 557 U.S. 305 (2009).",
"We conclude that 5 even if these cases cast doubt on any categorical designation of 6 certain forensic reports as admissible in all cases, the autopsy 7 reports in this case are nevertheless not testimonial –- and 8 therefore do not implicate the Confrontation Clause –- because 9 they were not created \"for the purpose of establishing or proving 10 some fact at trial.\" Melendez-Diaz, 557 U.S. at 324; see also 11 Bullcoming, 131 S. Ct. at 2719-20 (Sotomayor, J., concurring) 12 (\"When the 'primary purpose' of a statement is 'not to create a 13 record for trial,' 'the admissibility of the statement is the 14 concern of state and federal rules of evidence, not the 15 Confrontation Clause.'\" (quoting Bryant, 131 S. Ct. at 1155)). 16 A. Confrontation Clause post-Crawford 17 In Crawford, the Court considered whether a tape- 18 recorded statement to police made by the wife of a man being 19 prosecuted for stabbing another man could be entered into 20 evidence against the alleged perpetrator even though he had no 21 opportunity to cross-examine the witness.",
"She could not be 22 compelled to testify against her husband under the state's 23 marital privilege. 24 The Court's analysis relied heavily on the 25 Confrontation Clause's historical background. The Court 26 explained that the Confrontation Clause was designed to protect 10 1 against the \"principal evil\" of using ex parte statements against 2 the accused. Id. at 50. Thus, the proper Confrontation Clause 3 inquiry should focus not on reliability as contemplated by the 4 law of evidence, but on the “witnesses against the accused - in 5 other words, those who bear testimony.” See id. at 51. The 6 Crawford Court determined that the statement at issue was 7 \"testimonial,\" having been made against an identified suspect 8 while the witness herself was in police custody, and therefore 9 either confrontation, or unavailability and a prior opportunity 10 for cross-examination, was required.",
"Id. at 65-66. But the 11 Court \"le[ft] for another day any effort to spell out a 12 comprehensive definition of 'testimonial,'\" to which its rule 13 applied. Id. at 68. In any event, \"[w]hatever else the term 14 covers, it applies at a minimum to prior testimony at a 15 preliminary hearing, before a grand jury, or at a former trial; 16 and to police interrogations. These are the modern practices 17 with the closest kinship to the abuses at which the Confrontation 18 Clause was directed. \"3 Id.",
"3 Elsewhere in Crawford, the Court offered a more complete definition of \"testimonial\": Various formulations of this core class of \"testimonial\" statements exist: ex parte in-court testimony or its functional equivalent –- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, 11 1 In Feliz, we concluded, in light of Crawford, that 2 \"autopsy reports are not testimonial . . . and, thus, do not come 3 within the ambit of the Confrontation Clause[.]\"",
"Feliz, 467 F.3d 4 at 229. We examined a situation raising issues strikingly 5 similar to those raised here -– one member of the OCME testified 6 as to the findings of another member, and the testifying medical 7 examiner had not participated in the autopsy at issue. Id. We 8 remarked upon the sea change that Crawford brought about, but 9 reasoned that it had \"declined to 'spell out a comprehensive 10 definition of 'testimonial.'\" Feliz, 467 F.3d at 232 (quoting 11 Crawford, 541 U.S. at 68). Crawford, we explained, \"indicated 12 that a statement produced through the 'involvement of government 13 officers' and with an 'eye towards trial' is testimonial because 14 it 'presents a unique potential for prosecutorial abuse –- a fact 15 borne out time and again through a history with which the Framers 16 were keenly familiar.'\" Feliz, 467 F.3d at 232 (quoting 17 Crawford, 541 U.S. at 56 n.7) (brackets omitted).",
"We observed 18 that among the classes of statements that Crawford concluded depositions, prior testimony, or confessions; [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition -- for example, ex parte testimony at a preliminary hearing. Id. at 51-52 (citations and internal quotation marks omitted). 12 1 would be testimonial were those \"made under circumstances which 2 would lead an objective witness reasonably to believe that the 3 statement would be available for use at a later trial.\" Id. at 4 233 (quoting Crawford, 467 F.3d at 52). 5 We concluded that autopsy reports would nonetheless be 6 admissible as business records under Federal Rule of Evidence 7 803(6) because \"a business record is fundamentally inconsistent 8 with what the Supreme Court has suggested comprise the defining 9 characteristics of testimonial evidence.\"",
"Feliz, 467 F.3d at 10 233-34. Because the business records exception \"requires 11 business records to be kept in the regular course of a business 12 activity, records created in anticipation of litigation do not 13 fall within its definition.\" Id. at 234. 14 We rejected the argument that \"autopsy reports must be 15 testimonial because a medical examiner preparing such a report 16 must have a reasonable expectation the reports may be available 17 for use in a subsequent trial.\"",
"Id. Because \"the Supreme Court 18 did not opt for an expansive definition [of testimonial] that 19 depended on a declarant's expectations,\" we said, \"we are 20 hesitant to do so here.\" Id. at 236. We concluded that business 21 records fell outside Crawford's definition of testimonial \"even 22 where the declarant is aware that it may be available for later 23 use at trial,\" Feliz, 467 F.3d at 236, and that autopsy reports 24 were business records within the meaning of Rule 803(6), as 25 thousands of autopsies were conducted every year \"without regard 26 to the likelihood of their use at trial.\" Id.",
"We further 13 1 concluded that autopsy reports would be equally admissible as 2 public, rather than business, records because Rule 803(8)(A)-(B), 3 which defines public records, excludes documents prepared in 4 anticipation of litigation and matters observed by police 5 officers. Id. at 237. \"These factors suggest that public 6 records, like business records, 'bear[] little resemblance to the 7 civil-law abuses the Confrontation Clause targeted.'\" Id. 8 (quoting Crawford, 541 U.S. at 51). 9 In 2009, however, the Supreme Court cast doubt on our 10 post-Crawford jurisprudence in this area. In Melendez-Diaz v. 11 Massachusetts, 557 U.S. 305 (2009), the Court concluded that 12 \"certificates of analysis\" identifying a seized substance as an 13 illicit drug should not have been introduced against the 14 defendant absent an opportunity for the defendant to confront the 15 person who prepared the certificate.",
"The Melendez-Diaz Court 16 reached this conclusion in part because the certificates \"are 17 quite plainly affidavits: declarations of facts written down and 18 sworn to by the declarant before an officer authorized to 19 administer oaths.\" Id. at 310 (internal quotation marks 20 omitted). \"The 'certificates' are functionally identical to 21 live, in-court testimony, doing 'precisely what a witness does on 22 direct examination.'\" Id. at 310-11 (quoting Davis v. 23 Washington, 547 U.S. 813, 830 (2006)). \"We can safely assume 24 that the analysts were aware of the affidavits' evidentiary 25 purpose, since that purpose –- as stated in the relevant state- 26 law provision –- was reprinted on the affidavits themselves.\" 14 1 Id.",
"at 311. The Court once again declined to spell out a 2 comprehensive definition of testimonial. 3 The Melendez-Diaz Court rejected the government's 4 argument that the evidence should be admitted because it was a 5 business record –- the hearsay exception upon which we relied in 6 Feliz –- because that exception had never applied \"if the 7 regularly conducted business activity is the production of 8 evidence for use at trial.\" Id. at 321. The Court concluded: 9 Business and public records are generally 10 admissible absent confrontation, not because 11 they qualify under an exception to the 12 hearsay rules, but because -- having been 13 created for the administration of an entity's 14 affairs and not for the purpose of 15 establishing or proving some fact at trial -- 16 they are not testimonial.",
"Whether or not 17 they qualify as business or official records, 18 the analysts' statements here -- prepared 19 specifically for use at petitioner's trial -- 20 were testimony against petitioner, and the 21 analysts were subject to confrontation under 22 the Sixth Amendment. 23 Id. at 324. 24 25 Justice Kennedy, in dissent, criticized the majority 26 for \"disregard[ing] a century of jurisprudence\" in favor of 27 \"formalistic and wooden rules, divorced from precedent, common 28 sense, and the underlying purpose of the Clause.\" Id. at 330-31 29 (Kennedy, J., dissenting). In explaining why the analyst reports 30 at issue did not implicate the Confrontation Clause, Justice 31 Kennedy asserted: 32 First, a conventional witness recalls events 33 observed in the past, while an analyst's 34 report contains near-contemporaneous 35 observations of the test. . . .",
"Second, an 15 1 analyst observes neither the crime nor any 2 human action related to it. . . . The 3 analyst's distance from the crime and the 4 defendant, in both space and time, suggests 5 the analyst is not a witness against the 6 defendant in the conventional sense. Third, 7 a conventional witness responds to questions 8 under interrogation. . . . Put differently, 9 out-of-court statements should only \"require 10 confrontation if they are produced by, or 11 with the involvement of, adversarial 12 government officials responsible for 13 investigating or prosecuting crime.\" 14 Id. at 345-46 (quoting Carolyn Zabrycki, Comment, Toward a 15 Definition of \"Testimonial\": How Autopsy Reports Do Not Embody 16 the Qualities of a Testimonial Statement, 96 Cal. L. Rev.",
"1093, 17 1118 (2008)). 18 In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), 19 the question presented was whether a \"certificate of analyst\" 20 containing the results of a blood-alcohol test administered 21 pursuant to a DUI arrest required the testimony of the analyst 22 who conducted the gas chromatograph test. Id. at 2710-11. The 23 trial court had admitted the test as a business record, and 24 allowed its introduction through the testimony of \"an analyst who 25 did not sign the certification or personally perform or observe 26 the performance of the test reported in the certification.\" Id. 27 at 2713. The Court rejected the suggestion that the report was 28 nontestimonial: 29 In all material respects, the laboratory 30 report in this case resembles those in 31 Melendez-Diaz. Here, as in Melendez-Diaz, a 32 law-enforcement officer provided seized 33 evidence to a state laboratory required by 34 law to assist in police investigations. Like 16 1 the analysts in Melendez-Diaz, [the analyst] 2 tested the evidence and prepared a 3 certificate concerning the result of his 4 analysis. Like the Melendez-Diaz 5 certificate, [the certificate here] is 6 \"formalized\" in a signed document.",
". . . In 7 sum, the formalities attending the \"report of 8 blood alcohol analysis\" are more than 9 adequate to qualify [the analyst's] 10 assertions as testimonial. 11 Id. at 2717 (citations omitted). 12 Justice Sotomayor concurred, relying largely on a 13 Confrontation Clause opinion she had written earlier in the term 14 in Michigan v. Bryant, 131 S. Ct. 1143 (2011) (concluding that 15 statements made by a dying man to police could be admitted 16 without requiring confrontation). \"To determine if a statement 17 is testimonial, we must decide whether it has 'a primary purpose 18 of creating an out-of-court substitute for trial testimony.'",
"19 When the 'primary purpose' of a statement is 'not to create a 20 record for trial,' 'the admissibility of the statement is the 21 concern of the state and federal rules of evidence, not the 22 Confrontation Clause.'\" Bullcoming, 131 S. Ct. at 2720 23 (Sotomayor, J., concurring) (quoting Bryant, 131 S. Ct. at 1155). 24 Noting that Bullcoming was \"not a case in which the State 25 suggested an alternate purpose, much less an alternate primary 26 purpose, for the BAC report,\" such as to provide for medical 27 treatment, Justice Sotomayor concluded that the primary purpose 28 \"is clearly to serve as evidence\" and its introduction without 29 confrontation was therefore in error. Id.",
"at 2722-23. 17 1 Last term, in Williams v. Illinois, 132 S. Ct. 2221 2 (2012), the Court returned to consideration of the Confrontation 3 Clause, this time to determine whether it was a violation to 4 allow an expert to testify in a rape case that \"a DNA profile 5 produced by an outside laboratory, Cellmark, matched a profile 6 produced by the state police lab using a sample of petitioner's 7 blood.\" Id. at 2227. The defendant argued that the expert \"went 8 astray when she referred to the DNA profile provided by Cellmark 9 as having been produced from semen found on the victim's vaginal 10 swabs,\" even though she did not conduct or observe any of the 11 work that Cellmark had done in deducing a male DNA profile. Id. 12 at 2227, 2230.",
"The Court came to no clear consensus as to what 13 constituted a testimonial statement in this context, however, 14 issuing a plurality opinion, two concurrences, and a dissent. 15 The plurality opinion by Justice Alito, joined by Chief 16 Justice Roberts, Justice Kennedy, and Justice Breyer -- the 17 dissenters in Melendez-Diaz and Bullcoming -- concluded that the 18 testimony did not run afoul of the Confrontation Clause using two 19 separate paths. First, it noted that \"[i]t has long been 20 accepted that an expert witness may voice an opinion based on 21 facts concerning the events at issue in a particular case even if 22 the expert lacks first-hand knowledge of those facts.\" Id. at 23 2233.",
"Under the Illinois and federal rules, \"an expert may base 24 an opinion on facts that are 'made known to the expert at or 25 before the hearing,'\" even if those facts themselves are 18 1 inadmissible. Id. at 2234 (quoting Ill. R. Evid. 703; Fed. R. 2 Evid. 703). 3 While in a jury trial the expert would be prohibited 4 from disclosing those underlying facts, in a bench trial, such as 5 that in Williams, the judge would be trusted to understand that 6 those facts were not offered for their truth. Id. at 2234-35. 7 The plurality concluded that \"it is clear that the putatively 8 offending phrase . . . was not admissible for the purpose of 9 proving the truth of the matter asserted,\" and \"there is no 10 reason to think that the trier of fact took [the testimony] as 11 substantive evidence to establish where the DNA profiles came 12 from.\"",
"Id. at 2237. Because other evidence also established the 13 origin of the DNA profile, and because the trial judge was 14 presumed not to have considered the evidence for its truth, the 15 plurality concluded that there had been no Confrontation Clause 16 violation. Id. at 2240. The plurality noted that in Bullcoming 17 and Melendez-Diaz, \"there is no question\" but that the test 18 results were offered for their truth, whereas in Williams, the 19 report was offered \"only for the distinctive and limited purpose 20 of seeing whether it matched something else.\" Id. at 2240 21 (internal quotation marks omitted). 22 The plurality next considered whether, even if the 23 testimony had been offered for its truth, there would have been 24 no Confrontation Clause violation.",
"\"The abuses that the Court 25 has identified as prompting the adoption of the Confrontation 26 Clause shared the following two characteristics: (a) they 19 1 involved out-of-court statements having the primary purpose of 2 accusing a targeted individual of engaging in criminal conduct 3 and (b) they involved formalized statements such as affidavits, 4 depositions, prior testimony, or confessions.\" Id. at 2242. The 5 plurality asserted that \"[t]he Cellmark report is very different 6 from the sort of extrajudicial statements, such as affidavits, 7 depositions, prior testimony, and confessions, that the 8 Confrontation Clause was originally understood to reach.",
"The 9 report was produced before any suspect was identified. The 10 report was sought not for the purpose of obtaining evidence to be 11 used against petitioner, who was not even under suspicion at the 12 time, but for the purpose of finding a rapist who was on the 13 loose.\" Id. at 2228. The plurality concluded that the admission 14 of the report did not run afoul of the Confrontation Clause 15 because these purposes were not of the same type that the clause 16 had been enacted to protect against. Id.",
"17 In a concurring opinion, Justice Breyer said that he 18 would have set the case for reargument in order to answer the 19 question of what constitutes a \"testimonial statement\" with 20 regard to \"the panoply of crime laboratory reports and underlying 21 technical statements written by (or otherwise made by) laboratory 22 technicians.\" Id. at 2244-45 (Breyer, J., concurring). He 23 criticized the Court's evolving Confrontation Clause 24 jurisprudence as offering \"no logical stopping place between 25 requiring the prosecution to call as a witness one of the 26 laboratory experts who worked on the matter and requiring the 20 1 prosecution to call all of the laboratory experts who did so.\"",
"2 Id. at 2246 (emphasis in original). 3 Justice Breyer did not himself offer a comprehensive 4 definition of testimonial, but said he would continue to adhere 5 to the dissenting views in Bullcoming and Melendez-Diaz. \"[T]he 6 need for cross-examination is considerably diminished when the 7 out-of-court statement was made by an accredited laboratory 8 employee operating at a remove from the investigation in the 9 ordinary course of professional work.\" Id. at 2249. Justice 10 Breyer asserted that \"to bar admission of the out-of-court 11 records at issue here could undermine, not fortify, the accuracy 12 of factfinding at a criminal trial,\" because it would potentially 13 bar autopsy reports: 14 Autopsies, like the DNA report in this case, 15 are often conducted when it is not yet clear 16 whether there is a particular suspect or 17 whether the facts found in the autopsy will 18 ultimately prove relevant in a criminal 19 trial.",
"Autopsies are typically conducted 20 soon after death. And when, say, a victim's 21 body has decomposed, repetition of the 22 autopsy may not be possible. What is to 23 happen if the medical examiner dies before 24 trial? Is the Confrontation Clause 25 effectively to function as a statute of 26 limitations for murder? 27 Id. at 2251 (citations and internal quotation marks omitted). 28 Justice Breyer proposed as a solution a rebuttable 29 presumption that DNA reports of the type at issue be admissible, 30 with the defendant able to call the technician if he would choose 31 to do so, or to require confrontation upon a showing of a reason 32 to doubt the laboratory's competence or honesty. Id.",
"at 2251-52. 21 1 Justice Thomas concurred only in the judgment, and, 2 consistent with his prior opinions on the subject, did so because 3 the Cellmark report \"lacks the solemnity of an affidavit or 4 deposition, for it is neither a sworn nor a certified declaration 5 of fact. Nowhere does the report attest that its statements 6 accurately reflect the DNA testing processes used or the results 7 obtained.\" Id. at 2260 (Thomas, J., concurring in the judgment). 8 Further, Justice Thomas explicitly rejected the plurality's 9 requirement that the primary purpose of the statements concern a 10 targeted individual, noting that \"[t]here is no textual 11 justification, however, for limiting the confrontation right to 12 statements made after the accused's identity became known.\"",
"Id. 13 at 2262 (Thomas, J., concurring). 14 In dissent, Justice Kagan, joined by Justices Scalia, 15 Ginsburg, and Sotomayor, characterized Williams as an \"open-and- 16 shut case\": \"The State of Illinois prosecuted Sandy Williams for 17 rape based in part on a DNA profile created in Cellmark's 18 laboratory. Yet the State did not give Williams a chance to 19 question the analyst who produced that evidence.\" Id. at 2265 20 (Kagan, J., dissenting). Taking note of the fact that the 21 judgment had been affirmed without a majority settling on a 22 \"reason why,\" Justice Kagan averred that \"in all except its 23 disposition, [Justice Alito's plurality] opinion is a dissent.\" 24 Id. Likening the expert's testimony in Williams to the 25 \"surrogate testimony\" in Bullcoming, Justice Kagan asked, \"Have 26 we not already decided this case?\" Id. at 2267. 22 1 Justice Kagan's opinion roundly rejected the idea that 2 the expert's testimony had not been offered for its truth, noting 3 recent scholarship and case law suggesting that the entire 4 concept of \"basis evidence\" is illusory. \"[A]dmission of the 5 out-of-court statement in this context has no purpose separate 6 from its truth; the factfinder can do nothing with it except 7 assess its truth and so the credibility of the conclusion it 8 serves to buttress.\"",
"Id. at 2269 (emphasis in original). 9 Justice Kagan then turned to the plurality's conclusion 10 that the DNA report was nontestimonial, joining Justice Thomas's 11 criticism of the reformulated primary purpose test as having no 12 basis in constitutional text, history, or the Court's prior 13 precedents. \"We have previously asked whether a statement was 14 made for the primary purpose of establishing past events 15 potentially relevant to later criminal prosecution –- in other 16 words, for the purpose of providing evidence. None of our cases 17 has ever suggested that, in addition, the statement must be meant 18 to accuse a previously identified individual.\" Id. at 2273-74.",
"19 The dissenters also rejected the plurality's suggestion 20 that the purpose of the DNA testing was \"to respond to an ongoing 21 emergency, rather than to create evidence for trial,\" id. at 2274 22 (internal quotation marks omitted), noting that the expert 23 herself had testified that the DNA report was conducted \"'for 24 this criminal investigation . . . and for the purpose of the 25 eventual litigation' –- in other words, for the purpose of 23 1 producing evidence, not enabling emergency responders.\" Id. 2 (citation omitted). 3 Summarizing the current state of Confrontation Clause 4 jurisprudence, Justice Kagan noted that the five Justices who 5 agreed on the judgment \"agree on very little,\" and \"have left 6 significant confusion in their wake.\"",
"Id. at 2277. 7 What comes out of four Justices' desire to 8 limit Melendez-Diaz and Bullcoming in 9 whatever way possible, combined with one 10 Justice's one-justice view of those holdings, 11 is –- to be frank –- who knows what. Those 12 decisions apparently no longer mean all that 13 they say. Yet no one can tell in what way or 14 to what extent they are altered because no 15 proposed limitation commands the support of a 16 majority. 17 Id. 18 B. Controlling Law 19 We are confronted in this case with the puzzle Justice 20 Kagan described: Which of the foregoing principles enunciated by 21 various members of the Supreme Court controls here? 22 We begin by looking to our holding in Feliz -- a case 23 decided on facts very similar to these -- to determine how and to 24 what extent the Supreme Court's intervening decisions have 25 altered the rule we established in that case. There, we 26 concluded that autopsy reports were nontestimonial based in large 27 part on their status as business records. Feliz, 467 F.3d at 28 236. But, as we have explained, Melendez-Diaz and Bullcoming, 29 and to a lesser extent Williams, call this categorical conclusion 30 into doubt. 24 1 In each of these cases, the records were, in some 2 sense, business records –- all were made in the course of the 3 regular business that the laboratory in question conducts: 4 forensic testing. Yet, in Melendez-Diaz and Bullcoming, the 5 Supreme Court concluded that the results of the tests were 6 testimonial because they were completed \"for the purpose of 7 establishing or proving some fact at trial,\" Melendez-Diaz, 557 8 U.S. at 324, or were \"affirmations made for the purpose of 9 establishing or proving some fact in a criminal proceeding,\" 10 Bullcoming, 131 S. Ct. at 2716 (internal quotation marks 11 omitted).4 As the Melendez-Diaz Court explained, \"[b]usiness and 12 public records are generally admissible absent confrontation not 13 because they qualify under an exception to the hearsay rules, but 14 because –- having been created for the administration of an 15 entity's affairs and not for the purpose of establishing or 16 proving some fact at trial –- they are not testimonial.\"",
"557 17 U.S. at 324. The reports at issue in that case, having been 18 \"prepared specifically for use at . . . trial[,]\" were 19 testimonial \"[w]hether or not they qualif[ied] as business or 20 official records.\" Id. 4 No conclusion was reached in Feliz as to whether the autopsy reports were similarly completed for the purpose of establishing a fact at trial, in part because we did not then think that \"the reasonable expectation of the declarant should be what distinguishes testimonial from nontestimonial statements,\" Feliz, 467 F.3d at 235, rendering that factual inquiry unnecessary. 25 1 We distill from this pre-Williams case law the 2 principle that a laboratory analysis is testimonial if the 3 circumstances under which the analysis was prepared, viewed 4 objectively, establish that the primary purpose of a reasonable 5 analyst in the declarant's position would have been to create a 6 record for use at a later criminal trial. See Melendez-Diaz, 557 7 U.S. at 324; Bryant, 131 S. Ct. at 1155-56 (explaining 8 application of the primary purpose standard); see also 9 Bullcoming, 131 S. Ct. at 2720 (Sotomayor, J., concurring) (\"To 10 determine if a statement is testimonial, we must decide whether 11 it has 'a primary purpose of creating an out-of-court substitute 12 for trial testimony.'",
"When the 'primary purpose' of a statement 13 is 'not to create a record for trial,' 'the admissibility of the 14 statement is the concern of state and federal rules of evidence, 15 not the Confrontation Clause.'\" (quoting Bryant, 131 S. Ct. at 16 1155)). 17 The question then becomes whether the Court's later 18 decision in Williams changed that rule. We agree with Justice 19 Kagan that this problem is intractable. No single rationale 20 disposing of the Williams case enjoys the support of a majority 21 of the Justices. Ordinarily, \"[w]hen a fragmented Court decides 22 a case and no single rationale explaining the result enjoys the 23 assent of five Justices, the holding of the Court may be viewed 24 as the position taken by those members who concurred in the 25 judgments on the narrowest grounds.\"",
"Marks v. United States, 430 26 1 U.S. 188, 193 (1977) (internal quotation marks omitted). But 2 what is the narrowest ground in the disposition in Williams? 3 The Williams plurality's first rationale -- that the 4 laboratory report there was offered as basis evidence, and not 5 for its truth -- was roundly rejected by five Justices. 6 Williams, 132 S. Ct. at 2258-59 (Thomas, J., concurring in the 7 judgment); Id. at 2268-69 (Kagan, J., dissenting). In any event, 8 we are hard-pressed to read this rationale as controlling this 9 case because the facts before us are in significant respects 10 different from those presented in Williams.5 11 Nor do we think we can apply the plurality's narrowed 12 definition of testimonial, which would require that the analyst 13 had \"the primary purpose of accusing a targeted individual of 14 engaging in criminal conduct[.]\" Id.",
"at 2242. Again, five 15 Justices disagreed with this rationale, and it would appear to 16 conflict directly with Melendez-Diaz, which rejected a related 5 For example, Corinne Ambrosi, the OCME's deputy chief medical examiner for Queens County, testified in order to establish Somaipersaud's cause of death, which was not at all obvious and was clearly relevant to the charges against the defendants. No other testimony established that Somaipersaud died of poisoning. By contrast, in Williams, other admissible evidence established that the sample tested by Cellmark came from the victim's vaginal swab. See Williams, 132 S. Ct. at 2239. Also, the plurality in Williams relied at least in part on the fact that Williams was a bench trial, noting that the \"[t]he dissent's argument would have force if petitioner had elected to have a jury trial.\"",
"Williams, 132 S. Ct. at 2236. The case before us was tried to a jury, leaving us less confident that the factfinder would understand the conceptual distinction between basis evidence and evidence offered for its truth. 27 1 argument. See Williams, 132 S. Ct. at 2274 (Kagan, J., 2 dissenting). For similar reasons –- lack of support among the 3 Justices and conflict with prior precedents that did command 4 majority support –- we do not think either Justice Thomas's 5 concurrence on the ground that the analysis was not sufficiently 6 \"formalized,\" or Justice Breyer's new approach to application of 7 the Confrontation Clause, is controlling. 8 Williams does not, as far as we can determine, using 9 the Marks analytic approach, yield a single, useful holding 10 relevant to the case before us. It is therefore for our purposes 11 confined to the particular set of facts presented in that case.",
"12 We think it sufficient to conclude that we must rely on Supreme 13 Court precedent before Williams to the effect that a statement 14 triggers the protections of the Confrontation Clause when it is 15 made with the primary purpose of creating a record for use at a 16 later criminal trial.7 See Melendez-Diaz, 557 U.S. at 310-11; 17 Bryant, 131 S. Ct. at 1155; see also Bullcoming, 131 S. Ct. at 18 2716; Davis v. Washington, 547 U.S. 813, 822 (2006); Crawford, 19 541 U.S. at 51-52.",
"7 Although the law is not well developed in the area of testimonial versus nontestimonial statements, a close analogue may be found in cases examining the applicability of the attorney work-product privilege, which applies when documents are created by an attorney \"in anticipation of litigation.\" See, e.g., Matter of Grand Jury Subpoenas Dated Oct. 22, 1991 and Nov. 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992). 28 1 C. Testimony Related to Somaipersaud's Death 2 We address first the defendants' argument that allowing 3 surrogate testimony concerning the autopsy report in 4 Somaipersaud's death was error.",
"This purported error was not 5 objected to at trial. We review challenges on appeal that the 6 defendants did not raise at trial for plain error. A finding of 7 \"plain error\" requires that 8 (1) there is an error; (2) the error is 9 plain, that is, the error is clear or 10 obvious, rather than subject to reasonable 11 dispute; (3) the error affected the 12 appellant's substantial rights, which in the 13 ordinary case means it affected the outcome 14 of the district court proceedings; and (4) 15 the error seriously affects the fairness, 16 integrity or public reputation of judicial 17 proceedings. 18 United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal 19 quotation marks and bracket omitted).",
"20 1. Testimony at trial. Corinne Ambrosi, the OCME's 21 deputy chief medical examiner for Queens County, testified at 22 trial regarding Somaipersaud's death. She explained that the 23 OCME generally performs autopsies \"where people died in 24 unexpected circumstances, unnatural deaths, unexpected deaths. 25 Those come to the attention of the medical examiner.\" Trial Tr. 26 4655:18-20. Ambrosi had previously testified as an expert 27 witness on cause and manner of death 106 times. She testified 28 that she did not perform or participate in Somaipersaud's 29 autopsy, which was conducted by Dr. Heda Jindrak, who at the time 30 of trial was no longer employed by the OCME. Ambrosi described 29 1 at length the results of toxicology tests ordered by Jindrak, 2 which informed the autopsy report. These tests were performed by 3 technicians at the OCME's main office in Manhattan. Ambrosi 4 explained that the tests showed that Somaipersaud had elevated 5 levels of alcohol as well as chlorpromazine, which is sometimes 6 used as an antipsychotic drug. She offered her own opinion that 7 the level of alcohol revealed by the tests would not alone have 8 been enough to have killed Somaipersaud. She testified that the 9 chlorpromazine levels were, however, significant -- more than she 10 would have expected to see from someone regularly taking the drug 11 as medication for a psychiatric illness.",
"Ambrosi further 12 testified that the level of chlorpromazine detected in the 13 victim's body combined with the level of blood alcohol in the 14 body would have been enough to have killed the victim, and that 15 the combination had indeed been determined to be the cause of 16 Somaipersaud's death. 17 The toxicology report was admitted as an exhibit at 18 trial. It indicated .26 blood alcohol content and 1.9 milligrams 19 per kilogram chlorpromazine levels. Ambrosi explained that the 20 chlorpromazine levels appeared to be acute because the level in 21 the liver was 75.7 milligrams per kilogram, whereas in someone 22 who was prescribed the drug therapeutically it would not normally 23 be more than 10 milligrams per kilogram. Ambrosi further 24 explained that she did not recall ever having seen levels of 25 chlorpromazine in a person that high. She also testified as to 26 Jindrak's autopsy determination that the cause of death was 30 1 \"[a]cute intoxication by the ethynel or alcohol and 2 chlorpromazine,\" and that she agreed with that assessment. Trial 3 Tr.",
"4678:20-21. \"[H]ypertensive and arteriosclerotic 4 cardiovascular disease\" were also contributing factors. Trial 5 Tr. 4679:2-3. 6 On cross-examination, Ambrosi confirmed that she had 7 not participated in the autopsy. Her testimony was based on her 8 review of the case file before testifying. 9 2. Analysis. To resolve this case we must determine 10 whether, under the circumstances, the autopsy report (including 11 the toxicology report) was prepared with the primary purpose of 12 creating a record for use at a later criminal trial.8 As we 8 It is worth noting that courts throughout the country have applied various approaches and reached differing conclusions when considering Confrontation Clause challenges to the introduction of autopsy reports. Compare United States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011)(concluding that Chief Medical Examiner's surrogate testimony on autopsy reports prepared by others violated the Confrontation Clause where law enforcement officers observed the autopsies and participated in the creation of the reports -- circumstances that \"would have signaled to the medical examiner that the autopsy might bear on a criminal investigation\" -- and each autopsy \"found the manner of death to be a homicide caused by gunshot wounds\") with State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009)(\"Thus, when the State seeks to introduce [autopsy reports], absent a showing that the analysts are unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them such evidence is inadmissible under Crawford.",
"\"(quotation marks, citation, and brackets omitted)). There is also academic debate on the subject. Compare Zabrycki, supra, cited by the Supreme Court in both Melendez-Diaz and Williams, in which the author proposed a definition of testimonial similar to that endorsed by the Williams plurality, proposing that \"out-of-court statements are testimonial and thus require confrontation if they are produced by, or with the involvement of, adversarial government officials responsible for 31 1 explained in United States v. Burden, 600 F.3d 204 (2d Cir. 2 2010), the examples of testimonial statements outlined in 3 Crawford, are not \"more than a set of guideposts [for] courts 4 [to] work through, case-by-case . . . . [N]o court can say 5 whether a particular kind of statement is testimonial until it 6 has considered that kind of statement in an actual case.\"",
"Id. at 7 224. 8 Key to determining the resolution of the case before us 9 is the particular relationship between the OCME and law 10 enforcement both generally and in this particular case. While 11 the OCME is an independent agency,9 the police are required to 12 notify it when someone has died \"from criminal violence, by investigating and prosecuting crime,\" 96 CAL. L. REV. 96 CAL. L. REV. 1118, but arguing that medical examiners are \"public health officials,\" rather than law enforcement officers, and therefore, unless the medical examiner \"writes an autopsy report in response to police interrogation,\" the report is non-testimonial, id. at 1128-29, with Professor Richard Friedman, who argued in a petition for writ of certiorari from a decision of the Supreme Court of Ohio, State v. Craig, 110 Ohio St.3d 306, 853 N.E.2d 621 (2006), cert. denied, 549 U.S. 1255 (2007), that while \"[t]here are, of course, situations in which coroners write autopsy reports without anticipation that they will likely be used in forensic proceedings, and for other purposes . .",
". ,\" id. at *13- *14, \"where, as here, the coroner concludes that the decedent was clearly a victim of homicide, there can be no genuine doubt that a reasonable person in the position of the coroner understands that there will be forensic proceedings and intends that the report will be used in them,\" id. at *14, and they are therefore testimonial. 9 See People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 453 (2008) (concluding than an autopsy report was not testimonial, in part because the OCME is \"by law, independent of and not subject to the control of the office of the prosecutor\" and \"not a law enforcement agency\" (internal quotation marks omitted)); People v. Hall, 84 A.D.3d 79, 83, 923 N.Y.S.2d 428, 431 (1st Dep't 2011). 32 1 accident, by suicide, suddenly when in apparent health, when 2 unattended by a physician, in a correctional facility or in any 3 suspicious or unusual manner or where an application is made 4 pursuant to law for a permit to cremate a body of a person.\"",
"5 N.Y.C. Charter § 557(a),(f)(1); see also N.Y.C. Admin Code § 17- 6 202. The OCME is required to \"take charge of the dead body\" in 7 such instances, and must \"fully investigate the essential facts 8 concerning the circumstances of the death\" and interview 9 witnesses and collect evidence that \"may be useful in 10 establishing the cause of death.\" N.Y.C. Admin. Code § 17- 11 202(a). 12 It is the OCME that determines whether to conduct an 13 autopsy based on whether \"it may be concluded with reasonable 14 certainty that death occurred from natural causes or obvious 15 traumatic injury[.]\" N.Y.C. Admin Code § 17-203. Whenever an 16 autopsy is deemed necessary, it \"shall include toxicologic, 17 histologic, microbiologic and serologic examinations,\" the 18 results of which must be written down and filed with the OCME, 19 regardless of whether any further investigation results.",
"Id. 20 \"Such medical examiner, medical investigator or lay medical 21 investigator shall take possession of any portable objects which, 22 in his or her opinion, may be useful in establishing the cause of 23 death, and except as provided in subdivision c hereof [relating 33 1 to suicide notes], shall deliver them to the police 2 department. \"10 Id. § 202(a). 3 Because the defendants failed to object to the 4 introduction of Ambrosi's testimony during trial, there is scant 5 record of the circumstances under which Jindrak produced her 6 autopsy report. In its written ruling on the defendants' 7 objections to the testimony of Dr. Vivikand Brijmohan -- whose 8 testimony on the cause of death of another victim, Sewnanan, is 10 We similarly explained in United States v. Rosa, 11 F.3d 315 (2d Cir. 1993), that the Medical Examiner's Office is required simply to investigate unnatural deaths; it refers a death bearing any indicium of criminality to the appropriate district attorney and has no responsibility for enforcing any laws.",
"The chief medical examiner and his assistants are required to be physicians and pathologists; there is no requirement in the Charter that they be attorneys or that any employees of the office have any law enforcement training. Even when a matter is referred to the district attorney because of an indication of criminality, the Charter does not give the medical examiner any responsibility for collecting evidence or determining the identity of the perpetrator. Further, though law enforcement activities are typically accusatory and adversarial in nature, a medical examiner's reported observations as to a body's condition are normally made as part of an independent effort to determine a cause of death. Indeed, \"a medical examiner, although often called a forensic expert, bears more similarity to a treating physician than he does to one who is merely rendering an opinion for use in the trial of a case.\"",
"Id. at 332 (2d Cir. 1993)(citation omitted) (quoting Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) (internal quotation marks omitted)). 34 1 discussed below -- the district court noted that \"Jindrak 2 conducted an internal and external examination as well as a 3 toxicology analysis,\" and that Ambrosi described these steps as 4 \"routine.\" James II, 2007 WL 2702449, at *2 n.1. The defendants 5 do not argue in either of their briefs, or in the supplemental 6 letter briefs submitted in response to the request by this Court 7 after Williams, that Somaipersaud's autopsy was anything other 8 than routine –- there is no suggestion that Jindrak or anyone 9 else involved in this autopsy process suspected that Somaipersaud 10 had been murdered and that the medical examiner's report would be 11 used at a criminal trial.",
"Ambrosi testified that causes of death 12 are often undetermined in cases like this because it could have 13 been a recreational drug overdose or a suicide. The autopsy 14 report itself refers to the cause of death as \"undetermined\" and 15 attributes it both to \"acute mixed intoxication with alcohol and 16 chlorpromazine\" combined with \"hypertensive and arteriosclerotic 17 cardiovascular disease.\" 18 The autopsy was completed on January 24, 1998, and the 19 report was signed June 16, 1998, substantially before any 20 criminal investigation into Somaipersaud's death had begun. 21 During the course of Ambrosi's lengthy trial testimony, neither 22 the government nor defense counsel elicited any information 23 suggesting that law enforcement was ever notified that 24 Somaipersaud's death was suspicious, or that any medical examiner 25 expected a criminal investigation to result from it. Indeed, 35 1 there is reason to believe that none is pursued in the case of 2 most autopsies.11 3 In short, the autopsy report was not testimonial 4 because it was not prepared primarily to create a record for use 5 at a criminal trial.12 There was therefore no error, much less 6 plain error, in admitting the autopsy report into evidence, or 7 allowing Ambrosi to testify regarding it, although she did not 8 conduct it herself. 9 D. Testimony Related to Sewnanan's Death 10 In contrast to Ambrosi's testimony relating to 11 Somaipersaud's death, the defendants vigorously objected to Dr. 12 Vivikand Brijmohan's testimony as to a toxicology test relating 11 The OCME performs an average of 5,500 autopsies each year, and in 2010, for example, 533 New York City residents' causes of death were listed as homicides.",
"See OCME, General Information Booklet, http://www.nyc.gov/html/ocme/downloads/pdf/ General%20Information/OCME%20General%20Information%20Booklet.pdf (last visited Mar. 22, 2013); Deaths and Death Rates by Selected Causes New York City - 2010, http://www.health.ny.gov/statistics/ vital_statistics/2010/table33c.htm (last visited Mar. 22, 2013). This suggests, although the data is of course insufficient to demonstrate conclusively, that something in the order of ten percent of deaths investigated by the OCME lead to criminal investigations. The statistics from Los Angeles tell a similar story: \"In 2004, the Los Angeles Medical Examiner's office conducted 4,180 complete autopsies out of 9,465 cases taken by the office.",
"Of the 9,465 total cases, 1,121 died from homicide, 709 from suicide, 3,090 from accidents, and 4,256 from natural causes.\" Zabrycki, 96 Cal. L. Rev. at 1125. 12 No contrary conclusion is warranted by United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012). Although that case holds that \"[f]orensic reports constitute testimonial evidence,\" id. at 1230, the decision was based in part on the fact that the Florida Medical Examiner's Office \"was created and exists within the Department of Law Enforcement,\" id. at 1231. Here, the OCME is a wholly independent office. 36 1 to the death of Hardeo Sewnanan, which was based on forensic 2 testing conducted by Dr. Leslie Mootoo. When analyzing error 3 that the defendants did raise at trial, we review for 4 harmlessness, which requires us to ask whether we are satisfied 5 \"upon a review of the entire record . .",
". beyond a reasonable 6 doubt that the error complained of . . . did not contribute to 7 the verdict obtained.\" United States v. Lee, 549 F.3d 84, 90 (2d 8 Cir. 2008) (internal quotation marks omitted). \"In other words, 9 to find the [error] harmless we must be able to conclude that the 10 evidence would have been unimportant in relation to everything 11 else the jury considered on the issue in question, as revealed in 12 the record.\" Id. (internal quotation marks and citations 13 omitted). We consider \"(1) the overall strength of the 14 prosecution's case; (2) the prosecutor's conduct with respect to 15 the improperly admitted evidence; (3) the importance of the 16 wrongly admitted testimony; (4) whether such evidence was 17 cumulative of other properly admitted evidence.\" Id.",
"(internal 18 quotation marks omitted). 19 1. Testimony at trial. Brijmohan testified regarding 20 Sewnanan's cause of death, in part based on toxicology tests 21 conducted by Mootoo, who had died between his performance of the 22 test and the time of trial. Brijmohan was the chief forensic 23 pathologist for the region of Guyana where Sewnanan's death 24 occurred. Brijmohan testified that he would normally be informed 25 of the need for an autopsy by a coroner affiliated with the 26 police department. Typically, autopsies in Guyana are performed 37 1 when there are \"unnatural deaths,\" i.e., \"accidents, murders, 2 strangulations, drowning, . .",
". and of course including cases of 3 poisoning.\" Trial Tr. 3266:12-17. Brijmohan explained that in 4 conducting Sewnanan's internal examination, he discovered 5 \"extensive submucosal hemorrhages,\" which \"is not definitely a 6 normal finding. Whenever such a finding occurs, one immediately 7 thinks of extraneous ingestion and one thinks definitely of 8 poisoning.\" Trial Tr. 3265:13-14, 22-24. 9 Brijmohan then sent the post-mortem contents of 10 Sewnanan's stomach for toxicology testing. He testified that the 11 contents were taken by a police officer to the Guyanese police 12 laboratory, the stamp of which appeared on the resultant 13 toxicology report. Brijmohan further testified that he did not 14 know who actually performed the toxicology test.",
"While Dr. 15 Mootoo may have played some role in the testing, Brijmohan was 16 apparently not sure whether Mootoo had conducted the testing 17 himself. 18 Brijmohan testified, based on \"the scientific evidence 19 of my examination and the toxicology report, that the cause of 20 death of Hardeo Sewnanan was the consequence of the ingestion of 21 a toxic substance with ammoniacal compound.\" Trial Tr. 3299:7- 22 10. Brijmohan said it was probably hydrocyanic acid, or 23 potassium and sodium cyanide, in which case there would have been 24 no symptoms prior to death. Brijmohan further testified that the 25 toxicology report indicated death resulted from ammonia poisoning 38 1 and, over continued objections, explained that the toxicology 2 report on Sewnanan's stomach indicated ammonia poisoning.13 3 On cross-examination, Brijmohan was questioned 4 extensively as to whether the ammonia found in Sewnanan's body 5 could have been naturally occurring, inasmuch as ammonia often 6 occurs naturally in the human body after death.",
"Brijmohan 7 testified that his knowledge that it was commercially produced 8 was based on the laboratory report. His conclusion that Sewnanan 9 died of commercially-produced ammonia \"was based essentially on 10 my observation of the stomach, with the hemorrhages, the 11 laboratory reports that was brought to my attention.\" Trial Tr. 12 3382:23-25. 13 2. The district court's decision. The district court 14 rejected the defendants' argument that allowing introduction of 15 the toxicology report into evidence would violate the 16 Confrontation Clause. See Mem. & Order, United States v. James, 17 2007 WL 2792449, at *1, 2007 U.S. Dist.",
"LEXIS 39585, at *3-*4 18 (E.D.N.Y. May 31, 2007). The district court relied on Feliz in 19 allowing introduction of the report, but its decision preceded 20 the Supreme Court decisions in Bullcoming, Melendez-Diaz, and 21 Williams. 13 Over repeated objections, Brijmohan testified that test results from two bottles sent to the police lab, one of which tested positive for ammonia, informed his analysis. The record does not conclusively reveal whether the contents of the bottles derived from the victim's body – though that appears the logical inference.",
"39 1 The district court did base its decision, however, in 2 large part on its conclusion that the toxicology report was not a 3 \"'chemist's' report created by 'law enforcement.'\" Id. at *2. 4 While acknowledging that the defendants had described the \"close 5 proximity\" between the medical examiner's office and the Guyanese 6 police station, and the cooperation between those two agencies, 7 the court concluded that \"the critical inquiry is not the 8 physical proximity of two agencies, or their level of 9 cooperation, but rather whether the agency that created the 10 report can be characterized by its duties and purposes as law 11 enforcement.\" Id.",
"The district court cited Rosa's dictum to the 12 effect that the OCME is not a law enforcement agency, and then, 13 noting that the Guyanese medical examiner operates as part of the 14 Guyanese Ministry of Health and Georgetown Hospital, observed 15 that \"[t]here is no indication that Dr. Mootoo was employed by a 16 law enforcement agency or was responsible for enforcing any 17 laws. . . . [I]t appears that the Guyanese Office of Forensic 18 Medicine, for which Drs. Brijmohan and Mootoo worked, is directly 19 analogous to the [OCME].\" Id. 20 The court therefore concluded that the forensic records 21 did not fall under the \"law enforcement\" exception to the 22 business records rule that permits admission of the documentary 23 evidence despite the absence of the document's preparer. Id. 24 Furthermore, the court noted that a toxicology report is \"not 25 separate and distinct\" from the autopsy report, which bolstered 26 its admissibility as a business record.",
"Id. 40 1 3. Analysis. First, in light of the foregoing 2 analysis, it is apparent to us that the district court's 3 rationale for allowing the forensic report into evidence is of 4 questionable validity because of the doubt subsequent Supreme 5 Court jurisprudence has cast on Feliz, on which the district 6 court relied. Nevertheless, we think the district court's 7 conclusion sound. 8 There is no indication in Brijmohan's testimony or 9 elsewhere in the record that a criminal investigation was 10 contemplated during the inquiry into the cause of Sewnanan's 11 death.14 For example, Brijmohan testified that \"the rate of 12 poisons taken is pretty high .",
". . within the East Indian 13 community,\" Trial Tr. 3253:15-17, suggesting accidental ingestion 14 or suicide rather than homicide.15 During the course of the 15 autopsy, Brijmohan observed symptoms consistent with poisoning, 16 including congestion in the lungs and hemorrhaging in the 17 stomach, and ordered toxicology tests on that basis. Brijmohan 14 We note, as did the district court, that the police were unquestionably involved in the Guyanese autopsy process, including, for example, transporting forensic samples for testing. As five Justices in Williams made clear, however, the involvement of \"adversarial officials\" in an investigation is not dispositive as to whether or not a statement is testimonial. In this case, it appears that was simply the routine procedure employed by the Guyanese medical examiner in investigating all unnatural deaths, and does not indicate that a criminal investigation was contemplated.",
"15 Brijmohan was interviewed by a publication called \"Hinduism Today\" regarding the high rate of suicides, particularly among East Indian males, in Guyana, which he attributed to \"cultural problem[s]\" and alcoholism. Trial Tr. 3375:15-3377:12. 41 1 further noted that there were other potential \"natural\" causes of 2 the types of symptoms that led him to suspect poisoning in 3 general -- not murder in particular -- including alcoholism. In 4 short, we see nothing to indicate that the toxicology report was 5 completed primarily to generate evidence for use at a subsequent 6 criminal trial. We conclude that the toxicology report was 7 nontestimonial, and the district court therefore did not err in 8 allowing its introduction without requiring confrontation of the 9 individual who prepared it. 10 As Justice Breyer pointed out in Williams, it is still 11 unsettled under the Court's recent Confrontation Clause 12 jurisprudence whether there is a \"logical stopping place between 13 requiring the prosecution to call as a witness one of the 14 laboratory experts who worked on the matter and requiring the 15 prosecution to call all of the laboratory experts who did so.\"",
"16 Williams, 132 S. Ct. at 2246 (Breyer, J. concurring). While 17 Brijmohan's testimony implicates that question -- he suggested 18 that someone other than Mootoo may also have participated in the 19 preparation of the toxicology report -- we find it unnecessary to 20 answer it in light of our conclusions as to the nature of the 21 report. To the extent that question implicates the evidentiary 22 rules regarding \"basis evidence,\" we also decline to decide 23 whether the toxicology test was properly offered as such here, 24 where the testifying expert had personal involvement in the 25 autopsy process, and he himself ordered the toxicology tests at 26 issue. 42 1 II.",
"Exclusion of the Government's Prior Jury Argument 2 The defendants contend that the district court abused 3 its discretion in denying their request to introduce an excerpt 4 of the prosecutor's rebuttal summation in the trial of Betty 5 Peter, a cooperating witness, which largely blamed her, and not 6 the defendants in the instant case, for Vernon Peter's murder. 7 \"The defense is allowed to introduce a prosecutor's statement 8 from a prior trial when: (1) the prosecution offered an 9 inconsistent assertion of fact at the prior trial; and (2) the 10 prosecution can offer no 'innocent' explanation for the 11 contradiction.\" United States v. Orena, 32 F.3d 704, 716 (2d 12 Cir. 1994)(citations omitted); see also Fed.",
"R. Evid. 801(d)(2); 13 United States v. McKeon, 738 F.2d 26, 32-33 (2d Cir. 1984). 14 In McKeon, upon which the defendants principally rely, 15 the court's reasoning was based in large part upon the fact that 16 it was the same defendant on trial in a subsequent proceeding. 17 McKeon, 738 F.2d at 31 (noting the relationship to admissions of 18 a party-opponent in civil proceedings). In any event, McKeon 19 requires that, in order to admit such evidence, the district 20 court must \"determine by a preponderance of the evidence that the 21 inference the [party] seeks to draw from the inconsistency is a 22 fair one and that an innocent explanation for the inconsistency 23 does not exist. Where the evidence is in equipoise or the 24 preponderance favors an innocent explanation, the . .",
". statement 25 should be excluded.\" Id. at 33. Here, the government explained 43 1 that the change in its view towards Peter resulted from a series 2 of proffer sessions after her conviction on various charges 3 including mail fraud, money laundering, and obstruction of 4 justice. The information gleaned from these sessions and 5 corroborated by other witnesses led the government to a different 6 view as to her culpability for Vernon Peter's murder. 7 We conclude that the district court did not commit 8 clear error in deciding by a preponderance of the evidence that 9 there was an \"innocent explanation\" for the inconsistency between 10 the government's stated position at the trial of Peter and that 11 in the instant case. The district court therefore did not abuse 12 its discretion in excluding the prior statement. See, e.g., 13 United States v. GAF Corp., 928 F.2d 1253, 1261 n.3 (2d Cir. 14 1991) (affirming exclusion of a prior bill of particulars where 15 the \"the inconsistency is plain, the inferences are clear, and 16 the government itself has offered an explanation -- that it no 17 longer believes that the evidence demonstrates\" what it had 18 previously). 19 Finally, the defendants' argument that a post-trial 20 letter from a cooperating witness implicating Betty Peter in her 21 husband's murder somehow affects the propriety of the district 22 court's ruling is misplaced. The letter was not before the 23 district court at the time it made the ruling.",
"It therefore does 24 not suggest either that the district court's factual finding as 25 to the government's explanation was clearly erroneous, or that it 44 1 abused its discretion in excluding the prosecution's rebuttal 2 statement. 3 III. Limitation on Cross-Examination 4 The defendants argue that the district court abused its 5 discretion in curtailing their impeachment of Betty Peter with 6 prior inconsistent statements concerning (1) a conversation she 7 had with a member of Sewnanan's family16 and (2) her 8 understanding of the term \"double indemnity.\" In particular, 9 Peter testified at trial that she had not spoken to Patricia 10 Sewnanan after Hardeo's death, and that she did not know the 11 meaning of the term \"double indemnity.\" 12 We review for abuse of discretion a district court's 13 decision to preclude evidence offered to impeach a witness. See 14 United States v. Ramirez, 609 F.3d 495, 499 (2d Cir.",
"2010). A 15 district court \"is 'accorded broad discretion in controlling the 16 scope and extent of cross-examination.'\" United States v. 17 Caracappa, 614 F.3d 30, 42 (2d Cir. 2010) (quoting United States 18 v. Wilkerson, 361 F.3d 717, 734 (2d Cir. ), cert. denied, 543 U.S. 19 908 (2004)); accord, e.g., United States v. Whitten, 610 F.3d 20 168, 182 (2d Cir. 2010). Therefore, a \"district court may impose 21 'reasonable limits' on cross-examination to protect against, 22 e.g., harassment, prejudice, confusion, and waste.\"",
"United 23 States v. Cedeno, 644 F.3d 79, 82 (2d Cir. 2011) (quoting 24 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). \"In the 16 Precisely what her relationship to Hardeo Sewnanan was is not reflected in the record. 45 1 exercise of discretion, a district court should consider the need 2 to 'ascertain [the] truth,' 'avoid needless consumption of time,' 3 and 'protect witnesses from harassment or undue embarrassment.'\" 4 Whitten, 610 F.3d at 182-83 (quoting Fed. R. Evid. 611(a)). 5 A district court should afford \"wide latitude to a 6 defendant in a criminal case to cross-examine government 7 witnesses,\" Cedeno, 644 F.3d at 82 (internal quotation marks 8 omitted), because the Confrontation Clause gives a defendant the 9 right not only to cross-examination, but to effective cross- 10 examination, see United States v. Figueroa, 548 F.3d 222, 227 (2d 11 Cir. 2008). But \"[i]t does not follow, of course, that the 12 Confrontation Clause prevents a trial judge from imposing any 13 limits on defense counsel's inquiry [in cross-examining] a 14 prosecution witness.\"",
"Figueroa, 548 F.3d at 227 (quoting Van 15 Arsdall, 475 U.S. at 679) (emphasis added). 16 The defense sought to introduce evidence that the 17 Sewnanan family bribed the medical examiner to change Hardeo 18 Sewnanan's cause of death to poisoning, rather than disease, so 19 that they could collect on the insurance policy's double 20 indemnity clause. The district court excluded evidence 21 supporting this theory, however, which the defendants do not 22 challenge. Peter's denial that she spoke with Patricia Sewnanan, 23 a member of Sewnanan's family, was therefore irrelevant, because 24 the subject of her discussion was not to be introduced in any 25 event. Moreover, because the subject of Peter's discussion with 26 Sewnanan's family member would not have been in front of the 46 1 jury, her inconsistency on this collateral matter (whether or not 2 she spoke with the family member) was unlikely to influence the 3 jury's assessment of her credibility, because they were already 4 aware that she was a convicted felon who had begun cooperating 5 with the government.",
"6 For similar reasons, impeachment of Peter concerning 7 her understanding of the term \"double indemnity\" would have had 8 little probative value. In any event, the cross-examination did 9 indeed elicit testimony from Peter in which she explained that 10 she received $400,000 on her husband's $200,000 life insurance 11 policy because \"when anybody died accidentally or something, they 12 pay double.\" Eliciting from Peter that she had been inconsistent 13 in recognizing the term \"double indemnity,\" when it was clear she 14 understood the concept, would therefore also not have affected 15 the jury's assessment of her credibility. 16 IV. Motion to Sever 17 Defendant James contends that the district court's 18 denial of his motions for severance of his trial from that of his 19 co-defendant Mallay deprived him of a fair trial. \"[T]he court 20 may . . . sever the defendants' trials .",
". . [if] consolidation 21 for trial appears to prejudice a defendant.\" Fed. R. Crim. P. 22 14(a). \"Considerations of efficiency and consistency militate in 23 favor of trying jointly defendants who were indicted together, 24 [and] [j]oint trials are often particularly appropriate in 25 circumstances where the defendants are charged with participating 47 1 in the same criminal conspiracy . . . .\" United States v. 2 Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted). 3 \"The decision to sever a joint trial of federal defendants is 4 committed to the sound discretion of the trial judge[, and is 5 c]onsidered virtually unreviewable.\"",
"United States v. Diaz, 176 6 F.3d 52, 102 (2d Cir. 1999) (internal quotation marks and 7 citations omitted). \"[T]o compel reversal, the defendant has the 8 heavy burden to show prejudice so severe that his conviction 9 constituted a miscarriage of justice.\" United States v. 10 Ferguson, 676 F.3d 260, 286-87 (2d Cir. 2011) (internal quotation 11 marks omitted). 12 James argues that jointly trying him with Mallay, who 13 was also charged with two murders with which James was not 14 charged –- those of Vernon Peter and Alfred Gobin –- caused him 15 prejudice.",
"That evidence, however, was relevant to the 16 racketeering charges against James to prove the formation, 17 existence, and nature of the racketeering enterprise, which 18 involved the murder of individuals to collect on their insurance 19 policies, as well as to show the pattern of racketeering 20 activity. See Diaz, 176 F.3d at 103; United States v. Stewart, 21 590 F.3d 93, 123-24 (2d Cir. 2009) (\"[T]he fact that testimony 22 against a codefendant may be harmful is not a ground for 23 severance if that testimony would also be admissible against the 24 moving defendant tried separately.\" (internal quotation marks 25 omitted)). 48 1 James's argument that there was an irreconcilable 2 conflict between him and Mallay based on Mallay's initial 3 opposition to the introduction of evidence regarding a plot to 4 bribe the Guyanese medical examiner is also without merit. 5 Mallay later joined James in seeking to introduce that evidence. 6 And in any case, \"[t]o obtain a severance on the ground of 7 antagonistic defenses, a defendant must show that the conflict is 8 so irreconcilable that acceptance of one defendant's defense 9 requires that the testimony offered on behalf of a codefendant be 10 disbelieved.\" United States v. Benitez, 920 F.2d 1080, 1085-86 11 (2d Cir.",
"1990) (internal quotation marks and citation omitted). 12 That is not the case here. 13 V. Refusal to Suppress Recorded Statements 14 The defendants object to the denial of a motion to 15 suppress statements made by James to Derick Hassan, a government 16 informant wearing a recording device, concerning a plot to murder 17 John Narinesingh. The defendants argue that because James was 18 already subject to a sealed indictment at the time those 19 statements were recorded, doing so violated his Sixth Amendment 20 right to counsel.",
"21 The defendants waived this argument by failing to 22 object to the magistrate judge's recommendation that the motion 23 to suppress be denied, which was adopted by the district court. 24 United States v. James, 415 F. Supp. 2d 132, 137 (E.D.N.Y. 2006). 25 See also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, 49 1 Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2 2010) (\"[A] party waives appellate review of a decision in a 3 magistrate judge's Report and Recommendation if the party fails 4 to file timely objections designating the particular issue.\"). 5 Even so, as Magistrate Judge Pollack explained at 6 length, the Sixth Amendment right is \"offense specific,\" and the 7 statements James made to the informant were not used to support 8 the charge for which he had been indicted at the time he made 9 those statements -- that charge was subsequently dropped.",
"James, 10 415 F. Supp. 2d at 158-61. Therefore, the Sixth Amendment did 11 not bar their introduction into evidence. 12 VI. Admission of Recorded Statements against Mallay 13 Defendant Mallay contends that the conversation between 14 James and Hassan, recorded by Hassan -- also referred to in the 15 previous section -- should not have been admitted against him 16 because that conversation indicates Mallay's withdrawal from the 17 conspiracy, and thus is not admissible as a co-conspirator 18 statement.",
"\"A statement . . . is not hearsay if . . . [t]he 19 statement is offered against an opposing party and . . . was made 20 by the party’s coconspirator during and in furtherance of the 21 conspiracy.\" Fed. R. Evid. 801(d)(2)(E). \"To admit an out-of- 22 court declaration under this rule, the district court must find 23 by a preponderance of the evidence '(a) that there was a 24 conspiracy, (b) that its members included the declarant and the 25 party against whom the statement is offered, and (c) that the 50 1 statement was made during the course of and in furtherance of the 2 conspiracy.'\" United States v. Farhane, 634 F.3d 127, 161 (2d 3 Cir. 2011) (quoting United States v. Al-Moayad, 545 F.3d 139, 173 4 (2d Cir. 2008)). These three factual predicates must be 5 determined by the district court by \"a preponderance of the 6 evidence.\" In re Terrorist Bombings of U.S. Embassies in E. 7 Africa, 552 F.3d 93, 137 (2d Cir. 2008) (citing Fed.",
"R. Evid. 8 104(a)). We review the district court's findings as to each for 9 clear error. See id. 10 First, the conspiracy must be proven by a preponderance 11 of the evidence to involve both the declarant and the defendant. 12 The district court \"may properly find the existence of a criminal 13 conspiracy where the evidence is sufficient to establish, by a 14 preponderance of the evidence, that 'the .",
". . alleged 15 coconspirators entered into a joint enterprise with consciousness 16 of its general nature and extent.'\" In re Terrorist Bombings, 17 552 F.3d at 137-38. Although Rule 801(d)(2)(E) \"'requires that 18 both the declarant and the party against whom the statement is 19 offered be members of the conspiracy, there is no requirement 20 that the person to whom the statement is made also be a member.'\" 21 Id. at 139 (quoting United States v. Beech-Nut Nutrition Corp., 22 871 F.2d 1181, 1199 (2d Cir. 1989). 23 Second, to be admissible, the statement must be made 24 \"in furtherance of the conspiracy.\" In general, \"'the statements 25 must in some way have been designed to promote or facilitate 26 achievement of the goals of the ongoing conspiracy[.]'\" United 51 1 States v. Diaz, 176 F.3d at 85 (quoting United States v. Tracy, 2 12 F.3d 1186, 1196 (2d Cir. 1993)). The ways in which a 3 statement might \"promote or facilitate\" the conspiracy include, 4 among others, \"seeking to induce a coconspirator's assistance,\" 5 id. ; \"informing coconspirators as to the progress or status of 6 the conspiracy,\" id.",
"; and prompting a non-coconspirator to 7 respond in some way that \"promotes or facilitates the carrying 8 out of a criminal activity,\" Tracy, 12 F.3d at 1196. See 9 generally, e.g., In re Terrorist Bombings, 552 F.3d at 139; Diaz, 10 176 F.3d at 85; United States v. Gigante, 166 F.3d 75, 82 (2d 11 Cir. 1999). \"Because what constitutes a statement that is in 12 furtherance of a conspiracy is essentially a question of fact, we 13 will reverse a decision to admit co-conspirator statements only 14 if it is clearly erroneous.\" In re Terrorist Bombings, 552 F.3d 15 at 139 (internal quotation marks omitted). 16 Mallay contends that at the time of James's and 17 Hassan's conversation regarding the possible murder of 18 Narinesingh he was no longer part of the conspiracy.",
"As proof, 19 James notes the indication on the tape recorded statement that he 20 is no longer talking to Mallay, and that the two have had a 21 falling out. That members of a conspiracy have had a 22 disagreement or a falling out is not, however, sufficient to 23 establish withdrawal from the conspiracy. See, e.g., United 24 States v. Jackson, 335 F.3d 170, 182 (2d Cir. 2003) (\"To withdraw 25 from a conspiracy, a person must take some affirmative action 26 either by making a clean breast to the authorities or 52 1 communicating the abandonment in a manner reasonably calculated 2 to reach co-conspirators.\" (internal quotation marks and 3 citations omitted)); United States v. Spero, 331 F.3d 57, 60 (2d 4 Cir. 2003) (\"[A conspiracy] is presumed to exist until there has 5 been an affirmative showing that it has been terminated,\" and its 6 members \"continue to be conspirators until there has been an 7 affirmative showing that they have withdrawn.\"",
"(internal 8 quotation marks omitted)). \"An internal dispute among members of 9 a conspiracy can itself be compelling evidence that the 10 conspiracy is ongoing and that the rivals are members of it.\" 11 United States v. Amato, 15 F.3d 230, 234 (2d Cir. 1994). Hassan 12 testified that the reason Mallay and James were not talking to 13 one another at the time was not that Mallay had withdrawn from 14 the conspiracy, but rather that Mallay had just undergone heart 15 surgery, a fact stipulated to by the parties. Shortly before his 16 surgery, Mallay procured insurance policies on two persons for 17 more than $2 million, indicating that he continued to participate 18 in the conspiracy at the time of the recorded conversation 19 between Hassan and James.",
"We therefore find no error in the 20 admission of this recording against Mallay. 21 VII. Denial of New Trial Motion 22 The defendants argue that a post-trial letter from 23 Camuldeen Allie, a cooperating witness, alleging prosecutorial 24 misconduct required a new trial, or at least an evidentiary 53 1 hearing, and that the district court erred in not granting their 2 requests for either. 3 We review the denial of a Rule 33 motion for a new 4 trial for abuse of discretion. See United States v. McCourty, 5 562 F.3d 458, 475 (2d Cir.",
"2009). Federal Rule of Criminal 6 Procedure 33(a) provides that \"[u]pon the defendant's motion, the 7 court may vacate any judgment and grant a new trial if the 8 interest of justice so requires.\" In deciding a Rule 33 motion, 9 \"[t]he test is whether it would be a manifest injustice to let 10 the guilty verdict stand.\" United States v. Lin Guang, 511 F.3d 11 110, 119 (2d Cir. 2007) (internal quotation marks omitted). \"For 12 a trial judge to grant a Rule 33 motion, he must harbor a real 13 concern that an innocent person may have been convicted.\" Id. 14 (internal quotation marks omitted). To merit relief based on a 15 claim of newly discovered evidence, the burden is on the 16 defendant to satisfy five elements: (1) that the evidence is 17 \"newly discovered after trial\"; (2) that \"facts are alleged from 18 which the court can infer due diligence on the part of the movant 19 to obtain the evidence\"; (3) that \"the evidence is material\"; (4) 20 that the evidence \"is not merely cumulative or impeaching\"; and 21 (5) that \"the evidence would likely result in an acquittal.\" 22 United States v. Owen, 500 F.3d 83, 88 (2d Cir.",
"2007) (internal 23 citations omitted). 24 The district court concluded that the allegations 25 contained in Allie's letter –- that an Assistant United States 26 Attorney had coerced him into testifying –- were \"a fabrication.\" 54 1 James I, 2009 WL 763612, at *7, 2009 U.S. Dist. LEXIS 23706, at 2 *21. The court found that the AUSA Allie accused of coercing him 3 had not yet joined the U.S. Attorney's Office at the time when 4 Allie alleges he was coerced, that Allie had testified that no 5 members of the prosecution team in this case were present during 6 the negotiations that led to his cooperation, and that Allie was 7 represented by counsel when he decided to cooperate. Id., 2009 8 U.S. Dist. LEXIS 23706, at *20-*21.",
"Furthermore, in his letter, 9 Allie does not ever disclaim his testimony, or suggest it was 10 anything but truthful. Id. at *8, 2009 U.S. Dist. LEXIS 23706, 11 at *21. Finally, the defendants knew that Allie had a motive to 12 cooperate with the government because it was elicited on cross- 13 examination that the government might let the state parole board 14 know of his cooperation. Id., 2009 U.S. Dist. LEXIS 23706, at 15 *21-*22. 16 While it may be that the contents of the letter provide 17 a reason to doubt Allie's credibility, \"a new trial is not 18 required when the suppressed impeachment evidence merely 19 furnishes an additional basis on which to impeach a witness whose 20 credibility has already been shown to be questionable.\" United 21 States v. Parkes, 497 F.3d 220, 233 (2d Cir.",
"2007) (internal 22 quotation marks omitted). In any event, there is no \"reasonable 23 probability\" that the outcome of the defendants' trial would have 24 been different had the contents of Allie's letter been disclosed, 25 even if believed. See In re Terrorist Bombings of U.S. Embassies 26 in E. Africa, 552 F.3d at 146. 55 1 VIII. Cumulative Error 2 Finally, having concluded that there has been no error 3 in the defendants' trial, it follows that we must reject their 4 claim of cumulative error. \"[That] doctrine finds no foothold in 5 th[ese] appeal[s].\" United States v. Fell, 531 F.3d 197, 233 (2d 6 Cir. 2008) (internal quotation marks omitted). 7 CONCLUSION 8 For the foregoing reasons, we affirm the judgments of 9 the district court.",
"56 Case # 09-2732-cr (L) United States v. James EATON, Judge, concurring: Because of the unsettled state of the law, I agree that the admission into evidence of the autopsy report prepared by Dr. Jindrak did not constitute plain error. United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (“Typically, we will not find plain error ‘where the operative legal question is unsettled.’”) (citations omitted). I respectfully part company with the majority, however, on its conclusion that the autopsy report was “not testimonial” for purposes of the Confrontation Clause. The majority reads recent Supreme Court cases as holding that “a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial.” This formulation, however, appears to place too much emphasis on future use in a criminal trial being the primary purpose for the creation of a testimonial statement. I would not find that this “primary purpose” is the common thread in the Supreme Court’s jurisprudence.1 Rather, I would find that a testimonial statement is one having 1 The Supreme Court’s use of the “criminal trial” language, while not entirely consistent, tends toward the same idea. Compare Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (quoting Davis’ “’potentially relevant to a later criminal prosecution’” language in the context of a blood-alcohol test requested by the prosecutor), Michigan v. Bryant, 131 S. Ct. 1143, 1148 (2011) (employing Davis’ “’potentially relevant to a later criminal prosecution’” language in the context of a police interrogation), and Davis v. Washington, 547 U.S. 813, 822 (2006) (articulating the “potentially relevant to a later criminal prosecution” language in the context of a 911 call), with Melendez–Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (quoting Crawford’s “‘available for use at a later trial’” language in the context of a laboratory report requested by the police), and Crawford v. Washington, 541 U.S. 36, 51–52 (2004) (listing “available for use at a later trial” among the “[v]arious formulations” of the “core class” of testimonial statements).",
"1 an evidentiary purpose, declared in a solemn manner, and made under circumstances that would lead a reasonable declarant to understand that it would be available for use prosecutorially. The point of departure for this analysis is Crawford. As I read that case and those that follow it, there are three key considerations for determining if a statement is testimonial. First, “[t]estimony” is “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”2 Crawford v. Washington, 541 U.S. 36, 51 (2004) (citation and internal quotation marks omitted). Thus, at the time of its making, the statement must have an “evidentiary purpose.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011); Melendez– Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). In other words, to be testimonial the declarant must make the statement to “prove past events.” Davis v. Washington, 547 U.S. 813, 822 (2006). Statements relating ongoing events made to achieve some other purpose, such as receiving medical or police assistance, and forward-looking statements, such as those made in furtherance of a conspiracy or to elicit inculpatory statements from others, lack the required purpose. Michigan v. Bryant, 131 S. Ct. 1143, 1157 (2011) (statement made by a mortally wounded victim in need of medical attention did not have an evidentiary purpose); Davis, 547 2 Interestingly, not only did “several early American authorities flatly reject[] any special status for coroner statements,” the historical precursors of modern medical examiners’ reports, one of the cases cited in Crawford also stands for the proposition that evidence produced by coroners’ investigations requires confrontation, even though the purpose of those investigations was not a purely prosecutorial one.",
"Crawford, 541 U.S. at 47 n.2 (citing State v. Campbell, 30 S.C.L. 124, 130 (S.C. App. L. 1844) (“The general object, at least, of our Act, would seem to be, to record the whole of the information obtained upon any inquest concerning the sudden or violent death of a man, for the purpose of a prosecution, for satisfaction, or any investigation of the public, or of individuals concerned. So much is due to the living and the dead. Sudden and unnatural deaths shock us all. .",
". . And let me here observe, that the information and publication of the kind of death, the wound, time and manner, place and circumstances, may often lead to unlooked for charges against unsuspected persons, and even of men abroad. And shall they all be assumed . . . [not to require] cross-examination? Because our Act is general for all inquests, the examination public, and of high respectability? On the contrary, is there not too much of mere formula, if not fiction, in such a notion?”).",
"2 U.S. at 822 (statements about ongoing events during a 911 call did not have an evidentiary purpose); United States v. Farhane, 634 F.3d 127, 131–32, 162–63 (2d Cir. 2011) (statements promising future aid in a conspiracy did not have an evidentiary purpose); United States v. Burden, 600 F.3d 204, 225 (2d Cir. 2010) (recorded statements of a cooperating witness made to induce a confession did not have an evidentiary purpose); cf. United States v. Logan, 419 F.3d 172, 178 (2d. Cir. 2005) (finding alibi statements made to police were testimonial).",
"Second, the statement must have been made in a way that is sufficiently solemn so as to make it more like “‘a formal statement to government officers’” rather than “‘a casual remark [made] to an acquaintance.’” Bryant, 131 S. Ct. at 1153 (quoting Crawford, 541 U.S. at 51); Davis, 547 U.S. at 822 (quoting Crawford, 541 U.S. at 51). This does not mean that the statement must be contained in a formal written document, but merely that the circumstances surrounding its utterance must be such that a reasonable declarant would be aware of the serious nature of his or her declaration. Davis, 547 U.S. at 826 (citing Crawford, 541 U.S. at 51). Finally, the statement must reasonably be understood as being “available for use at a later trial.” Melendez–Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 52). That is, the speaker need not expect that the statement will be used in a criminal trial, or even that it is objectively likely that the statement will be used in a criminal trial, only that it is foreseeable that the statement could be used prosecutorially. Bryant, 131 S. Ct. at 1169 (Scalia, J. dissenting) (“[H]e must make the statement with the understanding that it may be used to invoke the coercive machinery of the State.”); see also Melendez–Diaz, 129 S. Ct. at 2532 (“[T]he affidavits [were] ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (quoting Crawford, 541 U.S. at 52)).",
"3 Applying this formulation, it is evident that the admission of Dr. Jindrak’s report triggered the Confrontation Clause. First, the autopsy report was, inarguably, created to establish facts regarding the death of Mr. Somaipersaud. The report and its incorporated laboratory analyses contain five final diagnoses, two statements of cause of death, detailed descriptions of various portions of Mr. Somaipersaud’s body, and calculated levels of toxins, all of which are factual statements. Second, the report is sufficiently solemn. All reports generated by the New York City Office of Chief Medical Examiner (“OCME”) are required to “be signed by the medical examiner performing the autopsy.” N.Y.C. Admin. Code § 17-203 (1998). These reports are made by government officials for use by government officials.",
"See United States v. Feliz, 467 F.3d 227, 2337 (2d Cir. 2006) (observing that OCME reports would qualify for the public records hearsay exception, which requires that the statement be made by a public officer or agency). Indeed, even if OCME did not have a long history of cooperation with law enforcement, all autopsy reports would remain statements made directly to law enforcement insofar as they are statutorily required to be available to law enforcement officers and prosecutors. N.Y.C. Admin. Code § 17-205 (1998) (“The appropriate district attorney and the police commissioner of the city may require from [OCME] such further records, and such daily information, as they may deem necessary.”) Moreover, like the reports in Bullcoming and Melendez–Diaz, Dr. Jindrak’s report contains a certification. Third, it could have reasonably been anticipated that the autopsy report would be available for use in a criminal trial. Medical examiners working for OCME are statutorily obligated to make conclusions as to causes of death, to record the reasons for those conclusions, and to preserve those records for future use.",
"N.Y.C. Admin. Code § 17-203 (“A detailed 4 description of [those] findings . . . shall be written or dictated. . . . The findings of the investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and microbiologic examinations, and the conclusions drawn therefrom shall be filed in the office of chief medical examiner.”). Even if it could not have been reasonably foreseen at the outset of the autopsy that the report’s results would be used in a later trial, it seems clear that, at some point during her examination, Dr. Jindrak would reasonably have anticipated that it could be used later in a criminal prosecution. That is, once she certified that the primary cause of death was “acute mixed intoxication with alcohol and chlorpromazine,” i.e., that Mr. Somaipersaud had been poisoned, a reasonable medical examiner would have anticipated that the autopsy report could be used prosecutorially. See Bryant, 131 S. Ct. at 1159 (observing that non-testimonial statements may “evolve into testimonial statements” as more information is provided (quoting Davis, 547 U.S. at 828 (internal quotation marks omitted))).",
"When a statement such as Dr. Jindrak’s autopsy report is introduced against a defendant at a criminal trial, that evidence is “functionally identical to live, in-court testimony, because [it does] ‘precisely what a witness does on direct examination,’” rendering its declarant a “witness” and triggering the protections of the Confrontation Clause. Melendez–Diaz, 129 S. Ct. at 2532 (quoting Davis, 547 U.S. at 830); see also Bullcoming, 131 S. Ct. at 2712; Crawford, 541 U.S. at 51. James was both charged with and convicted of murder and conspiracy to commit murder. The prosecution’s theory was that Mr. Somaipersaud had been poisoned. The prosecution offered the autopsy report to establish the very same facts, prejudicial to Mr. James, about which Dr. Jindrak would have been expected to testify at trial. Indeed, on direct examination, Dr. 5 Ambrosi was asked both to identify Dr. Jindrak’s conclusions as to cause of death and to state whether she agreed with those conclusions. Moreover, I believe that the admission of any medical examiner’s report prepared by OCME would trigger the protections of the Confrontation Clause.3 Dr. Jindrak’s report was not unique in the sense that the characteristics that made it testimonial are present in all autopsy reports prepared by OCME that are introduced against a defendant at a criminal trial.",
"All such reports are made to establish facts about the cause of death of the decedent; they are made by and to government officials in a formalized recording; they contain statements a medical examiner could reasonably foresee would be used in a criminal prosecution; and if a prosecutor seeks to introduce a report for its truth, it would substitute for live testimony adverse to the defendant. As noted, I believe that the majority’s approach goes astray by suggesting that to trigger the Confrontation Clause the “primary purpose” of an autopsy report must be use “at a later criminal trial.” This formulation postulates the existence of a medical examiner who gives adverse testimony but who is not a “witness” for Confrontation Clause purposes because he or she did not prepare the autopsy report primarily for use in criminal proceedings.",
"In doing so, the opinion creates the very “third category of witnesses, helpful to the prosecution, but somehow immune from confrontation” that Melendez–Diaz expressly says does not exist. Melendez–Diaz, 129 S. Ct. at 2534. 3 At least two other federal circuits and a number of state courts of last resort have reached a similar conclusion regarding particular reports prepared by the equivalent of OCME in their jurisdictions. See, e.g., United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012); United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011); State v. Navarette, 294 P.3d 435 (N.M. 2013); State v. Kennedy, 735 S.E.2d 905 (W. Va. 2012); Conners v. State, 92 So.3d 676 (Miss. 2012) (noting a pre-Crawford decision that held admission of an autopsy report required confrontation); State v. Locklear, 681 S.E.2d 293 (N.C. 2009); see also People v. Lewis, 806 N.W.2d 295 (Mich. 2011) (vacating lower court’s holding that an autopsy report was non- testimonial but holding the error harmless without significant discussion); Wood v. State, 299 S.W.3d 200 (Tex.",
"Ct. App. 2009), review denied, 2010 Tex.Crim.App. LEXIS 115 (2010). 6 Finally, as the Eleventh Circuit points out, “[m]edical examiners are not mere scriveners” and “autopsy reports are the product of the skill, methodology, and judgment of the highly trained examiners who actually performed the autopsy.” United States v. Ignasiak, 667 F.3d 1217, 1232 (11th Cir. 2012) (holding autopsy reports to be testimonial and requiring confrontation) (citing Bullcoming, 131 S. Ct. at 2714). Both Bullcoming and Melendez–Diaz hold that a laboratory analyst’s report of sufficient solemnity triggers the protections of the Confrontation Clause. It would be incongruous indeed, if an autopsy report requiring numerous skilled judgments on the part of a medical examiner, did not require the same confrontation. 7"
]
| https://www.courtlistener.com/api/rest/v3/opinions/856492/ | 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 .
Continued Examination Under 37 CFR 1.114 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 6/29/21 has been entered. Status of the Claims Receipt is acknowledged of the Applicant’s response filed on 6/29/21. Claims 7 and 15 have been amended. Claims 1 – 6 and 14 have been cancelled. Claims 10 and 18 are withdrawn due to a restriction requirement. Claims 7 – 13 and 15 - 19 are now pending. All outstanding objections and rejections are withdrawn in light of applicant’s amendments/remarks filed on 6/29/21.
EXAMINER’S AMENDMENT
Authorization for this examiner’s amendment was given in a telephone interview with David Mossman on 7/6/21.
The application has been amended as follows: Rejoin claims 10 and 18.
REASONS FOR ALLOWANCE Claims 7 – 13 and 15 - 19 are allowed. The following is an examiner’s statement of reasons for allowance: The present claims are allowable over the closest references of WIELAND et al (US 2014/0018282) and of ARMSTONG (US 2012/0055670).
WIELAND discloses a cleaning composition to reduce soils in hard surfaces comprising water and an aspartic acid protein comprising an amino acid that is at least 99% identical to the amino acid sequence SEQ ID NO:1 and/or the amino acid SEQ ID NO:2 and/or SEQ ID NO:3 or fragments thereof. WIELAND fails to teach a non-aqueous base fluid comprising an oil selected from the group consisting of diesel, mineral oil, esters, refinery cuts and blends, alpha-
ARMSTRONG discloses a fluid composition comprising an aqueous base fluid and an additive, wherein the fluid is used in oilfield operations. The additive comprises an enzyme having the amino acid sequence that is at least 75%, preferably at least 90%, homologous to SEQ ID NO:1 and/or SEQ ID NO:2, and is more than 99% pure of other proteins. ARMSTRONG fails to teach a non-aqueous base fluid comprising an oil selected from the group consisting of diesel, mineral oil, esters, refinery cuts and blends, alpha-olefins, non-aqueous synthetic-based fluids and combinations thereof; fails to teach that the amino acid sequences originate from one of the claimed proteins; and fails to teach the claimed foulants selected from metal carbonates, metals sulfates, or metal oxides.
The closest prior art of record fails to teach or render obvious the claimed fluid composition comprising: a base fluid selected from the group consisting of non-aqueous-based fluids, emulsified fluids, and combinations thereof, where the base fluid comprises an oil selected from the group consisting of diesel, mineral oil, esters, refinery cuts and blends, alpha-olefins, non- aqueous synthetic-based fluids, and combinations thereof; at least one protein selected from the group consisting of at least one aspein protein, at least one aspolin protein, at least one dentine protein, at least one DRICH-1 protein, at least one nacrein protein, an SMDT-1 protein, derivatives .
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.” Any inquiry concerning this communication or earlier communications from the examiner should be directed to FRANCES TISCHLER whose telephone number is (571)270-5458. The examiner can normally be reached on Monday-Friday, 8:00 AM - 8:00 PM EST, midday flex. 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, James Seidleck can be reached on 571-272-1078. 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.
/FRANCES TISCHLER/ Primary Examiner, Art Unit 1765 | 2021-07-10T14:52:07 | [
"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 . Continued Examination Under 37 CFR 1.114 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 6/29/21 has been entered. Status of the Claims Receipt is acknowledged of the Applicant’s response filed on 6/29/21. Claims 7 and 15 have been amended. Claims 1 – 6 and 14 have been cancelled. Claims 10 and 18 are withdrawn due to a restriction requirement. Claims 7 – 13 and 15 - 19 are now pending. All outstanding objections and rejections are withdrawn in light of applicant’s amendments/remarks filed on 6/29/21. EXAMINER’S AMENDMENT Authorization for this examiner’s amendment was given in a telephone interview with David Mossman on 7/6/21.",
"The application has been amended as follows: Rejoin claims 10 and 18. REASONS FOR ALLOWANCE Claims 7 – 13 and 15 - 19 are allowed. The following is an examiner’s statement of reasons for allowance: The present claims are allowable over the closest references of WIELAND et al (US 2014/0018282) and of ARMSTONG (US 2012/0055670). WIELAND discloses a cleaning composition to reduce soils in hard surfaces comprising water and an aspartic acid protein comprising an amino acid that is at least 99% identical to the amino acid sequence SEQ ID NO:1 and/or the amino acid SEQ ID NO:2 and/or SEQ ID NO:3 or fragments thereof.",
"WIELAND fails to teach a non-aqueous base fluid comprising an oil selected from the group consisting of diesel, mineral oil, esters, refinery cuts and blends, alpha- ARMSTRONG discloses a fluid composition comprising an aqueous base fluid and an additive, wherein the fluid is used in oilfield operations. The additive comprises an enzyme having the amino acid sequence that is at least 75%, preferably at least 90%, homologous to SEQ ID NO:1 and/or SEQ ID NO:2, and is more than 99% pure of other proteins. ARMSTRONG fails to teach a non-aqueous base fluid comprising an oil selected from the group consisting of diesel, mineral oil, esters, refinery cuts and blends, alpha-olefins, non-aqueous synthetic-based fluids and combinations thereof; fails to teach that the amino acid sequences originate from one of the claimed proteins; and fails to teach the claimed foulants selected from metal carbonates, metals sulfates, or metal oxides.",
"The closest prior art of record fails to teach or render obvious the claimed fluid composition comprising: a base fluid selected from the group consisting of non-aqueous-based fluids, emulsified fluids, and combinations thereof, where the base fluid comprises an oil selected from the group consisting of diesel, mineral oil, esters, refinery cuts and blends, alpha-olefins, non- aqueous synthetic-based fluids, and combinations thereof; at least one protein selected from the group consisting of at least one aspein protein, at least one aspolin protein, at least one dentine protein, at least one DRICH-1 protein, at least one nacrein protein, an SMDT-1 protein, derivatives . 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.” Any inquiry concerning this communication or earlier communications from the examiner should be directed to FRANCES TISCHLER whose telephone number is (571)270-5458. The examiner can normally be reached on Monday-Friday, 8:00 AM - 8:00 PM EST, midday flex.",
"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, James Seidleck can be reached on 571-272-1078. 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. /FRANCES TISCHLER/ Primary Examiner, Art Unit 1765"
]
| 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 |
Code of Ethics Adopted by U.S. Global Investors, Inc. U.S. Global Brokerage, Inc. Effective June 28, 1989 As Amended November 13, 1989 As Amended May 17, 1993 As Amended February 14, 1994 As Amended December 5, 1994 As Amended March 1, 1996 As Amended May 24, 1996 As Amended June 2, 1997 As Amended October 29, 1997 As Amended December 12, 1997 As Amended December 3, 1999 As Amended December 9, 2004 As Amended March 23, 2005 As Amended March 1, 2008 As Amended May 13, 2008 As Amended June 3, 2008 As Amended August 20, 2008 As Amended December 12, 2008 As Amended December 9, 2011 As Amended October 3, 2012 As Amended December 10, 2014 TABLE OF CONTENTS Page 1. INTRODUCTION AND OVERVIEW 1 2. COVERED PERSONS 2 3. RESTRICTIONS ON PERSONAL INVESTING ACTIVITIES 2 4. PRE-CLEARANCE OF TRANSACTIONS 4 5. REPORTING REQUIREMENTS 5 6. RESTRICTIONS ON OTHER ACTIVITIES 9 7. ADMINISTRATION OF THE CODE OF ETHICS 10 APPENDIX A APPENDIX B Definitions Quarterly Certification of Partially Covered Independent Directors 1.INTRODUCTION AND OVERVIEW For the definition of bolded terms used throughout this Code of Ethics, see Appendix A. Statement of General Principles The mission of U.S. Global Investors, Inc. (“USGI”) is to maximize the growth, protection, and service of our clients’ wealth with the highest ethical standards.This Code of Ethics (the “Code”) is intended to help ensure that our professional and personal conduct preserves our reputation for high standards of ethics and integrity. The purposes of this Code are to: (a) prohibit fraudulent, deceptive, or manipulative acts in connection with your Personal Securities Transactions in: a. Reportable U.S. Global Funds, b. USGI Stock, and c. Covered Securities held or to be acquired by the U.S. Global Funds or other clients of USGI (“Other USGI-Managed Accounts”), and (b) avoid conflicts of interest so that the best interests of investors in the U.S. Global Funds and Other USGI-Managed Accounts will be served. You must agree: (a) to place the interests of U.S. Global Fund shareholders and Other USGI-Managed Accounts above your own personal interests; (b) to refrain, in the conduct of all of your personal affairs, from taking any inappropriate advantage of your roles and responsibilities with USGI, U.S. Global Brokerage, Inc.(“USGB”), the U.S. Global Funds, and the Other USGI-Managed Accounts; (c) to comply with the Federal Securities Laws; and (d) to conduct all Personal Securities Transactions so as to fully comply with the provisions of this Code in order to avoid any actual or even apparent conflict or claim of a conflict of interest or abuse of your roles and responsibilities with USGI, USGB, the U.S. Global Funds, and Other USGI-Managed Accounts. This Code is just one element of our program to avoid conflicts of interest and ensure that the duties we owe to our clients remain our foremost priority.In addition to this Code, you may be subject to other USGI policies such as, among others, USGI’s Protection of Material, Nonpublic Information Policy, USGI’s Code of Business Conduct, and the U.S. Global Funds’ Policies and Procedures on Disclosure of Portfolio Holdings. Adoption of the Code of Ethics This Code has been adopted for USGI and USGB in accordance with Rule 204A-1 under the Investment Advisers Act of 1940, as amended, and Rule 17j-1 under the Investment Company Act of 1940, as amended.Each rule requires, at a minimum, that USGI and USGB adopt a code of ethics that sets forth standards of conduct, requires compliance with the Federal Securities Laws, and addresses personal trading by certain personnel. Page 1 of 16 2.COVERED PERSONS Persons covered by this Code are called Covered Persons, and include any officer, director (other than a Partially Covered Independent Director), or employee of USGI or USGB; USGI itself when trading for any of its own accounts; and any other person designated by the Chief Compliance Officer. Certain Covered Persons are also categorized as Covered Independent Directors or as Investment Personnel, which includes, among others, any Portfolio Manager, investment analyst, trader, or any USGI officer, director, employee, or consultant who, in connection with his or her regular functions or duties, makes or participates in making recommendations on behalf of USGI regarding the purchase or sale of specific securities by the U.S. Global Funds or Other USGI-Managed Accounts, and any other person designated by the Chief Compliance Officer. Independent directors of USGI who are not involved in the day-to-day operations of USGI or the portfolio management of USGI’s client portfolios generally are not considered Covered Persons under the Code of Ethics and, therefore, are required only to provide the quarterly certification in Appendix B and to comply with the provisions of this Code of Ethics dealing with personal transactions in USGI Stock.These directors are called Partially Covered Independent Directors.If an independent director of USGI cannot make the certifications set forth in Appendix B, then such independent director will be deemed a Covered Independent Director and is subject to all the provisions of this Code that apply to Covered Persons, unless otherwise specifically indicated herein. Be aware that some provisions of this Code apply indirectly to other persons, such as relatives, significant others, or advisers, if they own or manage securities in which a Covered Person has a Beneficial Ownership interest.For example, if you are a Covered Person, the Code’s investment restrictions and reporting requirements apply both to you, and to securities or accounts owned by a relative who lives in your home or whom you support, or by a non-relative who shares significant financial arrangements with you, or managed by an adviser for you or a close relative. For the purposes of this Code, USGI and any Independent Subadvisers shall be treated as separate unrelated entities and shall not be required to coordinate their efforts with respect to any pre-clearance requirements. 3.RESTRICTIONS ON PERSONAL INVESTING ACTIVITIES Covered Persons, other than Investment Personnel, may purchase or sell, in accordance with the provisions of this Code, Covered Securities, USGI Stock, and Reportable U.S. Global Funds. Covered Persons, other than the Covered Independent Directors and USGI for its own account, are prohibited from having margin accounts, trading commodities contracts, or purchasing or selling HOLDRS, and may trade options only when the options are covered by ownership of the underlying stock (i.e., Covered Calls and Protective Puts). Investment Personnel are prohibited from purchasing Covered Securities, except Investment Personnel may purchase and sell USGI Stock, Reportable U.S. Global Funds, and Excepted Securities (e.g., open-end mutual funds, other than exchange-traded funds).In addition, Investment Personnel, in accordance with the provisions of this Code, may engage in Excepted Transactions (e.g., transactions over which you have no influence or control) and sell Covered Securities that you already hold or later acquire in an Excepted Transaction. Page 2 of 16 In the future, USGI and USGB may decide to lift the prohibition on the purchase of Covered Securities by Investment Personnel. Reportable U.S. Global Funds All Covered Persons must always conduct their personal investing activities in Reportable U.S. Global Funds in which they have any direct or indirect Beneficial Ownership lawfully, properly, and responsibly, and are encouraged to adopt long-term investment strategies in Reportable U.S. Global Funds that are consistent with their financial resources and objectives. Excessive Trading in Reportable U.S. Global Funds by Covered Persons is prohibited.Any Covered Person who is identified as having engaged in Excessive Trading in Reportable U.S. Global Funds will be sanctioned as set forth in Section 7.4, unless you can demonstrate to the Review Committee in writing that a bona fide and sufficient personal or family economic hardship exists warranting the gravity of an exception. Initial Public Offerings No Covered Person, other than the Covered Independent Directors or USGI for its own accounts, shall effect or be permitted to effect the purchase of a security from the issuer, or any member of the underwriting syndicate or selling group, in and during the course of any Initial Public Offering by or on behalf of the issuer of such security.The Covered Independent Directors and USGI must pre-clear their transactions in Initial Public Offerings in accordance with Section 4. Limited Offering Transaction No Covered Person may purchase a security in a Limited Offering transaction (e.g., private placements, private investment partnerships, and other private interests) without obtaining the advance written approval of the Chief Compliance Officer.In determining whether or not to grant approval of participation in a Limited Offering, the Chief Compliance Officer will consider, among any other pertinent factors: (a) whether the investment opportunity is available to, and should be reserved solely for, the U.S. Global Funds or Other USGI-Managed Accounts; and (b) whether the opportunity is or seems to have been made available to the Covered Person due to or by virtue of the position which he or she holds with USGI or USGB. In adopting this Code, USGI acknowledges its responsibility to monitor activities of the firm and those of its Covered Persons to ensure that investment decisions on behalf of the U.S. Global Funds and/or Other USGI-Managed Accounts relating to any Limited Offering transaction with respect to which a Covered Person has obtained pre-acquisition approval will be subject to independent review by senior USGI Investment Personnel having no personal interest in the issuer or any of its securities. “Black-Out” Trading Restrictions Two-Day Restriction: A Covered Person (except for the Covered Independent Directors) may not effect a Personal Securities Transaction in a Covered Security if (i) a U.S. Global Fund or Other USGI-Managed Account purchased or sold the same Covered Security or Equivalent Covered Security one trading day earlier or (ii) the Covered Person has actual knowledge regarding whether the same Covered Security or Equivalent Covered Security is being considered for purchase or sale on the current or next trading day by a U.S. Global Fund or Other USGI-Managed Account. Page3 of 16 14-Day Restriction: Investment Personnel may not dispose of a Covered Security if (i) a U.S. Global Fund or Other USGI-Managed Account purchased or sold the same Covered Security or Equivalent Covered Security within the prior seven calendar days or (ii) such person has actual knowledge regarding whether the same Covered Security or Equivalent Covered Security is being considered for purchase or sale on the current or next seven calendar days by a U.S. Global Fund or Other USGI-Managed Account. The foregoing Two- and 14-Day Restrictions shall not apply to any Personal Securities Transaction, or series of related transactions within the prior 30 days, amounting to $10,000 or less in the aggregate, only if such Personal Securities Transaction involves the common stock or an Equivalent Covered Security of an issuer with a market capitalization over $5 billion; provided, however, that Investment Personnel may not dispose of a Covered Security on the same day of a purchase or sale of the same Covered Security or any Equivalent Covered Security by or on behalf of any U.S. Global Fund or any Other USGI-Managed Account if such person knows, or should have known, about such purchase or sale. In the event that a Personal Securities Transaction is effected in contravention of either of the two foregoing restrictions, the Covered Person involved shall, as soon as practicable after becoming aware of the violative nature of his or her Personal Securities Transaction (irrespective of any pre-execution clearance which may have been previously granted for the transaction), promptly (i) advise the Chief Compliance Officer of the violation and (ii) comply with whatever directions, by way of disgorgement, which the Chief Compliance Officer may issue in order for the violation to be fully and adequately rectified. Short-Term Matched Profit Restriction on Covered Securities Transactions Covered Persons, subject to the exceptions noted immediately below, shall not engage in any Short-Term Matched Profit Transaction within the meaning of this Code.This prohibition is intended to apply to all instances of short-term (i.e., 60 calendar days or less) purchase and sale transactions. The Chief Compliance Officer may, and is hereby granted authority to determine, in his or her discretion, to except a given personal securities transaction from the prohibition established by the foregoing sub-paragraph in cases where: (a) the transaction, and any earlier Personal Securities Transaction with which it may be matched over the most recent 60 calendar days, do not appear to evidence actual abuse of a conflict of interest with any U.S. Global Fund or Other USGI-Managed Account (as, for example, where the Covered Security or Securities involved have not recently been held, traded, or actively considered for investment or trading by such accounts); and (b) the Covered Person can demonstrate that a bona fide and sufficient personal or family economic hardship exists warranting the granting of such an exception. Exceptions will be granted only upon meritorious circumstances and, if granted, will be promptly reported, in writing, to the Review Committee. Prohibition on Trading on Material, Nonpublic Information Page 4 of 16 All Covered Persons must comply with USGI’s Protection of Material, Nonpublic Information Policy, which, among other things, prohibits trading in any Covered Security at any time that a Covered Person is in possession of material, nonpublic information about the issuer of such security. Limitations on Trading In USGI Stock Limitations on Purchases of USGI Stock Covered Persons and Partially Covered Independent Directors with access to financial data regarding USGI may only trade in USGI Stock, subject to pre-clearance as provided below in Section 4, during the period commencing 24 hours after USGI publicly announces its quarterly earnings until 15 calendar days before the end of a quarter (unless USGI management has implemented a trading blackout in USGI Stock due to a material corporate event or other such circumstances).The Chief Compliance Officer may allow written exceptions to this prohibition for good cause. Prohibitions on Purchases of USGI Stock Covered Persons and Partially Covered Independent Directors may not engage in transactions in USGI Stock that are speculative in nature.These transactions include, but are not limited to: (i) the writing of a call option or the purchase of a put option if the amount of securities underlying the option exceed the amount of securities you otherwise own; (ii) short sales (i.e., selling borrowed securities); and (iii) transacting in the securities of any entity with which USGI is discussing business matters. 4.PRE-CLEARANCE OF TRANSACTIONS Pre-Clearance Process Covered Persons (except the Covered Independent Directors for transactions that do not involve USGI Stock or are not Initial Public Offerings or Limited Offerings) are required, prior to the execution of any Personal Securities Transaction in USGI Stock or a Covered Security, including any voluntary contribution or adjustment to an Automatic Investment Plan, Dividend Reinvestment Plan, Employee Stock Option Plan, or Employee Stock Purchase Plan, or other similar stock plan in which they will have any direct or indirect Beneficial Ownership, to seek and obtain the express approval of the Chief Compliance Officer by completing a pre-clearance request and submitting it to the Chief Compliance Officer. If approval of a transaction is granted, the approval is good until the end of the trading day (generally 3 p.m. CT).If the authorized transaction is not executed within this time period, you must complete a new pre-clearance request if you still wish to execute the transaction. Effect of Pre-Execution Clearance of Personal Covered Securities Transactions Approval of a request for pre-execution clearance shall not operate as a waiver, satisfaction or presumption of satisfaction of any other provision of this Code, but only as evidence of good faith on your part, which may be considered by the Review Committee should a violation of any other provision of this Code be determined to have occurred. 5.REPORTING REQUIREMENTS Acknowledgement Form Page 5 of 16 All Covered Persons must complete and return to the Chief Compliance Officer an executed Acknowledgement Certification to the Code no later than 10 calendar days after becoming a Covered Person.Each Covered Person must also certify annually to compliance with the Code by completing and returning an Acknowledgement Certification to the Chief Compliance Officer no later than February 1. Initial Holdings Reports Covered Persons, no later than 10 days after a person is designated as such, must provide and certify the following personal holdings information (which must be current as of a date no more than 45 days prior to the date the person becomes a Covered Person): (a) the title and type of security, and as applicable the exchange ticker symbol or CUSIP number, number of shares and principal amount of USGI Stock, each Covered Security, and each Reportable U.S. Global Fund in which the Covered Person had any direct or indirect Beneficial Ownership when the person became a Covered Person; (b) the name of any broker, dealer, bank, or transfer agent with whom the Covered Person maintains an account in which any Covered Securities, Reportable U.S. Global Funds, or USGI Stock are held, or could be held, for the direct or indirect benefit of the Covered Person as of the date the person became a Covered Person; and (c) the date that the report is submitted by the Covered Person. Account Confirmations and Statements Covered Persons are required to ensure that the office of the Chief Compliance Officer is furnished duplicate copies of the following account documents: (a) confirmations issued by brokers, dealers, banks, or transfer agents upon the execution of all Personal Securities Transactions in USGI Stock, any Covered Security, or any Reportable U.S. Global Fund in which the Covered Person had, at the time of the transaction, or by reason of the transaction acquired, any direct or indirect Beneficial Ownership interest in the USGI Stock, Covered Security, or Reportable U.S. Global Fund which was the subject of the transaction; and (b) any regular periodic or other statements reflecting Personal Securities Transaction activity in USGI Stock, any Covered Security, or any Reportable U.S. Global Fund within any account with a broker, dealer, bank, or transfer agent in which the Covered Person has any direct or indirect Beneficial Ownership interest. Such copies shall be provided to the Chief Compliance Officer at the time that the Covered Person receives his or her copies from the broker, dealer, bank, or transfer agent. Quarterly Transaction Reports Covered Persons shall submit on a calendar quarterly basis, a Quarterly Securities Transaction Report of all personal securities transactions.The quarterly report must also include any voluntarycontributionor adjustment to Automatic Investment Plans, Dividend Reinvestment Plans, Employee Stock Option Plans, Employee Stock Purchase Plans, or similar stock compensation plans.Such quarterly report shall be submitted to the Chief Compliance Officer no later than 30 calendar days after the end of each calendar quarter. Page 6 of 16 The quarterly report should not include any transactions in Excepted Securities or any Excepted Transactions (as defined in Appendix A).The certification of the quarterly report is required regardless of whether or not the Covered Person had any securities transactions activity during the quarter. Each quarterly report may contain a statement that the report shall not be construed as an admission by the Covered Person that he or she has any direct or indirect Beneficial Ownership in any security to which the report relates. Officers, directors, and employees of USGI are not required to report transactions effected for USGI’s own accounts. The Quarterly Securities Transaction Report must contain the following information relating to the most recent calendar quarter: (a) The date of the transaction, the title of and, as applicable, the exchange ticker symbol or CUSIP number, number of shares, interest rate and maturity date, and the principal amount of each security involved; (b) The nature of the transaction (i.e., purchase, sale or any other type of acquisition or disposition); (c) The price at which the transaction was effected; (d) The name of the broker, dealer, bank, or transfer agent with or through whom the transaction was effected; and (e) The date the Covered Person submits the report. With respect to any new account established by a Covered Person in which any Covered Securities, USGI Stock, or Reportable U.S. Global Funds were held, or could be held, during the quarter for the direct or indirect benefit of the Covered Person: (a) the name of the broker, dealer, bank, or transfer agent with whom the Covered Person established the account; (b) the date the account was established; and (c) the date that the report was submitted by the Covered Person. Annual Holdings Reports Covered Persons must provide and certify annually the following personal holdings information (which information must be current as of a date no more than 45 days before the report is submitted): (a) the title and type of security, and as applicable the exchange ticker symbol or CUSIP number, number of shares and principal amount of each Covered Security, USGI Stock, and Reportable U.S. Global Fund in which the Covered Person had any direct or indirect Beneficial Ownership; (b) The name of any broker, dealer or bank with whom the Covered Person maintains an account in which any Covered Securities, Reportable U.S. Global Funds, or USGI Stock are held, or could be held, for the direct or indirect benefit of the Covered Person; and (c) the date that the report is submitted by the Covered Person. Page 7 of 16 Other Reporting and Disclosure Requirements Covered Persons are required, upon first becoming a Covered Person to review the Code and furnish a disclosure and identification of all securities accounts with brokers, dealers, banks, and transfer agents in which the Covered Person currently has any direct or indirect Beneficial Ownership interest. Newly Opened Securities Accounts Covered Persons must notify the Chief Compliance Officer of any new securities accounts within 15 days of the account being opened.In addition, all Covered Persons must notify the Chief Compliance Officer of any new Reportable U.S. Global Fund accounts within 15 days of the account being opened. Exemption to Reporting Requirements A person need not make an initial, quarterly or annual report under this section with respect to transactions effected for, and Covered Securities or Reportable U.S. Global Funds held in, any account over which the person had no direct influence or control. Furthermore, quarterly transaction reports need not be filed for any transaction effected in a Non-Discretionary Account if the Chief Compliance Officer, after a thorough review, is satisfied that the Covered Person truly has no discretion over the account.In making requests for quarterly transaction report exemptions, Covered Persons will be required to furnish whatever information is called for by the Chief Compliance Officer. Additional Reporting Requirements Concerning USGI Stock Insider Reporting Liability.Any Covered Person or Partially Covered Independent Director who is the beneficial owner of more than 10 percent of any class of USGI Stock registered under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”) and each Executive Officer and Director of USGI (“Insiders”) are subject to the provisions of Section 16(b) of the Exchange Act. SEC Reporting.Insiders must file certain reports with the SEC and the New York Stock Exchange concerning their holdings, and any changes thereto, of USGI Stock or options to purchase USGI Stock. If Insiders fail to file a report, USGI must disclose the failure in the proxy statement it annually distributes to shareholders, the Insider and USGI could suffer penalties as a result.Please note that under these regulations, the reporting obligation is ultimately the Insider’s responsibility, not USGI’s. · Form 3.The initial ownership report by an Insider is required to be filed on Form 3.This report must be filed within 10 days after a person becomes an Insider (i.e., is elected as a director or appointed as an executive officer) to report all current holdings of USGI Stock. · Form 4.Any change in the Insider’s ownership of USGI Stock must be reported on Form 4 unless the Insider is eligible for deferred reporting on year-end Form 5.The Form 4 must be filed electronically before the end of the second business day following the day on which a transaction resulting in a change in Beneficial Ownership has been executed. · Form 5.Any transaction or holding that is exempt from reporting on Form 4, such as small purchases of stock or gifts may be reported electronically on a deferred basis on Form 5 within 45 calendar days after the end of the calendar year in which the transaction occurred.No Form 5 is necessary if all transactions and holdings were previously reported on Form 4. Page 8 of 16 Liability for Short-Swing Profits.Under the U.S. securities laws, profit realized by certain officers, as well as directors and 10% stockholders of a company (including USGI) as a result of a purchase and sale (or sale and purchase) of USGI Stock within a period of less than six months must be returned to USGI or its designated payee upon request.Profit is measured by matching the highest sale price with the lowest purchase price within six months.The grant and exercise of options, although reportable under Section 16(b), are exempt from short-swing profit liability.You are subject to potential short swing profit liability for so long as you are subject to Section 16(a) reporting requirements, which could continue for a period of time after you cease to be a director or officer. 6.RESTRICTIONS ON OTHER ACTIVITIES Policy on Gifts, Gratuities, Favors, and Other Benefits Gifts, gratuities, favors, or other benefits (“Gifts”) may be given or accepted only if they are in accordance with generally accepted business practices and do not raise any question of impropriety.A question of impropriety may be raised if a Gift influences or gives the appearance of influencing the recipient.Please do not give or receive gifts or entertainment that would be embarrassing to you, USGI, or USGB if made public. If you are licensed and registered with the Financial Industry Regulatory Authority (“FINRA”), you also are subject to those provisions of the FINRA rules relating to the receipt of Gifts.Among other things, you may accept gifts of a nominal value (i.e., no more than $100 annually from one person), customary business meals and entertainment if both you and the giver are present (e.g., sporting events), and promotional items (e.g., pens or mugs). Policy on Service as a Director of a Public Company Prohibition against Serving as a Director of a Public Company No Covered Person except the Covered Independent Directors and the Chief Executive Officer (“CEO”) shall serve on the board of directors of a publicly traded company (“Public Company”) (other than USGI, its subsidiaries and affiliates, including investment companies). Notice about CEO to Serve as Director If the CEO intends to serve as a director of a Public Company (or if he serves as a director for a private company that proposes to become public), he shall first notify the boards of directors of USGI and the board of trustees of each investment company registered under the 1940 Act for which USGI serves as investment adviser.Each Board shall be given an opportunity to ask questions and discuss the CEO’s proposed service as a director. Trading Restrictions While Serving as Director When the CEO serves on the board of directors of a Public Company, he (trading for his own account) and USGI (trading for its own accounts or on behalf of the U.S. Global Funds or Other USGI-Managed Accounts) are prohibited from trading in the securities of the Public Company (except during the “Trading Window”) for as long as the CEO serves as a director and continuing until the Public Company issues a Form 10-K, 10-Q, or otherwise makes a public announcement which discloses any material nonpublic information which the CEO may possess.The Trading Window begins on the third trading day after the Public Company issues a Form 10-K, 10-Q, or otherwise makes a public announcement that discloses any material nonpublic information the CEO may possess and continues for a period of 30 days after publication.If the Public Company has an insider trading policy that is in whole or in part more restrictive than this Code, the more restrictive provision shall apply to the CEO or USGI. Page 9 of 16 Pre-Clearance Requirement The CEO (trading for his own account) and USGI (trading for its own accounts or on behalf of the U.S. Global Funds or Other USGI-Managed Accounts) may trade in the securities of the Public Company during the “Trading Window” after the CEO pre-clears the transactions with the Chief Compliance Officer. 7.ADMINISTRATION OF THE CODE OF ETHICS Review by Chief Compliance Officer The Chief Compliance Officer shall regularly review or supervise the review of the Personal Securities Transactions that are subject to this Code.The Compliance Department will provide a quarterly report of his or her review to the Review Committee. Review Committee If the Chief Compliance Officer determines that a violation may have occurred, he or she shall promptly submit the pertinent information about the transaction to the Review Committee, which shall evaluate whether a violation of this Code has occurred and whether the violation was material, taking into account all facts and circumstances.Before determining that a violation has occurred, the Review Committee shall give the person involved an opportunity to supply additional information about the transaction in question. Imposition of Sanctions If the Review Committee determines that a violation of this Code has occurred, the CEO shall provide a written report of the Review Committee’s determination and sanctions to USGI’s Board of Directors for such further action and sanctions as the Board deems appropriate.In the event the violation involves the CEO, the USGI Director serving on the Review Committee shall issue the report.The Review Committee may impose such sanctions as it deems appropriate, including, without limitation, a letter of censure or suspension, termination of employment or personal trading privileges.All material violations and any sanctions imposed with respect thereto shall be reported to the Board of Directors of USGI and the Board of Directors/Trustees of any client which has been directly affected by the violation. Sanction Guidelines Outlined below are the guidelines for the sanctions that may be imposed on Covered Persons who fail to comply with the Code: · First violation – A written or verbal reprimand may be given to the person and a copy or record will be put in the person’s personnel file.The written or verbal reprimand will reinforce the person’s responsibilities under the Code, educate the person on the severity of personal trading violations, and inform the person of the possible penalties for future violations. · Second violation – The Review Committee will impose such sanctions as it deems appropriate, including without limitation, a letter of censure, fines, withholding of bonus payments, or suspension of personal trading privileges for up to 60 days. Page 10 of 16 · Third violation – The Review Committee will impose such sanctions as it deems appropriate, including without limitation, a letter of censure, fines, withholding of bonus payments, or suspension or termination of personal trading privileges or employment. · In addition to the above disciplinary sanctions, such persons may be required to disgorge any profits realized in connection with such violation.All disgorgement proceeds collected will be donated to a charitable organization selected by the Review Committee.The Review Committee may determine to impose any sanctions, including termination, immediately and without notice if it determines that the severity of any violation or violations warrants such action.All sanctions imposed will be documented in such person’s personal trading file maintained by USGI. 7.5.Exemptions from the Code The Review Committee may exempt any transaction or class of transactions from this Code if it finds that the exemption is consistent with the intent and purposes of the Advisers Act and the 1940 Act.The exemption shall be in writing and signed by each member of the Review Committee.No member of the Review Committee shall participate in any discussion or decision involving a potential exemption from this Code for a transaction in which the member has any direct or indirect beneficial interest. 7.6.Records The Chief Compliance Officer shall ensure that the following records are maintained: (i) a copy of this Code and any amendment thereto that is or at any time within the past five years has been in effect; (ii) a record of any violation of this Code, or any amendment thereof, and any action taken as a result of such violation; (iii) files for personal securities transaction confirmations and account statements, all reports and pre-clearance requests submitted by Covered Persons pursuant to the Code and any action taken thereon; (iv) a list of all persons who are, or have been, required to submit reports pursuant to the Code; (v) a copy of each report created under this Code; and (vi) records relating to violations under the Code and any sanctions imposed.Such records shall be maintained in accordance with and for the time periods required under the 1940 Act and the Advisers Act. 7.7.Amendments The directors of USGI may from time to time amend this Code and adopt interpretations of this Code as they deem appropriate.The Board of Directors/Trustees of any Client that previously has received a copy of this Code shall be provided with a copy of the Code as amended. 7.8.Questions Every Covered Person must read and retain this Code and should consult the Chief Compliance Officer about any question arising under this Code. Page 11 of 16 APPENDIX A DEFINITIONS As used within this Code, the following terms have the following meanings: Defined Persons Covered Person means: (i) any officer, director (other than Partially Covered Independent Directors), or employee of USGI or USGB; (ii) USGI itself when trading for any of its own accounts; and (iii) any other person designated by the Chief Compliance Officer. Investment Personnel means (i) any Portfolio Manager or any USGI officer, director, employee, or consultant who, in connection with his or her regular functions or duties, makes or participates in making recommendations on behalf of USGI regarding the purchase or sale of specific securities by the U.S. Global Funds or Other USGI-Managed Accounts and (ii) all other employees or consultants that are part of USGI’s Investments department, including investment analysts, traders, and the administrative assistants of those persons identified in subsection (i). Covered Independent Director means any director of USGI who is not Investment Personnel or an employee of USGI, or an affiliate thereof, but who cannot make the certifications set forth in Appendix B. Partially Covered Independent Director means any director of USGI who is not Investment Personnel or an employee of USGI, or an affiliate thereof, and who can make the certifications set forth in Appendix B. Independent Subadviser means any subadviser with which USGI has contracted to manage the investment portfolios of one or more clients and which the Review Committee has designated as independent.Independence is a question of fact.Factors include, but are not limited to, performance of securities research, analysis, selection, and trading conducted independently and separately from USGI.The fact that USGI or any of its affiliates provide advisory and/or administrative services for a U.S. Global Fund or Other USGI-Managed Account advised by a subadviser will not by itself prevent the subadviser from being independent. Portfolio Manager means any Covered Person who, with respect to any U.S. Global Fund or Other USGI-Managed Account, has or shares with any other person the primary responsibility for the day-to-day management of the investment portfolio of such U.S. Global Fund or Other USGI-Managed Account. Defined Securities and Accounts Covered Security encompasses each of the following (but not an Excepted Security, a Reportable U.S. Global Fund, or USGI Stock each of which is separately defined below): · any note, stock, treasury stock, shares of a closed-end fund, shares of an exchange-traded fund, interests in a 529 plan, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement,collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights; · any put, call, straddle, option, or privilege on any security (including a certificate of deposit) or on any group or index of securities (including any interest therein or based on the value thereof); · any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency; or Page 12 of 16 · in general, any interest or instrument commonly known as a “security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. Equivalent Covered Security means, with respect to another security (the “reference security”), any security of the same class as the reference security, as well as any option (including puts as well as calls), warrant, convertible security, subscription or stock appreciation right, or other right or privilege on, for or with respect to the reference security. Excepted Security means any security issued by the Government of the United States, bankers’ acceptance, bank certificate of deposit, commercial paper, share of any open-end money market fund, or share of any other registered open-end investment company (other than a Reportable U.S. Global Fund or an exchange-traded fund).In accordance with interpretations of the SEC: (i) “security issued by the Government of the United States” shall NOT be deemed to include any indirect obligations of the Government of the United States (so-called “agency” obligations) with a remaining maturity in excess of 397 calendar days (e.g., FNMA and FHLMC), but shall be deemed to include any obligations directly issued or guaranteed by the Government of the United States, irrespective of the obligation’s initial or remaining maturity (e.g., U.S. Treasury and GNMA); and (ii) certain so-called “money-market instruments,” including conventional repurchase agreements, U.S. Government agency obligations and obligations issued or guaranteed by foreign governments maturing within 397 calendar days from date of purchase, are also deemed to be excepted securities. Non-Discretionary Account means any account over which a Covered Person has given full investment discretion to a third party, retaining no ability to influence specific trades. Other USGI-Managed Account means any person (besides the U.S. Global Funds) who has a current advisory agreement with USGI.Other USGI-Managed Account shall include any partnership or limited liability company of which USGI, or an affiliate thereof, is a general partner or managing member. Reportable U.S. Global Funds means any U.S. Global Fund, other than U.S. Global money market funds. USGI Stock means securities issued by USGI. U.S. Global Funds means the series of U.S. Global Investors Funds. Defined Transactions Covered Calls are financial market transactions in which the seller of call options owns the corresponding amount of the underlying stock. Excessive Trading is defined as either (i) transactions in a Reportable U.S. Global Fund that violate any short-term trading restriction described in each Reportable U.S. Global Fund’s prospectus or (ii) a transaction in a Reportable U.S. Global Fund (other than the U.S. Government Securities Ultra-Short Bond Fund or the Near-Term Tax Free Fund) which, when matched (on a purchase-and-sale basis) with any other such transaction (other than a transaction made pursuant to an automatic dividend reinvestment or automatic investment plan) by or on behalf of the same person in the same Reportable U.S. Global Fund occurring within seven (7) calendar days before or after the subject transaction, regardless of whether such transactions occur across multiple accounts in the same Reportable U.S. Global Fund. Page 13 of 16 Initial Public Offering means an offering of securities registered under the Securities Act of 1933, the issuer of which, immediately before the registration, was not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act, or a similar initial offering of securities under the laws of a foreign country. Limited Offering means an offering that is exempt from registration under state securities laws and under the Securities Act of 1933, such as transactions by an issuer not involving a public offering or sales of securities to accredited investors, or sales of securities to a limited number of investors or in limited dollar amounts, or a similar offering of securities under the laws of a foreign country. Personal Securities Transaction means the execution, either directly or indirectly, of any “purchase or sale of a security.” Protective Puts are financial market transactions in which the investor buys shares of a stock and put options to cover those shares. Purchase Or Sale Of A Covered Security shall include any bargain, contract or other arrangement including the writing of an option to purchase or sell a Covered Security, by which a person (other than a U.S. Global Fund or Other USGI-Managed Account) purchases, buys or otherwise acquires, or sells or otherwise disposes of, a security in which he or she currently has or thereby acquires any direct or indirect Beneficial Ownership interest. Excepted Transaction means any transaction excepted from the definition of Purchase Or Sale Of A Covered Security by this Code and includes any purchase or sale of a security: (a) involving a security or securities account over which a person has no direct or indirect influence or control; (b) which is non-volitional on the part of the person by or for whom the transaction is effected; (c) which is effected pursuant to an automatic dividend reinvestment plan; (d) which occurs as a result of taking a loan from the USGI 401(k) Plan; or (e) involving either: a. the purchase of a security effected upon the exercise of one or more rights issued by an issuer pro rata to all holders of a class of its securities, if and only to the extent to which such rights were acquired directly from such issuer; or b. the sale of any such rights so acquired. Beneficial Ownership is interpreted in the same manner as it would be under Rule 16a-1(a)(2) under the Exchange Act, as amended, in determining whether a person is subject to the provisions of Section 16 except that the determination of direct or indirect Beneficial Ownership shall apply to all securities which a Covered Person has or acquires.For example, in addition to a person’s own accounts, the term Beneficial Ownership encompasses securities held in the name of a spouse or equivalent domestic partnership, minor children, a relative sharing your home, or certain trusts under which you or a related party is a beneficiary, or held under other arrangements indicating a share of financial interests. Page 14 of 16 Specific examples of the types of accounts over which a Covered Person generally is deemed to have Beneficial Ownership include the following: (a) The person’s spouse, minor children, or any other relatives sharing the person’s household; (b) A trust in which the person has a beneficial interest, unless such person has no direct or indirect control over the trust; (c) A trust as to which the person is a trustee; (d) A revocable trust as to which the person is a settlor; (e) A corporation of which the person is an officer, director or 10% or greater stockholder; or (f) A partnership of which the person is a partner (including most investment clubs) unless the person has no direct or indirect control over the partnership. Short-Term Matched Profit Transaction means the combination of any “personal securities transaction” (the subject transaction) in a Covered Security which, when matched (on a purchase-and-sale basis) with any other such transaction by or on behalf of the same person in the same (or any “equivalent”) Covered Security or Equivalent Covered Security occurring within sixty (60) calendar days before the subject transaction, results in actual trading profit for the person. Other Definitions Chief Compliance Officer means the officer of USGI designated by vote of USGI’s Board of Directors to receive reports and take certain actions as provided in this Code. Federal Securities Laws means the Securities Act of 1933, the Exchange Act, the Sarbanes-Oxley Act of 2002, the Investment Company Act of 1940, the Investment Advisers Act of 1940, Title V of the Gramm-Leach-Bliley Act, any rules adopted by the SEC under any of these statutes, the Bank Secrecy Act as it applies to funds and investment advisers, and any rules adopted thereunder by the SEC or the Department of the Treasury. Review Committee means the USGI committee which consists of USGI’s Chief Executive Officer/Chief Investment Officer, President/General Counsel, and Chief Compliance Officer.Should the committee meet to discuss a transaction involving a USGI proprietary account or a transaction involving any of the committee members, a USGI Director, as nominated by the Board of Directors, will take the place of that committee member. SEC means the Securities and Exchange Commission. Page 15 of 16 APPENDIX B Quarterly Certification In my capacity as Director of U.S. Global Investors, Inc. (“USGI”), I hereby certify that during the previous calendar quarter: · I did not have access to or knowledge of nonpublic information regarding any USGI client’s purchase or sale of securities or the portfolio holdings of mutual funds affiliated with USGI; · I neither was involved in making securities recommendations to USGI clients nor did I have access to any such nonpublic recommendations; and · I engaged in and reported any personal securities transactions in USGI stock in accordance with the applicable provisions of the USGI Code of Ethics. Director Date Page 16 of 16 | [
"Code of Ethics Adopted by U.S. Global Investors, Inc. U.S. Global Brokerage, Inc. Effective June 28, 1989 As Amended November 13, 1989 As Amended May 17, 1993 As Amended February 14, 1994 As Amended December 5, 1994 As Amended March 1, 1996 As Amended May 24, 1996 As Amended June 2, 1997 As Amended October 29, 1997 As Amended December 12, 1997 As Amended December 3, 1999 As Amended December 9, 2004 As Amended March 23, 2005 As Amended March 1, 2008 As Amended May 13, 2008 As Amended June 3, 2008 As Amended August 20, 2008 As Amended December 12, 2008 As Amended December 9, 2011 As Amended October 3, 2012 As Amended December 10, 2014 TABLE OF CONTENTS Page 1. INTRODUCTION AND OVERVIEW 1 2.",
"COVERED PERSONS 2 3. RESTRICTIONS ON PERSONAL INVESTING ACTIVITIES 2 4. PRE-CLEARANCE OF TRANSACTIONS 4 5. REPORTING REQUIREMENTS 5 6. RESTRICTIONS ON OTHER ACTIVITIES 9 7. ADMINISTRATION OF THE CODE OF ETHICS 10 APPENDIX A APPENDIX B Definitions Quarterly Certification of Partially Covered Independent Directors 1.INTRODUCTION AND OVERVIEW For the definition of bolded terms used throughout this Code of Ethics, see Appendix A. Statement of General Principles The mission of U.S. Global Investors, Inc. (“USGI”) is to maximize the growth, protection, and service of our clients’ wealth with the highest ethical standards.This Code of Ethics (the “Code”) is intended to help ensure that our professional and personal conduct preserves our reputation for high standards of ethics and integrity. The purposes of this Code are to: (a) prohibit fraudulent, deceptive, or manipulative acts in connection with your Personal Securities Transactions in: a. Reportable U.S.",
"Global Funds, b. USGI Stock, and c. Covered Securities held or to be acquired by the U.S. Global Funds or other clients of USGI (“Other USGI-Managed Accounts”), and (b) avoid conflicts of interest so that the best interests of investors in the U.S. Global Funds and Other USGI-Managed Accounts will be served. You must agree: (a) to place the interests of U.S. Global Fund shareholders and Other USGI-Managed Accounts above your own personal interests; (b) to refrain, in the conduct of all of your personal affairs, from taking any inappropriate advantage of your roles and responsibilities with USGI, U.S. Global Brokerage, Inc.(“USGB”), the U.S. Global Funds, and the Other USGI-Managed Accounts; (c) to comply with the Federal Securities Laws; and (d) to conduct all Personal Securities Transactions so as to fully comply with the provisions of this Code in order to avoid any actual or even apparent conflict or claim of a conflict of interest or abuse of your roles and responsibilities with USGI, USGB, the U.S. Global Funds, and Other USGI-Managed Accounts.",
"This Code is just one element of our program to avoid conflicts of interest and ensure that the duties we owe to our clients remain our foremost priority.In addition to this Code, you may be subject to other USGI policies such as, among others, USGI’s Protection of Material, Nonpublic Information Policy, USGI’s Code of Business Conduct, and the U.S. Global Funds’ Policies and Procedures on Disclosure of Portfolio Holdings. Adoption of the Code of Ethics This Code has been adopted for USGI and USGB in accordance with Rule 204A-1 under the Investment Advisers Act of 1940, as amended, and Rule 17j-1 under the Investment Company Act of 1940, as amended.Each rule requires, at a minimum, that USGI and USGB adopt a code of ethics that sets forth standards of conduct, requires compliance with the Federal Securities Laws, and addresses personal trading by certain personnel. Page 1 of 16 2.COVERED PERSONS Persons covered by this Code are called Covered Persons, and include any officer, director (other than a Partially Covered Independent Director), or employee of USGI or USGB; USGI itself when trading for any of its own accounts; and any other person designated by the Chief Compliance Officer. Certain Covered Persons are also categorized as Covered Independent Directors or as Investment Personnel, which includes, among others, any Portfolio Manager, investment analyst, trader, or any USGI officer, director, employee, or consultant who, in connection with his or her regular functions or duties, makes or participates in making recommendations on behalf of USGI regarding the purchase or sale of specific securities by the U.S.",
"Global Funds or Other USGI-Managed Accounts, and any other person designated by the Chief Compliance Officer. Independent directors of USGI who are not involved in the day-to-day operations of USGI or the portfolio management of USGI’s client portfolios generally are not considered Covered Persons under the Code of Ethics and, therefore, are required only to provide the quarterly certification in Appendix B and to comply with the provisions of this Code of Ethics dealing with personal transactions in USGI Stock.These directors are called Partially Covered Independent Directors.If an independent director of USGI cannot make the certifications set forth in Appendix B, then such independent director will be deemed a Covered Independent Director and is subject to all the provisions of this Code that apply to Covered Persons, unless otherwise specifically indicated herein. Be aware that some provisions of this Code apply indirectly to other persons, such as relatives, significant others, or advisers, if they own or manage securities in which a Covered Person has a Beneficial Ownership interest.For example, if you are a Covered Person, the Code’s investment restrictions and reporting requirements apply both to you, and to securities or accounts owned by a relative who lives in your home or whom you support, or by a non-relative who shares significant financial arrangements with you, or managed by an adviser for you or a close relative.",
"For the purposes of this Code, USGI and any Independent Subadvisers shall be treated as separate unrelated entities and shall not be required to coordinate their efforts with respect to any pre-clearance requirements. 3.RESTRICTIONS ON PERSONAL INVESTING ACTIVITIES Covered Persons, other than Investment Personnel, may purchase or sell, in accordance with the provisions of this Code, Covered Securities, USGI Stock, and Reportable U.S. Global Funds. Covered Persons, other than the Covered Independent Directors and USGI for its own account, are prohibited from having margin accounts, trading commodities contracts, or purchasing or selling HOLDRS, and may trade options only when the options are covered by ownership of the underlying stock (i.e., Covered Calls and Protective Puts). Investment Personnel are prohibited from purchasing Covered Securities, except Investment Personnel may purchase and sell USGI Stock, Reportable U.S. Global Funds, and Excepted Securities (e.g., open-end mutual funds, other than exchange-traded funds).In addition, Investment Personnel, in accordance with the provisions of this Code, may engage in Excepted Transactions (e.g., transactions over which you have no influence or control) and sell Covered Securities that you already hold or later acquire in an Excepted Transaction. Page 2 of 16 In the future, USGI and USGB may decide to lift the prohibition on the purchase of Covered Securities by Investment Personnel.",
"Reportable U.S. Global Funds All Covered Persons must always conduct their personal investing activities in Reportable U.S. Global Funds in which they have any direct or indirect Beneficial Ownership lawfully, properly, and responsibly, and are encouraged to adopt long-term investment strategies in Reportable U.S. Global Funds that are consistent with their financial resources and objectives. Excessive Trading in Reportable U.S. Global Funds by Covered Persons is prohibited.Any Covered Person who is identified as having engaged in Excessive Trading in Reportable U.S. Global Funds will be sanctioned as set forth in Section 7.4, unless you can demonstrate to the Review Committee in writing that a bona fide and sufficient personal or family economic hardship exists warranting the gravity of an exception. Initial Public Offerings No Covered Person, other than the Covered Independent Directors or USGI for its own accounts, shall effect or be permitted to effect the purchase of a security from the issuer, or any member of the underwriting syndicate or selling group, in and during the course of any Initial Public Offering by or on behalf of the issuer of such security.The Covered Independent Directors and USGI must pre-clear their transactions in Initial Public Offerings in accordance with Section 4. Limited Offering Transaction No Covered Person may purchase a security in a Limited Offering transaction (e.g., private placements, private investment partnerships, and other private interests) without obtaining the advance written approval of the Chief Compliance Officer.In determining whether or not to grant approval of participation in a Limited Offering, the Chief Compliance Officer will consider, among any other pertinent factors: (a) whether the investment opportunity is available to, and should be reserved solely for, the U.S.",
"Global Funds or Other USGI-Managed Accounts; and (b) whether the opportunity is or seems to have been made available to the Covered Person due to or by virtue of the position which he or she holds with USGI or USGB. In adopting this Code, USGI acknowledges its responsibility to monitor activities of the firm and those of its Covered Persons to ensure that investment decisions on behalf of the U.S. Global Funds and/or Other USGI-Managed Accounts relating to any Limited Offering transaction with respect to which a Covered Person has obtained pre-acquisition approval will be subject to independent review by senior USGI Investment Personnel having no personal interest in the issuer or any of its securities. “Black-Out” Trading Restrictions Two-Day Restriction: A Covered Person (except for the Covered Independent Directors) may not effect a Personal Securities Transaction in a Covered Security if (i) a U.S.",
"Global Fund or Other USGI-Managed Account purchased or sold the same Covered Security or Equivalent Covered Security one trading day earlier or (ii) the Covered Person has actual knowledge regarding whether the same Covered Security or Equivalent Covered Security is being considered for purchase or sale on the current or next trading day by a U.S. Global Fund or Other USGI-Managed Account. Page3 of 16 14-Day Restriction: Investment Personnel may not dispose of a Covered Security if (i) a U.S.",
"Global Fund or Other USGI-Managed Account purchased or sold the same Covered Security or Equivalent Covered Security within the prior seven calendar days or (ii) such person has actual knowledge regarding whether the same Covered Security or Equivalent Covered Security is being considered for purchase or sale on the current or next seven calendar days by a U.S. Global Fund or Other USGI-Managed Account. The foregoing Two- and 14-Day Restrictions shall not apply to any Personal Securities Transaction, or series of related transactions within the prior 30 days, amounting to $10,000 or less in the aggregate, only if such Personal Securities Transaction involves the common stock or an Equivalent Covered Security of an issuer with a market capitalization over $5 billion; provided, however, that Investment Personnel may not dispose of a Covered Security on the same day of a purchase or sale of the same Covered Security or any Equivalent Covered Security by or on behalf of any U.S. Global Fund or any Other USGI-Managed Account if such person knows, or should have known, about such purchase or sale.",
"In the event that a Personal Securities Transaction is effected in contravention of either of the two foregoing restrictions, the Covered Person involved shall, as soon as practicable after becoming aware of the violative nature of his or her Personal Securities Transaction (irrespective of any pre-execution clearance which may have been previously granted for the transaction), promptly (i) advise the Chief Compliance Officer of the violation and (ii) comply with whatever directions, by way of disgorgement, which the Chief Compliance Officer may issue in order for the violation to be fully and adequately rectified. Short-Term Matched Profit Restriction on Covered Securities Transactions Covered Persons, subject to the exceptions noted immediately below, shall not engage in any Short-Term Matched Profit Transaction within the meaning of this Code.This prohibition is intended to apply to all instances of short-term (i.e., 60 calendar days or less) purchase and sale transactions.",
"The Chief Compliance Officer may, and is hereby granted authority to determine, in his or her discretion, to except a given personal securities transaction from the prohibition established by the foregoing sub-paragraph in cases where: (a) the transaction, and any earlier Personal Securities Transaction with which it may be matched over the most recent 60 calendar days, do not appear to evidence actual abuse of a conflict of interest with any U.S. Global Fund or Other USGI-Managed Account (as, for example, where the Covered Security or Securities involved have not recently been held, traded, or actively considered for investment or trading by such accounts); and (b) the Covered Person can demonstrate that a bona fide and sufficient personal or family economic hardship exists warranting the granting of such an exception. Exceptions will be granted only upon meritorious circumstances and, if granted, will be promptly reported, in writing, to the Review Committee.",
"Prohibition on Trading on Material, Nonpublic Information Page 4 of 16 All Covered Persons must comply with USGI’s Protection of Material, Nonpublic Information Policy, which, among other things, prohibits trading in any Covered Security at any time that a Covered Person is in possession of material, nonpublic information about the issuer of such security. Limitations on Trading In USGI Stock Limitations on Purchases of USGI Stock Covered Persons and Partially Covered Independent Directors with access to financial data regarding USGI may only trade in USGI Stock, subject to pre-clearance as provided below in Section 4, during the period commencing 24 hours after USGI publicly announces its quarterly earnings until 15 calendar days before the end of a quarter (unless USGI management has implemented a trading blackout in USGI Stock due to a material corporate event or other such circumstances).The Chief Compliance Officer may allow written exceptions to this prohibition for good cause. Prohibitions on Purchases of USGI Stock Covered Persons and Partially Covered Independent Directors may not engage in transactions in USGI Stock that are speculative in nature.These transactions include, but are not limited to: (i) the writing of a call option or the purchase of a put option if the amount of securities underlying the option exceed the amount of securities you otherwise own; (ii) short sales (i.e., selling borrowed securities); and (iii) transacting in the securities of any entity with which USGI is discussing business matters.",
"4.PRE-CLEARANCE OF TRANSACTIONS Pre-Clearance Process Covered Persons (except the Covered Independent Directors for transactions that do not involve USGI Stock or are not Initial Public Offerings or Limited Offerings) are required, prior to the execution of any Personal Securities Transaction in USGI Stock or a Covered Security, including any voluntary contribution or adjustment to an Automatic Investment Plan, Dividend Reinvestment Plan, Employee Stock Option Plan, or Employee Stock Purchase Plan, or other similar stock plan in which they will have any direct or indirect Beneficial Ownership, to seek and obtain the express approval of the Chief Compliance Officer by completing a pre-clearance request and submitting it to the Chief Compliance Officer. If approval of a transaction is granted, the approval is good until the end of the trading day (generally 3 p.m. CT).If the authorized transaction is not executed within this time period, you must complete a new pre-clearance request if you still wish to execute the transaction. Effect of Pre-Execution Clearance of Personal Covered Securities Transactions Approval of a request for pre-execution clearance shall not operate as a waiver, satisfaction or presumption of satisfaction of any other provision of this Code, but only as evidence of good faith on your part, which may be considered by the Review Committee should a violation of any other provision of this Code be determined to have occurred.",
"5.REPORTING REQUIREMENTS Acknowledgement Form Page 5 of 16 All Covered Persons must complete and return to the Chief Compliance Officer an executed Acknowledgement Certification to the Code no later than 10 calendar days after becoming a Covered Person.Each Covered Person must also certify annually to compliance with the Code by completing and returning an Acknowledgement Certification to the Chief Compliance Officer no later than February 1. Initial Holdings Reports Covered Persons, no later than 10 days after a person is designated as such, must provide and certify the following personal holdings information (which must be current as of a date no more than 45 days prior to the date the person becomes a Covered Person): (a) the title and type of security, and as applicable the exchange ticker symbol or CUSIP number, number of shares and principal amount of USGI Stock, each Covered Security, and each Reportable U.S.",
"Global Fund in which the Covered Person had any direct or indirect Beneficial Ownership when the person became a Covered Person; (b) the name of any broker, dealer, bank, or transfer agent with whom the Covered Person maintains an account in which any Covered Securities, Reportable U.S. Global Funds, or USGI Stock are held, or could be held, for the direct or indirect benefit of the Covered Person as of the date the person became a Covered Person; and (c) the date that the report is submitted by the Covered Person. Account Confirmations and Statements Covered Persons are required to ensure that the office of the Chief Compliance Officer is furnished duplicate copies of the following account documents: (a) confirmations issued by brokers, dealers, banks, or transfer agents upon the execution of all Personal Securities Transactions in USGI Stock, any Covered Security, or any Reportable U.S.",
"Global Fund in which the Covered Person had, at the time of the transaction, or by reason of the transaction acquired, any direct or indirect Beneficial Ownership interest in the USGI Stock, Covered Security, or Reportable U.S. Global Fund which was the subject of the transaction; and (b) any regular periodic or other statements reflecting Personal Securities Transaction activity in USGI Stock, any Covered Security, or any Reportable U.S. Global Fund within any account with a broker, dealer, bank, or transfer agent in which the Covered Person has any direct or indirect Beneficial Ownership interest. Such copies shall be provided to the Chief Compliance Officer at the time that the Covered Person receives his or her copies from the broker, dealer, bank, or transfer agent. Quarterly Transaction Reports Covered Persons shall submit on a calendar quarterly basis, a Quarterly Securities Transaction Report of all personal securities transactions.The quarterly report must also include any voluntarycontributionor adjustment to Automatic Investment Plans, Dividend Reinvestment Plans, Employee Stock Option Plans, Employee Stock Purchase Plans, or similar stock compensation plans.Such quarterly report shall be submitted to the Chief Compliance Officer no later than 30 calendar days after the end of each calendar quarter.",
"Page 6 of 16 The quarterly report should not include any transactions in Excepted Securities or any Excepted Transactions (as defined in Appendix A).The certification of the quarterly report is required regardless of whether or not the Covered Person had any securities transactions activity during the quarter. Each quarterly report may contain a statement that the report shall not be construed as an admission by the Covered Person that he or she has any direct or indirect Beneficial Ownership in any security to which the report relates. Officers, directors, and employees of USGI are not required to report transactions effected for USGI’s own accounts.",
"The Quarterly Securities Transaction Report must contain the following information relating to the most recent calendar quarter: (a) The date of the transaction, the title of and, as applicable, the exchange ticker symbol or CUSIP number, number of shares, interest rate and maturity date, and the principal amount of each security involved; (b) The nature of the transaction (i.e., purchase, sale or any other type of acquisition or disposition); (c) The price at which the transaction was effected; (d) The name of the broker, dealer, bank, or transfer agent with or through whom the transaction was effected; and (e) The date the Covered Person submits the report. With respect to any new account established by a Covered Person in which any Covered Securities, USGI Stock, or Reportable U.S.",
"Global Funds were held, or could be held, during the quarter for the direct or indirect benefit of the Covered Person: (a) the name of the broker, dealer, bank, or transfer agent with whom the Covered Person established the account; (b) the date the account was established; and (c) the date that the report was submitted by the Covered Person. Annual Holdings Reports Covered Persons must provide and certify annually the following personal holdings information (which information must be current as of a date no more than 45 days before the report is submitted): (a) the title and type of security, and as applicable the exchange ticker symbol or CUSIP number, number of shares and principal amount of each Covered Security, USGI Stock, and Reportable U.S.",
"Global Fund in which the Covered Person had any direct or indirect Beneficial Ownership; (b) The name of any broker, dealer or bank with whom the Covered Person maintains an account in which any Covered Securities, Reportable U.S. Global Funds, or USGI Stock are held, or could be held, for the direct or indirect benefit of the Covered Person; and (c) the date that the report is submitted by the Covered Person. Page 7 of 16 Other Reporting and Disclosure Requirements Covered Persons are required, upon first becoming a Covered Person to review the Code and furnish a disclosure and identification of all securities accounts with brokers, dealers, banks, and transfer agents in which the Covered Person currently has any direct or indirect Beneficial Ownership interest. Newly Opened Securities Accounts Covered Persons must notify the Chief Compliance Officer of any new securities accounts within 15 days of the account being opened.In addition, all Covered Persons must notify the Chief Compliance Officer of any new Reportable U.S.",
"Global Fund accounts within 15 days of the account being opened. Exemption to Reporting Requirements A person need not make an initial, quarterly or annual report under this section with respect to transactions effected for, and Covered Securities or Reportable U.S. Global Funds held in, any account over which the person had no direct influence or control. Furthermore, quarterly transaction reports need not be filed for any transaction effected in a Non-Discretionary Account if the Chief Compliance Officer, after a thorough review, is satisfied that the Covered Person truly has no discretion over the account.In making requests for quarterly transaction report exemptions, Covered Persons will be required to furnish whatever information is called for by the Chief Compliance Officer.",
"Additional Reporting Requirements Concerning USGI Stock Insider Reporting Liability.Any Covered Person or Partially Covered Independent Director who is the beneficial owner of more than 10 percent of any class of USGI Stock registered under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”) and each Executive Officer and Director of USGI (“Insiders”) are subject to the provisions of Section 16(b) of the Exchange Act. SEC Reporting.Insiders must file certain reports with the SEC and the New York Stock Exchange concerning their holdings, and any changes thereto, of USGI Stock or options to purchase USGI Stock. If Insiders fail to file a report, USGI must disclose the failure in the proxy statement it annually distributes to shareholders, the Insider and USGI could suffer penalties as a result.Please note that under these regulations, the reporting obligation is ultimately the Insider’s responsibility, not USGI’s.",
"· Form 3.The initial ownership report by an Insider is required to be filed on Form 3.This report must be filed within 10 days after a person becomes an Insider (i.e., is elected as a director or appointed as an executive officer) to report all current holdings of USGI Stock. · Form 4.Any change in the Insider’s ownership of USGI Stock must be reported on Form 4 unless the Insider is eligible for deferred reporting on year-end Form 5.The Form 4 must be filed electronically before the end of the second business day following the day on which a transaction resulting in a change in Beneficial Ownership has been executed. · Form 5.Any transaction or holding that is exempt from reporting on Form 4, such as small purchases of stock or gifts may be reported electronically on a deferred basis on Form 5 within 45 calendar days after the end of the calendar year in which the transaction occurred.No Form 5 is necessary if all transactions and holdings were previously reported on Form 4.",
"Page 8 of 16 Liability for Short-Swing Profits.Under the U.S. securities laws, profit realized by certain officers, as well as directors and 10% stockholders of a company (including USGI) as a result of a purchase and sale (or sale and purchase) of USGI Stock within a period of less than six months must be returned to USGI or its designated payee upon request.Profit is measured by matching the highest sale price with the lowest purchase price within six months.The grant and exercise of options, although reportable under Section 16(b), are exempt from short-swing profit liability.You are subject to potential short swing profit liability for so long as you are subject to Section 16(a) reporting requirements, which could continue for a period of time after you cease to be a director or officer. 6.RESTRICTIONS ON OTHER ACTIVITIES Policy on Gifts, Gratuities, Favors, and Other Benefits Gifts, gratuities, favors, or other benefits (“Gifts”) may be given or accepted only if they are in accordance with generally accepted business practices and do not raise any question of impropriety.A question of impropriety may be raised if a Gift influences or gives the appearance of influencing the recipient.Please do not give or receive gifts or entertainment that would be embarrassing to you, USGI, or USGB if made public.",
"If you are licensed and registered with the Financial Industry Regulatory Authority (“FINRA”), you also are subject to those provisions of the FINRA rules relating to the receipt of Gifts.Among other things, you may accept gifts of a nominal value (i.e., no more than $100 annually from one person), customary business meals and entertainment if both you and the giver are present (e.g., sporting events), and promotional items (e.g., pens or mugs). Policy on Service as a Director of a Public Company Prohibition against Serving as a Director of a Public Company No Covered Person except the Covered Independent Directors and the Chief Executive Officer (“CEO”) shall serve on the board of directors of a publicly traded company (“Public Company”) (other than USGI, its subsidiaries and affiliates, including investment companies). Notice about CEO to Serve as Director If the CEO intends to serve as a director of a Public Company (or if he serves as a director for a private company that proposes to become public), he shall first notify the boards of directors of USGI and the board of trustees of each investment company registered under the 1940 Act for which USGI serves as investment adviser.Each Board shall be given an opportunity to ask questions and discuss the CEO’s proposed service as a director.",
"Trading Restrictions While Serving as Director When the CEO serves on the board of directors of a Public Company, he (trading for his own account) and USGI (trading for its own accounts or on behalf of the U.S. Global Funds or Other USGI-Managed Accounts) are prohibited from trading in the securities of the Public Company (except during the “Trading Window”) for as long as the CEO serves as a director and continuing until the Public Company issues a Form 10-K, 10-Q, or otherwise makes a public announcement which discloses any material nonpublic information which the CEO may possess.The Trading Window begins on the third trading day after the Public Company issues a Form 10-K, 10-Q, or otherwise makes a public announcement that discloses any material nonpublic information the CEO may possess and continues for a period of 30 days after publication.If the Public Company has an insider trading policy that is in whole or in part more restrictive than this Code, the more restrictive provision shall apply to the CEO or USGI. Page 9 of 16 Pre-Clearance Requirement The CEO (trading for his own account) and USGI (trading for its own accounts or on behalf of the U.S.",
"Global Funds or Other USGI-Managed Accounts) may trade in the securities of the Public Company during the “Trading Window” after the CEO pre-clears the transactions with the Chief Compliance Officer. 7.ADMINISTRATION OF THE CODE OF ETHICS Review by Chief Compliance Officer The Chief Compliance Officer shall regularly review or supervise the review of the Personal Securities Transactions that are subject to this Code.The Compliance Department will provide a quarterly report of his or her review to the Review Committee. Review Committee If the Chief Compliance Officer determines that a violation may have occurred, he or she shall promptly submit the pertinent information about the transaction to the Review Committee, which shall evaluate whether a violation of this Code has occurred and whether the violation was material, taking into account all facts and circumstances.Before determining that a violation has occurred, the Review Committee shall give the person involved an opportunity to supply additional information about the transaction in question. Imposition of Sanctions If the Review Committee determines that a violation of this Code has occurred, the CEO shall provide a written report of the Review Committee’s determination and sanctions to USGI’s Board of Directors for such further action and sanctions as the Board deems appropriate.In the event the violation involves the CEO, the USGI Director serving on the Review Committee shall issue the report.The Review Committee may impose such sanctions as it deems appropriate, including, without limitation, a letter of censure or suspension, termination of employment or personal trading privileges.All material violations and any sanctions imposed with respect thereto shall be reported to the Board of Directors of USGI and the Board of Directors/Trustees of any client which has been directly affected by the violation.",
"Sanction Guidelines Outlined below are the guidelines for the sanctions that may be imposed on Covered Persons who fail to comply with the Code: · First violation – A written or verbal reprimand may be given to the person and a copy or record will be put in the person’s personnel file.The written or verbal reprimand will reinforce the person’s responsibilities under the Code, educate the person on the severity of personal trading violations, and inform the person of the possible penalties for future violations. · Second violation – The Review Committee will impose such sanctions as it deems appropriate, including without limitation, a letter of censure, fines, withholding of bonus payments, or suspension of personal trading privileges for up to 60 days. Page 10 of 16 · Third violation – The Review Committee will impose such sanctions as it deems appropriate, including without limitation, a letter of censure, fines, withholding of bonus payments, or suspension or termination of personal trading privileges or employment. · In addition to the above disciplinary sanctions, such persons may be required to disgorge any profits realized in connection with such violation.All disgorgement proceeds collected will be donated to a charitable organization selected by the Review Committee.The Review Committee may determine to impose any sanctions, including termination, immediately and without notice if it determines that the severity of any violation or violations warrants such action.All sanctions imposed will be documented in such person’s personal trading file maintained by USGI.",
"7.5.Exemptions from the Code The Review Committee may exempt any transaction or class of transactions from this Code if it finds that the exemption is consistent with the intent and purposes of the Advisers Act and the 1940 Act.The exemption shall be in writing and signed by each member of the Review Committee.No member of the Review Committee shall participate in any discussion or decision involving a potential exemption from this Code for a transaction in which the member has any direct or indirect beneficial interest. 7.6.Records The Chief Compliance Officer shall ensure that the following records are maintained: (i) a copy of this Code and any amendment thereto that is or at any time within the past five years has been in effect; (ii) a record of any violation of this Code, or any amendment thereof, and any action taken as a result of such violation; (iii) files for personal securities transaction confirmations and account statements, all reports and pre-clearance requests submitted by Covered Persons pursuant to the Code and any action taken thereon; (iv) a list of all persons who are, or have been, required to submit reports pursuant to the Code; (v) a copy of each report created under this Code; and (vi) records relating to violations under the Code and any sanctions imposed.Such records shall be maintained in accordance with and for the time periods required under the 1940 Act and the Advisers Act. 7.7.Amendments The directors of USGI may from time to time amend this Code and adopt interpretations of this Code as they deem appropriate.The Board of Directors/Trustees of any Client that previously has received a copy of this Code shall be provided with a copy of the Code as amended.",
"7.8.Questions Every Covered Person must read and retain this Code and should consult the Chief Compliance Officer about any question arising under this Code. Page 11 of 16 APPENDIX A DEFINITIONS As used within this Code, the following terms have the following meanings: Defined Persons Covered Person means: (i) any officer, director (other than Partially Covered Independent Directors), or employee of USGI or USGB; (ii) USGI itself when trading for any of its own accounts; and (iii) any other person designated by the Chief Compliance Officer. Investment Personnel means (i) any Portfolio Manager or any USGI officer, director, employee, or consultant who, in connection with his or her regular functions or duties, makes or participates in making recommendations on behalf of USGI regarding the purchase or sale of specific securities by the U.S. Global Funds or Other USGI-Managed Accounts and (ii) all other employees or consultants that are part of USGI’s Investments department, including investment analysts, traders, and the administrative assistants of those persons identified in subsection (i). Covered Independent Director means any director of USGI who is not Investment Personnel or an employee of USGI, or an affiliate thereof, but who cannot make the certifications set forth in Appendix B.",
"Partially Covered Independent Director means any director of USGI who is not Investment Personnel or an employee of USGI, or an affiliate thereof, and who can make the certifications set forth in Appendix B. Independent Subadviser means any subadviser with which USGI has contracted to manage the investment portfolios of one or more clients and which the Review Committee has designated as independent.Independence is a question of fact.Factors include, but are not limited to, performance of securities research, analysis, selection, and trading conducted independently and separately from USGI.The fact that USGI or any of its affiliates provide advisory and/or administrative services for a U.S.",
"Global Fund or Other USGI-Managed Account advised by a subadviser will not by itself prevent the subadviser from being independent. Portfolio Manager means any Covered Person who, with respect to any U.S. Global Fund or Other USGI-Managed Account, has or shares with any other person the primary responsibility for the day-to-day management of the investment portfolio of such U.S. Global Fund or Other USGI-Managed Account. Defined Securities and Accounts Covered Security encompasses each of the following (but not an Excepted Security, a Reportable U.S. Global Fund, or USGI Stock each of which is separately defined below): · any note, stock, treasury stock, shares of a closed-end fund, shares of an exchange-traded fund, interests in a 529 plan, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement,collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights; · any put, call, straddle, option, or privilege on any security (including a certificate of deposit) or on any group or index of securities (including any interest therein or based on the value thereof); · any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency; or Page 12 of 16 · in general, any interest or instrument commonly known as a “security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.",
"Equivalent Covered Security means, with respect to another security (the “reference security”), any security of the same class as the reference security, as well as any option (including puts as well as calls), warrant, convertible security, subscription or stock appreciation right, or other right or privilege on, for or with respect to the reference security. Excepted Security means any security issued by the Government of the United States, bankers’ acceptance, bank certificate of deposit, commercial paper, share of any open-end money market fund, or share of any other registered open-end investment company (other than a Reportable U.S. Global Fund or an exchange-traded fund).In accordance with interpretations of the SEC: (i) “security issued by the Government of the United States” shall NOT be deemed to include any indirect obligations of the Government of the United States (so-called “agency” obligations) with a remaining maturity in excess of 397 calendar days (e.g., FNMA and FHLMC), but shall be deemed to include any obligations directly issued or guaranteed by the Government of the United States, irrespective of the obligation’s initial or remaining maturity (e.g., U.S. Treasury and GNMA); and (ii) certain so-called “money-market instruments,” including conventional repurchase agreements, U.S. Government agency obligations and obligations issued or guaranteed by foreign governments maturing within 397 calendar days from date of purchase, are also deemed to be excepted securities.",
"Non-Discretionary Account means any account over which a Covered Person has given full investment discretion to a third party, retaining no ability to influence specific trades. Other USGI-Managed Account means any person (besides the U.S. Global Funds) who has a current advisory agreement with USGI.Other USGI-Managed Account shall include any partnership or limited liability company of which USGI, or an affiliate thereof, is a general partner or managing member. Reportable U.S. Global Funds means any U.S. Global Fund, other than U.S. Global money market funds. USGI Stock means securities issued by USGI. U.S. Global Funds means the series of U.S. Global Investors Funds. Defined Transactions Covered Calls are financial market transactions in which the seller of call options owns the corresponding amount of the underlying stock.",
"Excessive Trading is defined as either (i) transactions in a Reportable U.S. Global Fund that violate any short-term trading restriction described in each Reportable U.S. Global Fund’s prospectus or (ii) a transaction in a Reportable U.S. Global Fund (other than the U.S. Government Securities Ultra-Short Bond Fund or the Near-Term Tax Free Fund) which, when matched (on a purchase-and-sale basis) with any other such transaction (other than a transaction made pursuant to an automatic dividend reinvestment or automatic investment plan) by or on behalf of the same person in the same Reportable U.S. Global Fund occurring within seven (7) calendar days before or after the subject transaction, regardless of whether such transactions occur across multiple accounts in the same Reportable U.S. Global Fund. Page 13 of 16 Initial Public Offering means an offering of securities registered under the Securities Act of 1933, the issuer of which, immediately before the registration, was not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act, or a similar initial offering of securities under the laws of a foreign country.",
"Limited Offering means an offering that is exempt from registration under state securities laws and under the Securities Act of 1933, such as transactions by an issuer not involving a public offering or sales of securities to accredited investors, or sales of securities to a limited number of investors or in limited dollar amounts, or a similar offering of securities under the laws of a foreign country. Personal Securities Transaction means the execution, either directly or indirectly, of any “purchase or sale of a security.” Protective Puts are financial market transactions in which the investor buys shares of a stock and put options to cover those shares. Purchase Or Sale Of A Covered Security shall include any bargain, contract or other arrangement including the writing of an option to purchase or sell a Covered Security, by which a person (other than a U.S.",
"Global Fund or Other USGI-Managed Account) purchases, buys or otherwise acquires, or sells or otherwise disposes of, a security in which he or she currently has or thereby acquires any direct or indirect Beneficial Ownership interest. Excepted Transaction means any transaction excepted from the definition of Purchase Or Sale Of A Covered Security by this Code and includes any purchase or sale of a security: (a) involving a security or securities account over which a person has no direct or indirect influence or control; (b) which is non-volitional on the part of the person by or for whom the transaction is effected; (c) which is effected pursuant to an automatic dividend reinvestment plan; (d) which occurs as a result of taking a loan from the USGI 401(k) Plan; or (e) involving either: a. the purchase of a security effected upon the exercise of one or more rights issued by an issuer pro rata to all holders of a class of its securities, if and only to the extent to which such rights were acquired directly from such issuer; or b. the sale of any such rights so acquired. Beneficial Ownership is interpreted in the same manner as it would be under Rule 16a-1(a)(2) under the Exchange Act, as amended, in determining whether a person is subject to the provisions of Section 16 except that the determination of direct or indirect Beneficial Ownership shall apply to all securities which a Covered Person has or acquires.For example, in addition to a person’s own accounts, the term Beneficial Ownership encompasses securities held in the name of a spouse or equivalent domestic partnership, minor children, a relative sharing your home, or certain trusts under which you or a related party is a beneficiary, or held under other arrangements indicating a share of financial interests.",
"Page 14 of 16 Specific examples of the types of accounts over which a Covered Person generally is deemed to have Beneficial Ownership include the following: (a) The person’s spouse, minor children, or any other relatives sharing the person’s household; (b) A trust in which the person has a beneficial interest, unless such person has no direct or indirect control over the trust; (c) A trust as to which the person is a trustee; (d) A revocable trust as to which the person is a settlor; (e) A corporation of which the person is an officer, director or 10% or greater stockholder; or (f) A partnership of which the person is a partner (including most investment clubs) unless the person has no direct or indirect control over the partnership. Short-Term Matched Profit Transaction means the combination of any “personal securities transaction” (the subject transaction) in a Covered Security which, when matched (on a purchase-and-sale basis) with any other such transaction by or on behalf of the same person in the same (or any “equivalent”) Covered Security or Equivalent Covered Security occurring within sixty (60) calendar days before the subject transaction, results in actual trading profit for the person.",
"Other Definitions Chief Compliance Officer means the officer of USGI designated by vote of USGI’s Board of Directors to receive reports and take certain actions as provided in this Code. Federal Securities Laws means the Securities Act of 1933, the Exchange Act, the Sarbanes-Oxley Act of 2002, the Investment Company Act of 1940, the Investment Advisers Act of 1940, Title V of the Gramm-Leach-Bliley Act, any rules adopted by the SEC under any of these statutes, the Bank Secrecy Act as it applies to funds and investment advisers, and any rules adopted thereunder by the SEC or the Department of the Treasury. Review Committee means the USGI committee which consists of USGI’s Chief Executive Officer/Chief Investment Officer, President/General Counsel, and Chief Compliance Officer.Should the committee meet to discuss a transaction involving a USGI proprietary account or a transaction involving any of the committee members, a USGI Director, as nominated by the Board of Directors, will take the place of that committee member. SEC means the Securities and Exchange Commission. Page 15 of 16 APPENDIX B Quarterly Certification In my capacity as Director of U.S.",
"Global Investors, Inc. (“USGI”), I hereby certify that during the previous calendar quarter: · I did not have access to or knowledge of nonpublic information regarding any USGI client’s purchase or sale of securities or the portfolio holdings of mutual funds affiliated with USGI; · I neither was involved in making securities recommendations to USGI clients nor did I have access to any such nonpublic recommendations; and · I engaged in and reported any personal securities transactions in USGI stock in accordance with the applicable provisions of the USGI Code of Ethics. Director Date Page 16 of 16"
]
| 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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OSCN Found Document:IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION
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IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION2016 OK 63Case Number: SCBD-6395Decided: 06/06/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2016 OK 63, __ P.3d __
FOR PUBLICATION IN OBJ ONLY. NOT RELEASED FOR PUBLICATION.
IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2016 DUES ORDER OF SUSPENSION FOR NONPAYMENT OF 2016 DUES On May 23, 2016, the Board of Governors of the Oklahoma Bar Association filed an Application for the suspension of Oklahoma Bar Association members who failed to pay dues for the year 2016 as required by the Rules Creating and Controlling the Oklahoma Bar Association (Rules), 5 Ohio St. 2011, ch. 1, app. 1, art. VIII, §1. The Board of Governors recommended that the members whose names appear on the Exhibit A attached to the Application be suspended from membership in the Oklahoma Bar Association and from the practice of law in the State of Oklahoma, as provided by the Rules, 5 Ohio St. 2011, ch. 1, app. 1, art. VIII, §2. This Court finds that on April 15, 2016, the Executive Director of the Oklahoma Bar Association notified by certified mail all members delinquent in the payment of dues and/or expense charges to the Oklahoma Bar Association for the year 2016. The Board of Governors have determined that the members set forth in Exhibit A, attached hereto, have not paid their dues and/or expense charges for the year as provided in the Rules. This Court, having considered the Application of the Board of Governors of the Oklahoma Bar Association, finds that each of the Oklahoma Bar Association members named on Exhibit A, attached hereto, should be suspended from the Oklahoma Bar Association membership and shall not practice law in the State of Oklahoma until reinstated. IT IS THEREFORE ORDERED that the attorneys named on Exhibit A, attached hereto, are hereby suspended from membership in the Association and prohibited from the practice of law in the State of Oklahoma for failure to pay membership dues for the year 2016 as required by the Rules Creating and Controlling the Oklahoma Bar Association. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 6TH DAY OF JUNE, 2016. /S/CHIEF JUSTICE ALL JUSTICES CONCUR.
Mary Shannan Arbabi, OBA No. 16562
1001 Montgomery Pl.
Lucas, TX 75002-3710 Kelly Marie Baldrate, OBA No. 21457
713 Custer Avenue
Evanston, IL 60202 Alexander Louis Bednar, OBA No. 19635
3030 N.W. Expressway, Ste. 200
Oklahoma City, OK 73112 Dionna Dawn Bierbaum, OBA No. 18040
2026 Glenco Terr.
Fort Worth, TX 76110 Leon Douglas Bragg Jr., OBA No. 22780
1709 Chamblee Dr.
Norman, OK 73071 Alan Charles Buckner, OBA No. 17273
14340 Torrey Chase Blvd., Ste. 240
Houston, TX 77014 Jonathan Nathaneal Carter, OBA No. 31329
6803 S. Western, Suite 405
Oklahoma City, OK 73139 Edward Jefferies Clarke, OBA No. 18675
511 Couch Dr., Ste. 300
Oklahoma City, OK 73102-2250 Jane Ann Cobb, OBA No. 10247
P.O. Box 52338
Tulsa, OK 74152 Donna M. Copeland, OBA No. 14992
2904 South 21st Street
Fort Smith, AR 72901 John Michael Curney, OBA No. 19984
411 Heimer Rd.
San Antonio, TX 78232-4854 John Jay Dalton, OBA No. 15381
4050 E. 53rd St.
Tulsa, OK 74135 Samuel J. Demaio, OBA No. 20921
10000 N. Central Expy., Ste. 400
Dallas, TX 75231 Adam Scott Denton, OBA No. 17015
2777 N. Stemmons Freeway, Suite 1157
Dallas, TX 75207-2506 Brian Dean Dill, OBA No. 15989
18668 Gibbons Drive
Dallas, TX 75287 Patricia Ann McIntyre Espedal, OBA No. 17303
Murgata 15
4008 Stavanger
NORWAY Lori Christine Fisher, OBA No. 30553
15 Paloma Ave., #22
Venice, CA 90291 Danielle Elizabeth Gentges, OBA No. 19100
1517 S. Newport
Tulsa, OK 74120 Tiffany Lynn Grant, OBA No. 22915
2215 Westgate Plaza
Grapevine, TX 76051 Julie Helene Hall, OBA No. 16243
3743 S. Knoxville
Tulsa, OK 74135 Elizabeth Anne Hart, OBA No. 18245
1654 Merton Court
Windsor, CO 80550 Michael Hatfield, OBA No. 30578
143 Lighthouse Drive
Jonestown, PA 17038 Gary Leonard Trent Himes, OBA No. 10336
2201 E. 27th St.
Tulsa, OK 74114-4241 Michael Ronald Hooper, OBA No. 22358
P.O. Box 2134
Frisco, TX 75034 Christina Sue Jackman, OBA No. 30387 6600 S.E. 74th St., Unit 5101
Oklahoma City, OK 73135 Brenda B. Johnson, OBA No. 1816
5100 N. Classen, Ste. 110
Oklahoma City, OK 73118 Noah Douglas Johnson, OBA No. 32026
8815 Audrie Rae Ln.
Cypress, TX 77433 Joseph John Jordan, OBA No. 19998
4113 Silverton Circle
Norman, OK 73072 John Howard Kizer, OBA No. 14761
1903 E. Battlefield Rd.
Springfield, MO 65804 Caroline Bouscaren Lapish, OBA No. 31784
401 S. Boston, Ste. 2900
Tulsa, OK 74103 Mary Jean Little, OBA No. 15804
4018 E. 42nd Pl.
Tulsa, OK 74135 Stephen Alan Littlefield, OBA No. 11608
3815 Caleb Lane
Missouri City, TX 77459 Courtney Jennifer London, OBA No. 31403
525 South Main St., 12th Floor
Tulsa, OK 74103 Stephanie Michelle Lorance, OBA No. 22633
217 N. Harvey, Ste. 406
Oklahoma City, OK 73102 Jason Heath Meadows, OBA No. 22236
550 Centre Street, Apt. C-3
Nutley, NJ 07110 Thomas Michael Moratto Jr., OBA No. 31158
2320 Belleview Dr.
Oklahoma City, OK 73112 Michael Gaylon Parkinson, OBA No. 17189
4050 Reserve Pt.
Colorado Sprgs, CO 80904-1043 Robert C. Payden, OBA No. 6980
P.O. Box 690312
Tulsa, OK 74169-0312 Faith Marie Phillips, OBA No. 21030
P.O. Box 213
Proctor, OK 74457 Brian Edward Powley, OBA No. 17691 7628 N.W. 101st St.
Oklahoma City, OK 73162-5301 Robert Lee Raasch, OBA No. 16292
101 S. Country Club Rd., Apt. G1
Muskogee, OK 74403 Duane Norman Rasmussen, OBA No. 7420
886 E. Dempsey Dr.
Hayden, ID 83835-9595 Jill E. Redwine, OBA No. 30923
3012 Hickory Stick Rd.
Oklahoma City, OK 73102 Brandi Dawn Robertson, OBA No. 21338
P. O. Box 140076
Broken Arrow, OK 74014 Telisa Webb Schelin, OBA No. 18302
17300 Dallas Pkwy., Ste. 1010
Dallas, TX 75248 Jeffrey Daniel Shelton, OBA No. 31305
210 Park Ave., Suite 1140
Oklahoma City, OK 73102 Helen Shin, OBA No. 18466
411 Emerald Ave., Apt. 1
El Cajon, CA 92020 Leona Irene Shoffit, OBA No. 19570
418 Sunset Drive
Hereford, TX 79045 Michael Wayne Simpson, OBA No. 15617
P.O. Box 1011
Fort Defiance, AZ 86504 Kyle Austin Smith, OBA No. 17902
35 Fraiser Fir Pl.
The Woodlands, TX 77389 Shannon Deanne Smith, OBA No. 17346
819 Willard Street
Frederick, OK 73542 Nathaniel Keith Soderstrom, OBA No. 30431
346343 East 904 Road
Chandler, OK 74834 Robert Mark Stout, OBA No. 13786
12221 Bunting Cir.
Edmond, OK 73013-0486 Thomas R Swise, OBA No. 8805 501 N.W. 40th St
Oklahoma City, OK 73118 Worth Irvin Thornton, OBA No. 31796
8612 Piney Creek Bend
Austin, TX 78745 Eric Richard Thorsen, OBA No. 30931
7740 E. 30th Pl.
Tulsa, OK 74129 Amber L. Willingham, OBA No. 16772
5811 Hawthorne Garden Way
Katy, TX 77494 Rebecca Sellers Woodward, OBA No. 8070
10607 James Court
Sapulpa, OK 74066 Hilary I. Zarrow, OBA No. 10535
900 Mid-Continent Tower
401 S. Boston Ave.
Tulsa, OK 74103-4016
Citationizer© Summary of Documents Citing This Document
Cite Name Level
None Found.
Citationizer: Table of Authority
Cite Name Level
None Found. | 06-06-2016 | [
"OSCN Found Document:IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION OSCN navigation Home Courts Court Dockets Legal Research Calendar Help Previous Case Top Of Index This Point in Index Citationize Next Case Print Only IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION2016 OK 63Case Number: SCBD-6395Decided: 06/06/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2016 OK 63, __ P.3d __ FOR PUBLICATION IN OBJ ONLY. NOT RELEASED FOR PUBLICATION. IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2016 DUES ORDER OF SUSPENSION FOR NONPAYMENT OF 2016 DUES On May 23, 2016, the Board of Governors of the Oklahoma Bar Association filed an Application for the suspension of Oklahoma Bar Association members who failed to pay dues for the year 2016 as required by the Rules Creating and Controlling the Oklahoma Bar Association (Rules), 5 Ohio St. 2011, ch. 1, app.",
"1, art. VIII, §1. The Board of Governors recommended that the members whose names appear on the Exhibit A attached to the Application be suspended from membership in the Oklahoma Bar Association and from the practice of law in the State of Oklahoma, as provided by the Rules, 5 Ohio St. 2011, ch. 1, app. 1, art. VIII, §2. This Court finds that on April 15, 2016, the Executive Director of the Oklahoma Bar Association notified by certified mail all members delinquent in the payment of dues and/or expense charges to the Oklahoma Bar Association for the year 2016. The Board of Governors have determined that the members set forth in Exhibit A, attached hereto, have not paid their dues and/or expense charges for the year as provided in the Rules. This Court, having considered the Application of the Board of Governors of the Oklahoma Bar Association, finds that each of the Oklahoma Bar Association members named on Exhibit A, attached hereto, should be suspended from the Oklahoma Bar Association membership and shall not practice law in the State of Oklahoma until reinstated.",
"IT IS THEREFORE ORDERED that the attorneys named on Exhibit A, attached hereto, are hereby suspended from membership in the Association and prohibited from the practice of law in the State of Oklahoma for failure to pay membership dues for the year 2016 as required by the Rules Creating and Controlling the Oklahoma Bar Association. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 6TH DAY OF JUNE, 2016. /S/CHIEF JUSTICE ALL JUSTICES CONCUR. Mary Shannan Arbabi, OBA No. 16562 1001 Montgomery Pl. Lucas, TX 75002-3710 Kelly Marie Baldrate, OBA No. 21457 713 Custer Avenue Evanston, IL 60202 Alexander Louis Bednar, OBA No. 19635 3030 N.W.",
"Expressway, Ste. 200 Oklahoma City, OK 73112 Dionna Dawn Bierbaum, OBA No. 18040 2026 Glenco Terr. Fort Worth, TX 76110 Leon Douglas Bragg Jr., OBA No. 22780 1709 Chamblee Dr. Norman, OK 73071 Alan Charles Buckner, OBA No. 17273 14340 Torrey Chase Blvd., Ste. 240 Houston, TX 77014 Jonathan Nathaneal Carter, OBA No. 31329 6803 S. Western, Suite 405 Oklahoma City, OK 73139 Edward Jefferies Clarke, OBA No. 18675 511 Couch Dr., Ste. 300 Oklahoma City, OK 73102-2250 Jane Ann Cobb, OBA No. 10247 P.O. Box 52338 Tulsa, OK 74152 Donna M. Copeland, OBA No.",
"14992 2904 South 21st Street Fort Smith, AR 72901 John Michael Curney, OBA No. 19984 411 Heimer Rd. San Antonio, TX 78232-4854 John Jay Dalton, OBA No. 15381 4050 E. 53rd St. Tulsa, OK 74135 Samuel J. Demaio, OBA No. 20921 10000 N. Central Expy., Ste. 400 Dallas, TX 75231 Adam Scott Denton, OBA No. 17015 2777 N. Stemmons Freeway, Suite 1157 Dallas, TX 75207-2506 Brian Dean Dill, OBA No. 15989 18668 Gibbons Drive Dallas, TX 75287 Patricia Ann McIntyre Espedal, OBA No. 17303 Murgata 15 4008 Stavanger NORWAY Lori Christine Fisher, OBA No.",
"30553 15 Paloma Ave., #22 Venice, CA 90291 Danielle Elizabeth Gentges, OBA No. 19100 1517 S. Newport Tulsa, OK 74120 Tiffany Lynn Grant, OBA No. 22915 2215 Westgate Plaza Grapevine, TX 76051 Julie Helene Hall, OBA No. 16243 3743 S. Knoxville Tulsa, OK 74135 Elizabeth Anne Hart, OBA No. 18245 1654 Merton Court Windsor, CO 80550 Michael Hatfield, OBA No. 30578 143 Lighthouse Drive Jonestown, PA 17038 Gary Leonard Trent Himes, OBA No. 10336 2201 E. 27th St. Tulsa, OK 74114-4241 Michael Ronald Hooper, OBA No. 22358 P.O. Box 2134 Frisco, TX 75034 Christina Sue Jackman, OBA No.",
"30387 6600 S.E. 74th St., Unit 5101 Oklahoma City, OK 73135 Brenda B. Johnson, OBA No. 1816 5100 N. Classen, Ste. 110 Oklahoma City, OK 73118 Noah Douglas Johnson, OBA No. 32026 8815 Audrie Rae Ln. Cypress, TX 77433 Joseph John Jordan, OBA No. 19998 4113 Silverton Circle Norman, OK 73072 John Howard Kizer, OBA No. 14761 1903 E. Battlefield Rd. Springfield, MO 65804 Caroline Bouscaren Lapish, OBA No. 31784 401 S. Boston, Ste. 2900 Tulsa, OK 74103 Mary Jean Little, OBA No. 15804 4018 E. 42nd Pl. Tulsa, OK 74135 Stephen Alan Littlefield, OBA No. 11608 3815 Caleb Lane Missouri City, TX 77459 Courtney Jennifer London, OBA No. 31403 525 South Main St., 12th Floor Tulsa, OK 74103 Stephanie Michelle Lorance, OBA No. 22633 217 N. Harvey, Ste. 406 Oklahoma City, OK 73102 Jason Heath Meadows, OBA No. 22236 550 Centre Street, Apt. C-3 Nutley, NJ 07110 Thomas Michael Moratto Jr., OBA No. 31158 2320 Belleview Dr. Oklahoma City, OK 73112 Michael Gaylon Parkinson, OBA No. 17189 4050 Reserve Pt.",
"Colorado Sprgs, CO 80904-1043 Robert C. Payden, OBA No. 6980 P.O. Box 690312 Tulsa, OK 74169-0312 Faith Marie Phillips, OBA No. 21030 P.O. Box 213 Proctor, OK 74457 Brian Edward Powley, OBA No. 17691 7628 N.W. 101st St. Oklahoma City, OK 73162-5301 Robert Lee Raasch, OBA No. 16292 101 S. Country Club Rd., Apt. G1 Muskogee, OK 74403 Duane Norman Rasmussen, OBA No. 7420 886 E. Dempsey Dr. Hayden, ID 83835-9595 Jill E. Redwine, OBA No. 30923 3012 Hickory Stick Rd. Oklahoma City, OK 73102 Brandi Dawn Robertson, OBA No. 21338 P. O. Box 140076 Broken Arrow, OK 74014 Telisa Webb Schelin, OBA No. 18302 17300 Dallas Pkwy., Ste.",
"1010 Dallas, TX 75248 Jeffrey Daniel Shelton, OBA No. 31305 210 Park Ave., Suite 1140 Oklahoma City, OK 73102 Helen Shin, OBA No. 18466 411 Emerald Ave., Apt. 1 El Cajon, CA 92020 Leona Irene Shoffit, OBA No. 19570 418 Sunset Drive Hereford, TX 79045 Michael Wayne Simpson, OBA No. 15617 P.O. Box 1011 Fort Defiance, AZ 86504 Kyle Austin Smith, OBA No. 17902 35 Fraiser Fir Pl. The Woodlands, TX 77389 Shannon Deanne Smith, OBA No. 17346 819 Willard Street Frederick, OK 73542 Nathaniel Keith Soderstrom, OBA No. 30431 346343 East 904 Road Chandler, OK 74834 Robert Mark Stout, OBA No. 13786 12221 Bunting Cir. Edmond, OK 73013-0486 Thomas R Swise, OBA No. 8805 501 N.W. 40th St Oklahoma City, OK 73118 Worth Irvin Thornton, OBA No. 31796 8612 Piney Creek Bend Austin, TX 78745 Eric Richard Thorsen, OBA No.",
"30931 7740 E. 30th Pl. Tulsa, OK 74129 Amber L. Willingham, OBA No. 16772 5811 Hawthorne Garden Way Katy, TX 77494 Rebecca Sellers Woodward, OBA No. 8070 10607 James Court Sapulpa, OK 74066 Hilary I. Zarrow, OBA No. 10535 900 Mid-Continent Tower 401 S. Boston Ave. Tulsa, OK 74103-4016 Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level None Found."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3209867/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
983 F.2d 1066 NOTICE: 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.Franklin Todd FLIPPO; Tina Marie Flippo, Plaintiffs-Appellees,v.Tommy PHELPS, also known as Tommy Connell; Don Linzy; JimVaughn; Officer James Jones, Defendants-Appellants, No. 92-5476. United States Court of Appeals, Sixth Circuit. Jan. 5, 1993.
Before KEITH and NATHANIEL R. JONES, Circuit Judges, and ALLEN, Senior District Judge1 PER CURIAM.
1 This appeal challenges the decision of the United States District Court for the Middle District of Tennessee, that appellant Tommy Phelps, Don Linzy, Jim Vaughn and James Jones, police officers employed by the Hendersonville, Tennessee, Police Department, were not entitled to summary judgment on grounds of qualified immunity. The City of Hendersonville Police Department was also named as a defendant but is not an appellant. We affirm the judgment of the district court.
2 Appellees Franklin Todd Flippo and Tina Marie Flippo sued the appellants under 42 U.S.C. § 1983, and sought the invocation of the court's pendant jurisdiction by alleging state tort claims of invasion of privacy, assault, false imprisonment and outrageous conduct. The § 1983 claims arose under the Fourth Amendment right to be free from unreasonable searches and seizure, and the right privacy. The officers were sued for money damages in their individual and official capacities. The City of Hendersonville Police Department, was named in the Complaint, but the district court granted its motion for summary judgment.
3 The individual appellants moved for dismissal of all of plaintiffs' claims against them on grounds of qualified immunity. Similarly, the City of Hendersonville moved for dismissal of the claims against it on grounds that it was not a legal entity subject to a 1983 suit and the police officers' conduct was not the result of an official policy or custom as defined in Monell v. Depart of Social Service, 436 U.S. 658 (1978).
4 After the matter was referred by the District Court to the United States Magistrate Judge, a Report and Recommendations were prepared and transmitted. Appellant Tommy Phelps filed objections to them while plaintiffs responded thereto.
5 The district court noted that the Magistrate addressed four separate motions for summary judgment that the various defendants had filed, including Phelps' motion for summary judgment on grounds of qualified immunity; Linzy's, Vaughn's and Jones' motion for summary judgment on qualified immunity grounds and plaintiffs' failure to state a privacy claim. They also sought, under their motion for summary judgment, to win dismissal of the pendant state claims.
6 The district court accepted and adopted in its entirety the Magistrate's Report and Recommendations. Appellants' objections to the same were denied. Accordingly, Hendersonville Police Department's motion for summary judgment was granted, as well as the summary judgment motion of appellants Linzy, Vaughn and Jones with respect to the pendant state law claims and the privacy issue. Phelp's motion for summary judgment as well as the challenge to the fourth amendment claim by Linzy, Vaughn and Jones were denied by the district court.
7 After a careful examination of the record, including the Report and Recommendations of the Magistrate, the opinion of district court adopting same, the appellate briefs and arguments of counsel, we find no error warranting reversal. Therefore, we AFFIRM the decision of the district court.
1 The Honorable Charles M. Allen, Senior United States District Judge for the Western District of Kentucky, sitting by designation | 08-23-2011 | [
"983 F.2d 1066 NOTICE: 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.Franklin Todd FLIPPO; Tina Marie Flippo, Plaintiffs-Appellees,v.Tommy PHELPS, also known as Tommy Connell; Don Linzy; JimVaughn; Officer James Jones, Defendants-Appellants, No. 92-5476. United States Court of Appeals, Sixth Circuit. Jan. 5, 1993. Before KEITH and NATHANIEL R. JONES, Circuit Judges, and ALLEN, Senior District Judge1 PER CURIAM. 1 This appeal challenges the decision of the United States District Court for the Middle District of Tennessee, that appellant Tommy Phelps, Don Linzy, Jim Vaughn and James Jones, police officers employed by the Hendersonville, Tennessee, Police Department, were not entitled to summary judgment on grounds of qualified immunity. The City of Hendersonville Police Department was also named as a defendant but is not an appellant.",
"We affirm the judgment of the district court. 2 Appellees Franklin Todd Flippo and Tina Marie Flippo sued the appellants under 42 U.S.C. § 1983, and sought the invocation of the court's pendant jurisdiction by alleging state tort claims of invasion of privacy, assault, false imprisonment and outrageous conduct. The § 1983 claims arose under the Fourth Amendment right to be free from unreasonable searches and seizure, and the right privacy. The officers were sued for money damages in their individual and official capacities.",
"The City of Hendersonville Police Department, was named in the Complaint, but the district court granted its motion for summary judgment. 3 The individual appellants moved for dismissal of all of plaintiffs' claims against them on grounds of qualified immunity. Similarly, the City of Hendersonville moved for dismissal of the claims against it on grounds that it was not a legal entity subject to a 1983 suit and the police officers' conduct was not the result of an official policy or custom as defined in Monell v. Depart of Social Service, 436 U.S. 658 (1978). 4 After the matter was referred by the District Court to the United States Magistrate Judge, a Report and Recommendations were prepared and transmitted. Appellant Tommy Phelps filed objections to them while plaintiffs responded thereto. 5 The district court noted that the Magistrate addressed four separate motions for summary judgment that the various defendants had filed, including Phelps' motion for summary judgment on grounds of qualified immunity; Linzy's, Vaughn's and Jones' motion for summary judgment on qualified immunity grounds and plaintiffs' failure to state a privacy claim. They also sought, under their motion for summary judgment, to win dismissal of the pendant state claims.",
"6 The district court accepted and adopted in its entirety the Magistrate's Report and Recommendations. Appellants' objections to the same were denied. Accordingly, Hendersonville Police Department's motion for summary judgment was granted, as well as the summary judgment motion of appellants Linzy, Vaughn and Jones with respect to the pendant state law claims and the privacy issue. Phelp's motion for summary judgment as well as the challenge to the fourth amendment claim by Linzy, Vaughn and Jones were denied by the district court. 7 After a careful examination of the record, including the Report and Recommendations of the Magistrate, the opinion of district court adopting same, the appellate briefs and arguments of counsel, we find no error warranting reversal.",
"Therefore, we AFFIRM the decision of the district court. 1 The Honorable Charles M. Allen, Senior United States District Judge for the Western District of Kentucky, sitting by designation"
]
| https://www.courtlistener.com/api/rest/v3/opinions/598416/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 1 of 4
Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 2 of 4
SCHLESINGER-SIEMENS ELECTRICAL, LLC 58-89 57'4 STREET MASPETEL NEW YORK 11378 347-689-1700
May 28, 2008 Office of Contract Compliance NYC Department of Environmental Prorection
59-17 Junction Boulevard — 17" Floor Flushing, New York 11373
Mr. Wasserman:
We are forwarding the attached revised *Detatled MBE/WBE Utilization Plan’ due tu the fact that aur previous MBE has been terminated for default, The reason for this action was that J & R Rey Electric has fuiied to perform under the terms of ils agreement,
If you have any questions please feel free to contact us,
Thank you for your cooperation and assistance.
With Best Regards,
Roland Bunp, General Manager
Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 3 of 4
MBE INFORMATION; In Order ta Ac
chieve the MBE Goals, CERTIVIE
0D MINORITY OWNED F irms are Expected to P
ls “eae to Participate in the Following Manner: T PROJECTED MBE CONTRACT AMOUNTAND | CONTRACT PROMCT DESCRIPTION OF WORK /QuANTITIEs | AWARD DATS SCHEDULE | CONTRACT PAYMENT COMPLETION MBE FIRMS INVOLVED BY MAE __| START DATE SCHEDULE DATE EC Zl HEDL name. A Teck GLEeTRIC. FURNISH ~ fete ADDRESS: RE — O06 OCF) do WHITE &STeeeT- Somby rth WIRE “MAS. | pate MOnT RLY ony: Yor. kK. Gleclpiceat. Con weet ons Pu) Di STATEVIF CODP: Ard EQvuiemes \ ae VoRi [bois TELEPHONE NUMBER: Mi S43- B7oOp Oe — NAME: ADDRESS: £ DATE CHYy., STATE2IP CODE: TELEPIONE NUMBER: ty Paw: ee ef a MAME: ADDRESS: a DATE CITY: STATEAIP CODE: TELEPHONE NUMBER: — = — Tp L __ _ - NAME: ADDRESS 5 cIry. DATIL STATES CONnE- | TELEPHONE NUMBER: | ee ee ee
Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 4 of 4
PAGE 1 CONSULTANT/CONTRACTOR
DETAILED MBE/WBRE, UTILIZATION PLAN
Consultant/Cantractor Name
Settee Qiemee Te LL
Address
SH-89 S7> =e |
State Zip Code
” MAS PeETH Ni ¥
N3a7e8
Contracting Agency
New York City Department of Knvitronmental Protection
Loan Number (Official Use Only}
Address City State Zip Code 59-17 Junction Boulevard Flushing NY 11373 Project Number and Pesan Ro | ect A oO. fP O.-o 3 TE , {2 NJ RR TSchealory 1 UPIPNIE, Clete. ) RS Authorized Sipiature (Consultan Contractor) Title . Date _ __ GeveeaL Maniver. Authorized Signature (Contracting Apency) Title \ Date Projected! MBA/WBE Utilization Summary 1. Tatal Gailar Valus of the . 4. Total MBE Dollar Prime Contact | | i Lf S, gy OD C) Amount Met: 2, '.) Od, O O O 3. MBE Percentage/Amount Applied
to the Contract: \"7 Ole 3. WBE Pertentage/Amount Applied to the Conract: Ss oy @
- nen
ja. MBE/ WE Combined Total:
L996, LSO $81,280 Zt S83 Yoo
5. Totel WRE Bollar Amount Met:
650,000
6. Total MBE Dollar Aungunt Unmet:
Amount Unmec
7. Total WHE Daflar Se
Official Use Only
_. __ SUB" ToT ALS oe ____ DATE. APPROVED ; DATE BISAP PROVED INITIALS
MBE Ce a _—_ _ errno seen om SO i NOTE: List Mik infounation on Pages 2 and 3. List WEBI? infortuation on Pape 4 ee aan rr
Attach additional page(s) if HEGESSATY. | 2019-08-26 | [
"Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 1 of 4 Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 2 of 4 SCHLESINGER-SIEMENS ELECTRICAL, LLC 58-89 57'4 STREET MASPETEL NEW YORK 11378 347-689-1700 May 28, 2008 Office of Contract Compliance NYC Department of Environmental Prorection 59-17 Junction Boulevard — 17\" Floor Flushing, New York 11373 Mr. Wasserman: We are forwarding the attached revised *Detatled MBE/WBE Utilization Plan’ due tu the fact that aur previous MBE has been terminated for default, The reason for this action was that J & R Rey Electric has fuiied to perform under the terms of ils agreement, If you have any questions please feel free to contact us, Thank you for your cooperation and assistance.",
"With Best Regards, Roland Bunp, General Manager Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 3 of 4 MBE INFORMATION; In Order ta Ac chieve the MBE Goals, CERTIVIE 0D MINORITY OWNED F irms are Expected to P ls “eae to Participate in the Following Manner: T PROJECTED MBE CONTRACT AMOUNTAND | CONTRACT PROMCT DESCRIPTION OF WORK /QuANTITIEs | AWARD DATS SCHEDULE | CONTRACT PAYMENT COMPLETION MBE FIRMS INVOLVED BY MAE __| START DATE SCHEDULE DATE EC Zl HEDL name. A Teck GLEeTRIC. FURNISH ~ fete ADDRESS: RE — O06 OCF) do WHITE &STeeeT- Somby rth WIRE “MAS. | pate MOnT RLY ony: Yor. kK. Gleclpiceat.",
"Con weet ons Pu) Di STATEVIF CODP: Ard EQvuiemes \\ ae VoRi [bois TELEPHONE NUMBER: Mi S43- B7oOp Oe — NAME: ADDRESS: £ DATE CHYy., STATE2IP CODE: TELEPIONE NUMBER: ty Paw: ee ef a MAME: ADDRESS: a DATE CITY: STATEAIP CODE: TELEPHONE NUMBER: — = — Tp L __ _ - NAME: ADDRESS 5 cIry. DATIL STATES CONnE- | TELEPHONE NUMBER: | ee ee ee Case 1:12-cv-01466-ALC Document 36-16 Filed 08/26/19 Page 4 of 4 PAGE 1 CONSULTANT/CONTRACTOR DETAILED MBE/WBRE, UTILIZATION PLAN Consultant/Cantractor Name Settee Qiemee Te LL Address SH-89 S7> =e | State Zip Code ” MAS PeETH Ni ¥ N3a7e8 Contracting Agency New York City Department of Knvitronmental Protection Loan Number (Official Use Only} Address City State Zip Code 59-17 Junction Boulevard Flushing NY 11373 Project Number and Pesan Ro | ect A oO. fP O.-o 3 TE , {2 NJ RR TSchealory 1 UPIPNIE, Clete. )",
"RS Authorized Sipiature (Consultan Contractor) Title . Date _ __ GeveeaL Maniver. Authorized Signature (Contracting Apency) Title \\ Date Projected! MBA/WBE Utilization Summary 1. Tatal Gailar Valus of the . 4. Total MBE Dollar Prime Contact | | i Lf S, gy OD C) Amount Met: 2, '.) Od, O O O 3. MBE Percentage/Amount Applied to the Contract: \\\"7 Ole 3. WBE Pertentage/Amount Applied to the Conract: Ss oy @ - nen ja. MBE/ WE Combined Total: L996, LSO $81,280 Zt S83 Yoo 5. Totel WRE Bollar Amount Met: 650,000 6. Total MBE Dollar Aungunt Unmet: Amount Unmec 7.",
"Total WHE Daflar Se Official Use Only _. __ SUB\" ToT ALS oe ____ DATE. APPROVED ; DATE BISAP PROVED INITIALS MBE Ce a _—_ _ errno seen om SO i NOTE: List Mik infounation on Pages 2 and 3. List WEBI? infortuation on Pape 4 ee aan rr Attach additional page(s) if HEGESSATY."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/104840198/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NDFL 245B (Rev. £1/16) Judgment in a Criminal Case Sheet 1
UNITED STATES DISTRICT COURT Northern District of Florida
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE ¥. ) Case Number: 3:19cr90-00 L/MCR. JOSE FRANCISCO ROQUE-CERVANTES ) USM Number: 07942-408 ) ) Randall Lockhart (Appointed - AFPD) ) Defendant’s Attorney
THE DEFENDANT:
pleaded guilty to count(s) One of the Indictment on October 15, 2019
[| pleaded nolo contendere to count(s) which was accepted by the court.
{| was found guilty on count(s) after a plea of not euilty.
The defendant is adjudicated guilty of these offenses:
Title & Section Nature of Offense Offense Ended Count 8 U.S.C. § 1326fa) Illegal Reentry After Deportation July 5, 2019 One The defendant is sentenced as provided in pages 2 through = 5 __ ofthis judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of 1984. [| The defendant has been found not guilty on count(s) a | Count(s) i | is [ | are dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.
October 15, 2019
‘Date of Imposition of J udement
j Oo
Signature of Judge
M. Casey Rodgers, United States District Judge Name and Title of Judge
October J 2019
Date
NDFL 245B (Rey, 11/16) Judgment in a Criminal Case Sheet 2 — Imprisonment
Judgment — Page 2 of
DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER; 3:19er90-00 1/MCR IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: Time Served as to Count One.
CI The court makes the following recommendations to the Bureau of Prisons:
>] The defendant is remanded to the custody of the United States Marshal.
[| The defendant shall surrender to the United States Marshal for this district:
Pye Emm
[ | as notified by the United States Marshal.
[| The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
[| before 2 p.m. on
[] as notified by the United States Marshal. CI as notified by the Probation or Pretrial Services Office,
RETURN T have executed this judgment as follows: Defendant deliveredon — to eee » With a certified copy of this judgment. UNITED STATES MARSHAL By -
DEPUTY UNITED STATES MARSHAL
NDFL 245B (Rey. 11/46) Judgment in a Criminal Case ' Sheet 3 — Supervised Release
DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER: 3:19er90-001/MCR
SUPERVISED RELEASE
| Judgment-—Page 3 of 5 Upon release from imprisonment, you will be on supervised release for a term of: NO TERM OF SUPERVISION IMPOSED.
|
MANDATORY CONDITIONS
You must not commit another federal, state or local crime. . You must not unlawfully possess a controlied substance, 3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court. [ | The above drug testing condition is suspended, based on the court's determination that you
pose a low risk of future substance abuse. (check jf applicable)
Noo
4. i] You must cooperate in the collection of DNA as directed by the probation officer. (check jfapplicable)
5. { | You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
6. [| You must participate in an approved program for domestic violence. (check if applicabie)
You must comply with the standard conditions that have been adopted by this court as weil as with any other conditions on the attached page. NDFL 245B (Rev. 11/16) Judgment in a Criminal Case Sheet 5 — Criminaf Monetary Penalties
Judgmeni— Page 4 of a)
DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER: 3:19¢r90-00 1/MCR
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
Assessment JVTA Assessment* Fine Restitution TOTALS §$ 0 -Remitted $ 0—None § 0— Waived $ 0 - None {| The determination of restitution is deferred until _. An Amended Judgment in a Criminal Case (40 245C) will be entered
after such determination. {| The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in
the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid.
Name of Payee Total Loss** Restitution Ordered Priority or Percentage TOTALS $ - $
| Restitution amount ordered pursuant to plea agreement $
[| The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
[| The court determined that the defendant does not have the ability to pay interest and it is ordered that: [__] the interest requirement is waived for the [| fine [| restitution.
[_] the interest requirement for the [| fine [| restitution is modified as follows:
* Justice for Victims of Trafficking Act of 2015, Pub. L. No, 114-22, ** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. NDFL 2458 (Rev. 11/16) Judgment in a Criminal Case Sheet 6 — Schedule of Payments
Judgment-- Page 5 of | 5
DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER: 3:19¢r90-001/MCR
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
A | | Lump sum payment of $ ____ Special Monetary Assessment, due immediately
[| not later than
, or [| in accordance with [ Cc, [ | dD, [| E, or [| F below; or
B [| Payment to begin immediately (may be combined with [] C, [] D, or | F below); or Cc [| Paymentinequah (e.g. weekly, monthly, quarterly) installments of $ a over a period of _ fe.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or | D [| Payment inequal (e.g., weekly, monthly, quarterfy) installments of $ _ over a period of oe (e.g., months or years},tocommence (e.2., 30 or 60 days) after release from imprisonment to a term of supervision; or E [| Payment during the term of supervised release will commence within ___ (e.g. 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F [| Special instructions regarding the payment of criminal monetary penalties:
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
[ | Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate.
il The defendant shall pay the cost of prosecution. { | The defendant shall pay the following court cost(s):
[| The defendant shall forfeit the defendant’s interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs. | 2019-10-31 | [
"NDFL 245B (Rev. £1/16) Judgment in a Criminal Case Sheet 1 UNITED STATES DISTRICT COURT Northern District of Florida UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE ¥. ) Case Number: 3:19cr90-00 L/MCR. JOSE FRANCISCO ROQUE-CERVANTES ) USM Number: 07942-408 ) ) Randall Lockhart (Appointed - AFPD) ) Defendant’s Attorney THE DEFENDANT: pleaded guilty to count(s) One of the Indictment on October 15, 2019 [| pleaded nolo contendere to count(s) which was accepted by the court. {| was found guilty on count(s) after a plea of not euilty. The defendant is adjudicated guilty of these offenses: Title & Section Nature of Offense Offense Ended Count 8 U.S.C. § 1326fa) Illegal Reentry After Deportation July 5, 2019 One The defendant is sentenced as provided in pages 2 through = 5 __ ofthis judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. [| The defendant has been found not guilty on count(s) a | Count(s) i | is [ | are dismissed on the motion of the United States. It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.",
"If ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances. October 15, 2019 ‘Date of Imposition of J udement j Oo Signature of Judge M. Casey Rodgers, United States District Judge Name and Title of Judge October J 2019 Date NDFL 245B (Rey, 11/16) Judgment in a Criminal Case Sheet 2 — Imprisonment Judgment — Page 2 of DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER; 3:19er90-00 1/MCR IMPRISONMENT The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: Time Served as to Count One.",
"CI The court makes the following recommendations to the Bureau of Prisons: >] The defendant is remanded to the custody of the United States Marshal. [| The defendant shall surrender to the United States Marshal for this district: Pye Emm [ | as notified by the United States Marshal. [| The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: [| before 2 p.m. on [] as notified by the United States Marshal. CI as notified by the Probation or Pretrial Services Office, RETURN T have executed this judgment as follows: Defendant deliveredon — to eee » With a certified copy of this judgment. UNITED STATES MARSHAL By - DEPUTY UNITED STATES MARSHAL NDFL 245B (Rey. 11/46) Judgment in a Criminal Case ' Sheet 3 — Supervised Release DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER: 3:19er90-001/MCR SUPERVISED RELEASE | Judgment-—Page 3 of 5 Upon release from imprisonment, you will be on supervised release for a term of: NO TERM OF SUPERVISION IMPOSED. | MANDATORY CONDITIONS You must not commit another federal, state or local crime.",
". You must not unlawfully possess a controlied substance, 3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court. [ | The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future substance abuse. (check jf applicable) Noo 4. i] You must cooperate in the collection of DNA as directed by the probation officer. (check jfapplicable) 5.",
"{ | You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable) 6. [| You must participate in an approved program for domestic violence. (check if applicabie) You must comply with the standard conditions that have been adopted by this court as weil as with any other conditions on the attached page.",
"NDFL 245B (Rev. 11/16) Judgment in a Criminal Case Sheet 5 — Criminaf Monetary Penalties Judgmeni— Page 4 of a) DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER: 3:19¢r90-00 1/MCR CRIMINAL MONETARY PENALTIES The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6. Assessment JVTA Assessment* Fine Restitution TOTALS §$ 0 -Remitted $ 0—None § 0— Waived $ 0 - None {| The determination of restitution is deferred until _. An Amended Judgment in a Criminal Case (40 245C) will be entered after such determination.",
"{| The defendant must make restitution (including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid. Name of Payee Total Loss** Restitution Ordered Priority or Percentage TOTALS $ - $ | Restitution amount ordered pursuant to plea agreement $ [| The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f).",
"All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g). [| The court determined that the defendant does not have the ability to pay interest and it is ordered that: [__] the interest requirement is waived for the [| fine [| restitution. [_] the interest requirement for the [| fine [| restitution is modified as follows: * Justice for Victims of Trafficking Act of 2015, Pub. L. No, 114-22, ** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996. NDFL 2458 (Rev.",
"11/16) Judgment in a Criminal Case Sheet 6 — Schedule of Payments Judgment-- Page 5 of | 5 DEFENDANT: JOSE FRANCISCO ROQUE-CERVANTES CASE NUMBER: 3:19¢r90-001/MCR SCHEDULE OF PAYMENTS Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows: A | | Lump sum payment of $ ____ Special Monetary Assessment, due immediately [| not later than , or [| in accordance with [ Cc, [ | dD, [| E, or [| F below; or B [| Payment to begin immediately (may be combined with [] C, [] D, or | F below); or Cc [| Paymentinequah (e.g. weekly, monthly, quarterly) installments of $ a over a period of _ fe.g., months or years), to commence (e.g., 30 or 60 days) after the date of this judgment; or | D [| Payment inequal (e.g., weekly, monthly, quarterfy) installments of $ _ over a period of oe (e.g., months or years},tocommence (e.2., 30 or 60 days) after release from imprisonment to a term of supervision; or E [| Payment during the term of supervised release will commence within ___ (e.g. 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or F [| Special instructions regarding the payment of criminal monetary penalties: Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during the period of imprisonment.",
"All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed. [ | Joint and Several Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate. il The defendant shall pay the cost of prosecution. { | The defendant shall pay the following court cost(s): [| The defendant shall forfeit the defendant’s interest in the following property to the United States: Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/112459080/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. Fed. Cir. Certiorari denied. | 11-28-2022 | [
"C. A. Fed. Cir. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9159883/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1
CENTERSTATE BANK N.A
SPLIT-DOLLAR AGREEMENT
THIS SPLIT-DOLLAR AGREEMENT (the “Agreement”) is adopted this 14th day of May, 2008, by and between CENTERSTATE BANK N.A., a commercial bank located in Zephyrhills, Florida (the “Bank”), and Timothy A Pierson, the “Executive”).
The purpose of this Agreement is to retain and reward the Executive, by dividing the death proceeds of certain life insurance policies which are owned by the Bank on the life of the Executive with the designated beneficiary of the Executive. The Bank will pay the life insurance premiums from its general assets.
Article 1
Definitions
Whenever used in this Agreement, the following terms shall have the meanings specified:
1.1 “Bank’s Interest” means the benefit set forth in Section 2.1.
1.2 “Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive.
1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs and returns to the Plan Administrator to designate one or more Beneficiaries.
1.4 “Board” means the Board of Directors of the Bank as from time to time constituted.
1.5 “Change in Control” means a change in the ownership or effective control of the Bank, or in the ownership of a substantial portion of the assets of the Bank, as such change is defined in Section 409A of the Code and regulations thereunder.
1.6 “Code” means the Internal Revenue Code of 1986, as amended.
1.7 “Disability” means the Executive (i) 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 can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either
4
--------------------------------------------------------------------------------
the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.
1.8 “Executive’s Interest” means the benefit set forth in Section 2.2.
1.9 “Insurer” means the insurance company issuing the Policy on the life of the Executive.
1.10 “Net Death Proceeds” means the total death proceeds of the Policy minus the greater of (i) the cash surrender value or (ii) the aggregate premiums paid by the Bank.
1.11 “Plan Administrator” means the plan administrator described in Article 12.
1.12 “Policy” or “Policies” means the individual insurance policy or policies adopted by the Bank for purposes of insuring the Executive’s life under this Agreement.
1.13 “Separation from Service” means that the Executive’s service, as an employee and independent contractor, to the Bank and any member of a controlled group as defined in Section 414 of the Code to which the Bank belongs, has terminated for any reason, other than by reason of a leave of absence approved by the Bank or the death of the Executive.
1.14 “Vested Insurance Benefit” means the Bank will provide the Executive with continued insurance coverage from the date of vesting until death, subject to the forfeiture provisions detailed in Section 3.2 and Article 6. Article 3 explains how the Executive achieves vested status.
1.15 “Years of Service” means each twelve-month period commencing on the Executive’s initial date of hire by the Bank or subsidiary, during the entirety of which time the Executive remains an employee of the Bank. For purposes of this Agreement, if there is a dispute over the number of Years of Service of the Executive or the date of the Executive’s initial hire by the Bank, the Plan Administrator shall have the sole and absolute right to decide the dispute.
Article 2
Policy Ownership/Interests
2.1 Bank’s Interest. The Bank shall own the Policies and shall have the right to exercise all incidents of ownership and, subject to Article 4, the Bank may terminate a Policy without the consent of the Executive. The Bank shall be the beneficiary of the remaining death proceeds of the Policies after the Executive’s Interest is determined according to Section 2.2 below.
2.2 Executive’s Interest. The Executive, or the Executive’s assignee, shall have the right
5
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to designate the Beneficiary of an amount of death proceeds as specified in Section 2.2.1 or 2.2.2. The Executive shall also have the right to elect and change settlement options with respect to the Executive’s Interest by providing written notice to the Bank and the Insurer.
2.2.1 Death Prior to Separation from Service. If the Executive dies while employed by the Bank, the Executive’s Beneficiary shall be entitled to a benefit equal to fifty percent (50%) of the Net Death Proceeds.
2.2.2 Death After Separation from Service. If, pursuant to Article 3, the Executive has a Vested Insurance Benefit at the date of death, the Executive’s Beneficiary shall be entitled to a benefit equal to ten percent (10%) of the Net Death Proceeds. If the Executive has not achieved a Vested Insurance Benefit on the date of death, the Beneficiary will not be entitled to a benefit under this Agreement.
Article 3
Vesting
3.1 Vested Insurance Benefit. The Executive shall have a Vested Insurance Benefit equal to the amount specified in Section 2.2 at the earliest of the following events:
3.1.1 Attainment of age sixty-two (62) while in the employ of the Bank
3.1.2 Completion of twenty (20) Years of Service with the Bank;
3.1.3 Attainment of age fifty-five (55) while in the employ of the Bank and completion of ten (10) Years of Service;
3.1.4 Separation from Service due to Disability;
3.1.5 A Change in Control while employed by the Bank; or
3.1.6 Adoption, by the Board at its discretion, of a resolution entitling the Executive to the Vested Insurance Benefit in Section 2.2 under circumstances not otherwise addressed in this Section 3.1.
3.2 Forfeiture of Benefit. Notwithstanding the provisions of Section 3.1, the Executive will forfeit his or her Vested Insurance Benefit if: (i) the Executive violates any of the provisions detailed in Article 6; (ii) the Executive vested pursuant to Section 3.1.4 and becomes gainfully employed by an entity other than the Bank; or (iii) the Executive provides written notice to the Bank declining further participation in the Agreement.
6
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Article 4
Comparable Coverage
4.1 Comparable Coverage. Nothing herein negates the Banks right to amend or terminate this Agreement under Article 11. The Bank is not obligated to provide any additional resources to maintain the Policy in full force and effect. In addition, the Bank may replace each Policy with a comparable insurance policy to cover the benefit provided under this Agreement and the Bank and the Executive shall execute a new Split-Dollar Policy Endorsement for each new Policy. The cash surrender value and any additional death proceeds exclusive of those designated in Section 2.2 above for each new Policy or any comparable policy shall be subject to the claims of the Bank’s creditors. In the event that the Bank decides to maintain the Policy after the Executive’s rights under this Agreement are terminated, the Bank shall be the direct beneficiary of the entire death proceeds of the Policy.
4.2 Option to Purchase. The Bank shall not sell, surrender or transfer ownership of the Policy while this Agreement is in effect without first giving the Executive or the Executive’s transferee the option to purchase the Policy for a period of sixty (60) days from written notice of such intention. The purchase price shall be an amount equal to the cash surrender value of the Policy. Upon receipt of such purchase price, the Bank shall assign ownership of the Policy to the Executive or his/her transferee and relinquish all existing rights to the Policy.
Article 5
Premiums and Imputed Income
5.1 Premium Payment. The Bank shall pay all premiums due on all Policies.
5.2 Economic Benefit. The Bank shall determine the economic benefit attributable to the Executive based on the life insurance premium factor for the Executive’s age multiplied by the aggregate death benefit payable to the Beneficiary. The “life insurance premium factor” is the minimum factor applicable under guidance published pursuant to Treasury Reg. § 1.61-22(d)(3)(ii) or any subsequent authority.
5.3 Imputed Income. The Bank shall impute the economic benefit to the Executive on an annual basis, by adding the economic benefit to the Executive’s W-2, or if applicable, Form 1099.
Article 6
General Limitations
6.1 Termination for Cause. Notwithstanding any provision of this Agreement to the contrary, the Executive shall forfeit any right to a benefit under this Agreement if the Bank terminates the Executive’s employment for cause. Termination of the Executive’s employment for “Cause” shall mean termination because of personal dishonesty, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform
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stated duties, willful violation of any law, rule or regulation (other than traffic violations or similar offenses) or final cease-and-desist order or material breach of any provision of the Agreement. For purposes of this paragraph, no act or failure to act on the Executive’s part shall be considered “willful” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive’s action or omission was in the best interest of the Bank.
6.2 Removal. Notwithstanding any provision of this Agreement to the contrary, the Executive’s rights in the Agreement shall terminate if the Executive is subject to a final removal or prohibition order issued by an appropriate federal banking agency pursuant to Section 8(e) of the Federal Deposit Insurance Act (“FDIA”).
6.3 Forfeiture Provision. While Executive is employed by the Bank and during the period of time the Executive is entitled to receive any benefits pursuant to this Agreement, the Executive will not, for himself or on behalf of, or in conjunction with any other person or persons, company, partnership, limited liability company, proprietorship, trust company, bank, financial services institution, or other entity, directly or indirectly, own, manage, operate, control, be employed by, consult with, participate in, or be connected in any manner with the ownership, employment, management, operation, consulting or control of any financial services institution that competes with the Bank within the State of Florida, or any other market served by the Company at the time payment of benefits commence. In the event of any actual breach by the Executive of the provisions of this Section 6.3, all payments under this Agreement payable to the Executive shall irrevocably forfeit and terminate and no further amount shall be due or payable to the Executive pursuant to this Agreement. The Executive specifically acknowledges that the restrictions set forth above are reasonable and bear a valid connection with the business operations of the Bank, and specifically admits that Executive is capable of obtaining suitable employment not in competition with the Bank. If any one of the restrictions contained herein shall for any reason be held to be excessively broad as to duration or geographical area, it shall be deemed amended by limiting and reducing it so as to be valid and enforceable to the extent compatible with applicable state law as it shall then appear. Executive acknowledges that the Bank would not have entered into this Agreement without this provision Section 6.3 contained herein. This Section 6.3 shall not prohibit the Executive from owning stock in any publicly traded company provided the Executive’s stock ownership is five percent (5%) or less of the issued and outstanding stock of such publicly traded company and the Executive has no corporate responsibility other than the Executive’s rights as a stockholder. This section shall not apply following a Change in Control.
6.4 Suicide or Misstatement. No benefits shall be payable if the Executive commits suicide within two years after the date of this Agreement, or if the insurance company denies coverage (i) for material misstatements of fact made by the Executive on any application for life insurance purchased by the Bank, or (ii) for any other reason; provided, however that the Bank shall evaluate the reason for the denial, and upon advice of legal counsel and in its sole discretion, consider judicially challenging any denial.
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Article 7
Beneficiaries
7.1 Beneficiary. The Executive shall have the right, at any time, to designate a Beneficiary(ies) to receive any benefits payable under the Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other Agreement of the Bank in which the Executive participates.
7.2 Beneficiary Designation; Change. The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form, and delivering it to the Bank or its designated agent. The Executive’s beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved. The Executive shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Bank’s rules and procedures, as in effect from time to time. Upon the acceptance by the Bank of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Bank shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Bank prior to the Executive’s death.
7.3 Acknowledgment. No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Bank or its designated agent.
7.4 No Beneficiary Designation. If the Executive dies without a valid designation of beneficiary, or if all designated Beneficiaries predecease the Executive, then the Executive’s surviving spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be made payable to the personal representative of the Executive’s estate.
7.5 Facility of Payment. If the Bank determines in its discretion that a benefit is to be paid to a minor, to a person declared incompetent, or to a person incapable of handling the disposition of that person’s property, the Bank may direct payment of such benefit to the guardian, legal representative or person having the care or custody of such minor, incompetent person or incapable person. The Bank may require proof of incompetence, minority or guardianship as it may deem appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Executive and the Executive’s Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Agreement for such payment amount.
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Article 8
Assignment
The Executive may irrevocably assign without consideration all of the Executive’s Interest in this Agreement to any person, entity, or trust. In the event the Executive shall transfer all of the Executive’s Interest, then all of the Executive’s Interest in this Agreement shall be vested in the Executive’s transferee, who shall be substituted as a party hereunder, and the Executive shall have no further interest in this Agreement.
Article 9
Insurer
The Insurer shall be bound only by the terms of its given Policy. The Insurer shall not be bound by or deemed to have notice of the provisions of this Agreement. The Insurer shall have the right to rely on the Bank’s representations with regard to any definitions, interpretations or Policy interests as specified under this Agreement.
Article 10
Claims and Review Procedure
10.1 Claims Procedure. The Executive or Beneficiary (“claimant”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows:
10.1.1 Initiation – Written Claim. The claimant initiates a claim by submitting to the Bank a written claim for the benefits.
10.1.2 Timing of Bank Response. The Bank shall respond to such claimant within 90 days after receiving the claim. If the Bank determines that special circumstances require additional time for processing the claim, the Bank can extend the response period by an additional 90 days by notifying the claimant in writing, prior to the end of the initial 90-day period, that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Bank expects to render its decision.
10.1.3 Notice of Decision. If the Bank denies part or all of the claim, the Bank shall notify the claimant in writing of such denial. The Bank shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement on which the denial is based;
(c) A description of any additional information or material necessary for the claimant to perfect the claim and an explanation of why it is needed;
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(d) An explanation of the Agreement’s review procedures and the time limits applicable to such procedures; and
(e) A statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on review.
10.2 Review Procedure. If the Bank denies part or all of the claim, the claimant shall have the opportunity for a full and fair review by the Bank of the denial, as follows:
10.2.1 Initiation – Written Request. To initiate the review, the claimant, within 60 days after receiving the Bank’s notice of denial, must file with the Bank a written request for review.
10.2.2 Additional Submissions – Information Access. The claimant shall then have the opportunity to submit written comments, documents, records and other information relating to the claim. The Bank shall also provide the claimant, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits.
10.2.3 Considerations on Review. In considering the review, the Bank shall take into account all materials and information the claimant submits relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
10.2.4 Timing of Bank’s Response. The Bank shall respond in writing to such claimant within 60 days after receiving the request for review. If the Bank determines that special circumstances require additional time for processing the claim, the Bank can extend the response period by an additional 60 days by notifying the claimant in writing, prior to the end of the initial 60-day period, that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Bank expects to render its decision.
10.2.5 Notice of Decision. The Bank shall notify the claimant in writing of its decision on review. The Bank shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement on which the denial is based;
(c)
A statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all
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documents, records and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits; and
(d) A statement of the claimant’s right to bring a civil action under ERISA Section 502(a).
Article 11
Amendments and Termination
11.1 Non-Vested Insurance Benefit. Unless the Executive has a Vested Insurance Benefit pursuant to Section 3.1, the Bank may amend or terminate the Agreement at any time, or may amend or terminate the Executive’s rights under the Agreement at any time prior to the Executive’s death, by providing written notice of such to the Executive. In the event that the Bank decides to maintain the Policy after termination of the Agreement, the Bank shall be the direct beneficiary of the entire death proceeds of the Policy.
11.2 Vested Insurance Benefit. If the Executive has a Vested Insurance Benefit, the Bank may amend or terminate the Agreement only if: (i) continuation of the Agreement would cause significant financial harm to the Bank as determined by the Board in its sole discretion, (ii) the Executive agrees to such action, (iii) the Bank’s banking regulator(s) issues a written directive to amend or terminate the Agreement or (iv) the Policy has been terminated unless comparable coverage is provided pursuant to Article 4.1.
Article 12
Administration
12.1 Plan Administrator Duties. This Agreement shall be administered by a Plan Administrator which shall consist of the Board, or such committee or persons as the Board may choose. The Plan Administrator shall also have the discretion and authority to (i) make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions including interpretations of this Agreement, as may arise in connection with this Agreement.
12.2 Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit, (including acting through a duly appointed representative), and may from time to time consult with counsel who may be counsel to the Bank.
12.3 Binding Effect of Decisions. The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
12.4 Indemnity of Plan Administrator. The Bank shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.
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12.5 Information. To enable the Plan Administrator to perform its functions, the Bank shall supply full and timely information to the Plan Administrator on all matters relating to the Base Salary of the Executive, the date and circumstances of the retirement, Disability, death or Separation from Service of the Executive, and such other pertinent information as the Plan Administrator may reasonably require.
Article 13
Miscellaneous
13.1 Binding Effect. This Agreement shall bind the Executive and the Bank, their beneficiaries, survivors, executors, administrators and transferees and any Beneficiary.
13.2 No Guarantee of Employment. This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an Executive of the Bank, nor does it interfere with the Bank’s right to discharge the Executive. It also does not require the Executive to remain an Executive nor interfere with the Executive’s right to terminate employment at any time.
13.3 Applicable Law. The Agreement and all rights hereunder shall be governed by and construed according to the laws of the State of Florida, except to the extent preempted by the laws of the United States of America.
13.4 Reorganization. The Bank shall not merge or consolidate into or with another company, or reorganize, or sell substantially all of its assets to another company, firm or person unless such succeeding or continuing company, firm or person agrees to assume and discharge the obligations of the Bank under this Agreement. Upon the occurrence of such event, the term “Bank” as used in this Agreement shall be deemed to refer to the successor or survivor company.
13.5 Notice. Any notice or filing required or permitted to be given to the Bank under this Agreement shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below:
Centerstate Bank NA 6930 Gall Blvd Zephyrhills, Florida 33542
Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark or the receipt for registration or certification. Any notice or filing required or permitted to be given to the Executive under this Agreement shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Executive.
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13.6 Entire Agreement. This Agreement, along with the Executive’s Beneficiary Designation Form, constitutes the entire agreement between the Bank and the Executive as to the subject matter hereof. No rights are granted to the Executive under this Agreement other than those specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated above.
EXECUTIVE: CENTERSTATE BANK N.A.
/s/ Timothy A. Pierson
By:
/s/ Ernest S. Pinner
Timothy A. Pierson, President & CEO Ernest S. Pinner, Chairman of the Board
14 | [
"Exhibit 10.1 CENTERSTATE BANK N.A SPLIT-DOLLAR AGREEMENT THIS SPLIT-DOLLAR AGREEMENT (the “Agreement”) is adopted this 14th day of May, 2008, by and between CENTERSTATE BANK N.A., a commercial bank located in Zephyrhills, Florida (the “Bank”), and Timothy A Pierson, the “Executive”). The purpose of this Agreement is to retain and reward the Executive, by dividing the death proceeds of certain life insurance policies which are owned by the Bank on the life of the Executive with the designated beneficiary of the Executive. The Bank will pay the life insurance premiums from its general assets. Article 1 Definitions Whenever used in this Agreement, the following terms shall have the meanings specified: 1.1 “Bank’s Interest” means the benefit set forth in Section 2.1. 1.2 “Beneficiary” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive. 1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Executive completes, signs and returns to the Plan Administrator to designate one or more Beneficiaries. 1.4 “Board” means the Board of Directors of the Bank as from time to time constituted.",
"1.5 “Change in Control” means a change in the ownership or effective control of the Bank, or in the ownership of a substantial portion of the assets of the Bank, as such change is defined in Section 409A of the Code and regulations thereunder. 1.6 “Code” means the Internal Revenue Code of 1986, as amended. 1.7 “Disability” means the Executive (i) 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 can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank. Medical determination of Disability may be made by either 4 -------------------------------------------------------------------------------- the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank. Upon the request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.",
"1.8 “Executive’s Interest” means the benefit set forth in Section 2.2. 1.9 “Insurer” means the insurance company issuing the Policy on the life of the Executive. 1.10 “Net Death Proceeds” means the total death proceeds of the Policy minus the greater of (i) the cash surrender value or (ii) the aggregate premiums paid by the Bank. 1.11 “Plan Administrator” means the plan administrator described in Article 12. 1.12 “Policy” or “Policies” means the individual insurance policy or policies adopted by the Bank for purposes of insuring the Executive’s life under this Agreement. 1.13 “Separation from Service” means that the Executive’s service, as an employee and independent contractor, to the Bank and any member of a controlled group as defined in Section 414 of the Code to which the Bank belongs, has terminated for any reason, other than by reason of a leave of absence approved by the Bank or the death of the Executive.",
"1.14 “Vested Insurance Benefit” means the Bank will provide the Executive with continued insurance coverage from the date of vesting until death, subject to the forfeiture provisions detailed in Section 3.2 and Article 6. Article 3 explains how the Executive achieves vested status. 1.15 “Years of Service” means each twelve-month period commencing on the Executive’s initial date of hire by the Bank or subsidiary, during the entirety of which time the Executive remains an employee of the Bank. For purposes of this Agreement, if there is a dispute over the number of Years of Service of the Executive or the date of the Executive’s initial hire by the Bank, the Plan Administrator shall have the sole and absolute right to decide the dispute.",
"Article 2 Policy Ownership/Interests 2.1 Bank’s Interest. The Bank shall own the Policies and shall have the right to exercise all incidents of ownership and, subject to Article 4, the Bank may terminate a Policy without the consent of the Executive. The Bank shall be the beneficiary of the remaining death proceeds of the Policies after the Executive’s Interest is determined according to Section 2.2 below. 2.2 Executive’s Interest. The Executive, or the Executive’s assignee, shall have the right 5 -------------------------------------------------------------------------------- to designate the Beneficiary of an amount of death proceeds as specified in Section 2.2.1 or 2.2.2. The Executive shall also have the right to elect and change settlement options with respect to the Executive’s Interest by providing written notice to the Bank and the Insurer. 2.2.1 Death Prior to Separation from Service.",
"If the Executive dies while employed by the Bank, the Executive’s Beneficiary shall be entitled to a benefit equal to fifty percent (50%) of the Net Death Proceeds. 2.2.2 Death After Separation from Service. If, pursuant to Article 3, the Executive has a Vested Insurance Benefit at the date of death, the Executive’s Beneficiary shall be entitled to a benefit equal to ten percent (10%) of the Net Death Proceeds. If the Executive has not achieved a Vested Insurance Benefit on the date of death, the Beneficiary will not be entitled to a benefit under this Agreement. Article 3 Vesting 3.1 Vested Insurance Benefit. The Executive shall have a Vested Insurance Benefit equal to the amount specified in Section 2.2 at the earliest of the following events: 3.1.1 Attainment of age sixty-two (62) while in the employ of the Bank 3.1.2 Completion of twenty (20) Years of Service with the Bank; 3.1.3 Attainment of age fifty-five (55) while in the employ of the Bank and completion of ten (10) Years of Service; 3.1.4 Separation from Service due to Disability; 3.1.5 A Change in Control while employed by the Bank; or 3.1.6 Adoption, by the Board at its discretion, of a resolution entitling the Executive to the Vested Insurance Benefit in Section 2.2 under circumstances not otherwise addressed in this Section 3.1. 3.2 Forfeiture of Benefit.",
"Notwithstanding the provisions of Section 3.1, the Executive will forfeit his or her Vested Insurance Benefit if: (i) the Executive violates any of the provisions detailed in Article 6; (ii) the Executive vested pursuant to Section 3.1.4 and becomes gainfully employed by an entity other than the Bank; or (iii) the Executive provides written notice to the Bank declining further participation in the Agreement. 6 -------------------------------------------------------------------------------- Article 4 Comparable Coverage 4.1 Comparable Coverage. Nothing herein negates the Banks right to amend or terminate this Agreement under Article 11. The Bank is not obligated to provide any additional resources to maintain the Policy in full force and effect. In addition, the Bank may replace each Policy with a comparable insurance policy to cover the benefit provided under this Agreement and the Bank and the Executive shall execute a new Split-Dollar Policy Endorsement for each new Policy. The cash surrender value and any additional death proceeds exclusive of those designated in Section 2.2 above for each new Policy or any comparable policy shall be subject to the claims of the Bank’s creditors.",
"In the event that the Bank decides to maintain the Policy after the Executive’s rights under this Agreement are terminated, the Bank shall be the direct beneficiary of the entire death proceeds of the Policy. 4.2 Option to Purchase. The Bank shall not sell, surrender or transfer ownership of the Policy while this Agreement is in effect without first giving the Executive or the Executive’s transferee the option to purchase the Policy for a period of sixty (60) days from written notice of such intention. The purchase price shall be an amount equal to the cash surrender value of the Policy. Upon receipt of such purchase price, the Bank shall assign ownership of the Policy to the Executive or his/her transferee and relinquish all existing rights to the Policy.",
"Article 5 Premiums and Imputed Income 5.1 Premium Payment. The Bank shall pay all premiums due on all Policies. 5.2 Economic Benefit. The Bank shall determine the economic benefit attributable to the Executive based on the life insurance premium factor for the Executive’s age multiplied by the aggregate death benefit payable to the Beneficiary. The “life insurance premium factor” is the minimum factor applicable under guidance published pursuant to Treasury Reg. § 1.61-22(d)(3)(ii) or any subsequent authority. 5.3 Imputed Income. The Bank shall impute the economic benefit to the Executive on an annual basis, by adding the economic benefit to the Executive’s W-2, or if applicable, Form 1099.",
"Article 6 General Limitations 6.1 Termination for Cause. Notwithstanding any provision of this Agreement to the contrary, the Executive shall forfeit any right to a benefit under this Agreement if the Bank terminates the Executive’s employment for cause. Termination of the Executive’s employment for “Cause” shall mean termination because of personal dishonesty, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform 7 -------------------------------------------------------------------------------- stated duties, willful violation of any law, rule or regulation (other than traffic violations or similar offenses) or final cease-and-desist order or material breach of any provision of the Agreement. For purposes of this paragraph, no act or failure to act on the Executive’s part shall be considered “willful” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive’s action or omission was in the best interest of the Bank. 6.2 Removal. Notwithstanding any provision of this Agreement to the contrary, the Executive’s rights in the Agreement shall terminate if the Executive is subject to a final removal or prohibition order issued by an appropriate federal banking agency pursuant to Section 8(e) of the Federal Deposit Insurance Act (“FDIA”). 6.3 Forfeiture Provision. While Executive is employed by the Bank and during the period of time the Executive is entitled to receive any benefits pursuant to this Agreement, the Executive will not, for himself or on behalf of, or in conjunction with any other person or persons, company, partnership, limited liability company, proprietorship, trust company, bank, financial services institution, or other entity, directly or indirectly, own, manage, operate, control, be employed by, consult with, participate in, or be connected in any manner with the ownership, employment, management, operation, consulting or control of any financial services institution that competes with the Bank within the State of Florida, or any other market served by the Company at the time payment of benefits commence.",
"In the event of any actual breach by the Executive of the provisions of this Section 6.3, all payments under this Agreement payable to the Executive shall irrevocably forfeit and terminate and no further amount shall be due or payable to the Executive pursuant to this Agreement. The Executive specifically acknowledges that the restrictions set forth above are reasonable and bear a valid connection with the business operations of the Bank, and specifically admits that Executive is capable of obtaining suitable employment not in competition with the Bank. If any one of the restrictions contained herein shall for any reason be held to be excessively broad as to duration or geographical area, it shall be deemed amended by limiting and reducing it so as to be valid and enforceable to the extent compatible with applicable state law as it shall then appear.",
"Executive acknowledges that the Bank would not have entered into this Agreement without this provision Section 6.3 contained herein. This Section 6.3 shall not prohibit the Executive from owning stock in any publicly traded company provided the Executive’s stock ownership is five percent (5%) or less of the issued and outstanding stock of such publicly traded company and the Executive has no corporate responsibility other than the Executive’s rights as a stockholder. This section shall not apply following a Change in Control. 6.4 Suicide or Misstatement. No benefits shall be payable if the Executive commits suicide within two years after the date of this Agreement, or if the insurance company denies coverage (i) for material misstatements of fact made by the Executive on any application for life insurance purchased by the Bank, or (ii) for any other reason; provided, however that the Bank shall evaluate the reason for the denial, and upon advice of legal counsel and in its sole discretion, consider judicially challenging any denial.",
"8 -------------------------------------------------------------------------------- Article 7 Beneficiaries 7.1 Beneficiary. The Executive shall have the right, at any time, to designate a Beneficiary(ies) to receive any benefits payable under the Agreement upon the death of the Executive. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other Agreement of the Bank in which the Executive participates. 7.2 Beneficiary Designation; Change. The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form, and delivering it to the Bank or its designated agent. The Executive’s beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved.",
"The Executive shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Bank’s rules and procedures, as in effect from time to time. Upon the acceptance by the Bank of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Bank shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Bank prior to the Executive’s death. 7.3 Acknowledgment. No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Bank or its designated agent.",
"7.4 No Beneficiary Designation. If the Executive dies without a valid designation of beneficiary, or if all designated Beneficiaries predecease the Executive, then the Executive’s surviving spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be made payable to the personal representative of the Executive’s estate. 7.5 Facility of Payment. If the Bank determines in its discretion that a benefit is to be paid to a minor, to a person declared incompetent, or to a person incapable of handling the disposition of that person’s property, the Bank may direct payment of such benefit to the guardian, legal representative or person having the care or custody of such minor, incompetent person or incapable person. The Bank may require proof of incompetence, minority or guardianship as it may deem appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Executive and the Executive’s Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Agreement for such payment amount.",
"9 -------------------------------------------------------------------------------- Article 8 Assignment The Executive may irrevocably assign without consideration all of the Executive’s Interest in this Agreement to any person, entity, or trust. In the event the Executive shall transfer all of the Executive’s Interest, then all of the Executive’s Interest in this Agreement shall be vested in the Executive’s transferee, who shall be substituted as a party hereunder, and the Executive shall have no further interest in this Agreement. Article 9 Insurer The Insurer shall be bound only by the terms of its given Policy.",
"The Insurer shall not be bound by or deemed to have notice of the provisions of this Agreement. The Insurer shall have the right to rely on the Bank’s representations with regard to any definitions, interpretations or Policy interests as specified under this Agreement. Article 10 Claims and Review Procedure 10.1 Claims Procedure. The Executive or Beneficiary (“claimant”) who has not received benefits under the Agreement that he or she believes should be paid shall make a claim for such benefits as follows: 10.1.1 Initiation – Written Claim. The claimant initiates a claim by submitting to the Bank a written claim for the benefits.",
"10.1.2 Timing of Bank Response. The Bank shall respond to such claimant within 90 days after receiving the claim. If the Bank determines that special circumstances require additional time for processing the claim, the Bank can extend the response period by an additional 90 days by notifying the claimant in writing, prior to the end of the initial 90-day period, that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Bank expects to render its decision. 10.1.3 Notice of Decision. If the Bank denies part or all of the claim, the Bank shall notify the claimant in writing of such denial. The Bank shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth: (a) The specific reasons for the denial; (b) A reference to the specific provisions of the Agreement on which the denial is based; (c) A description of any additional information or material necessary for the claimant to perfect the claim and an explanation of why it is needed; 10 -------------------------------------------------------------------------------- (d) An explanation of the Agreement’s review procedures and the time limits applicable to such procedures; and (e) A statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on review.",
"10.2 Review Procedure. If the Bank denies part or all of the claim, the claimant shall have the opportunity for a full and fair review by the Bank of the denial, as follows: 10.2.1 Initiation – Written Request. To initiate the review, the claimant, within 60 days after receiving the Bank’s notice of denial, must file with the Bank a written request for review. 10.2.2 Additional Submissions – Information Access. The claimant shall then have the opportunity to submit written comments, documents, records and other information relating to the claim.",
"The Bank shall also provide the claimant, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits. 10.2.3 Considerations on Review. In considering the review, the Bank shall take into account all materials and information the claimant submits relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.",
"10.2.4 Timing of Bank’s Response. The Bank shall respond in writing to such claimant within 60 days after receiving the request for review. If the Bank determines that special circumstances require additional time for processing the claim, the Bank can extend the response period by an additional 60 days by notifying the claimant in writing, prior to the end of the initial 60-day period, that an additional period is required.",
"The notice of extension must set forth the special circumstances and the date by which the Bank expects to render its decision. 10.2.5 Notice of Decision. The Bank shall notify the claimant in writing of its decision on review. The Bank shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth: (a) The specific reasons for the denial; (b) A reference to the specific provisions of the Agreement on which the denial is based; (c) A statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all 11 -------------------------------------------------------------------------------- documents, records and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits; and (d) A statement of the claimant’s right to bring a civil action under ERISA Section 502(a).",
"Article 11 Amendments and Termination 11.1 Non-Vested Insurance Benefit. Unless the Executive has a Vested Insurance Benefit pursuant to Section 3.1, the Bank may amend or terminate the Agreement at any time, or may amend or terminate the Executive’s rights under the Agreement at any time prior to the Executive’s death, by providing written notice of such to the Executive. In the event that the Bank decides to maintain the Policy after termination of the Agreement, the Bank shall be the direct beneficiary of the entire death proceeds of the Policy. 11.2 Vested Insurance Benefit. If the Executive has a Vested Insurance Benefit, the Bank may amend or terminate the Agreement only if: (i) continuation of the Agreement would cause significant financial harm to the Bank as determined by the Board in its sole discretion, (ii) the Executive agrees to such action, (iii) the Bank’s banking regulator(s) issues a written directive to amend or terminate the Agreement or (iv) the Policy has been terminated unless comparable coverage is provided pursuant to Article 4.1. Article 12 Administration 12.1 Plan Administrator Duties.",
"This Agreement shall be administered by a Plan Administrator which shall consist of the Board, or such committee or persons as the Board may choose. The Plan Administrator shall also have the discretion and authority to (i) make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions including interpretations of this Agreement, as may arise in connection with this Agreement.",
"12.2 Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit, (including acting through a duly appointed representative), and may from time to time consult with counsel who may be counsel to the Bank. 12.3 Binding Effect of Decisions. The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.",
"12.4 Indemnity of Plan Administrator. The Bank shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members. 12 -------------------------------------------------------------------------------- 12.5 Information. To enable the Plan Administrator to perform its functions, the Bank shall supply full and timely information to the Plan Administrator on all matters relating to the Base Salary of the Executive, the date and circumstances of the retirement, Disability, death or Separation from Service of the Executive, and such other pertinent information as the Plan Administrator may reasonably require. Article 13 Miscellaneous 13.1 Binding Effect. This Agreement shall bind the Executive and the Bank, their beneficiaries, survivors, executors, administrators and transferees and any Beneficiary. 13.2 No Guarantee of Employment. This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an Executive of the Bank, nor does it interfere with the Bank’s right to discharge the Executive.",
"It also does not require the Executive to remain an Executive nor interfere with the Executive’s right to terminate employment at any time. 13.3 Applicable Law. The Agreement and all rights hereunder shall be governed by and construed according to the laws of the State of Florida, except to the extent preempted by the laws of the United States of America. 13.4 Reorganization. The Bank shall not merge or consolidate into or with another company, or reorganize, or sell substantially all of its assets to another company, firm or person unless such succeeding or continuing company, firm or person agrees to assume and discharge the obligations of the Bank under this Agreement.",
"Upon the occurrence of such event, the term “Bank” as used in this Agreement shall be deemed to refer to the successor or survivor company. 13.5 Notice. Any notice or filing required or permitted to be given to the Bank under this Agreement shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below: Centerstate Bank NA 6930 Gall Blvd Zephyrhills, Florida 33542 Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark or the receipt for registration or certification. Any notice or filing required or permitted to be given to the Executive under this Agreement shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Executive. 13 -------------------------------------------------------------------------------- 13.6 Entire Agreement. This Agreement, along with the Executive’s Beneficiary Designation Form, constitutes the entire agreement between the Bank and the Executive as to the subject matter hereof.",
"No rights are granted to the Executive under this Agreement other than those specifically set forth herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated above. EXECUTIVE: CENTERSTATE BANK N.A. /s/ Timothy A. Pierson By: /s/ Ernest S. Pinner Timothy A. Pierson, President & CEO Ernest S. Pinner, Chairman of the Board 14"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Fawcett, C. On May 9, 1890, plaintiff obtained a judgment in the district court for Lancaster county against Louis Faulhaber, Sr., and his sons, Louis, Henry and John. The return of the sheriff, by O. A. Hoxie, deputy, certifies that he served the summons upon Louis Faulhaber, Sr., Louis Faulhaber and John J. Faulhaber. None of the defend*337ants named appearing, judgment was rendered by default. No execution was ever issued upon the judgment, or any attempt made to enforce payment of it, until October 20, 1904, when plaintiff filed a motion, supported by affidavit, to revive the judgment; the affidavit and notice being in the usnal form. Notice of the motion to revive was served upon the defendant Louis Faulhaber, Sr., October 21, 1904. Mr. Faulhaber appeared by counsel, and moved the court, for a continuance for 30 days to make a showing against revivor, and on December 6, 1904, filed his separate answer to the motion, in which he alleged that no summons had ever been served upon him or left at his usual place of residence; that he knew nothing about the pendency of any purported action against him until long after said purported judgment, was rendered; that the court had no jurisdiction over his person to enter judgment against him; and that the judgment sought to be revived was void. A hearing was had, and judgment of revivor entered, from which Mr. Faulhaber, Sr., appealed to this court. His appeal was successful, and the cause was reversed and remanded. St. Paul Harvester Co. v. Faulhaber, 77 Neb. 477. After the case was remanded to the district court, Mr. Faulhaber, Sr., filed a motion to require plaintiff to give security for costs, and later, on April 16, 1907, by leave of court, filed an amended answer containing the same averments as appeared in his original answer, and in addition thereto that the plaintiff is no longer in existence, it having gone into liquidation a long time before the action to revive was instituted; that the court has no jurisdiction for the reason that the affairs of the plaintiff were settled by an assignee, and said plaintiff is not now, and has not been for a number of years, doing business as a corporation; and that plaintiff has no legal capacity to revive said purported judgment. Subsequently, the death of Louis Faulhaber, Sr., was suggested, and defendant, Emma Mahs, executrix “of the estate of Louis Faulhaber, Sr., deceased,” was sub*338stituted as defendant. No reply was filed, and the case proceeded to trial upon the motion and affidavit for revivor and the amended answer. The court found generally in favor of the defendant executrix, and dismissed the revivor proceedings at plaintiff’s costs. A motion for new trial was overruled, and plaintiff prosecutes this appeal. Plaintiff insists that by moving for a continuance and for security for costs, and by alleging in his amended answer that the court had no jurisdiction to enter the judgment, and by denying the legal capacity of plaintiff to prosecute the action, the defendant, Faulhaber, Sr., entered a general appearance in the action, which would relate back to the time of the entry of the original judgment, and thus render the question as to whether or not there had been a service of the summons immaterial; that “a revivor proceeding is not the commencement of a new action, but the continuation of an action previously commenced,’’’ and that “a general appearance may be made after, judgment.” In support of his contention he cites Eaton v. Hasty, 6 Neb. 419; Bankers Life Ins. Co. v. Robbins, 59 Neb. 170; Franse v. Armbuster, 28 Neb. 467, and Dryfus v. Moline, Milburn & Stoddard Co., 43 Neb. 233. We do not think the cases cited by counsel bear out his contention. While a revivor proceeding is not in one sense the commencement of a new action, it is the commencement of new and different proceedings under the provisions of our statute for the revivor of a dormant judgment. The proceedings to revive a dormant judgment are instituted by the filing of a motion and the service of notice upon the judgment debtor. After service the debtor has the right to appear and “interpose any suitable defense thereto.” Farak v. First Nat. Bank, 67 Neb. 463. The- term “suitable defense” does not mean the trial of the merits of the original suit, but it does include any defense which will show that the judgment was void, subsequent payment, etc. In Enewold v. Olsen, 39 Neb. 59, we quote from Wright v. Sweet, 10 Neb. 190: “Upon proceedings to revive a judgment which has become dormant, *339* * * no objections will be heard which seek to go behind the original judgment”; and then say: “But this casé does not decide,, nor was it intended to decide, that a person against whom it was sought to revive a judgment might not make the objection that such judgment was void; that is to say, that there was no such judgment.” Haynes v. Aultman, Miller & Co., 36 Neb. 257, was an action to revive a dormant judgment. The defendant set up certain defenses which tended to show that the court, when it rendered the judgment, had no jurisdiction of the defendant, and that he had a defense to the action. A demurrer to the answer was sustained, whereupon defendant brought a suit in equity to enjoin the judgment. A demurrer to the petition in the injunction suit was sustained. In affirming that judgment we said: “It appears from the exhibits attached to the petition, and made a part of it, that in the action to revive the judgments the plaintiff herein filed an answer in which he alleged, in substance, that the judgments were void for want of a finding that Haynes had removed from Holt county when the summons was left at his late residence therein, and that he had no notice of said summons or action until it was too late to appear in the action either by appeal or to open the judgment; that the notes in question were given for a combined reaping and mowing machine, which was of no account or value, and the consideration therefor failed. It also appears that a demurrer was filed by Aultman, Miller & Co. to said answer, which demurrer was sustained, and the actions revived for the amounts of the original judgments, interest, and costs. It is probable that the court erred in sustaining the demurrer in those cases, and if the ruling upon the demurrer was before us for review that it would be reversed.” In concluding the opinion in the case we said: “The theory of our law is that the debtor shall have personal service, or its equivalent, notice left at his actual residence, otherwise it would be possible to perpetrate gross frauds upon the party sued. None of these matters can be considered in *340this case. This is an attack upon the judgment as revived, and if the court had jurisdiction which rendered the same, and there Avas an opportunity to defend, this action cannot be sustained.” The effect of that decision is to hold that, if the defendant in the revivor proceeding had appealed from the judgment of revivor instead of bringing an independent suit for an injunction, his appeal would have been successful, for the reason that he was entitled to make the defense of which the trial court, by sustaining the demurrer, deprived him. In Wittstruck v. Temple, 58 Neb. 16, we held: “In a proceeding to revive a dormant-judgment the defendant may interpose as a defense that such judgment is void on the ground that the court entering it had no jurisdiction over his person.” In the opinion Ave said: “Had the payment of the judgment been pleaded, then, under the foregoing authorities, the presumption of payment arising from the lapse of time would have defeated the proceeding to revive, unless the judgment creditor had overcome such presumption by proof that the judgment had never been paid. It devolved upon those resisting the order of revivor to tender the issue of payment by proper plea.” Without pursuing the matter further, we think it is clear that a defendant upon whom notice has been served for the revivor of a judgment may appear and file any and all defenses which he may have to the revivor of such judgment, and may make all proper motions in reference thereto, without being held to have appeared generally in the action so as to render valid a judgment which was void for Avant of jurisdiction over his person. Plaintiff’s further contention is that the judgment of the district court is not sustained by the evidence. In his deposition, taken prior to his death, Mr. Faulhaber, Sr., who Avas a farmer liAdng in the country, testified that no summons was ever served upon him in the case or left at his place of residence; that he never had been sued in his life; that he did not learn of the entry of the judgment until September folloAving its entry; that, Avlien he *341learned of it, he consulted Mr. Stearns, and, in company with Mr. Stearns, went to see the deputy who had made the return on the summons; that the deputy then told them that he had not served the summons upon him, and stated that he served it on Ninth street, where the boys had their place of business. Mr. Stearns also testifies that the deputy said the only service he made on anybody was made down on Ninth street, at the place of business. One of the sons, who was conducting the business at Ninth street, was named after his father, “Louis,” and it is possible that the officer did not discriminate between the two names of Louis Faulhaber, Sr., and Louis Faulhaber, appearing in his summons. However that may be, plaintiff placed Mr. Hoxie, the deputy, upon the witness stand, but did not attempt to contradict the testimony of Mr. Faulhaber and Mr. Stearns as to his statements on that occasion. Mr. Hoxie testifies that he does not recall any visit by Mr. Stearns or any one else in relation to the summons; that he has no recollection as to the service of the summons beyond what appears in his return; and that he must have served the summons upon Mr. Faulhaber, or he would not have so stated in his return. He further testifies that about that time the sheriff’s office was very busy, and they were serving a great many papers, sometimes as many as 50 in one day. His testimony upon the witness stand that he had no recollection as to what had taken place IT years prior thereto is undoubtedly true, as he could not be expected, with the large number of papers he was serving during those years, to remember such transactions for so long a period of time. But it is also true that in September, immediately following the service of the summons in March, he might, and probably would, have some recollection of what had taken place at that time; and we must assume that he made the statements to Mr. Faulhaber and Mr. Stearns to which they have testified. That he did not serve the summons upon Mr. Faulhaber, Sr., is further corroborated by the affidavit of Fred Faulhaber, which was received in evidence, in *342which he says that Mr. Stewart, attorney for plaintiff, told him that there was no judgment against his father; that he, Stewart, had found out that the old man, meaning affiant’s father, had no interest in the business, and that the sheriff did not serve him with a summons; and that it was not necessary for Mr. Stearns, to whom Mr. Faulhaber had gone for advice, to go ahead with an injunction suit, as it would only make expense. This statement is not disputed by Mr. Stewart. On the contrary, Mr. Stewart himself testifies that, when Mr. Stearns told him that if he undertook to enforce the judgment against Mr. Faulhaber, Sr., he, Stearns, would have to begin an injunction suit, he told Mr. Stearns, after he had made an investigation and had talked with Hoxie, that he did not think, under the circumstances, that he would put Stearns'to the trouble of commencing an injunction suit. When asked if he ever stated to anybody -that they had no judgment against Mr. Faulhaber, he says: “I don’t remember of ever making a statement of that kind. I possibly told the people what the facts in controversy were.” Mr. Stewart also testifies: “Well, I went and saw Mr. Hoxie, deputy sheriff, and talked with him about it. Q. What did he say? A. Mr. Hoxie said he didn’t know whether he served it or not, I think was about the substance of what he said, he wasn’t sure. He kind of thought he hadn’t served it; that that was a mistake.” That after he had had the talk with Mr. Hoxie he told Mr. Stearns: “Of course, if Mr. Hoxie would not stand by his return, there would not be any use of his trying to enforce the judgment. Q. And did you ever try to collect the judgment from the old man? A. No; never did that I have any recollection of. Q. Well, if you had thought you had a judgment, you would have made an effort to collect it? A. Yes; if I had thought we had a judgment or could enforce it, we would certainly have enforced it; but, of course, we had to depend on Hoxie’s return and the testimony in regard to it, and we thought there was no use trying to enforce it since he took the position that he did. *343Q. Did you form any belief in your talk with Mr. Hoxie as to whether or not he had served it? A. No; I don’t know as I did form any belief on the subject. I was a little suspicious of Hoxie at that time on account of some other matters, and, as I say, I never knew whether he served it or not. I just simply know he would not stand by his return at that time.” Mr. H. F. Rose was called as a Avitness, and testified that at the time the judgment was obtained in 1890 he was associated with Mr. Stewart. On cross-examination we have the folloAving: “Q. And you never made any effort after that or any attempt to collect the judgment? A. I don’t think we ever sued out execution. Q. You knew' that Paulhaber was good, and owned a farm out east of town, didn’t you? A. That was our understanding before we commenced the suit. We really expected to collect off of him. Q. Did you talle with Hoxie yourself? A. Yes; I think I talked with Hoxie on that same trip, and then Mr. Stewart and I conferred about it, and held a little indignation meeting, but we never concluded to press the thing to an actual test at that time. Q. And never after that either? A. No; we separated soon after that, and those old matters, my recollection is, Avere retained by Mr. Stewart. I retained no interest in those.” The point is made by counsel for plaintiff that the testimony by which it is sought to impeach the return of an officer must be clear and convincing. In this we concur; but in our opinion the evidence produced upon the hearing of this case meets that requirement. We think it is clearly and convincingly established by the record before us that no summons was ever served upon Louis Paulhaber, Sr. It follows that the judgment of the district court is right, and should be affirmed. Calkins and Root, CC., concur. By the Court: Por the reasons stated in the foregoing opinion, the judgment of the district court is. Affirmed. | 07-20-2022 | [
"Fawcett, C. On May 9, 1890, plaintiff obtained a judgment in the district court for Lancaster county against Louis Faulhaber, Sr., and his sons, Louis, Henry and John. The return of the sheriff, by O. A. Hoxie, deputy, certifies that he served the summons upon Louis Faulhaber, Sr., Louis Faulhaber and John J. Faulhaber. None of the defend*337ants named appearing, judgment was rendered by default. No execution was ever issued upon the judgment, or any attempt made to enforce payment of it, until October 20, 1904, when plaintiff filed a motion, supported by affidavit, to revive the judgment; the affidavit and notice being in the usnal form. Notice of the motion to revive was served upon the defendant Louis Faulhaber, Sr., October 21, 1904.",
"Mr. Faulhaber appeared by counsel, and moved the court, for a continuance for 30 days to make a showing against revivor, and on December 6, 1904, filed his separate answer to the motion, in which he alleged that no summons had ever been served upon him or left at his usual place of residence; that he knew nothing about the pendency of any purported action against him until long after said purported judgment, was rendered; that the court had no jurisdiction over his person to enter judgment against him; and that the judgment sought to be revived was void. A hearing was had, and judgment of revivor entered, from which Mr. Faulhaber, Sr., appealed to this court.",
"His appeal was successful, and the cause was reversed and remanded. St. Paul Harvester Co. v. Faulhaber, 77 Neb. 477. After the case was remanded to the district court, Mr. Faulhaber, Sr., filed a motion to require plaintiff to give security for costs, and later, on April 16, 1907, by leave of court, filed an amended answer containing the same averments as appeared in his original answer, and in addition thereto that the plaintiff is no longer in existence, it having gone into liquidation a long time before the action to revive was instituted; that the court has no jurisdiction for the reason that the affairs of the plaintiff were settled by an assignee, and said plaintiff is not now, and has not been for a number of years, doing business as a corporation; and that plaintiff has no legal capacity to revive said purported judgment. Subsequently, the death of Louis Faulhaber, Sr., was suggested, and defendant, Emma Mahs, executrix “of the estate of Louis Faulhaber, Sr., deceased,” was sub*338stituted as defendant.",
"No reply was filed, and the case proceeded to trial upon the motion and affidavit for revivor and the amended answer. The court found generally in favor of the defendant executrix, and dismissed the revivor proceedings at plaintiff’s costs. A motion for new trial was overruled, and plaintiff prosecutes this appeal. Plaintiff insists that by moving for a continuance and for security for costs, and by alleging in his amended answer that the court had no jurisdiction to enter the judgment, and by denying the legal capacity of plaintiff to prosecute the action, the defendant, Faulhaber, Sr., entered a general appearance in the action, which would relate back to the time of the entry of the original judgment, and thus render the question as to whether or not there had been a service of the summons immaterial; that “a revivor proceeding is not the commencement of a new action, but the continuation of an action previously commenced,’’’ and that “a general appearance may be made after, judgment.” In support of his contention he cites Eaton v. Hasty, 6 Neb.",
"419; Bankers Life Ins. Co. v. Robbins, 59 Neb. 170; Franse v. Armbuster, 28 Neb. 467, and Dryfus v. Moline, Milburn & Stoddard Co., 43 Neb. 233. We do not think the cases cited by counsel bear out his contention. While a revivor proceeding is not in one sense the commencement of a new action, it is the commencement of new and different proceedings under the provisions of our statute for the revivor of a dormant judgment. The proceedings to revive a dormant judgment are instituted by the filing of a motion and the service of notice upon the judgment debtor.",
"After service the debtor has the right to appear and “interpose any suitable defense thereto.” Farak v. First Nat. Bank, 67 Neb. 463. The- term “suitable defense” does not mean the trial of the merits of the original suit, but it does include any defense which will show that the judgment was void, subsequent payment, etc. In Enewold v. Olsen, 39 Neb. 59, we quote from Wright v. Sweet, 10 Neb. 190: “Upon proceedings to revive a judgment which has become dormant, *339* * * no objections will be heard which seek to go behind the original judgment”; and then say: “But this casé does not decide,, nor was it intended to decide, that a person against whom it was sought to revive a judgment might not make the objection that such judgment was void; that is to say, that there was no such judgment.” Haynes v. Aultman, Miller & Co., 36 Neb. 257, was an action to revive a dormant judgment.",
"The defendant set up certain defenses which tended to show that the court, when it rendered the judgment, had no jurisdiction of the defendant, and that he had a defense to the action. A demurrer to the answer was sustained, whereupon defendant brought a suit in equity to enjoin the judgment. A demurrer to the petition in the injunction suit was sustained. In affirming that judgment we said: “It appears from the exhibits attached to the petition, and made a part of it, that in the action to revive the judgments the plaintiff herein filed an answer in which he alleged, in substance, that the judgments were void for want of a finding that Haynes had removed from Holt county when the summons was left at his late residence therein, and that he had no notice of said summons or action until it was too late to appear in the action either by appeal or to open the judgment; that the notes in question were given for a combined reaping and mowing machine, which was of no account or value, and the consideration therefor failed. It also appears that a demurrer was filed by Aultman, Miller & Co. to said answer, which demurrer was sustained, and the actions revived for the amounts of the original judgments, interest, and costs.",
"It is probable that the court erred in sustaining the demurrer in those cases, and if the ruling upon the demurrer was before us for review that it would be reversed.” In concluding the opinion in the case we said: “The theory of our law is that the debtor shall have personal service, or its equivalent, notice left at his actual residence, otherwise it would be possible to perpetrate gross frauds upon the party sued. None of these matters can be considered in *340this case. This is an attack upon the judgment as revived, and if the court had jurisdiction which rendered the same, and there Avas an opportunity to defend, this action cannot be sustained.” The effect of that decision is to hold that, if the defendant in the revivor proceeding had appealed from the judgment of revivor instead of bringing an independent suit for an injunction, his appeal would have been successful, for the reason that he was entitled to make the defense of which the trial court, by sustaining the demurrer, deprived him.",
"In Wittstruck v. Temple, 58 Neb. 16, we held: “In a proceeding to revive a dormant-judgment the defendant may interpose as a defense that such judgment is void on the ground that the court entering it had no jurisdiction over his person.” In the opinion Ave said: “Had the payment of the judgment been pleaded, then, under the foregoing authorities, the presumption of payment arising from the lapse of time would have defeated the proceeding to revive, unless the judgment creditor had overcome such presumption by proof that the judgment had never been paid.",
"It devolved upon those resisting the order of revivor to tender the issue of payment by proper plea.” Without pursuing the matter further, we think it is clear that a defendant upon whom notice has been served for the revivor of a judgment may appear and file any and all defenses which he may have to the revivor of such judgment, and may make all proper motions in reference thereto, without being held to have appeared generally in the action so as to render valid a judgment which was void for Avant of jurisdiction over his person.",
"Plaintiff’s further contention is that the judgment of the district court is not sustained by the evidence. In his deposition, taken prior to his death, Mr. Faulhaber, Sr., who Avas a farmer liAdng in the country, testified that no summons was ever served upon him in the case or left at his place of residence; that he never had been sued in his life; that he did not learn of the entry of the judgment until September folloAving its entry; that, Avlien he *341learned of it, he consulted Mr. Stearns, and, in company with Mr. Stearns, went to see the deputy who had made the return on the summons; that the deputy then told them that he had not served the summons upon him, and stated that he served it on Ninth street, where the boys had their place of business. Mr. Stearns also testifies that the deputy said the only service he made on anybody was made down on Ninth street, at the place of business.",
"One of the sons, who was conducting the business at Ninth street, was named after his father, “Louis,” and it is possible that the officer did not discriminate between the two names of Louis Faulhaber, Sr., and Louis Faulhaber, appearing in his summons. However that may be, plaintiff placed Mr. Hoxie, the deputy, upon the witness stand, but did not attempt to contradict the testimony of Mr. Faulhaber and Mr. Stearns as to his statements on that occasion. Mr. Hoxie testifies that he does not recall any visit by Mr. Stearns or any one else in relation to the summons; that he has no recollection as to the service of the summons beyond what appears in his return; and that he must have served the summons upon Mr. Faulhaber, or he would not have so stated in his return.",
"He further testifies that about that time the sheriff’s office was very busy, and they were serving a great many papers, sometimes as many as 50 in one day. His testimony upon the witness stand that he had no recollection as to what had taken place IT years prior thereto is undoubtedly true, as he could not be expected, with the large number of papers he was serving during those years, to remember such transactions for so long a period of time. But it is also true that in September, immediately following the service of the summons in March, he might, and probably would, have some recollection of what had taken place at that time; and we must assume that he made the statements to Mr. Faulhaber and Mr. Stearns to which they have testified. That he did not serve the summons upon Mr. Faulhaber, Sr., is further corroborated by the affidavit of Fred Faulhaber, which was received in evidence, in *342which he says that Mr. Stewart, attorney for plaintiff, told him that there was no judgment against his father; that he, Stewart, had found out that the old man, meaning affiant’s father, had no interest in the business, and that the sheriff did not serve him with a summons; and that it was not necessary for Mr. Stearns, to whom Mr. Faulhaber had gone for advice, to go ahead with an injunction suit, as it would only make expense.",
"This statement is not disputed by Mr. Stewart. On the contrary, Mr. Stewart himself testifies that, when Mr. Stearns told him that if he undertook to enforce the judgment against Mr. Faulhaber, Sr., he, Stearns, would have to begin an injunction suit, he told Mr. Stearns, after he had made an investigation and had talked with Hoxie, that he did not think, under the circumstances, that he would put Stearns'to the trouble of commencing an injunction suit. When asked if he ever stated to anybody -that they had no judgment against Mr. Faulhaber, he says: “I don’t remember of ever making a statement of that kind. I possibly told the people what the facts in controversy were.” Mr. Stewart also testifies: “Well, I went and saw Mr. Hoxie, deputy sheriff, and talked with him about it. Q. What did he say?",
"A. Mr. Hoxie said he didn’t know whether he served it or not, I think was about the substance of what he said, he wasn’t sure. He kind of thought he hadn’t served it; that that was a mistake.” That after he had had the talk with Mr. Hoxie he told Mr. Stearns: “Of course, if Mr. Hoxie would not stand by his return, there would not be any use of his trying to enforce the judgment.",
"Q. And did you ever try to collect the judgment from the old man? A. No; never did that I have any recollection of. Q. Well, if you had thought you had a judgment, you would have made an effort to collect it? A. Yes; if I had thought we had a judgment or could enforce it, we would certainly have enforced it; but, of course, we had to depend on Hoxie’s return and the testimony in regard to it, and we thought there was no use trying to enforce it since he took the position that he did. *343Q. Did you form any belief in your talk with Mr. Hoxie as to whether or not he had served it? A.",
"No; I don’t know as I did form any belief on the subject. I was a little suspicious of Hoxie at that time on account of some other matters, and, as I say, I never knew whether he served it or not. I just simply know he would not stand by his return at that time.” Mr. H. F. Rose was called as a Avitness, and testified that at the time the judgment was obtained in 1890 he was associated with Mr. Stewart. On cross-examination we have the folloAving: “Q. And you never made any effort after that or any attempt to collect the judgment? A. I don’t think we ever sued out execution. Q. You knew' that Paulhaber was good, and owned a farm out east of town, didn’t you?",
"A. That was our understanding before we commenced the suit. We really expected to collect off of him. Q. Did you talle with Hoxie yourself? A. Yes; I think I talked with Hoxie on that same trip, and then Mr. Stewart and I conferred about it, and held a little indignation meeting, but we never concluded to press the thing to an actual test at that time. Q. And never after that either? A. No; we separated soon after that, and those old matters, my recollection is, Avere retained by Mr. Stewart.",
"I retained no interest in those.” The point is made by counsel for plaintiff that the testimony by which it is sought to impeach the return of an officer must be clear and convincing. In this we concur; but in our opinion the evidence produced upon the hearing of this case meets that requirement. We think it is clearly and convincingly established by the record before us that no summons was ever served upon Louis Paulhaber, Sr. It follows that the judgment of the district court is right, and should be affirmed. Calkins and Root, CC., concur. By the Court: Por the reasons stated in the foregoing opinion, the judgment of the district court is. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6658097/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Macfarlane, J. A demurrer to the indictment was sustained, and the state appealed. The charges contained in the indictment were as follows: “That James M. Wray, late of the county of Morgan, on or about the twenty-second day of August, A. D. 1890, at the said, county of Morgan, in the state of Missouri, in and upon one Nora E. G-aither, a female child under the age of fourteen years, to-wit, of the age of thirteen years, unlawfully and feloniously did make an assault, with the intent her, the said Nora E. G-aither, then and there feloniously to unlawfully and carnally know and abuse, contrary,” etc. Two objections were made to the indictment. First, that section 3480 under which the indictment was drawn was not enacted with the formalities made mandatory by the constitution, and the word ‘ ‘fourteen’ ’ contained in the statute was not contained in the bill as passed by the general assembly. The statute is upon its face presumptively valid. The statute rolls on deposit in the archives of the state,' bearing the approval of the governor, and on its face showing that all prerequisite constitutional requirements have been complied with, corresponds exactly and literally with the published statutes. The objection to this law was raised by demurrer. No evidence was, therefore, introduced to rebut the strong presumption the law raises that the legislature proceeded regularly and according to all constitutional mandates in the enactment of the law. This presumption is conclusive except as to matters upon which the *598constitution makes the validity of the enactment rest. In respect to such matters the constitution is mandatory, and the rolls themselves may be contradicted by journal entries, and the law itself overthrown, if these entries show .clearly, and beyond all doubt, a want of conformity to the mandates of the constitution. State ex rel. v. Mead, 71 Mo. 268; Jennings v. Russell, 92 Ala. 603; Speer v. Mayor, 85 Ga. 52; The People ex rel. v. McElroy, 72 Mich. 447; Weyand v. Stover, 35 Kan. 545. It may also be said that courts may, and often do, take judicial notice of the journal entries of the houses of the general assembly; at the same time they are only evidence upon which facts are to be determined, though upon these facts the validity of a law may ultimately depend. This evidence should be brought before the court. The Revised Statutes as published by the state are made prima facie evidence' of the enrolled laws of which they purport to be copies. R. S. 1889, sec. 6613. The presumptions of validity which attach to the original rolls follow and attach also to these verified published copies. The Revised Statutes then stand as embodying the laws of the state, and it devolves upon anyone attacking the validity of any of these laws, on the ground that constitutional requirements had not been observed in their enactment, to prove the fact of such omissions by the journal entries. Courts are satisfied to take the statutes as furnished by the legislature, and give them full faith and credit, without seeking in each case to learn from the legislative record whether that act was passed legally and regularly. When evidence of non-compliance is properly brought to our attention we will then act upon it; our duty does not require us to go beyond this even in criminal eases and seek for grounds upon which to overthrow the work of the *599co-ordinate branch of the government. The presumption of the validity of the law was not overcome. The non-compliance of the revision committee with the requirements of section 6609 in failing to note, at the lower margin of section 3480, the amendment of section 1253, Revised Statutes, 1879, does not affect the validity of the section as amended. These notations were only intended to aid and facilitate the examination and investigation of the statute on any particular subject, and not to enlarge, modify or repeal the law or affect it in any manner. II. The second ground of objection to the indictment is that it is insufficient under said sections 3480 and 3490. The objection as we understand it is put upon the ground that there could be no criminality in an assault, made with the consent of the person assaulted, unless expressly declared criminal by the statute, which is not done here. Rape is defined, under section 3480, as follows: “Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upwards, shall suffer death or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.” Section 3490 provides that every person who shall be convicted of an assault with intent to commit * * * rape * * * shall be punished, etc. Carnal knowledge of a female child under fourteen years of age is rape under this statute, whether accomplished with or without force, or with or without the consent of the child. It follows that an assault with the intent to have carnal knowledge of a female child under fourteen years of age would constitute a crime *600punishable under section 3490, regardless of the use of force on the one part or granting consent on the other. In the case of State v. Meinhart, 73 Mo. 563, a demurrer to an indictment in the exact language of this one was sustained, and an appeal taken by the state to this court, where the indictment was held good. Ray, J., who wrote the opinion of the court, says: “When section 1263 (3490), in declaring the punishment which shall be inflicted upon every person convicted of an assault to commit any of the various offenses therein specified, uses the word ‘rape’ it means and imputes an assault to perpetrate either one of the state of facts which section 1253 (now 3480) defines to be a rape; and an indictment which charges, as in this case, ‘an unlawful and felonious assault with intent her, the said Amelia Thomas, then and there feloniously to unlawfully and carnally know and abuse’ is clearly good under the statute.” McComas v. State, 11 Mo. 117; State v. Dalton, 106 Mo. 463; State v. Jaeger, 66 Mo. 175. We are aware that under common-law rules it is generally held that there cannot be an assault with intent to have carnal knowledge of a child with her consent; “because, by the common law, violence consented to is not an assault, and the statute which makes her consent immaterial in defense of the carnal knowledge does not extend also to the assault.” Bishop’s Statutory Crimes, secs. 496, 499. There are cases which have followed the common-law rule, though in jurisdictions in which one statute makes carnal knowledge of .a female child under the age of consent rape, and another statute declares it a crime to perpetrate an assault with intent to commit any felony. See Stephens v. State, 107 Ind. 185; 8 N. E. Rep. 94. We recognize the force of the argument in this line of decisions under statutes as *601•general as those. Our statute, however, would scarcely he more explicit if it declared in express terms, that an assault upon a female child, under fourteen years of age, with intent to carnally know her, would he a crime, though the child consented to the assault. We think the indictment good. Judgment reversed and cause remanded. | 09-09-2022 | [
"Macfarlane, J. A demurrer to the indictment was sustained, and the state appealed. The charges contained in the indictment were as follows: “That James M. Wray, late of the county of Morgan, on or about the twenty-second day of August, A. D. 1890, at the said, county of Morgan, in the state of Missouri, in and upon one Nora E. G-aither, a female child under the age of fourteen years, to-wit, of the age of thirteen years, unlawfully and feloniously did make an assault, with the intent her, the said Nora E. G-aither, then and there feloniously to unlawfully and carnally know and abuse, contrary,” etc. Two objections were made to the indictment.",
"First, that section 3480 under which the indictment was drawn was not enacted with the formalities made mandatory by the constitution, and the word ‘ ‘fourteen’ ’ contained in the statute was not contained in the bill as passed by the general assembly. The statute is upon its face presumptively valid. The statute rolls on deposit in the archives of the state,' bearing the approval of the governor, and on its face showing that all prerequisite constitutional requirements have been complied with, corresponds exactly and literally with the published statutes. The objection to this law was raised by demurrer. No evidence was, therefore, introduced to rebut the strong presumption the law raises that the legislature proceeded regularly and according to all constitutional mandates in the enactment of the law. This presumption is conclusive except as to matters upon which the *598constitution makes the validity of the enactment rest.",
"In respect to such matters the constitution is mandatory, and the rolls themselves may be contradicted by journal entries, and the law itself overthrown, if these entries show .clearly, and beyond all doubt, a want of conformity to the mandates of the constitution. State ex rel. v. Mead, 71 Mo. 268; Jennings v. Russell, 92 Ala. 603; Speer v. Mayor, 85 Ga. 52; The People ex rel. v. McElroy, 72 Mich. 447; Weyand v. Stover, 35 Kan. 545. It may also be said that courts may, and often do, take judicial notice of the journal entries of the houses of the general assembly; at the same time they are only evidence upon which facts are to be determined, though upon these facts the validity of a law may ultimately depend. This evidence should be brought before the court.",
"The Revised Statutes as published by the state are made prima facie evidence' of the enrolled laws of which they purport to be copies. R. S. 1889, sec. 6613. The presumptions of validity which attach to the original rolls follow and attach also to these verified published copies. The Revised Statutes then stand as embodying the laws of the state, and it devolves upon anyone attacking the validity of any of these laws, on the ground that constitutional requirements had not been observed in their enactment, to prove the fact of such omissions by the journal entries. Courts are satisfied to take the statutes as furnished by the legislature, and give them full faith and credit, without seeking in each case to learn from the legislative record whether that act was passed legally and regularly. When evidence of non-compliance is properly brought to our attention we will then act upon it; our duty does not require us to go beyond this even in criminal eases and seek for grounds upon which to overthrow the work of the *599co-ordinate branch of the government.",
"The presumption of the validity of the law was not overcome. The non-compliance of the revision committee with the requirements of section 6609 in failing to note, at the lower margin of section 3480, the amendment of section 1253, Revised Statutes, 1879, does not affect the validity of the section as amended. These notations were only intended to aid and facilitate the examination and investigation of the statute on any particular subject, and not to enlarge, modify or repeal the law or affect it in any manner. II. The second ground of objection to the indictment is that it is insufficient under said sections 3480 and 3490. The objection as we understand it is put upon the ground that there could be no criminality in an assault, made with the consent of the person assaulted, unless expressly declared criminal by the statute, which is not done here. Rape is defined, under section 3480, as follows: “Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of fourteen years, or by forcibly ravishing any woman of the age of fourteen years or upwards, shall suffer death or be punished by imprisonment in the penitentiary not less than five years, in the discretion of the jury.” Section 3490 provides that every person who shall be convicted of an assault with intent to commit * * * rape * * * shall be punished, etc.",
"Carnal knowledge of a female child under fourteen years of age is rape under this statute, whether accomplished with or without force, or with or without the consent of the child. It follows that an assault with the intent to have carnal knowledge of a female child under fourteen years of age would constitute a crime *600punishable under section 3490, regardless of the use of force on the one part or granting consent on the other. In the case of State v. Meinhart, 73 Mo. 563, a demurrer to an indictment in the exact language of this one was sustained, and an appeal taken by the state to this court, where the indictment was held good.",
"Ray, J., who wrote the opinion of the court, says: “When section 1263 (3490), in declaring the punishment which shall be inflicted upon every person convicted of an assault to commit any of the various offenses therein specified, uses the word ‘rape’ it means and imputes an assault to perpetrate either one of the state of facts which section 1253 (now 3480) defines to be a rape; and an indictment which charges, as in this case, ‘an unlawful and felonious assault with intent her, the said Amelia Thomas, then and there feloniously to unlawfully and carnally know and abuse’ is clearly good under the statute.” McComas v. State, 11 Mo. 117; State v. Dalton, 106 Mo.",
"463; State v. Jaeger, 66 Mo. 175. We are aware that under common-law rules it is generally held that there cannot be an assault with intent to have carnal knowledge of a child with her consent; “because, by the common law, violence consented to is not an assault, and the statute which makes her consent immaterial in defense of the carnal knowledge does not extend also to the assault.” Bishop’s Statutory Crimes, secs. 496, 499. There are cases which have followed the common-law rule, though in jurisdictions in which one statute makes carnal knowledge of .a female child under the age of consent rape, and another statute declares it a crime to perpetrate an assault with intent to commit any felony. See Stephens v. State, 107 Ind.",
"185; 8 N. E. Rep. 94. We recognize the force of the argument in this line of decisions under statutes as *601•general as those. Our statute, however, would scarcely he more explicit if it declared in express terms, that an assault upon a female child, under fourteen years of age, with intent to carnally know her, would he a crime, though the child consented to the assault. We think the indictment good. Judgment reversed and cause remanded."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8010471/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Guben, J. delivered the opinion of the court. This is a motion against the defendant, as sheriff of Bedford county, for failing to return, with a sufficient response, an execution against George Waite, for $59 95, besides costs, in favor of the plaintiff. The sheriff’s return is as follows: — “Received sixty one dollars and fourteen cents, that being the debt and damages on this fi. fia. and having an alias execution in my hands in favor of said Waite against James B. Dolby, I applied the money for debt and damages received on thisfi-fia. towards the payment of the fi. fa. in my hand of George Waite against James B. Dolby, which is for one hundred and forty-five dollars besides costs. JAMES MULLINS, Sheriff. October 26th, 1S41.” It is objected that this return is insufficient. 1st. Because mon- - cy cannot be levied on by a fieri facias. 2d. Because if it be subjeetto execution in the hands of defendant, it cannot be taken by the officer until it has been paid to the person entitled to receive it. 1.- As to the first question, whether a sheriff can take money in execution there can be no doubt. The reason given in some of the old cases, “that money could not be sold” is conclusively answered by Chief Justice Marshall, in the case of Turner vs. Fendall, (1 Cranch R. 118) where he says: “The reason of a sale is, that money only will satisfy the execution, and if any thing else be taken, it must be turned into money, but surely *438that the means of converting the thing into money, need not be used, can be no adequate reason for refusing to take the very article, to produce which is the sole object of the execution.” He also quotes, in support of the proposition that money may be levied on, Dalton’s Sheriff, 145, and 2 Shower, 166. But the reasoning is so conclusive, that authorities are not necessary to support a proposition, which upon principle is' so clear. 2. But as to the second question, whether money in the hands of the sheriff can be levied on, and applied by him to the satisfaction of an execution in his hands, against the owner of the money, we do not think the reasoning of the court in the same case of Turner vs. Fendall, by any means satisfactory. It is there held that such application cannot be made. The reason given is, that the plaintiff in the execution, is not the legal owner of the money in the officer’s hands, that his claim ujjon the officer is only for a certain sum of money, but that he is not entitled to the specific pieces that constitute that sum. With deference to the judgment of this distinguished tribunal, and especially to the exalted genius and the clear discriminating judgment of the great man who penned the opinion, we are unable to perceive any reason why the money which an officer collects by virtue of a fi-fa. does not belong to the plaintiff in the execution. .The judgment pronounces that he shall recover the particular sum of the defendant, and the execution commands the officer to make that sum, and the money so made, to have at the next court to render to the plaintiff. The money so made and received by the sheriff, belongs to some one, and the question is, to whom does it belong? certainly not to the sheriff, until he converts it. It must then belong to the plaintiff. The fact that he cannot maintain detinue, but must bring debt for it, does not prove that it is not his property, but proves only that it is incapable of being identified, and therefore that a form of action that would require such identification cannot be maintained. The difficulty is one of evidence and .not of tide. The same difficulty would exist if money be placed in the hands of a bailee to keep for the owner. It could not bo recovered in detinue, for the same reason. Yet who will *439say, that if I deposit a dollar in the hands of another, that it ceases to be my money the moment I part with the possession? and yet the principle is the same. In 1 Durnford and East, 370, Judge Buller decides that money in the hands of a trustee, does not give the possessor, before a conversion, such property in it as to render it liable to his debts. Now certainly the property is in the possessor, or in the cestui que trust. Butifitbein the cestui que trust, it proves that money may be the property of one man and be in the possession of another. Indeed, were the proposition not denied by such high authority, it would seem too plain for argument. A piece of money may be marked so as to be easily distinguished from all other pieces. If this get into the hands of a person not the owner, detinue may be maintained to recover it. But has the owner any better title to it, than he has to a piece not marked? Surely not — the only difference is, as to the means of proof. But it is further assumed in the opinion under consideration that the ownership of particular pieces of money cannot be acquired until an actual possession of them is obtained. We do not perceive upon what principle this position is assumed. Ifit be for the reason heretofore discussed, that the identical pieces cannot be recovered in detinue — it is believed a sufficient answer has been given, by showing that this results from a defect of evidence, and not from a want of title, and as other pieces are of equal value, it can make no particular difference, with the owner whether he get his own, or an equivalent in other pieces. If I. agree to give A ten pieces of money for a hat, which he delivers to B for me, the hat is mine in the hands of B and may be levied on for my debt. And if I receive the hat and deliver to B the ten pieces of money for A, we have seen by the case in Durnford and East, that the pieces do not become the property of B, until he converts them; and if not the property of B, as the ownership must be somewhere, it is certainly in A. Thus the whole argument is defeated — is shown to rest upon the original untenable assumption that the property in the money does not exist until possessionis obtained, because it cannot be recovered in detinue. *440The money is paid by the defendant in an execution to the officer for the plaintiff, and it becomes instantly his money, and continues tobe such,’untilthe sheriff converts it. Buthemaynot choose to convert it. He may preserve it in a distinct parcel, so that however impossible it might be for the plaintiff to identify and recover it in detinue — still their can be no difficulty on the part of the officer, ini knowing to whom it belongs. The case of Staple vs. Bird, in Barnes’ Notes, 214, which is relied on, does not militate against our views. In that case the money did not belong to the plaintiff in the execution, by virtue of which it was collected. Certainly money that does not belong to a party, can no more be levied on, than any other species of property, to which a defendant has no title. Nor is there any greater difficulty, or hazard on the part of an officer, ascertaining the ownership of money, than of other property. In each case he must levy at his peril, or require a bond of indemnity. The absurdity of the doctrine against which we are contending cannot be more forcibly stated than is done, in the opinion under review. “The money (say the court) becomes liable to the execution, the instant it shall be paid into the hands of the creditor, and it then becomes the duty of the officer to seize it. It appears unreasonble that the law should direct a payment under such circumstances. If the money shall be seized the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony, which might well be dispensed with, and if the money should, by being so paid, be withdrawn from the power of the officer, then his own actwould put beyond his reach, property rendered by law liable to his ex-cution, and which of consequence, the law made it his duty to seize.” The court say the absurdity involved in such a construction led them to a further consideration of the subject. It would seem, the admitted absurdity was enough to overturn the whole argument, unless that absurdity could be obviated. Let us see how this is to be done. The court go on to say, that as the writ commands the officer to have the monies at court, he should obey the injunction of the writ, and bring the money and both executions to court and get its direction as to the application of the fund. With deference, it seems to us, that this ex-*441pedieut, instead of avoiding the absurdity, only creates a greater. Executions run from any county in the State to the sheriff of any other county. How, if an execution come from the circuit court of Carter county, in favour of A, to the sheriff’ of Davidson, and an execution be put in the hands of the same sheriff, from Shelby circuit court, can the sheriff’ of Davidson take the money he may collect for A, and both executions to the Carter circuit court to get its direction? It may be that the execution from Shelby, may be returnable several months before the one from Carter, and consequently it must be beyond his power, before it is possible for him to get the direction of the Carter court. How then is the sheriff to do, what it is admitted he must do? Seize this money in satisfaction of the execution from Shelby? Must he count it out to the plaintiff, and then scuffle with him for its possession to satisfy the other execution? But even could he be successful in such struggle, it may be that the party will not apply for his money, until after the return day of the execution against him from Shelby. In that,case the sheriff is compelled, according to the argument, to part with a fund, which the same argument assumes was liable to the execution. But if, as we have seen, the only reason given why the sheriff cannot levy on money in his hands, be, that it does not belong to the party until he gets it into his actual possession, it is not perceived by what better right the court of law, to which the execution is returnable, can direct the application of the money, than the sheriff has without the intervention of the court. The money is still in the hands of the officer, and according to the argument, belongs to him and the creditor has only a demand against the sheriff for so much. Is there any legerdemain in the order of the court, by which it converts money that belongs to the officer into the property of the plaintiff? The truth is, the whole difficulty is the result of the mistaken assumption that because detinue will not lie for money, therefore it cannot belong to a party who has it not in possession. We understand the uniform practice has been to appropriate money in the hands of an officer, in discharge of an execution against the plaintiff, and we think it is supported by principle, *442and the opinion under review admits that it is wise and just that such a remedy should exist. This court too, in the case of Hinkle vs. Blake, sheriff, (2d Hump. R. 574,) sanctioned the practice and we now adhere to the principle decided in that case. Affirm the judgment. • | 07-30-2022 | [
"Guben, J. delivered the opinion of the court. This is a motion against the defendant, as sheriff of Bedford county, for failing to return, with a sufficient response, an execution against George Waite, for $59 95, besides costs, in favor of the plaintiff. The sheriff’s return is as follows: — “Received sixty one dollars and fourteen cents, that being the debt and damages on this fi. fia. and having an alias execution in my hands in favor of said Waite against James B. Dolby, I applied the money for debt and damages received on thisfi-fia. towards the payment of the fi. fa. in my hand of George Waite against James B. Dolby, which is for one hundred and forty-five dollars besides costs. JAMES MULLINS, Sheriff. October 26th, 1S41.” It is objected that this return is insufficient. 1st. Because mon- - cy cannot be levied on by a fieri facias. 2d. Because if it be subjeetto execution in the hands of defendant, it cannot be taken by the officer until it has been paid to the person entitled to receive it. 1.- As to the first question, whether a sheriff can take money in execution there can be no doubt. The reason given in some of the old cases, “that money could not be sold” is conclusively answered by Chief Justice Marshall, in the case of Turner vs. Fendall, (1 Cranch R. 118) where he says: “The reason of a sale is, that money only will satisfy the execution, and if any thing else be taken, it must be turned into money, but surely *438that the means of converting the thing into money, need not be used, can be no adequate reason for refusing to take the very article, to produce which is the sole object of the execution.” He also quotes, in support of the proposition that money may be levied on, Dalton’s Sheriff, 145, and 2 Shower, 166.",
"But the reasoning is so conclusive, that authorities are not necessary to support a proposition, which upon principle is' so clear. 2. But as to the second question, whether money in the hands of the sheriff can be levied on, and applied by him to the satisfaction of an execution in his hands, against the owner of the money, we do not think the reasoning of the court in the same case of Turner vs. Fendall, by any means satisfactory.",
"It is there held that such application cannot be made. The reason given is, that the plaintiff in the execution, is not the legal owner of the money in the officer’s hands, that his claim ujjon the officer is only for a certain sum of money, but that he is not entitled to the specific pieces that constitute that sum. With deference to the judgment of this distinguished tribunal, and especially to the exalted genius and the clear discriminating judgment of the great man who penned the opinion, we are unable to perceive any reason why the money which an officer collects by virtue of a fi-fa. does not belong to the plaintiff in the execution. .The judgment pronounces that he shall recover the particular sum of the defendant, and the execution commands the officer to make that sum, and the money so made, to have at the next court to render to the plaintiff. The money so made and received by the sheriff, belongs to some one, and the question is, to whom does it belong?",
"certainly not to the sheriff, until he converts it. It must then belong to the plaintiff. The fact that he cannot maintain detinue, but must bring debt for it, does not prove that it is not his property, but proves only that it is incapable of being identified, and therefore that a form of action that would require such identification cannot be maintained. The difficulty is one of evidence and .not of tide. The same difficulty would exist if money be placed in the hands of a bailee to keep for the owner. It could not bo recovered in detinue, for the same reason.",
"Yet who will *439say, that if I deposit a dollar in the hands of another, that it ceases to be my money the moment I part with the possession? and yet the principle is the same. In 1 Durnford and East, 370, Judge Buller decides that money in the hands of a trustee, does not give the possessor, before a conversion, such property in it as to render it liable to his debts. Now certainly the property is in the possessor, or in the cestui que trust. Butifitbein the cestui que trust, it proves that money may be the property of one man and be in the possession of another. Indeed, were the proposition not denied by such high authority, it would seem too plain for argument. A piece of money may be marked so as to be easily distinguished from all other pieces.",
"If this get into the hands of a person not the owner, detinue may be maintained to recover it. But has the owner any better title to it, than he has to a piece not marked? Surely not — the only difference is, as to the means of proof. But it is further assumed in the opinion under consideration that the ownership of particular pieces of money cannot be acquired until an actual possession of them is obtained. We do not perceive upon what principle this position is assumed. Ifit be for the reason heretofore discussed, that the identical pieces cannot be recovered in detinue — it is believed a sufficient answer has been given, by showing that this results from a defect of evidence, and not from a want of title, and as other pieces are of equal value, it can make no particular difference, with the owner whether he get his own, or an equivalent in other pieces.",
"If I. agree to give A ten pieces of money for a hat, which he delivers to B for me, the hat is mine in the hands of B and may be levied on for my debt. And if I receive the hat and deliver to B the ten pieces of money for A, we have seen by the case in Durnford and East, that the pieces do not become the property of B, until he converts them; and if not the property of B, as the ownership must be somewhere, it is certainly in A. Thus the whole argument is defeated — is shown to rest upon the original untenable assumption that the property in the money does not exist until possessionis obtained, because it cannot be recovered in detinue. *440The money is paid by the defendant in an execution to the officer for the plaintiff, and it becomes instantly his money, and continues tobe such,’untilthe sheriff converts it. Buthemaynot choose to convert it. He may preserve it in a distinct parcel, so that however impossible it might be for the plaintiff to identify and recover it in detinue — still their can be no difficulty on the part of the officer, ini knowing to whom it belongs. The case of Staple vs. Bird, in Barnes’ Notes, 214, which is relied on, does not militate against our views. In that case the money did not belong to the plaintiff in the execution, by virtue of which it was collected.",
"Certainly money that does not belong to a party, can no more be levied on, than any other species of property, to which a defendant has no title. Nor is there any greater difficulty, or hazard on the part of an officer, ascertaining the ownership of money, than of other property. In each case he must levy at his peril, or require a bond of indemnity. The absurdity of the doctrine against which we are contending cannot be more forcibly stated than is done, in the opinion under review. “The money (say the court) becomes liable to the execution, the instant it shall be paid into the hands of the creditor, and it then becomes the duty of the officer to seize it. It appears unreasonble that the law should direct a payment under such circumstances. If the money shall be seized the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony, which might well be dispensed with, and if the money should, by being so paid, be withdrawn from the power of the officer, then his own actwould put beyond his reach, property rendered by law liable to his ex-cution, and which of consequence, the law made it his duty to seize.” The court say the absurdity involved in such a construction led them to a further consideration of the subject. It would seem, the admitted absurdity was enough to overturn the whole argument, unless that absurdity could be obviated.",
"Let us see how this is to be done. The court go on to say, that as the writ commands the officer to have the monies at court, he should obey the injunction of the writ, and bring the money and both executions to court and get its direction as to the application of the fund. With deference, it seems to us, that this ex-*441pedieut, instead of avoiding the absurdity, only creates a greater. Executions run from any county in the State to the sheriff of any other county. How, if an execution come from the circuit court of Carter county, in favour of A, to the sheriff’ of Davidson, and an execution be put in the hands of the same sheriff, from Shelby circuit court, can the sheriff’ of Davidson take the money he may collect for A, and both executions to the Carter circuit court to get its direction? It may be that the execution from Shelby, may be returnable several months before the one from Carter, and consequently it must be beyond his power, before it is possible for him to get the direction of the Carter court. How then is the sheriff to do, what it is admitted he must do?",
"Seize this money in satisfaction of the execution from Shelby? Must he count it out to the plaintiff, and then scuffle with him for its possession to satisfy the other execution? But even could he be successful in such struggle, it may be that the party will not apply for his money, until after the return day of the execution against him from Shelby. In that,case the sheriff is compelled, according to the argument, to part with a fund, which the same argument assumes was liable to the execution. But if, as we have seen, the only reason given why the sheriff cannot levy on money in his hands, be, that it does not belong to the party until he gets it into his actual possession, it is not perceived by what better right the court of law, to which the execution is returnable, can direct the application of the money, than the sheriff has without the intervention of the court.",
"The money is still in the hands of the officer, and according to the argument, belongs to him and the creditor has only a demand against the sheriff for so much. Is there any legerdemain in the order of the court, by which it converts money that belongs to the officer into the property of the plaintiff? The truth is, the whole difficulty is the result of the mistaken assumption that because detinue will not lie for money, therefore it cannot belong to a party who has it not in possession. We understand the uniform practice has been to appropriate money in the hands of an officer, in discharge of an execution against the plaintiff, and we think it is supported by principle, *442and the opinion under review admits that it is wise and just that such a remedy should exist. This court too, in the case of Hinkle vs. Blake, sheriff, (2d Hump.",
"R. 574,) sanctioned the practice and we now adhere to the principle decided in that case. Affirm the judgment. •"
]
| https://www.courtlistener.com/api/rest/v3/opinions/7658780/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1637057
Decision Date: 09/21/16 Archive Date: 09/27/16
DOCKET NO. 08-30 132A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to a service-connected disability.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. Timbers, Associate Counsel
INTRODUCTION
The Veteran had active duty service in the United States Army from December 1967 through July 1969.
This appeal comes to the Board of Veterans' Appeals ("Board") from a November 2007 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in San Juan, Puerto Rico (hereinafter Agency of Original Jurisdiction ("AOJ")).
The Veteran's appeal for service connection for an acquired psychiatric disorder, other than PTSD, has previously been before the Board. In April 2012, the Board remanded this issue for additional development, to include the procurement of a VA examination and opinion. In March and November 2014, the Board remanded this issue for additional examinations and the acquisition of updated VA treatment records. Then, in July 2015, the issue was remanded for an addendum VA examination and opinion. These requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998).
In the November 2014 Board decision, the Board denied the issue of service connection for PTSD. The Veteran did not appeal the Board's denial. Thus, the issue of service connection for PTSD is no longer on appeal before the Board.
Additionally, the Board notes the Veteran testified before a decision review officer ("DRO") in December 2008. A transcript of that hearing is associated with the claims folder.
This appeal was processed using the paperless Veterans Benefit Management System ("VBMS") and Virtual VA claims processing systems. The VBMS record contains additional VA treatment records submitted after the file was transferred to the Board that have not been initially considered by the RO. However, as discussed below, the Board finds that the benefit to which the evidence relates may be fully granted on appeal without referral to the AOJ. 38 C.F.R. § 20.1304(c). Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran.
FINDING OF FACT
The medical evidence indicates the Veteran's depression is proximately due to or the direct result of his service-connected peripheral polyneuropathies and diabetes mellitus.
CONCLUSION OF LAW
Resolving all reasonable doubt in his favor, the Veteran has depression secondary to his service-connected diabetes mellitus and upper and lower extremity peripheral neuropathy disabilities. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 ("VCAA"), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). With respect to the VA's duty to assist the Veteran in developing this claim, a review of the record reveals that the Veteran's service treatment records have been obtained, as have the Veteran's post-service VA medical records, and any identified private treatment records. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained.
Furthermore, the Board is granting in full the benefit sought on appeal. As the Board is granting the claim of service connection for depression, the claim is substantiated, and there are no further notice and assistance requirements. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001).
Service Connection for an Acquired Psychiatric Disorder
In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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). 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).
Service connection may also be granted, on a secondary basis, for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. That is, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. 38 C.F.R. § 3.310(b).
The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the Veteran. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A Veteran need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In the instant appeal, the Veteran is seeking service connection for an acquired psychiatric disorder. Throughout his appeal, the Veteran asserts his current psychiatric disability was caused by his time in-service, specifically his service in Vietnam.
The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C.A. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran has been diagnosed with varying psychiatric conditions, including a dysthymic disorder, major depressive disorder, and a depressive disorder, not otherwise specified. See private treatment records of Dr. R.F., dated December 2001; VA Mayaguez Outpatient Clinic Note, dated June 2004; San Juan VA Clinic Note dated October 2005 and April 2014; and VA Psychiatric Evaluation Note dated May 2015. As such, the evidence shows the presence of a current psychiatric disorder. Therefore, the Board finds the first element of service connection is met.
A review of the Veteran's STRs reveals no evidence of a diagnosis, or treatment for, or any complaints of a psychiatric disorder while in-service. Rather, the first evidence of treatment or complaints for psychiatric symptoms does not occur until December 2001. However, the lack of an in-service occurrence is not fatal to the Veteran's claim. As discussed above, a disability may be connected on a secondary basis, where the evidence shows: (1) a current disability; (2) the presence of a current service-connected disability; and (3) probative evidence establishing a nexus (i.e. a link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The evidentiary record has already established service-connection for the Veteran's diabetes mellitus and peripheral neuropathies of the bilateral upper and lower extremities (herein after described as "peripheral polyneuropathies"). See Rating Decision dated October 2012. Therefore, the Board finds that both the first and second elements of secondary service connection have been met. As such, the Board must next evaluate the medical evidence, including the medical and lay opinion evidence, to determine whether a nexus between the Veteran's current psychiatric disorder and his service connected physical disabilities exists.
The Veteran initially sought treatment for symptoms of a psychiatric disorder in December 2001. See private treatment records of Dr. R.F., dated December 2001. Following an initial psychiatric evaluation with Dr. R.F., the Veteran was diagnosed with "a depressive disorder," not otherwise specified ("NOS"), with an Axis IV of "multiple physical conditions." The record contains an additional diagnosis of "depression" with "physical pain" from Dr. M.F. See Psychiatric Medical Report dated April 2002. Additionally, in an award of Social Security disability benefits in February 2002, the agency cited medical findings that the Veteran's "mental impairment is aggravated by pain and poor physical health." See 2002 Notice of Decision from the Social Security Administration. Lastly, an October 2009 VA examination appears to attribute the Veteran's depressive condition to his diagnosed physical conditions of polyneuropathies. See VA Examination dated October 2009. While these opinions do not provide specific rationales or clinical findings connecting the Veteran's psychiatric symptoms to his service-connected disabilities, the Board finds there is sufficient evidence to make that inference. Therefore, the Board finds the medical record contains sufficient evidence to establish a nexus between the Veteran's service-connected diabetes mellitus and peripheral polyneuropathies, and his current psychiatric disability.
The Board is aware the evidentiary record contains multiple VA examinations and opinions which state the Veteran's current psychiatric disorder was not caused by a service-connected condition. For the reasons discussed below, the Board finds these VA examinations and opinions are not probative and finds the overall evidentiary record suggests the Veteran's acquired psychiatric disorder is secondary to his service connected peripheral polyneuropathies.
As discussed above, the issue of service connection for the Veteran's current acquired psychiatric disorder has been before the Board on several occasions. As a result of these prior remands, the record contains VA examinations and opinions from August 2012, May 2014, January 2015, and October 2015 which state the Veteran's current psychiatric disability is not related to his military service. Despite the number of such opinions, the Boards finds their determinations and rationale to be factually flawed and therefore of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).
On this point, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).
It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).
That being said, the Board finds the VA examinations and opinions rely on inaccurate facts when discussing the issue of secondary service connection. Specifically, the August 2012, May 2014, and October 2015 VA opinions state the Veteran sought psychiatric treatment beginning in 2001 for "stressors [related to] retirement issues." However, a review of the Veteran's private psychiatric records revealed that he initially sought treatment in December 2001 with the "chief complaint" of "difficulty staying asleep," and secondary complaints of "aches and pains." See undated summary of treatment from Dr. R. F ("private treatment summary"). At the time, the Veteran reported low energy, irritability, and difficulty enjoying pleasurable activities. During subsequent visits, the Veteran spoke about his military service, and was observed to be "obsessed by his frustration with the accident in Vietnam," from which he claimed to have been injured. The psychiatrist reported that the Veteran had difficulty adjusting to the sedentary life of retirement, but also reported that he had become "more and more concerned with the accident he had in Vietnam." Therefore, although the Veteran's retirement was noted during these examinations, it was not the sole reason the Veteran initially sought treatment. Moreover, the Veteran's retirement was not the sole factor in his diagnosis of a depressive disorder.
Secondly, the Board finds these VA examinations and opinions overlook probative evidence within the record which indicates the Veteran's depressive disorder could be secondary to service-connected disabilities. Specifically, the Veteran's private psychiatrists attributed the development of his depression to the physical pain and limitations caused by various diagnosed conditions, including peripheral polyneuropathies. Despite these private positive nexus statements, the VA examiners continued to deny any evidence of secondary service connection. Notably, the November 2014 and January 2015 VA examinations and opinions did not reference or rebut the positive nexus opinions supplied by the Veteran's private physicians. The Court has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). As such, the Board finds these VA opinions and rationales of little probative value.
For those VA examinations and opinions which did prove a rationale denying secondary-service connection, the Boards finds their reasoning and logic to be factually flawed. For example, in May 2014, the VA examiner opined the evidence did not support a claim for secondary service connection because of a 2006 treatment record which described the Veteran's peripheral polyneuropathies as mild to moderate. The Board finds this rationale is insufficient to deny a grant of secondary service connection. Moreover, this reasoning overlooks earlier evidence which suggests the Veteran experienced cyclical symptoms of his diabetes. See private treatment notes of Dr. R.F., dated January 2002 through July 2006. The probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). As this May 2014 VA examination and opinion does not consider the totality of the objective findings, the Board finds it is of less probative value.
More recently, an October 2015 VA examination and opinion denied any evidence of secondary service connection because the Veteran was not diagnosed with diabetes mellitus until 2009. However, this statement is factually inaccurate. This October 2015 VA opinion further incorrectly noted the date of diagnosis for the Veteran's peripheral neuropathies as 2010. The Court has held on a number of occasions that a medical opinion premised upon an inaccurate factual premise or an unsubstantiated account is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, this October 2015 VA opinion overlooks earlier medical findings which document the Veteran's symptom onset. For example, the record contains a June 2001 nerve conduction study which diagnosed the Veteran with "peripheral polyneuropathy" over the arms and legs. The Veteran further described his physical symptoms during his psychotherapy sessions. Notably the Veteran reported his "pain [was] killing him" in January 2001, such that he couldn't sleep. The Veteran additionally complained of pain and numbness in his feet. See private treatment records of Dr. R.F. dated January 2001 through December 2005.
Therefore, the Board is left with a combination of both positive and negative nexus opinions regarding the nexus between the Veteran's current psychological disability and his service-connected peripheral polyneuropathies. Certain elements of both the positive and negative nexus opinions have their flaws, such as speculation and inaccurate factual reporting. However, there is no apparent basis for wholly rejecting one opinion and completely favoring another.
It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102.
In conclusion, and in light of the foregoing evidence, the Board concludes that the evidence for and against the Veteran's secondary service connection claim is at the very least in relative equipoise, and reasonable doubt will therefore be resolved in his favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board emphasizes that it is granting secondary service connection for the Veteran's depression on the basis that it is the direct result of his service-connected diabetes mellitus and peripheral polyneuropathies, as opposed to aggravation.
ORDER
Service connection depression as secondary to the service-connected disabilities of diabetes mellitus and peripheral polyneuropathies is granted, subject to the laws and regulations governing the award of monetary benefits.
______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 09-21-2016 | [
"Citation Nr: 1637057 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 08-30 132A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from December 1967 through July 1969.",
"This appeal comes to the Board of Veterans' Appeals (\"Board\") from a November 2007 rating decision by the Department of Veterans Affairs (\"VA\") Regional Office (\"RO\") in San Juan, Puerto Rico (hereinafter Agency of Original Jurisdiction (\"AOJ\")). The Veteran's appeal for service connection for an acquired psychiatric disorder, other than PTSD, has previously been before the Board. In April 2012, the Board remanded this issue for additional development, to include the procurement of a VA examination and opinion. In March and November 2014, the Board remanded this issue for additional examinations and the acquisition of updated VA treatment records. Then, in July 2015, the issue was remanded for an addendum VA examination and opinion. These requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet.",
"App. 268 (1998). In the November 2014 Board decision, the Board denied the issue of service connection for PTSD. The Veteran did not appeal the Board's denial. Thus, the issue of service connection for PTSD is no longer on appeal before the Board. Additionally, the Board notes the Veteran testified before a decision review officer (\"DRO\") in December 2008. A transcript of that hearing is associated with the claims folder. This appeal was processed using the paperless Veterans Benefit Management System (\"VBMS\") and Virtual VA claims processing systems. The VBMS record contains additional VA treatment records submitted after the file was transferred to the Board that have not been initially considered by the RO. However, as discussed below, the Board finds that the benefit to which the evidence relates may be fully granted on appeal without referral to the AOJ. 38 C.F.R.",
"§ 20.1304(c). Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran. FINDING OF FACT The medical evidence indicates the Veteran's depression is proximately due to or the direct result of his service-connected peripheral polyneuropathies and diabetes mellitus. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran has depression secondary to his service-connected diabetes mellitus and upper and lower extremity peripheral neuropathy disabilities. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R.",
"§§ 3.102, 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (\"VCAA\"), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). With respect to the VA's duty to assist the Veteran in developing this claim, a review of the record reveals that the Veteran's service treatment records have been obtained, as have the Veteran's post-service VA medical records, and any identified private treatment records. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. Furthermore, the Board is granting in full the benefit sought on appeal. As the Board is granting the claim of service connection for depression, the claim is substantiated, and there are no further notice and assistance requirements.",
"Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001). Service Connection for an Acquired Psychiatric Disorder In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. \"Service connection\" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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). 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). Service connection may also be granted, on a secondary basis, for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. That is, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition.",
"38 C.F.R. § 3.310(b). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the Veteran.",
"See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A Veteran need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the instant appeal, the Veteran is seeking service connection for an acquired psychiatric disorder. Throughout his appeal, the Veteran asserts his current psychiatric disability was caused by his time in-service, specifically his service in Vietnam. The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C.A.",
"§§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran has been diagnosed with varying psychiatric conditions, including a dysthymic disorder, major depressive disorder, and a depressive disorder, not otherwise specified. See private treatment records of Dr. R.F., dated December 2001; VA Mayaguez Outpatient Clinic Note, dated June 2004; San Juan VA Clinic Note dated October 2005 and April 2014; and VA Psychiatric Evaluation Note dated May 2015. As such, the evidence shows the presence of a current psychiatric disorder. Therefore, the Board finds the first element of service connection is met. A review of the Veteran's STRs reveals no evidence of a diagnosis, or treatment for, or any complaints of a psychiatric disorder while in-service. Rather, the first evidence of treatment or complaints for psychiatric symptoms does not occur until December 2001.",
"However, the lack of an in-service occurrence is not fatal to the Veteran's claim. As discussed above, a disability may be connected on a secondary basis, where the evidence shows: (1) a current disability; (2) the presence of a current service-connected disability; and (3) probative evidence establishing a nexus (i.e. a link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The evidentiary record has already established service-connection for the Veteran's diabetes mellitus and peripheral neuropathies of the bilateral upper and lower extremities (herein after described as \"peripheral polyneuropathies\"). See Rating Decision dated October 2012. Therefore, the Board finds that both the first and second elements of secondary service connection have been met.",
"As such, the Board must next evaluate the medical evidence, including the medical and lay opinion evidence, to determine whether a nexus between the Veteran's current psychiatric disorder and his service connected physical disabilities exists. The Veteran initially sought treatment for symptoms of a psychiatric disorder in December 2001. See private treatment records of Dr. R.F., dated December 2001. Following an initial psychiatric evaluation with Dr. R.F., the Veteran was diagnosed with \"a depressive disorder,\" not otherwise specified (\"NOS\"), with an Axis IV of \"multiple physical conditions.\" The record contains an additional diagnosis of \"depression\" with \"physical pain\" from Dr. M.F. See Psychiatric Medical Report dated April 2002.",
"Additionally, in an award of Social Security disability benefits in February 2002, the agency cited medical findings that the Veteran's \"mental impairment is aggravated by pain and poor physical health.\" See 2002 Notice of Decision from the Social Security Administration. Lastly, an October 2009 VA examination appears to attribute the Veteran's depressive condition to his diagnosed physical conditions of polyneuropathies. See VA Examination dated October 2009. While these opinions do not provide specific rationales or clinical findings connecting the Veteran's psychiatric symptoms to his service-connected disabilities, the Board finds there is sufficient evidence to make that inference. Therefore, the Board finds the medical record contains sufficient evidence to establish a nexus between the Veteran's service-connected diabetes mellitus and peripheral polyneuropathies, and his current psychiatric disability. The Board is aware the evidentiary record contains multiple VA examinations and opinions which state the Veteran's current psychiatric disorder was not caused by a service-connected condition. For the reasons discussed below, the Board finds these VA examinations and opinions are not probative and finds the overall evidentiary record suggests the Veteran's acquired psychiatric disorder is secondary to his service connected peripheral polyneuropathies. As discussed above, the issue of service connection for the Veteran's current acquired psychiatric disorder has been before the Board on several occasions.",
"As a result of these prior remands, the record contains VA examinations and opinions from August 2012, May 2014, January 2015, and October 2015 which state the Veteran's current psychiatric disability is not related to his military service. Despite the number of such opinions, the Boards finds their determinations and rationale to be factually flawed and therefore of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). On this point, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.",
"See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases.",
"See Owens v. Brown, 7 Vet. App. 429, 433 (1995). That being said, the Board finds the VA examinations and opinions rely on inaccurate facts when discussing the issue of secondary service connection. Specifically, the August 2012, May 2014, and October 2015 VA opinions state the Veteran sought psychiatric treatment beginning in 2001 for \"stressors [related to] retirement issues.\" However, a review of the Veteran's private psychiatric records revealed that he initially sought treatment in December 2001 with the \"chief complaint\" of \"difficulty staying asleep,\" and secondary complaints of \"aches and pains.\" See undated summary of treatment from Dr. R. F (\"private treatment summary\"). At the time, the Veteran reported low energy, irritability, and difficulty enjoying pleasurable activities. During subsequent visits, the Veteran spoke about his military service, and was observed to be \"obsessed by his frustration with the accident in Vietnam,\" from which he claimed to have been injured. The psychiatrist reported that the Veteran had difficulty adjusting to the sedentary life of retirement, but also reported that he had become \"more and more concerned with the accident he had in Vietnam.\" Therefore, although the Veteran's retirement was noted during these examinations, it was not the sole reason the Veteran initially sought treatment. Moreover, the Veteran's retirement was not the sole factor in his diagnosis of a depressive disorder.",
"Secondly, the Board finds these VA examinations and opinions overlook probative evidence within the record which indicates the Veteran's depressive disorder could be secondary to service-connected disabilities. Specifically, the Veteran's private psychiatrists attributed the development of his depression to the physical pain and limitations caused by various diagnosed conditions, including peripheral polyneuropathies. Despite these private positive nexus statements, the VA examiners continued to deny any evidence of secondary service connection. Notably, the November 2014 and January 2015 VA examinations and opinions did not reference or rebut the positive nexus opinions supplied by the Veteran's private physicians. The Court has held that a VA medical examiner's conclusions were of \"questionable probative value\" when the examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). As such, the Board finds these VA opinions and rationales of little probative value. For those VA examinations and opinions which did prove a rationale denying secondary-service connection, the Boards finds their reasoning and logic to be factually flawed.",
"For example, in May 2014, the VA examiner opined the evidence did not support a claim for secondary service connection because of a 2006 treatment record which described the Veteran's peripheral polyneuropathies as mild to moderate. The Board finds this rationale is insufficient to deny a grant of secondary service connection. Moreover, this reasoning overlooks earlier evidence which suggests the Veteran experienced cyclical symptoms of his diabetes. See private treatment notes of Dr. R.F., dated January 2002 through July 2006. The probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects \"clinical data or other rationale to support his opinion.\"",
"Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). As this May 2014 VA examination and opinion does not consider the totality of the objective findings, the Board finds it is of less probative value. More recently, an October 2015 VA examination and opinion denied any evidence of secondary service connection because the Veteran was not diagnosed with diabetes mellitus until 2009. However, this statement is factually inaccurate. This October 2015 VA opinion further incorrectly noted the date of diagnosis for the Veteran's peripheral neuropathies as 2010. The Court has held on a number of occasions that a medical opinion premised upon an inaccurate factual premise or an unsubstantiated account is of no probative value.",
"Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, this October 2015 VA opinion overlooks earlier medical findings which document the Veteran's symptom onset. For example, the record contains a June 2001 nerve conduction study which diagnosed the Veteran with \"peripheral polyneuropathy\" over the arms and legs. The Veteran further described his physical symptoms during his psychotherapy sessions. Notably the Veteran reported his \"pain [was] killing him\" in January 2001, such that he couldn't sleep. The Veteran additionally complained of pain and numbness in his feet. See private treatment records of Dr. R.F. dated January 2001 through December 2005.",
"Therefore, the Board is left with a combination of both positive and negative nexus opinions regarding the nexus between the Veteran's current psychological disability and his service-connected peripheral polyneuropathies. Certain elements of both the positive and negative nexus opinions have their flaws, such as speculation and inaccurate factual reporting. However, there is no apparent basis for wholly rejecting one opinion and completely favoring another. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.",
"When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In conclusion, and in light of the foregoing evidence, the Board concludes that the evidence for and against the Veteran's secondary service connection claim is at the very least in relative equipoise, and reasonable doubt will therefore be resolved in his favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board emphasizes that it is granting secondary service connection for the Veteran's depression on the basis that it is the direct result of his service-connected diabetes mellitus and peripheral polyneuropathies, as opposed to aggravation.",
"ORDER Service connection depression as secondary to the service-connected disabilities of diabetes mellitus and peripheral polyneuropathies is granted, subject to the laws and regulations governing the award of monetary benefits. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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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 . Allowable Subject Matter Claims 1-3 and 5-17 are allowed over the prior art of record. The following is an examiner’s statement of reasons for allowance: The prior art does not teach or render obvious the claimed combination of elements recited in claim 1, wherein a rotary table is comprised of a sensor that measures/calculates a clearance between a worm screw and a worm wheel, a transmitter that sends the measurement to a central processing unit, and a switch mounted on a faceplate of the rotary table. While the prior art discloses sensors, worm screws, worm gears, transmitters, rotary tables, and switches, the prior art does not teach or render obvious the rotary table as claimed. One of ordinary skill in the art would not be motivated to connect the elements of each prior art reference to make the applicant's invention absent improper hindsight. 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 ADAM D ROGERS whose telephone number is (571)272-6561. The examiner can normally be reached on Monday through Friday from 6AM-2:30PM 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, Richard 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 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.
/ADAM D ROGERS/Primary Examiner, Art Unit 3656 | 2021-03-01T14:36:17 | [
"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 Claims 1-3 and 5-17 are allowed over the prior art of record. The following is an examiner’s statement of reasons for allowance: The prior art does not teach or render obvious the claimed combination of elements recited in claim 1, wherein a rotary table is comprised of a sensor that measures/calculates a clearance between a worm screw and a worm wheel, a transmitter that sends the measurement to a central processing unit, and a switch mounted on a faceplate of the rotary table. While the prior art discloses sensors, worm screws, worm gears, transmitters, rotary tables, and switches, the prior art does not teach or render obvious the rotary table as claimed. One of ordinary skill in the art would not be motivated to connect the elements of each prior art reference to make the applicant's invention absent improper hindsight. 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 ADAM D ROGERS whose telephone number is (571)272-6561. The examiner can normally be reached on Monday through Friday from 6AM-2:30PM 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, Richard 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 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. /ADAM D ROGERS/Primary Examiner, Art Unit 3656"
]
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FILED U.S. Bankruptcy Appellate Panel of the Tenth Circuit
August 5, 2015 NOT FOR PUBLICATION Blaine F. Bates Clerk UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT
IN RE GARY WOODROW BAP No. CO-14-055 FLANDERS, ind. and as officer, director, shareholder Canyon Quarry Co., Farmer & Merchants Bank, Great Northern Land Co., MetroBank, N.A., Debtor.
GARY WOODROW FLANDERS, Bankr. No. 98-24779 Adv. No. 13-01456 Plaintiff – Appellant, Chapter 7 v. OPINION * EVELYN JANE LAWRENCE, DANIEL A. WEST, Attorney, MOYE WHITE LLP, and JAMES T. BURGHARDT, Defendants – Appellees.
Appeal from the United States Bankruptcy Court for the District of Colorado
Submitted on the briefs: 1
Before MICHAEL, KARLIN, and HALL, Bankruptcy Judges.
* This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026-6. 1 The parties did not request oral argument, and after examining the briefs and appellate record, the Court has determined unanimously that oral argument would not significantly aid in the determination of this appeal. See Fed. R. Bankr. P. 8019(b)(3). The case is therefore submitted without oral argument. MICHAEL, Bankruptcy Judge. “If at first you don’t succeed, try, try, try again.” 2 There are many great American success stories built upon unflinching stubborn determination in the face of incredible odds. Very few of them, however, can be found in the annals of litigation history. This case will not alter the landscape. The debtor in this now 17-year-old Chapter 7 case appeals the bankruptcy court’s order granting summary judgment in favor of the defendants on his adversary claims against them for violation of the discharge injunction. The debtor’s claims relate to marital property and marital debt division orders entered by a Colorado state court in his divorce proceedings. The bankruptcy court concluded the debtor’s action was barred for a number of reasons, including the Rooker-Feldman doctrine, the principle of collateral estoppel or issue preclusion, and lack of standing. Having reviewed the record and the applicable law, we affirm the bankruptcy court’s order. I. INTRODUCTION In its order granting summary judgment, the bankruptcy court noted that “[t]his adversary proceeding results from the complicated confluence of bankruptcy and divorce proceedings.”3 The Colorado court that entered the orders giving rise to the debtor’s claims described the divorce proceedings as “the most complex this Court has seen in over 25 years,”4 and also commented that the debtor contested almost every issue in the case.5 Additionally, the debtor and his former wife controlled numerous corporate entities involved in the bankruptcy
2 William Edward Hickson (1803–1870). 3 Order Granting Defendants’ Motion for Summary Judgment (“Order”) at 1, in Appellant’s App. at 228, published at Flanders v. Lawrence (In re Flanders), 517 B.R. 245, 249 (Bankr. D. Colo. 2014). 4 Amended Final Orders at 5, in Appellees’ Supp. App. at 56. 5 Id.
-2- proceedings that were marital assets with associated marital debt subject to division by the divorce court. Therefore, before setting forth the specific facts of the bankruptcy proceedings leading to this appeal, we lay some groundwork by identifying the parties and their controlled entities, and by briefly previewing facts that are critical to understanding the debtor’s claims against the defendants for violation of the discharge injunction. The plaintiff/appellant in this adversary matter is debtor Gary Woodrow Flanders (“Flanders”). When Flanders filed his bankruptcy petition, he was married to defendant/appellee Evelyn Jane Lawrence (“Lawrence”). Lawrence did not join the petition. Two years after Flanders filed for bankruptcy protection, Lawrence filed for divorce. The divorce proceedings continued in Colorado state court for more than eight years. Flanders’ claims in this adversary proceeding arise out of the divorce proceedings and their interaction with his bankruptcy case. The other defendants/appellees are: Daniel A. West (“West”), Lawrence’s divorce attorney; James T. Burghardt (“Burghardt”), Lawrence’s bankruptcy counsel; and Moye White LLP (“Moye White”), Burghardt’s law firm (collectively the “Defendants”). Also involved in the underlying bankruptcy and divorce litigation are various corporate entities controlled by Flanders and Lawrence. The two companies wholly owned by Flanders are Great Northern Land Company and Canyon Quarry Company (the “Flanders Entities”). The entities wholly owned by Lawrence are Great Northern Transportation Company (together with its seven wholly owned subsidiaries), and American Rock Products Corporation (collectively the “Lawrence Entities,” or individually a “Lawrence Entity”). As of the bankruptcy petition date, there was an outstanding promissory note made by Flanders and Lawrence to a Lawrence Entity in the amount of approximately $2 million.
-3- The interaction of the bankruptcy and divorce proceedings leading to this appeal results primarily from the following three events. First, the bankruptcy trustee brought an adversary proceeding against Flanders, Lawrence, and the Lawrence Entities, alleging various fraudulent conveyances had been made. To conclude the adversary proceeding against her, Lawrence entered into a settlement agreement with the trustee and executed a mutual release. Second, after administration of the bankruptcy estate and payment of all debts in full, a surplus remained. The Colorado divorce court was then tasked with determining whether the bankruptcy surplus was marital property subject to division with Lawrence. The divorce court concluded the surplus was marital property despite Flanders’ attempt to bar any claim Lawrence might have by arguing she waived it under the settlement agreement and mutual release in the bankruptcy trustee’s adversary proceeding. Third, the divorce court entered a monetary judgment against Flanders that he claims violated the discharge injunction in his bankruptcy case. According to Flanders, the judgment is the result of the divorce court’s treatment of a discharged debt. Flanders seriously mischaracterizes the nature and character of the judgment. II. BANKRUPTCY PROCEEDINGS 6 Flanders individually filed for Chapter 11 protection in 1998. After Flanders failed to submit a confirmable Chapter 11 plan, his case was converted to one under Chapter 7. Jeffrey L. Hill was appointed trustee (“Trustee”). Trustee subsequently put the Flanders Entities into Chapter 7 bankruptcy and served as trustee of those estates. Lawrence filed for divorce from Flanders in October 2000. Shortly thereafter, Trustee, on behalf of the Flanders and Flanders Entities estates,
6 Unless otherwise indicated, this factual description is taken from the bankruptcy court’s Order.
-4- commenced an adversary proceeding against Flanders, Lawrence, and the Lawrence Entities, alleging fraudulent conveyances had been made (“Trustee’s Adversary”). Trustee quickly reached settlement with Lawrence and the Lawrence Entities. The bankruptcy court entered an order approving the settlement agreement in April 2001 (“Settlement Agreement”). Thereafter, Lawrence and the Lawrence Entities entered into a mutual release with Trustee (“Mutual Release”), releasing the bankruptcy estates “from any and all claims and causes of action that have been made or could have been made in the Adversary Proceeding.”7 Flanders was not a party to the Settlement Agreement or Mutual Release, but resolution of the claims against Lawrence and the Lawrence Entities essentially resolved Trustee’s claims against Flanders. The Colorado state court entered a divorce decree in December 2001, but litigation over the division of marital property and marital debt continued. Meanwhile, the bankruptcy court granted Flanders a discharge in September 2002. After administering the estate for several years, Trustee filed his final report in July 2006. Following liquidation of Flanders’ bankruptcy estate and payment of his unsecured creditors in full, a surplus of approximately $230,000 remained (“Surplus”). Trustee’s final report indicated the Surplus was to be paid to Flanders. The divorce court was informed of the Surplus, but by that time it had been garnished by the United States Attorney to pay a 2005 Oklahoma federal court judgment against Flanders in connection with his conviction for bank fraud. The federal district court instructed the Colorado divorce court to determine whether the Surplus was marital property. In February 2007, the divorce court entered an order concluding the Surplus constituted marital property on the basis that Colorado law presumes property held during marriage is marital property and
7 Mutual Release ¶ 2, at 2, in Appellees’ Supp. App. at 41.
-5- Flanders had not proven any portion of the Surplus was his separate property. The divorce court rejected Flanders’ argument that, pursuant to the Settlement Agreement and Mutual Release executed in Trustee’s Adversary, Lawrence had waived any claim she might have to the Surplus. Upon request, the Surplus was transferred to the divorce court’s registry fund. Flanders’ bankruptcy case was closed in May 2008. Nine months later, the divorce court issued final orders dividing marital property and marital debt. It also entered a judgment in excess of $563,000 against Flanders in favor of Lawrence (the “Judgment”). Flanders contends the Judgment results from the debt on the $2 million promissory note executed by Flanders and Lawrence in favor of a Lawrence Entity (“Promissory Note Debt”) that was discharged in his Chapter 7 case. In truth, the Judgment was comprised primarily of attorneys fees the divorce court found Flanders should pay as a result of his bad faith litigation and contribution to delay in the proceedings, all of which were generated post- petition. 8 Flanders appealed the divorce court’s final orders to the Colorado Court of Civil Appeals, which affirmed in May 2011, except for a limited remand not relevant to this appeal.9 Flanders requested rehearing, which was denied in September 2011. Flanders then petitioned the Colorado Supreme Court for certiorari, which it denied in January 2013. Undaunted, Flanders initiated this adversary proceeding in August 2013 asserting the divorce court, at the invitation of the Defendants, made
8 The Judgment was made up of $513,754 in attorneys fees plus one-half of the differences between assets awarded to Lawrence and those awarded to Flanders, plus Flanders’ remaining fines and restitution owing to the United States on account of his felony conviction, minus one-half of the value of the remaining marital personal property. Order: Corrected Amended Final Orders ¶ 54, in Appellees’ Supp. App. at 74. 9 See Order ¶¶ 25-26, 517 B.R. at 253.
-6- determinations and rulings regarding division of marital property and marital debt that violated the discharge injunction provisions of 11 U.S.C. § 524. 10 After being granted leave by the bankruptcy court, Flanders filed his second amended complaint (“Complaint”) specifically contending, among other things, that: 1) the divorce court erroneously concluded the Surplus was marital property because Lawrence waived any claim to the Surplus via execution of the Settlement Agreement and Mutual Release in Trustee’s Adversary; 2) the divorce court improperly treated the Promissory Note Debt as a marital debt; and 3) the divorce court improperly treated stock in the Flanders Entities and burial plots as marital property. Flanders argued these assets were part of his bankruptcy estate abandoned to him when his bankruptcy case was closed. To remedy the perceived errors on the divorce court’s part, Flanders asked the bankruptcy court to hold the Defendants in contempt for violation of the § 524 discharge injunction.11 He also sought injunctive and declaratory relief that would essentially void the divorce court’s orders and prevent the Defendants from enforcing the Judgment. Flanders requested the bankruptcy court to impose sanctions, including attorneys fees, and to award consequential damages against Lawrence in the amount of the Surplus and the Promissory Note Debt, as well as punitive damages. In April 2014, Burghardt and Moye White filed a motion to dismiss the Complaint, or in the alternative, for summary judgment.12 Lawrence and West
10 Unless otherwise indicated, all future statutory references in text are to the Bankruptcy Code, Title 11 of the United States Code. 11 Apparently, in Flanders’ view, the Defendants’ pursuit and obtainment of the divorce court’s orders concerning the Surplus and the division of marital property constituted violations of the discharge injunction. 12 Moye White Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) or, in the Alternative, for Summary Judgment, in Appellant’s App. at 170.
-7- joined in the motion. The Defendants primarily argued the doctrines of issue and/or claim preclusion required Flanders’ Complaint to be dismissed in its entirety. The Defendants also asserted the Rooker-Feldman doctrine deprived the bankruptcy court of jurisdiction over Flanders’ claims seeking to overturn the divorce court’s orders, and that Flanders did not have standing to seek damages for their alleged contempt. They further maintained the bankruptcy court should apply the equitable doctrine of laches to the Complaint Flanders filed in 2013 because it related to the divorce court’s orders entered in 2007 and 2009, and thus it was prejudicially untimely. 13 The bankruptcy court agreed with the Defendants that Flanders’ claims were barred, and on September 16, 2014, entered its order granting the Defendants’ motion for summary judgment and terminating Flanders’ adversary proceeding (“Order”). The bankruptcy court concluded that although it could not revisit factual issues decided by the divorce court to the extent that an exercise of such jurisdiction would constitute an appeal of state court orders, Flanders’ alleged willful violation of the federal discharge injunction is an independent claim which it was not barred from adjudicating by virtue of the Rooker-Feldman doctrine. The bankruptcy court determined that to the extent success on Flanders’ contempt claims required relitigation of issues decided by the divorce court, the result was governed by principles of issue preclusion.14 The bankruptcy court ruled that all of the elements of issue preclusion were met. Because Flanders’ claims for violation of the discharge injunction depended upon reversal of factual adjudications regarding marital property and marital debt by the divorce court,
13 Id. at 14-16, in Appellant’s App. at 183-85. 14 Order, 517 B.R. at 256-58.
-8- Defendants were entitled to summary judgment. 15 On September 29, 2014, Flanders filed a motion for extension of time to appeal. The bankruptcy court granted the motion, extending time until October 21, 2014. On October 20, 2014, Flanders timely filed his Notice of Appeal seeking review by this Court. III. APPELLATE JURISDICTION This Court has jurisdiction to hear timely filed appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal. 16 Neither party elected to have this appeal heard by the United States District Court for the District of Colorado. The parties have therefore consented to appellate review by this Court. A decision is considered final “if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’”17 Here, the bankruptcy court’s order granting the Defendants summary judgment on Flanders’ Complaint is final for purposes of review because it resolved all claims as to all parties. 18
15 Id. at 260. 16 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8001(e) (now at Fed. R. Bankr. P. 8005, effective Dec. 1, 2014); 10th Cir. BAP L.R. 8001–3 (now at 10th Cir. BAP L.R. 8005-1, effective Dec. 1, 2014). 17 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). 18 Order, 517 B.R. at 262.
-9- IV. STANDARD OF REVIEW A ruling on summary judgment is reviewed de novo, applying the same legal standard used by the bankruptcy court.19 Summary judgment is appropriate and can be upheld only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.20 “In reviewing a summary judgment motion, the court is to view the record ‘in the light most favorable to the nonmoving party.’”21 In this appeal, it is clear there were no disputed material facts. Instead, Flanders disagrees with the bankruptcy court’s conclusions regarding the Rooker-Feldman doctrine, the principles of issue preclusion, and standing to bring suit. V. ANALYSIS On appeal, Flanders argues the bankruptcy court erroneously granted the Defendants summary judgment based on the Rooker-Feldman doctrine22 and issue preclusion.23 The Defendants assert this Court may affirm the bankruptcy court’s Order on the alternative basis that Flanders is barred by the doctrine of laches from attempting, through filing this adversary proceeding in 2013, to collaterally attack state court orders entered in 2007 and 2009. 24
19 E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011); Kojima v. Grandote Int’l Ltd. Liability Co. (In re Grandote Country Club Co.), 252 F.3d 1146, 1149 (10th Cir. 2001). 20 Fed. R. Civ. P. 56(a), (c); Donner v. Nicklaus, 778 F.3d 857, 876 (10th Cir. 2015). 21 Grandote, 252 F.3d at 1149 (quoting Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir. 1990)). 22 See Appellant’s Opening Brief at 36-49. 23 See id. at 26-35. 24 Answer Brief of Appellees James T. Burghardt and Moye White LLP (“Answer Brief”) at 4. Lawrence and West both joined in this Answer Brief.
-10- A. Rooker-Feldman Doctrine The Rooker-Feldman doctrine implicates jurisdiction and federal courts are obligated to determine they have jurisdiction before proceeding to the merits of a case.25 Therefore, the bankruptcy court began its analysis by addressing the impact of the Rooker-Feldman doctrine on the claims made in Flanders’ Complaint. It held that to the extent [Flanders] seeks a finding of contempt and sanctions for Defendants’ alleged willful violation of his discharge injunction, this is an independent claim which this Court is not barred from adjudicating by virtue of Rooker-Feldman. By seeking such relief, [Flanders] is not seeking “review and rejection” of the Divorce Court’s judgment. Instead, he seeks sanctions for alleged violations of a federal court injunction. 26 We agree with the bankruptcy court’s conclusion. The Rooker-Feldman doctrine prevents the “appeal” of a state court judgment to a federal court other than the United States Supreme Court. It does so by prohibiting litigants from bringing suit in federal court “complaining of injuries caused by state-court judgments rendered before [federal] district court proceedings commenced and inviting district court review and rejection of those judgments.”27 But the scope of the Rooker-Feldman doctrine is narrow and confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers that invite federal court review and rejection of the state court’s judgments. 28 In its 2005 decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 29 the United States Supreme Court reformulated the Rooker-Feldman doctrine. They
25 Lance v. Coffman, 549 U.S. 437, 439 (2007). 26 Order, 517 B.R. at 256. 27 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 28 Id.; Skinner v. Switzer, 562 U.S. 521, 531-32 (2011). 29 544 U.S. 280 (2005).
-11- did so, in part, because broad construction by some courts had the effect of “overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts,” as well as “superseding the ordinary application of preclusion law pursuant to 28 U.S.C. § 1738.” 30 The Supreme Court explained that “[i]f a federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party . . . , then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.’” 31 Following the Exxon Mobil decision, the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) again emphasized the narrowness of the Rooker-Feldman doctrine. In Campbell v. City of Spencer,32 the Tenth Circuit held that when the state-court judgment is not itself at issue, the Rooker-Feldman doctrine does not prevent a suit in federal court regarding the same subject matter, or even the same claims, as those presented in the state-court action. 33 Rooker-Feldman does not bar an action just because it seeks relief inconsistent with, or even ameliorative of, a state-court judgment.34 It bars claims complaining of injuries caused by wrongfully entered state-court judgments. 35 As this Court has previously stated, when determining whether the Rooker-Feldman doctrine applies, “[t]he fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment
30 Id. at 283. 31 Id. at 293 (quoting GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)). 32 682 F.3d 1278 (10th Cir. 2012). 33 Id. at 1283. 34 Id. at 1282. 35 Id. at 1283.
-12- itself or is distinct from that judgment.” 36 In our case, Flanders’ Complaint is long and complicated with eleven different claims for relief. However, all of Flanders’ claims can be fairly read as allegations that, at the invitation of the Defendants, the divorce court took actions in violation of the automatic stay and discharge injunction provisions contained in the United States Bankruptcy Code. That being the case, Flanders’ Complaint states independent federal claims, and the Rooker-Feldman doctrine does not bar federal-court jurisdiction over a state-court judgment that modifies a discharge in bankruptcy. 37 Rooker-Feldman is not the only doctrine that potentially bars Flanders’ claims. As the bankruptcy court correctly determined, “[t]o the extent that success on [Flanders’] contempt claims seeks relitigation of issues decided by the Divorce Court, principles of preclusion will govern the result.” 38 Therefore, we must proceed to analyze whether the bankruptcy court correctly ruled Flanders’ claims were barred under the rules of issue preclusion. B. Issue Preclusion The judicially-created, equitable doctrine of issue preclusion “prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same issue in another lawsuit.”39 It “is intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing
36 Hill v. Putvin (In re Putvin), 332 B.R. 619, 623 (10th Cir. BAP 2005) (quoting State of Mo. ex rel. Nixon v. Audley (In re Audley), 275 B.R. 383, 390 (10th Cir. BAP 2002)). 37 Hamilton v. Herr (In re Hamilton), 540 F.3d 367, 369 (6th Cir. 2008); In re Pavelich, 229 B.R. 777, 783 (9th Cir. BAP 1999); In re Dabrowski, 257 B.R. 394 (Bankr. S.D.N.Y. 2001). But cf. In re Ferren, 203 F.3d 559 (8th Cir. 2000). 38 Order, 517 B.R. at 256. 39 Melnor, Inc. v. Corey (In re Corey), 583 F.3d 1249, 1251 (10th Cir. 2009).
-13- inconsistent decisions, encourage reliance on adjudication.”40 Pursuant to the full faith and credit statute,41 in order to determine the preclusive effect of a state court judgment, a federal court must refer to the preclusion law of the state in which such judgment was rendered.42 Here, Colorado law controls the effect of the divorce court’s orders. Under Colorado law, [t]he doctrine [of issue preclusion] applies to bar subsequent litigation only if (1) the issue sought to be precluded is identical to an issue actually and necessarily determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a43full and fair opportunity to litigate the issue in the prior proceeding. Additionally, the Colorado Supreme Court has indicated that “[e]ven if not explicitly determined, an issue is nevertheless considered to have been ‘actually’ determined for purposes of collateral estoppel if its resolution is necessarily implied in an actual determination.” 44 The bankruptcy court correctly concluded the principles of issue preclusion prevent Flanders from collaterally attacking determinations of the divorce court. Three of the four issue preclusion requirements set forth above are clearly met and require only brief discussion. First, Flanders, the party whom the Defendants assert is estopped, was a party to the prior proceedings. Second, addressing the definition of finality, the Colorado Supreme Court has concluded that “in order to
40 Nichols v. Board of Cty. Comm’rs, 506 F.3d 962, 967 (10th Cir. 2007) (quoting Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 84 (Colo. 1999) (citations and internal quotation marks omitted)). 41 28 U.S.C. § 1738. 42 Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Nichols, 506 F.3d at 967. 43 Reynolds v. Cotten, 274 P.3d 540, 543 (Colo. 2012). 44 Id. at 544.
-14- be accorded preclusive effect, a judgment must be ‘sufficiently firm’ in the sense that it was not tentative, the parties had an opportunity to be heard, and there was an opportunity for review.”45 Here, there is no longer an appeal pending with respect to the divorce court’s orders, and the Colorado Court of Appeals remanded on a very limited issue not relevant to this appeal. Thus, the divorce court’s determinations and orders that Flanders seeks to attack are final and can be given preclusive effect. Third, with respect to a “full and fair opportunity to litigate,” the Colorado Supreme Court has held that such requirement inquires whether the remedies and procedures in the first proceeding are substantially different from the proceeding in which collateral estoppel is asserted, whether the party in privity in the first proceeding has sufficient incentive to vigorously assert or defend the position of the party against which collateral estoppel is asserted, and the extent to which the issues are identical. 46 Here, Flanders had sufficient incentive, and did in fact, vigorously litigate all issues of classification and division of marital property and marital debt before the divorce court. In its orders, the divorce court stated that “Flanders’ actions in contesting almost every motion contributed virtually nothing to the marital estate,” and some of his “actions have been taken in bad faith as he has continued to present arguments and take up court time with arguments that had been previously rejected.” 47 Having easily established the presence of three of the four issue preclusion requirements, we turn our attention to the final requirement: that the issue sought to be precluded is identical to an issue actually and necessarily determined in the prior proceeding. This critical requirement is also met here because Flanders’
45 Rantz v. Kaufman, 109 P.3d 132, 141 (Colo. 2005) (quoting Carpenter v. Young, 773 P.2d 561, 568 (Colo. 1989)). 46 McNichols v. Elk Dance Colorado, LLC, 139 P.3d 660, 669 (Colo. 2006). 47 Amended Final Orders ¶ 47, at 17-18, in Appellees’ Supp. App. at 68-69.
-15- claims for violation of the bankruptcy discharge injunction are dependent upon arguments already adjudicated by the divorce court. One of the major factual issues underlying Flanders’ claims is the effect of Lawrence’s execution of the Settlement Agreement and Mutual Release in the Trustee’s Adversary. Flanders argues the divorce court incorrectly designated the Surplus as marital property subject to division because Lawrence waived any claim she potentially had pursuant to the terms of the Settlement Agreement and Mutual Release. As the bankruptcy court correctly found, that factual issue was carefully considered and ruled on by the divorce court.48 The divorce court specifically concluded that Lawrence did not waive any claim she may have to the Surplus by executing the Settlement Agreement and Mutual Release. 49 Therefore, Flanders was not entitled to litigate the issue again before the bankruptcy court. A second disputed factual underpinning of Flanders’ claims is the effect of the divorce court’s classification of the Promissory Note Debt as “marital debt.” Flanders argues his liability on the debt was discharged in his bankruptcy case, and somehow believes that its classification as “marital debt” by the divorce court resulted in an “offset” of a debt as a personal liability of the debtor in violation of the discharge injunction.50 He further asserts this classification gave rise to the
48 Order, 517 B.R. at 259-60. 49 Id. 50 According to Flanders, The irrelevant conclusion of the divorce court and the convoluted manner in which that conclusion was applied against the value of an asset of the marital estate constituted the collection of a discharged debt against Flanders by an unlawful offset and as such, the divorce court’s Order in that regard is void ab initio. The Divorce Court judgment has therefore “modified” the Bankruptcy Court’s Discharge regarding Flanders’ former debt to Ms. Lawrence and GNTC, and said order is therefore void ab initio. Opening Brief at 19.
-16- divorce court’s Judgment against him.51 The bankruptcy court found the divorce court considered the effect of Flanders’ discharge and determined the Promissory Note Debt was a marital debt that could be considered in determining the division of marital assets. As a result, the bankruptcy court correctly concluded Flanders was precluded from relitigating the classification of the Promissory Note Debt as marital debt in his attempt to establish a discharge violation by the Defendants. 52 Even if the requirements of issue preclusion were not met here, Flanders’ assertion that there has been a violation of the provisions of § 524(a)(2) is wholly without merit. The Promissory Note Debt may have been discharged, but contrary to Flanders’ contentions, the divorce court’s orders did not make Flanders “responsible” in any way for this debt. There is nothing in the divorce court’s orders that would allow Lawrence or the Lawrence Entity to enforce the Promissory Note Debt against Flanders, or that has that effect. 53 Instead, the divorce court only determined that the Promissory Note Debt was “marital debt” 54 for purposes of dividing marital property. 55
51 Appellant’s Opening Brief at 16. 52 Order, 517 B.R. at 260. 53 Again, Flanders’ suggestion that there was an offset of the Promissory Note Debt that resulted in the Judgment is fiction. The Judgment consists primarily of the divorce court’s imposition of attorneys fees for his bad faith litigation conduct. 54 Under Colorado law, marital liabilities include all debts that are acquired and incurred by a husband and wife during their marriage. In re Marriage of Jorgenson, 143 P.3d 1169, 1172 (citing In re Marriage of Speirs, 956 P.2d 622 (Colo. App. 1997)). Therefore, the Promissory Note Debt constituted a marital debt regardless of whether Flanders ever had any personal liability because Lawrence remained liable on the debt, and the divorce court stated it was convinced that the $1,900,000 in funds procured from the loan was used by the parties for marital expenses. Amended Final Orders ¶ 19, at 9, in Appellees’ App. at 60. 55 The bankruptcy court discusses this alternative merits ruling in a footnote of its Order:
(continued...)
-17- C. Lack of Standing The bankruptcy court also addressed Flanders’ assertion that because the Surplus was property of the bankruptcy estate, the divorce court’s order directing the funds to be paid to its registry constituted a violation of the automatic stay provisions of § 362.56 The bankruptcy court first noted that the Surplus was not property of the estate when the divorce court issued its order, and therefore pursuant to § 362(c)(1), the automatic stay was no longer applicable. At the time the divorce court entered its order, the Surplus had been actually or constructively distributed to Flanders in that it was being held in the registry of the United States District Court after being garnished for payment of Flanders’ criminal judgment.57 The bankruptcy court then ruled that, assuming “for the purpose of the [Defendants’] motion for summary judgment, the [bankruptcy estate surplus] funds had not been distributed to [Flanders] and remained estate property, [Flanders] has no standing to request an order declaring the Bankruptcy Surplus
55 (...continued) The application of the doctrine of issue preclusion is a matter of equity and a court may decline to apply the doctrine even when the elements for its application are present. Even had this Court determined not to apply the doctrine, Debtor would lose on the merits of this claim. Debtor’s discharge of personal liability on the promissory note to GNTC only barred collection of the note as a personal liability of the Debtor. 11 U.S.C. § 524(a)(2). It did not bar the Divorce Court from characterizing the debt as a marital debt. The Divorce Court’s analysis of the marital nature of the debt, as well as the overall property division between Ms. Lawrence and Debtor, was clearly within the broad discretion of the Divorce Court to make an equitable distribution of marital property after considering all relevant factors, including the contributions of each spouse, the value of property set apart to each spouse, the economic circumstances of each spouse, and any increase, decrease, or depletion in the value of any separate property during the marriage. Order, 517 B.R. at 260-61, n.6 (citation omitted). 56 It does not appear that Flanders made this argument as a “claim for relief” in his Complaint. Instead his contention is part of his “Factual Allegations Common to All Counts.” See Complaint ¶ 45, at 10, in Appellant’s App. at 149. 57 Order, 517 B.R. at 261.
-18- Order void ab initio.”58 The bankruptcy court explained that the trustee, as representative of the estate, is the proper party to seek redress for an alleged violation of the automatic stay.59 The bankruptcy court also ruled that the automatic stay was not in effect as to actions to collect from Flanders because, pursuant to § 362(c)(2), it had terminated some four years earlier when Flanders was granted his Chapter 7 discharge. 60 In his Opening Brief on appeal, Flanders generally asserts the bankruptcy court “erred in its conclusion that Debtor is precluded from arguing all of the issues that he raised in his Complaint.”61 However, other than such assertion, Flanders does not make any specific argument regarding the bankruptcy court’s determination that he did not have standing to pursue alleged violations of the automatic stay.62 As a result, Flanders is deemed to have waived this issue on appeal. 63
58 Id. 59 Id. at 261-62. 60 Id. at 262. 61 Appellant’s Opening Brief ¶ 9, at 2. 62 Flanders does argue on appeal that the bankruptcy court erred in concluding that the divorce court had subject matter jurisdiction to issue orders regarding after-acquired property. Opening Brief at 54-59. However, the substance of this argument appears to be simply another incarnation of Flanders’ contention that the divorce court erroneously interpreted the Settlement Agreement and Mutual Release, an argument that has already been determined to be subject to issue preclusion principles. 63 In re Taylor, 737 F.3d 670, 682 n.9 (10th Cir. 2013) (arguments perfunctorily or inadequately briefed are waived); In re Repine, 536 F.3d 512, 518, n.5 (5th Cir. 2008) (issues not adequately briefed are waived); Sw. Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d Cir. 1997) (“appellate courts generally should not address legal issues that the parties have not developed through proper briefing”).
-19- D. Laches In their Answer Brief, the Defendants argue this Court may affirm the bankruptcy court’s Order on the alternative basis that Flanders is barred by the doctrine of laches from attempting, through filing this adversary proceeding in 2013, to collaterally attack the Colorado state court orders entered in 2007 and 2009.64 Derived from the principle that “equity aids the vigilant and not those who slumber on their rights,” the laches defense bars a party’s dilatory claim, 65 when there is: “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” 66 Whether the doctrine of laches bars a particular action or claim is a decision primarily addressed to the discretion of the trial court. 67 The Defendants raised the issue of laches before the bankruptcy court, but the Order granting summary judgment does not discuss laches. Thus, the bankruptcy court rejected, at least implicitly, the doctrine of laches as a basis for barring Flanders’ Complaint. Given that this Court may not disturb a bankruptcy court’s ruling on laches in the absence of abuse of discretion,68 and having already determined that Flanders’ claims are barred by the principles of issue preclusion, we decline the Defendants’ invitation to address the laches issue on appeal.
64 Answer Brief of Appellees James T. Burghardt and Moye White LLP (“Answer Brief”) at 4. Lawrence and West joined in this Answer Brief. 65 Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1091 (10th Cir. 2014) (quoting Kansas v. Colorado, 514 U.S. 673, 687 (1995) (quotations omitted)). 66 Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002) (quotations omitted)). 67 Id. at 1090 (quoting Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 435 (1965)). 68 Id. (quoting Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 523 (10th Cir. 1987)).
-20- VI. CONCLUSION The Rooker-Feldman doctrine does not prevent the bankruptcy court from exercising jurisdiction over Flanders’ claims against the Defendants for violation of the discharge injunction. However, to the extent that a debtor’s claim for violation of the discharge injunction depends on facts already adjudicated by a state court, the principles of issue preclusion apply to prevent him from relitigating them in federal court, thereby maintaining the integrity of the state court’s orders. In this case, issue preclusion bars Flanders’ causes of action because the facts essential to his claims have been litigated and adjudicated by the divorce court. Accordingly, the bankruptcy court’s Order is affirmed. 69
69 Also pending before this court are the Moye White Defendants’ Motion to Strike Selected Statements in Appellant’s Reply Brief as Unsupported by the Record (Docket No. 53 filed on June 11, 2015), Appellant’s Motion for Leave to File Sur-Reply (Docket No. 70, filed on July 8, 2015), as well as numerous responses and replies to those documents. In light of our decision, we deny the Motion to Strike and the Motion for Leave as moot.
-21- | 08-11-2015 | [
"FILED U.S. Bankruptcy Appellate Panel of the Tenth Circuit August 5, 2015 NOT FOR PUBLICATION Blaine F. Bates Clerk UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT IN RE GARY WOODROW BAP No. CO-14-055 FLANDERS, ind. and as officer, director, shareholder Canyon Quarry Co., Farmer & Merchants Bank, Great Northern Land Co., MetroBank, N.A., Debtor. GARY WOODROW FLANDERS, Bankr. No. 98-24779 Adv. No. 13-01456 Plaintiff – Appellant, Chapter 7 v. OPINION * EVELYN JANE LAWRENCE, DANIEL A. WEST, Attorney, MOYE WHITE LLP, and JAMES T. BURGHARDT, Defendants – Appellees. Appeal from the United States Bankruptcy Court for the District of Colorado Submitted on the briefs: 1 Before MICHAEL, KARLIN, and HALL, Bankruptcy Judges. * This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion.",
"10th Cir. BAP L.R. 8026-6. 1 The parties did not request oral argument, and after examining the briefs and appellate record, the Court has determined unanimously that oral argument would not significantly aid in the determination of this appeal. See Fed. R. Bankr. P. 8019(b)(3). The case is therefore submitted without oral argument. MICHAEL, Bankruptcy Judge. “If at first you don’t succeed, try, try, try again.” 2 There are many great American success stories built upon unflinching stubborn determination in the face of incredible odds. Very few of them, however, can be found in the annals of litigation history. This case will not alter the landscape. The debtor in this now 17-year-old Chapter 7 case appeals the bankruptcy court’s order granting summary judgment in favor of the defendants on his adversary claims against them for violation of the discharge injunction.",
"The debtor’s claims relate to marital property and marital debt division orders entered by a Colorado state court in his divorce proceedings. The bankruptcy court concluded the debtor’s action was barred for a number of reasons, including the Rooker-Feldman doctrine, the principle of collateral estoppel or issue preclusion, and lack of standing. Having reviewed the record and the applicable law, we affirm the bankruptcy court’s order. I. INTRODUCTION In its order granting summary judgment, the bankruptcy court noted that “[t]his adversary proceeding results from the complicated confluence of bankruptcy and divorce proceedings.”3 The Colorado court that entered the orders giving rise to the debtor’s claims described the divorce proceedings as “the most complex this Court has seen in over 25 years,”4 and also commented that the debtor contested almost every issue in the case.5 Additionally, the debtor and his former wife controlled numerous corporate entities involved in the bankruptcy 2 William Edward Hickson (1803–1870). 3 Order Granting Defendants’ Motion for Summary Judgment (“Order”) at 1, in Appellant’s App.",
"at 228, published at Flanders v. Lawrence (In re Flanders), 517 B.R. 245, 249 (Bankr. D. Colo. 2014). 4 Amended Final Orders at 5, in Appellees’ Supp. App. at 56. 5 Id. -2- proceedings that were marital assets with associated marital debt subject to division by the divorce court. Therefore, before setting forth the specific facts of the bankruptcy proceedings leading to this appeal, we lay some groundwork by identifying the parties and their controlled entities, and by briefly previewing facts that are critical to understanding the debtor’s claims against the defendants for violation of the discharge injunction. The plaintiff/appellant in this adversary matter is debtor Gary Woodrow Flanders (“Flanders”). When Flanders filed his bankruptcy petition, he was married to defendant/appellee Evelyn Jane Lawrence (“Lawrence”). Lawrence did not join the petition. Two years after Flanders filed for bankruptcy protection, Lawrence filed for divorce.",
"The divorce proceedings continued in Colorado state court for more than eight years. Flanders’ claims in this adversary proceeding arise out of the divorce proceedings and their interaction with his bankruptcy case. The other defendants/appellees are: Daniel A. West (“West”), Lawrence’s divorce attorney; James T. Burghardt (“Burghardt”), Lawrence’s bankruptcy counsel; and Moye White LLP (“Moye White”), Burghardt’s law firm (collectively the “Defendants”). Also involved in the underlying bankruptcy and divorce litigation are various corporate entities controlled by Flanders and Lawrence. The two companies wholly owned by Flanders are Great Northern Land Company and Canyon Quarry Company (the “Flanders Entities”). The entities wholly owned by Lawrence are Great Northern Transportation Company (together with its seven wholly owned subsidiaries), and American Rock Products Corporation (collectively the “Lawrence Entities,” or individually a “Lawrence Entity”). As of the bankruptcy petition date, there was an outstanding promissory note made by Flanders and Lawrence to a Lawrence Entity in the amount of approximately $2 million.",
"-3- The interaction of the bankruptcy and divorce proceedings leading to this appeal results primarily from the following three events. First, the bankruptcy trustee brought an adversary proceeding against Flanders, Lawrence, and the Lawrence Entities, alleging various fraudulent conveyances had been made. To conclude the adversary proceeding against her, Lawrence entered into a settlement agreement with the trustee and executed a mutual release. Second, after administration of the bankruptcy estate and payment of all debts in full, a surplus remained. The Colorado divorce court was then tasked with determining whether the bankruptcy surplus was marital property subject to division with Lawrence. The divorce court concluded the surplus was marital property despite Flanders’ attempt to bar any claim Lawrence might have by arguing she waived it under the settlement agreement and mutual release in the bankruptcy trustee’s adversary proceeding. Third, the divorce court entered a monetary judgment against Flanders that he claims violated the discharge injunction in his bankruptcy case. According to Flanders, the judgment is the result of the divorce court’s treatment of a discharged debt. Flanders seriously mischaracterizes the nature and character of the judgment. II. BANKRUPTCY PROCEEDINGS 6 Flanders individually filed for Chapter 11 protection in 1998.",
"After Flanders failed to submit a confirmable Chapter 11 plan, his case was converted to one under Chapter 7. Jeffrey L. Hill was appointed trustee (“Trustee”). Trustee subsequently put the Flanders Entities into Chapter 7 bankruptcy and served as trustee of those estates. Lawrence filed for divorce from Flanders in October 2000. Shortly thereafter, Trustee, on behalf of the Flanders and Flanders Entities estates, 6 Unless otherwise indicated, this factual description is taken from the bankruptcy court’s Order. -4- commenced an adversary proceeding against Flanders, Lawrence, and the Lawrence Entities, alleging fraudulent conveyances had been made (“Trustee’s Adversary”). Trustee quickly reached settlement with Lawrence and the Lawrence Entities.",
"The bankruptcy court entered an order approving the settlement agreement in April 2001 (“Settlement Agreement”). Thereafter, Lawrence and the Lawrence Entities entered into a mutual release with Trustee (“Mutual Release”), releasing the bankruptcy estates “from any and all claims and causes of action that have been made or could have been made in the Adversary Proceeding.”7 Flanders was not a party to the Settlement Agreement or Mutual Release, but resolution of the claims against Lawrence and the Lawrence Entities essentially resolved Trustee’s claims against Flanders. The Colorado state court entered a divorce decree in December 2001, but litigation over the division of marital property and marital debt continued. Meanwhile, the bankruptcy court granted Flanders a discharge in September 2002.",
"After administering the estate for several years, Trustee filed his final report in July 2006. Following liquidation of Flanders’ bankruptcy estate and payment of his unsecured creditors in full, a surplus of approximately $230,000 remained (“Surplus”). Trustee’s final report indicated the Surplus was to be paid to Flanders. The divorce court was informed of the Surplus, but by that time it had been garnished by the United States Attorney to pay a 2005 Oklahoma federal court judgment against Flanders in connection with his conviction for bank fraud. The federal district court instructed the Colorado divorce court to determine whether the Surplus was marital property. In February 2007, the divorce court entered an order concluding the Surplus constituted marital property on the basis that Colorado law presumes property held during marriage is marital property and 7 Mutual Release ¶ 2, at 2, in Appellees’ Supp. App. at 41.",
"-5- Flanders had not proven any portion of the Surplus was his separate property. The divorce court rejected Flanders’ argument that, pursuant to the Settlement Agreement and Mutual Release executed in Trustee’s Adversary, Lawrence had waived any claim she might have to the Surplus. Upon request, the Surplus was transferred to the divorce court’s registry fund. Flanders’ bankruptcy case was closed in May 2008. Nine months later, the divorce court issued final orders dividing marital property and marital debt. It also entered a judgment in excess of $563,000 against Flanders in favor of Lawrence (the “Judgment”). Flanders contends the Judgment results from the debt on the $2 million promissory note executed by Flanders and Lawrence in favor of a Lawrence Entity (“Promissory Note Debt”) that was discharged in his Chapter 7 case. In truth, the Judgment was comprised primarily of attorneys fees the divorce court found Flanders should pay as a result of his bad faith litigation and contribution to delay in the proceedings, all of which were generated post- petition. 8 Flanders appealed the divorce court’s final orders to the Colorado Court of Civil Appeals, which affirmed in May 2011, except for a limited remand not relevant to this appeal.9 Flanders requested rehearing, which was denied in September 2011.",
"Flanders then petitioned the Colorado Supreme Court for certiorari, which it denied in January 2013. Undaunted, Flanders initiated this adversary proceeding in August 2013 asserting the divorce court, at the invitation of the Defendants, made 8 The Judgment was made up of $513,754 in attorneys fees plus one-half of the differences between assets awarded to Lawrence and those awarded to Flanders, plus Flanders’ remaining fines and restitution owing to the United States on account of his felony conviction, minus one-half of the value of the remaining marital personal property. Order: Corrected Amended Final Orders ¶ 54, in Appellees’ Supp. App. at 74. 9 See Order ¶¶ 25-26, 517 B.R. at 253. -6- determinations and rulings regarding division of marital property and marital debt that violated the discharge injunction provisions of 11 U.S.C. § 524. 10 After being granted leave by the bankruptcy court, Flanders filed his second amended complaint (“Complaint”) specifically contending, among other things, that: 1) the divorce court erroneously concluded the Surplus was marital property because Lawrence waived any claim to the Surplus via execution of the Settlement Agreement and Mutual Release in Trustee’s Adversary; 2) the divorce court improperly treated the Promissory Note Debt as a marital debt; and 3) the divorce court improperly treated stock in the Flanders Entities and burial plots as marital property.",
"Flanders argued these assets were part of his bankruptcy estate abandoned to him when his bankruptcy case was closed. To remedy the perceived errors on the divorce court’s part, Flanders asked the bankruptcy court to hold the Defendants in contempt for violation of the § 524 discharge injunction.11 He also sought injunctive and declaratory relief that would essentially void the divorce court’s orders and prevent the Defendants from enforcing the Judgment. Flanders requested the bankruptcy court to impose sanctions, including attorneys fees, and to award consequential damages against Lawrence in the amount of the Surplus and the Promissory Note Debt, as well as punitive damages. In April 2014, Burghardt and Moye White filed a motion to dismiss the Complaint, or in the alternative, for summary judgment.12 Lawrence and West 10 Unless otherwise indicated, all future statutory references in text are to the Bankruptcy Code, Title 11 of the United States Code. 11 Apparently, in Flanders’ view, the Defendants’ pursuit and obtainment of the divorce court’s orders concerning the Surplus and the division of marital property constituted violations of the discharge injunction.",
"12 Moye White Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) or, in the Alternative, for Summary Judgment, in Appellant’s App. at 170. -7- joined in the motion. The Defendants primarily argued the doctrines of issue and/or claim preclusion required Flanders’ Complaint to be dismissed in its entirety. The Defendants also asserted the Rooker-Feldman doctrine deprived the bankruptcy court of jurisdiction over Flanders’ claims seeking to overturn the divorce court’s orders, and that Flanders did not have standing to seek damages for their alleged contempt. They further maintained the bankruptcy court should apply the equitable doctrine of laches to the Complaint Flanders filed in 2013 because it related to the divorce court’s orders entered in 2007 and 2009, and thus it was prejudicially untimely. 13 The bankruptcy court agreed with the Defendants that Flanders’ claims were barred, and on September 16, 2014, entered its order granting the Defendants’ motion for summary judgment and terminating Flanders’ adversary proceeding (“Order”). The bankruptcy court concluded that although it could not revisit factual issues decided by the divorce court to the extent that an exercise of such jurisdiction would constitute an appeal of state court orders, Flanders’ alleged willful violation of the federal discharge injunction is an independent claim which it was not barred from adjudicating by virtue of the Rooker-Feldman doctrine.",
"The bankruptcy court determined that to the extent success on Flanders’ contempt claims required relitigation of issues decided by the divorce court, the result was governed by principles of issue preclusion.14 The bankruptcy court ruled that all of the elements of issue preclusion were met. Because Flanders’ claims for violation of the discharge injunction depended upon reversal of factual adjudications regarding marital property and marital debt by the divorce court, 13 Id. at 14-16, in Appellant’s App. at 183-85. 14 Order, 517 B.R. at 256-58. -8- Defendants were entitled to summary judgment. 15 On September 29, 2014, Flanders filed a motion for extension of time to appeal. The bankruptcy court granted the motion, extending time until October 21, 2014. On October 20, 2014, Flanders timely filed his Notice of Appeal seeking review by this Court.",
"III. APPELLATE JURISDICTION This Court has jurisdiction to hear timely filed appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal. 16 Neither party elected to have this appeal heard by the United States District Court for the District of Colorado. The parties have therefore consented to appellate review by this Court. A decision is considered final “if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’”17 Here, the bankruptcy court’s order granting the Defendants summary judgment on Flanders’ Complaint is final for purposes of review because it resolved all claims as to all parties. 18 15 Id. at 260. 16 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8001(e) (now at Fed. R. Bankr.",
"P. 8005, effective Dec. 1, 2014); 10th Cir. BAP L.R. 8001–3 (now at 10th Cir. BAP L.R. 8005-1, effective Dec. 1, 2014). 17 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). 18 Order, 517 B.R. at 262. -9- IV. STANDARD OF REVIEW A ruling on summary judgment is reviewed de novo, applying the same legal standard used by the bankruptcy court.19 Summary judgment is appropriate and can be upheld only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.20 “In reviewing a summary judgment motion, the court is to view the record ‘in the light most favorable to the nonmoving party.’”21 In this appeal, it is clear there were no disputed material facts.",
"Instead, Flanders disagrees with the bankruptcy court’s conclusions regarding the Rooker-Feldman doctrine, the principles of issue preclusion, and standing to bring suit. V. ANALYSIS On appeal, Flanders argues the bankruptcy court erroneously granted the Defendants summary judgment based on the Rooker-Feldman doctrine22 and issue preclusion.23 The Defendants assert this Court may affirm the bankruptcy court’s Order on the alternative basis that Flanders is barred by the doctrine of laches from attempting, through filing this adversary proceeding in 2013, to collaterally attack state court orders entered in 2007 and 2009. 24 19 E.E.O.C.",
"v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011); Kojima v. Grandote Int’l Ltd. Liability Co. (In re Grandote Country Club Co.), 252 F.3d 1146, 1149 (10th Cir. 2001). 20 Fed. R. Civ. P. 56(a), (c); Donner v. Nicklaus, 778 F.3d 857, 876 (10th Cir. 2015). 21 Grandote, 252 F.3d at 1149 (quoting Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir. 1990)). 22 See Appellant’s Opening Brief at 36-49. 23 See id. at 26-35.",
"24 Answer Brief of Appellees James T. Burghardt and Moye White LLP (“Answer Brief”) at 4. Lawrence and West both joined in this Answer Brief. -10- A. Rooker-Feldman Doctrine The Rooker-Feldman doctrine implicates jurisdiction and federal courts are obligated to determine they have jurisdiction before proceeding to the merits of a case.25 Therefore, the bankruptcy court began its analysis by addressing the impact of the Rooker-Feldman doctrine on the claims made in Flanders’ Complaint. It held that to the extent [Flanders] seeks a finding of contempt and sanctions for Defendants’ alleged willful violation of his discharge injunction, this is an independent claim which this Court is not barred from adjudicating by virtue of Rooker-Feldman. By seeking such relief, [Flanders] is not seeking “review and rejection” of the Divorce Court’s judgment. Instead, he seeks sanctions for alleged violations of a federal court injunction.",
"26 We agree with the bankruptcy court’s conclusion. The Rooker-Feldman doctrine prevents the “appeal” of a state court judgment to a federal court other than the United States Supreme Court. It does so by prohibiting litigants from bringing suit in federal court “complaining of injuries caused by state-court judgments rendered before [federal] district court proceedings commenced and inviting district court review and rejection of those judgments.”27 But the scope of the Rooker-Feldman doctrine is narrow and confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers that invite federal court review and rejection of the state court’s judgments. 28 In its 2005 decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 29 the United States Supreme Court reformulated the Rooker-Feldman doctrine. They 25 Lance v. Coffman, 549 U.S. 437, 439 (2007). 26 Order, 517 B.R. at 256. 27 Exxon Mobil Corp. v. Saudi Basic Indus.",
"Corp., 544 U.S. 280, 284 (2005). 28 Id. ; Skinner v. Switzer, 562 U.S. 521, 531-32 (2011). 29 544 U.S. 280 (2005). -11- did so, in part, because broad construction by some courts had the effect of “overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts,” as well as “superseding the ordinary application of preclusion law pursuant to 28 U.S.C. § 1738.” 30 The Supreme Court explained that “[i]f a federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party . . .",
", then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.’” 31 Following the Exxon Mobil decision, the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) again emphasized the narrowness of the Rooker-Feldman doctrine. In Campbell v. City of Spencer,32 the Tenth Circuit held that when the state-court judgment is not itself at issue, the Rooker-Feldman doctrine does not prevent a suit in federal court regarding the same subject matter, or even the same claims, as those presented in the state-court action. 33 Rooker-Feldman does not bar an action just because it seeks relief inconsistent with, or even ameliorative of, a state-court judgment.34 It bars claims complaining of injuries caused by wrongfully entered state-court judgments.",
"35 As this Court has previously stated, when determining whether the Rooker-Feldman doctrine applies, “[t]he fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment 30 Id. at 283. 31 Id. at 293 (quoting GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)). 32 682 F.3d 1278 (10th Cir. 2012). 33 Id. at 1283. 34 Id. at 1282. 35 Id. at 1283. -12- itself or is distinct from that judgment.” 36 In our case, Flanders’ Complaint is long and complicated with eleven different claims for relief. However, all of Flanders’ claims can be fairly read as allegations that, at the invitation of the Defendants, the divorce court took actions in violation of the automatic stay and discharge injunction provisions contained in the United States Bankruptcy Code. That being the case, Flanders’ Complaint states independent federal claims, and the Rooker-Feldman doctrine does not bar federal-court jurisdiction over a state-court judgment that modifies a discharge in bankruptcy. 37 Rooker-Feldman is not the only doctrine that potentially bars Flanders’ claims.",
"As the bankruptcy court correctly determined, “[t]o the extent that success on [Flanders’] contempt claims seeks relitigation of issues decided by the Divorce Court, principles of preclusion will govern the result.” 38 Therefore, we must proceed to analyze whether the bankruptcy court correctly ruled Flanders’ claims were barred under the rules of issue preclusion. B. Issue Preclusion The judicially-created, equitable doctrine of issue preclusion “prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same issue in another lawsuit.”39 It “is intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing 36 Hill v. Putvin (In re Putvin), 332 B.R.",
"619, 623 (10th Cir. BAP 2005) (quoting State of Mo. ex rel. Nixon v. Audley (In re Audley), 275 B.R. 383, 390 (10th Cir. BAP 2002)). 37 Hamilton v. Herr (In re Hamilton), 540 F.3d 367, 369 (6th Cir. 2008); In re Pavelich, 229 B.R. 777, 783 (9th Cir. BAP 1999); In re Dabrowski, 257 B.R. 394 (Bankr. S.D.N.Y. 2001). But cf. In re Ferren, 203 F.3d 559 (8th Cir. 2000). 38 Order, 517 B.R. at 256. 39 Melnor, Inc. v. Corey (In re Corey), 583 F.3d 1249, 1251 (10th Cir.",
"2009). -13- inconsistent decisions, encourage reliance on adjudication.”40 Pursuant to the full faith and credit statute,41 in order to determine the preclusive effect of a state court judgment, a federal court must refer to the preclusion law of the state in which such judgment was rendered.42 Here, Colorado law controls the effect of the divorce court’s orders. Under Colorado law, [t]he doctrine [of issue preclusion] applies to bar subsequent litigation only if (1) the issue sought to be precluded is identical to an issue actually and necessarily determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a43full and fair opportunity to litigate the issue in the prior proceeding.",
"Additionally, the Colorado Supreme Court has indicated that “[e]ven if not explicitly determined, an issue is nevertheless considered to have been ‘actually’ determined for purposes of collateral estoppel if its resolution is necessarily implied in an actual determination.” 44 The bankruptcy court correctly concluded the principles of issue preclusion prevent Flanders from collaterally attacking determinations of the divorce court. Three of the four issue preclusion requirements set forth above are clearly met and require only brief discussion. First, Flanders, the party whom the Defendants assert is estopped, was a party to the prior proceedings. Second, addressing the definition of finality, the Colorado Supreme Court has concluded that “in order to 40 Nichols v. Board of Cty. Comm’rs, 506 F.3d 962, 967 (10th Cir. 2007) (quoting Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 84 (Colo. 1999) (citations and internal quotation marks omitted)).",
"41 28 U.S.C. § 1738. 42 Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Nichols, 506 F.3d at 967. 43 Reynolds v. Cotten, 274 P.3d 540, 543 (Colo. 2012). 44 Id. at 544. -14- be accorded preclusive effect, a judgment must be ‘sufficiently firm’ in the sense that it was not tentative, the parties had an opportunity to be heard, and there was an opportunity for review.”45 Here, there is no longer an appeal pending with respect to the divorce court’s orders, and the Colorado Court of Appeals remanded on a very limited issue not relevant to this appeal.",
"Thus, the divorce court’s determinations and orders that Flanders seeks to attack are final and can be given preclusive effect. Third, with respect to a “full and fair opportunity to litigate,” the Colorado Supreme Court has held that such requirement inquires whether the remedies and procedures in the first proceeding are substantially different from the proceeding in which collateral estoppel is asserted, whether the party in privity in the first proceeding has sufficient incentive to vigorously assert or defend the position of the party against which collateral estoppel is asserted, and the extent to which the issues are identical. 46 Here, Flanders had sufficient incentive, and did in fact, vigorously litigate all issues of classification and division of marital property and marital debt before the divorce court. In its orders, the divorce court stated that “Flanders’ actions in contesting almost every motion contributed virtually nothing to the marital estate,” and some of his “actions have been taken in bad faith as he has continued to present arguments and take up court time with arguments that had been previously rejected.” 47 Having easily established the presence of three of the four issue preclusion requirements, we turn our attention to the final requirement: that the issue sought to be precluded is identical to an issue actually and necessarily determined in the prior proceeding. This critical requirement is also met here because Flanders’ 45 Rantz v. Kaufman, 109 P.3d 132, 141 (Colo. 2005) (quoting Carpenter v. Young, 773 P.2d 561, 568 (Colo. 1989)).",
"46 McNichols v. Elk Dance Colorado, LLC, 139 P.3d 660, 669 (Colo. 2006). 47 Amended Final Orders ¶ 47, at 17-18, in Appellees’ Supp. App. at 68-69. -15- claims for violation of the bankruptcy discharge injunction are dependent upon arguments already adjudicated by the divorce court. One of the major factual issues underlying Flanders’ claims is the effect of Lawrence’s execution of the Settlement Agreement and Mutual Release in the Trustee’s Adversary. Flanders argues the divorce court incorrectly designated the Surplus as marital property subject to division because Lawrence waived any claim she potentially had pursuant to the terms of the Settlement Agreement and Mutual Release.",
"As the bankruptcy court correctly found, that factual issue was carefully considered and ruled on by the divorce court.48 The divorce court specifically concluded that Lawrence did not waive any claim she may have to the Surplus by executing the Settlement Agreement and Mutual Release. 49 Therefore, Flanders was not entitled to litigate the issue again before the bankruptcy court. A second disputed factual underpinning of Flanders’ claims is the effect of the divorce court’s classification of the Promissory Note Debt as “marital debt.” Flanders argues his liability on the debt was discharged in his bankruptcy case, and somehow believes that its classification as “marital debt” by the divorce court resulted in an “offset” of a debt as a personal liability of the debtor in violation of the discharge injunction.50 He further asserts this classification gave rise to the 48 Order, 517 B.R.",
"at 259-60. 49 Id. 50 According to Flanders, The irrelevant conclusion of the divorce court and the convoluted manner in which that conclusion was applied against the value of an asset of the marital estate constituted the collection of a discharged debt against Flanders by an unlawful offset and as such, the divorce court’s Order in that regard is void ab initio. The Divorce Court judgment has therefore “modified” the Bankruptcy Court’s Discharge regarding Flanders’ former debt to Ms. Lawrence and GNTC, and said order is therefore void ab initio. Opening Brief at 19. -16- divorce court’s Judgment against him.51 The bankruptcy court found the divorce court considered the effect of Flanders’ discharge and determined the Promissory Note Debt was a marital debt that could be considered in determining the division of marital assets. As a result, the bankruptcy court correctly concluded Flanders was precluded from relitigating the classification of the Promissory Note Debt as marital debt in his attempt to establish a discharge violation by the Defendants.",
"52 Even if the requirements of issue preclusion were not met here, Flanders’ assertion that there has been a violation of the provisions of § 524(a)(2) is wholly without merit. The Promissory Note Debt may have been discharged, but contrary to Flanders’ contentions, the divorce court’s orders did not make Flanders “responsible” in any way for this debt. There is nothing in the divorce court’s orders that would allow Lawrence or the Lawrence Entity to enforce the Promissory Note Debt against Flanders, or that has that effect. 53 Instead, the divorce court only determined that the Promissory Note Debt was “marital debt” 54 for purposes of dividing marital property. 55 51 Appellant’s Opening Brief at 16.",
"52 Order, 517 B.R. at 260. 53 Again, Flanders’ suggestion that there was an offset of the Promissory Note Debt that resulted in the Judgment is fiction. The Judgment consists primarily of the divorce court’s imposition of attorneys fees for his bad faith litigation conduct. 54 Under Colorado law, marital liabilities include all debts that are acquired and incurred by a husband and wife during their marriage. In re Marriage of Jorgenson, 143 P.3d 1169, 1172 (citing In re Marriage of Speirs, 956 P.2d 622 (Colo. App. 1997)). Therefore, the Promissory Note Debt constituted a marital debt regardless of whether Flanders ever had any personal liability because Lawrence remained liable on the debt, and the divorce court stated it was convinced that the $1,900,000 in funds procured from the loan was used by the parties for marital expenses.",
"Amended Final Orders ¶ 19, at 9, in Appellees’ App. at 60. 55 The bankruptcy court discusses this alternative merits ruling in a footnote of its Order: (continued...) -17- C. Lack of Standing The bankruptcy court also addressed Flanders’ assertion that because the Surplus was property of the bankruptcy estate, the divorce court’s order directing the funds to be paid to its registry constituted a violation of the automatic stay provisions of § 362.56 The bankruptcy court first noted that the Surplus was not property of the estate when the divorce court issued its order, and therefore pursuant to § 362(c)(1), the automatic stay was no longer applicable.",
"At the time the divorce court entered its order, the Surplus had been actually or constructively distributed to Flanders in that it was being held in the registry of the United States District Court after being garnished for payment of Flanders’ criminal judgment.57 The bankruptcy court then ruled that, assuming “for the purpose of the [Defendants’] motion for summary judgment, the [bankruptcy estate surplus] funds had not been distributed to [Flanders] and remained estate property, [Flanders] has no standing to request an order declaring the Bankruptcy Surplus 55 (...continued) The application of the doctrine of issue preclusion is a matter of equity and a court may decline to apply the doctrine even when the elements for its application are present.",
"Even had this Court determined not to apply the doctrine, Debtor would lose on the merits of this claim. Debtor’s discharge of personal liability on the promissory note to GNTC only barred collection of the note as a personal liability of the Debtor. 11 U.S.C. § 524(a)(2). It did not bar the Divorce Court from characterizing the debt as a marital debt. The Divorce Court’s analysis of the marital nature of the debt, as well as the overall property division between Ms. Lawrence and Debtor, was clearly within the broad discretion of the Divorce Court to make an equitable distribution of marital property after considering all relevant factors, including the contributions of each spouse, the value of property set apart to each spouse, the economic circumstances of each spouse, and any increase, decrease, or depletion in the value of any separate property during the marriage.",
"Order, 517 B.R. at 260-61, n.6 (citation omitted). 56 It does not appear that Flanders made this argument as a “claim for relief” in his Complaint. Instead his contention is part of his “Factual Allegations Common to All Counts.” See Complaint ¶ 45, at 10, in Appellant’s App. at 149. 57 Order, 517 B.R. at 261. -18- Order void ab initio.”58 The bankruptcy court explained that the trustee, as representative of the estate, is the proper party to seek redress for an alleged violation of the automatic stay.59 The bankruptcy court also ruled that the automatic stay was not in effect as to actions to collect from Flanders because, pursuant to § 362(c)(2), it had terminated some four years earlier when Flanders was granted his Chapter 7 discharge. 60 In his Opening Brief on appeal, Flanders generally asserts the bankruptcy court “erred in its conclusion that Debtor is precluded from arguing all of the issues that he raised in his Complaint.”61 However, other than such assertion, Flanders does not make any specific argument regarding the bankruptcy court’s determination that he did not have standing to pursue alleged violations of the automatic stay.62 As a result, Flanders is deemed to have waived this issue on appeal.",
"63 58 Id. 59 Id. at 261-62. 60 Id. at 262. 61 Appellant’s Opening Brief ¶ 9, at 2. 62 Flanders does argue on appeal that the bankruptcy court erred in concluding that the divorce court had subject matter jurisdiction to issue orders regarding after-acquired property. Opening Brief at 54-59. However, the substance of this argument appears to be simply another incarnation of Flanders’ contention that the divorce court erroneously interpreted the Settlement Agreement and Mutual Release, an argument that has already been determined to be subject to issue preclusion principles. 63 In re Taylor, 737 F.3d 670, 682 n.9 (10th Cir. 2013) (arguments perfunctorily or inadequately briefed are waived); In re Repine, 536 F.3d 512, 518, n.5 (5th Cir.",
"2008) (issues not adequately briefed are waived); Sw. Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d Cir. 1997) (“appellate courts generally should not address legal issues that the parties have not developed through proper briefing”). -19- D. Laches In their Answer Brief, the Defendants argue this Court may affirm the bankruptcy court’s Order on the alternative basis that Flanders is barred by the doctrine of laches from attempting, through filing this adversary proceeding in 2013, to collaterally attack the Colorado state court orders entered in 2007 and 2009.64 Derived from the principle that “equity aids the vigilant and not those who slumber on their rights,” the laches defense bars a party’s dilatory claim, 65 when there is: “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” 66 Whether the doctrine of laches bars a particular action or claim is a decision primarily addressed to the discretion of the trial court. 67 The Defendants raised the issue of laches before the bankruptcy court, but the Order granting summary judgment does not discuss laches. Thus, the bankruptcy court rejected, at least implicitly, the doctrine of laches as a basis for barring Flanders’ Complaint. Given that this Court may not disturb a bankruptcy court’s ruling on laches in the absence of abuse of discretion,68 and having already determined that Flanders’ claims are barred by the principles of issue preclusion, we decline the Defendants’ invitation to address the laches issue on appeal.",
"64 Answer Brief of Appellees James T. Burghardt and Moye White LLP (“Answer Brief”) at 4. Lawrence and West joined in this Answer Brief. 65 Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1091 (10th Cir. 2014) (quoting Kansas v. Colorado, 514 U.S. 673, 687 (1995) (quotations omitted)). 66 Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002) (quotations omitted)). 67 Id. at 1090 (quoting Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 435 (1965)). 68 Id. (quoting Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 523 (10th Cir. 1987)). -20- VI. CONCLUSION The Rooker-Feldman doctrine does not prevent the bankruptcy court from exercising jurisdiction over Flanders’ claims against the Defendants for violation of the discharge injunction. However, to the extent that a debtor’s claim for violation of the discharge injunction depends on facts already adjudicated by a state court, the principles of issue preclusion apply to prevent him from relitigating them in federal court, thereby maintaining the integrity of the state court’s orders.",
"In this case, issue preclusion bars Flanders’ causes of action because the facts essential to his claims have been litigated and adjudicated by the divorce court. Accordingly, the bankruptcy court’s Order is affirmed. 69 69 Also pending before this court are the Moye White Defendants’ Motion to Strike Selected Statements in Appellant’s Reply Brief as Unsupported by the Record (Docket No. 53 filed on June 11, 2015), Appellant’s Motion for Leave to File Sur-Reply (Docket No. 70, filed on July 8, 2015), as well as numerous responses and replies to those documents. In light of our decision, we deny the Motion to Strike and the Motion for Leave as moot. -21-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2824751/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
413 So. 2d 1360 (1982) HARTFORD FIRE INSURANCE CO. et al v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES, et al. No. 14662. Court of Appeal of Louisiana, First Circuit. May 4, 1982. Robert D. Hoover, Baton Rouge, for plaintiffs-appellants Hartford Fire Ins. Co. and Hi Nabor Supermarket, Inc. Steven L. Mayer, Staff Atty., Dept. of Health and Human Resources, Baton Rouge, for defendant-appellee State of La., Dept. of Health and Human Resources. Before LEAR, CARTER and CHIASSON, JJ. CARTER, Judge. This is an appeal from a summary judgment granted in favor of the defendant, the State of Louisiana. Appellants, Hartford Fire Insurance Company (Hartford) and its insured, Hi-Nabor Supermarket, Inc. (Hi-Nabor) filed suit against the State of Louisiana, through the Department of Health and Human Resources (DHHR) and against Mr. and Mrs. Herschel Palmer, seeking recovery for damages to the Hi-Nabor building and its contents caused by a fire which occurred on September 8, 1979. Hartford and Hi-Nabor alleged in their original petition that the fire was caused by the negligent or intentional acts of William Abercrombie or by a combination of negligent and intentional acts. They prayed for judgment in solido against the State of Louisiana and the Palmers. Appellants later filed an amended petition which acknowledged that a release order had been issued by the 18th Judicial District Court for the Parish of West Baton Rouge on August 7, 1979, paroling Abercrombie from the custody of the Department of Corrections into the care and custody of Mr. and Mrs. Herschel Palmer, under the supervision of a State Juvenile Probation and Parole Agent, for an indefinite period of time. This petition alleged that the agent acting for and on behalf of the State of Louisiana breached a duty owed the plaintiffs to supervise the activities of the minor child, which breach resulted in the loss complained of. DHHR filed a peremptory exception of no cause of action with an alternative motion for summary judgment. In support of *1361 the motion for summary judgment, DHHR submitted the deposition of Bernice Jones, who stated that she was the State juvenile probation and parole agent for William Abercrombie and that he had been paroled into the care and custody of the Palmers on August 7, 1979, and had remained with the Palmers until February 7, 1980. Thus, he was in the Palmers' custody on the day of the fire. She further deposed that there was no contractual relationship between the State of Louisiana and the Palmers at the time of the fire. The release order was also submitted. The trial court granted defendant DHHR's motion for summary judgment stating in oral reasons for judgment that the State did not have custody of Abercrombie. The plaintiffs then perfected this appeal against DHHR.[1] The summary judgment was properly granted. A motion for summary judgment may be granted only in cases where there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. Duvalle v. Lake Kenilworth, Inc., 396 So. 2d 1268 (La.1981); Lee v. Allstate Ins. Company, 402 So. 2d 181 (La.App. 1st Cir. 1981); White v. Baker Manor Nursing Home, Inc., 400 So. 2d 1168 (La.App. 1st Cir. 1981), writ denied, 403 So. 2d 68 (La.1981); Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So. 2d 561 (La. 1978). The party moving for summary judgment has the burden of showing the absence of any genuine issues of material fact. (Id.) The affidavit and release order submitted by defendant showed that Abercrombie was no longer in the State's custody. Plaintiff filed no counter affidavits in opposition to the motion. There were no genuine issues of material fact. The facts clearly reveal that the State no longer had custody. The amended petition alleges only that the parole agent breached a duty owed to plaintiffs to supervise the activities of Abercrombie. There are no facts to support this allegation, and a remand to allow plaintiffs to amend the petition to allege facts would be a useless act. In Graham v. State, Health & Social, etc. 354 So. 2d 602 (La.App. 1st Cir. 1977), a twelve year old boy was severely injured in a knife attack by an escaped mental patient one day after the escape, in a city more than one hundred miles away from the mental institution. This court outlined the proper analysis to be followed. It said: "In Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So. 2d 298 (1962), our Supreme Court adopted the duty/risk analysis for determining tort liability which involves the following inquiries: (1) Was defendant's actions a cause-in-fact of plaintiff's injurywas it a substantial factor in bringing about the harm; (2) Do the risk and harm encountered by plaintiff fall within the protection of a legal duty owed to plaintiff by defendant; (3) Was defendant negligent i.e., did defendant breach the duty owed plaintiff; and (4) Was plaintiff damaged by defendant's conduct. See also Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So. 2d 620 (1972). For plaintiff to recover, all four inquiries must be answered in the affirmative." The court then pretermitted consideration of the inquiries on cause-in-fact, negligence, and resulting damage because it found that the trial court correctly held that the State was not under a duty to protect the plaintiff against the risk encountered there. It found that the attack was so unforeseeable and unpredictable that to hold the attack within the risk of harm sought to be protected against would pose total, unqualified liability on the State, regardless of the circumstances. Recognizing that its decision was a matter of policy, the court refused to extend the liability that far. We cannot impose on a parole agent the responsibility for a parolee's activities and whereabouts twenty-four hours a day. *1362 To do so would be tantamount to imposing strict liability on the State. We find as a matter of law that the duty of a parole agent to supervise the activities of a juvenile parolee who is under the legal custody of another does not include the duty to protect plaintiffs from the harm caused here (fire damage to a store), albeit an affirmative showing of negligence and proximate cause. For the above reasons, the judgment of the District Court is affirmed. Costs are assessed to appellant. AFFIRMED. NOTES [1] The record indicates that a preliminary default was taken against the Palmers on April 14, 1981. The question of their liability is not at issue here. | 10-30-2013 | [
"413 So. 2d 1360 (1982) HARTFORD FIRE INSURANCE CO. et al v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES, et al. No. 14662. Court of Appeal of Louisiana, First Circuit. May 4, 1982. Robert D. Hoover, Baton Rouge, for plaintiffs-appellants Hartford Fire Ins. Co. and Hi Nabor Supermarket, Inc. Steven L. Mayer, Staff Atty., Dept. of Health and Human Resources, Baton Rouge, for defendant-appellee State of La., Dept. of Health and Human Resources. Before LEAR, CARTER and CHIASSON, JJ. CARTER, Judge. This is an appeal from a summary judgment granted in favor of the defendant, the State of Louisiana. Appellants, Hartford Fire Insurance Company (Hartford) and its insured, Hi-Nabor Supermarket, Inc. (Hi-Nabor) filed suit against the State of Louisiana, through the Department of Health and Human Resources (DHHR) and against Mr. and Mrs. Herschel Palmer, seeking recovery for damages to the Hi-Nabor building and its contents caused by a fire which occurred on September 8, 1979.",
"Hartford and Hi-Nabor alleged in their original petition that the fire was caused by the negligent or intentional acts of William Abercrombie or by a combination of negligent and intentional acts. They prayed for judgment in solido against the State of Louisiana and the Palmers. Appellants later filed an amended petition which acknowledged that a release order had been issued by the 18th Judicial District Court for the Parish of West Baton Rouge on August 7, 1979, paroling Abercrombie from the custody of the Department of Corrections into the care and custody of Mr. and Mrs. Herschel Palmer, under the supervision of a State Juvenile Probation and Parole Agent, for an indefinite period of time.",
"This petition alleged that the agent acting for and on behalf of the State of Louisiana breached a duty owed the plaintiffs to supervise the activities of the minor child, which breach resulted in the loss complained of. DHHR filed a peremptory exception of no cause of action with an alternative motion for summary judgment. In support of *1361 the motion for summary judgment, DHHR submitted the deposition of Bernice Jones, who stated that she was the State juvenile probation and parole agent for William Abercrombie and that he had been paroled into the care and custody of the Palmers on August 7, 1979, and had remained with the Palmers until February 7, 1980. Thus, he was in the Palmers' custody on the day of the fire. She further deposed that there was no contractual relationship between the State of Louisiana and the Palmers at the time of the fire. The release order was also submitted.",
"The trial court granted defendant DHHR's motion for summary judgment stating in oral reasons for judgment that the State did not have custody of Abercrombie. The plaintiffs then perfected this appeal against DHHR. [1] The summary judgment was properly granted. A motion for summary judgment may be granted only in cases where there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. Duvalle v. Lake Kenilworth, Inc., 396 So. 2d 1268 (La.1981); Lee v. Allstate Ins. Company, 402 So. 2d 181 (La.App. 1st Cir. 1981); White v. Baker Manor Nursing Home, Inc., 400 So. 2d 1168 (La.App.",
"1st Cir. 1981), writ denied, 403 So. 2d 68 (La.1981); Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So. 2d 561 (La. 1978). The party moving for summary judgment has the burden of showing the absence of any genuine issues of material fact. (Id.) The affidavit and release order submitted by defendant showed that Abercrombie was no longer in the State's custody. Plaintiff filed no counter affidavits in opposition to the motion. There were no genuine issues of material fact. The facts clearly reveal that the State no longer had custody. The amended petition alleges only that the parole agent breached a duty owed to plaintiffs to supervise the activities of Abercrombie. There are no facts to support this allegation, and a remand to allow plaintiffs to amend the petition to allege facts would be a useless act. In Graham v. State, Health & Social, etc.",
"354 So. 2d 602 (La.App. 1st Cir. 1977), a twelve year old boy was severely injured in a knife attack by an escaped mental patient one day after the escape, in a city more than one hundred miles away from the mental institution. This court outlined the proper analysis to be followed. It said: \"In Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So. 2d 298 (1962), our Supreme Court adopted the duty/risk analysis for determining tort liability which involves the following inquiries: (1) Was defendant's actions a cause-in-fact of plaintiff's injurywas it a substantial factor in bringing about the harm; (2) Do the risk and harm encountered by plaintiff fall within the protection of a legal duty owed to plaintiff by defendant; (3) Was defendant negligent i.e., did defendant breach the duty owed plaintiff; and (4) Was plaintiff damaged by defendant's conduct. See also Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So. 2d 620 (1972). For plaintiff to recover, all four inquiries must be answered in the affirmative.\"",
"The court then pretermitted consideration of the inquiries on cause-in-fact, negligence, and resulting damage because it found that the trial court correctly held that the State was not under a duty to protect the plaintiff against the risk encountered there. It found that the attack was so unforeseeable and unpredictable that to hold the attack within the risk of harm sought to be protected against would pose total, unqualified liability on the State, regardless of the circumstances. Recognizing that its decision was a matter of policy, the court refused to extend the liability that far.",
"We cannot impose on a parole agent the responsibility for a parolee's activities and whereabouts twenty-four hours a day. *1362 To do so would be tantamount to imposing strict liability on the State. We find as a matter of law that the duty of a parole agent to supervise the activities of a juvenile parolee who is under the legal custody of another does not include the duty to protect plaintiffs from the harm caused here (fire damage to a store), albeit an affirmative showing of negligence and proximate cause.",
"For the above reasons, the judgment of the District Court is affirmed. Costs are assessed to appellant. AFFIRMED. NOTES [1] The record indicates that a preliminary default was taken against the Palmers on April 14, 1981. The question of their liability is not at issue here."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1748984/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Christ, Acting P. J., Rabin and Benjamin, JJ., concur; Brennan and Hopkins, JJ., dissent and vote to affirm. | 01-12-2022 | [
"Christ, Acting P. J., Rabin and Benjamin, JJ., concur; Brennan and Hopkins, JJ., dissent and vote to affirm."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5764310/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0214520
Decision Date: 10/17/02 Archive Date: 10/29/02
DOCKET NO. 94-23 007 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to a compensable evaluation for uveitis.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
H. Roberts, Counsel
INTRODUCTION
The veteran served on active duty from June 1970 to November
1970.
This appeal arises before the Board of Veterans' Appeals
(Board) from a February 1994 rating decision of the
Baltimore, Maryland, Regional Office (RO) of the Department
of Veterans Affairs (VA), that continued a noncompensable
rating for uveitis.
This claim was previously before the Board and was the
subject of an April 1998 remand to clarify whether or not the
veteran desired a hearing. This claim was again before the
Board and was the subject of a June 1999 remand that sought
to develop the evidence. This claim was again before the
Board and was the subject of a March 2001 remand that sought
to develop the evidence. The actions requested in those
remands have been completed, and the claim is again before
the Board.
At a hearing held at the Board in July 2002, the veteran
raised the issues of entitlement to service connection for
emphysema and entitlement an evaluation in excess of 10
percent for sarcoidosis. These claims have not been
adjudicated by the RO and are referred to that agency for
initial consideration.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the appellant's claim has been developed and the appellant
has been notified of the evidence necessary to substantiate
the claim.
2. The evidence does not show that the veteran currently has
active uveitis or that he has impairment of visual acuity or
field loss, pain, rest-requirements, or episodic incapacity
as a result of his uveitis.
CONCLUSION OF LAW
The criteria for a compensable rating for uveitis are not
met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102,
4.84a, Diagnostic Code 6000 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA) was enacted on
November 9, 2000. Among other things, the VCAA eliminated
the well-grounded-claim requirement and modified the
Secretary's duties to notify and assist claimants.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
Supp. 2001); see Holliday v. Principi, 14 Vet. App. 280, 284-
86 (2001) (holding all sections of VCAA are retroactive).
The United States Court of Appeals for Veterans Claims
(Court) subsequently held that the requirements of the VCAA
were met where the appellant was fully notified and aware of
the type of evidence required to substantiate the claim and
that no additional assistance would aid in further developing
the claim. 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 the
claim, VCAA does not apply. 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 such assistance would aid
in substantiating the claim").
There is no issue as to substantial completeness of the
appellant's application for benefits. See 38 U.S.C.A.
§ 5102. There are no outstanding records that are pertinent
to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The appellant has been advised of the evidence necessary to
substantiate the claim, by means of the statement of the
case, the supplemental statements of the case, the Board
remands, and the rating decisions issued regarding the claim.
The appellant has also been informed of the pertinent
provisions of the VCAA by means of the January 2002
supplemental statement of the case.
The RO has informed the appellant in a June 2001 letter, as
well as in the statement of the case, the supplemental
statements of the case, the Board remands, and the rating
decisions, of the evidence needed to substantiate the claim
and of what evidence the appellant was responsible for
obtaining and what evidence could be obtained by VA. The
Board finds that VA has met its obligations to notify the
appellant of the evidence needed to substantiate the claim
and of what evidence the appellant is responsible for
obtaining. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The veteran has been provided an examination of his uveitis.
At his July 2002 hearing, the veteran indicated that there
were no other records of treatment for uveitis that had not
been obtained by VA.
Therefore, the Board finds that the statutory and regulatory
requirements with regard to notice and development of the
claim have been satisfied. VA has obtained all evidence that
the appellant has indicated is pertinent to the claim and has
satisfied the duty to assist. See 38 U.S.C.A. § 5103A.
To implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620-32 (Aug. 29,
2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)). The regulations as they apply to this case were
not meant to confer any rights in addition to those provided
by the VCAA. 66 Fed. Reg. 45,629 (Aug. 29, 2001).
The veteran established service connection for uveitis by
means of an April 1973 rating decision, which assigned a
noncompensable disability rating. That rating was continued
by a February 1994 rating decision, which is the subject of
this appeal.
The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA's
Schedule for Rating Disabilities, 38 C.F.R. Part 4
(Schedule). Uveitis is evaluated pursuant to the criteria
found in Diagnostic Code 6000 of the Schedule. 38 C.F.R.
§ 4.84a. Under those criteria, uveitis, in chronic form, is
to be rated from 10 percent to 100 percent for impairment of
visual acuity or field loss, pain, rest-requirements, or
episodic incapacity, combining an additional rating of 10
percent during continuance of active pathology. The minimum
rating during active pathology is 10 percent. 38 C.F.R.
§ 4.84a.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Therefore, the Board will evaluate the evidence to determine
whether an increased rating is warranted for the veteran's
present level of disability.
The evidence shows that the veteran had a flare-up of uveitis
in December 1998 and was put on Prednisone and the flare-up
resolved.
A November 8, 2001, VA examination shows that the veteran had
an occasional twitch in his eye and felt that he needed new
glasses. The veteran had been diagnosed with uveitis in the
right eye in 1971 and had recurrent uveitis in 1998.
Distance visual acuity with correction was 20/20 in the right
eye, 20/25 in the left eye, and 20/20 with both eyes. Near
visual acuity was 20/20 in the right eye, left eye, and both
eyes. His best corrected visual acuity was 20/20. Slit-lamp
examination was unremarkable other than posterior synechiae
in the right eye. Intraocular pressure was 20 mmHg in both
eyes. The anterior chambers were deep and quiet in both
eyes. Dilated fundus examination was preformed and revealed
a cup-to-disc ratio of 0.35 in the right eye and 0.25 in the
left eye. Macula, vessels, and periphery were unremarkable
in both eyes. The examiner diagnosed a history of uveitis
twice in the right eye, refractive error, and presbyopia.
The examiner provided a November 13, 2001, addendum to the
report. The addendum shows that the veteran's uveitis was
not active and was in remission. It was originally active in
1971 in the right eye and flared in 1998 in the right eye
briefly. There was no impairment of visual acuity or the
visual field. There was no pain, rest requirement, or
episodic incapacity. The only remnants of the previous
episodes of uveitis were the objective findings of posterior
synechiae in the right eye, which were completely
asymptomatic. The examiner noted that flareups of uveitis
were not predictable, but at the time of the examination, the
veteran was in remission.
The Board finds that a compensable rating for uveitis is not
warranted. Although the veteran experienced a brief flare of
uveitis in his right eye in 1998, the most recent evidence
from the November 2001 VA examination shows that the
veteran's uveitis is in remission. The evidence shows that
he does not have any impairment of the visual field or of
visual acuity. The evidence shows that there is no pain,
rest requirement, or episodic incapacity. The veteran's
hearing testimony shows that he does not dispute these
findings.
Therefore, under the criteria for the evaluation of uveitis,
a compensable rating is not warranted on the basis of
impairment of visual acuity or field loss, pain, rest-
requirements, or episodic incapacity as those signs are not
shown. Furthermore, the criteria provide a minimum rating of
10 percent "during active pathology." As the veteran's
uveitis is currently in remission, active pathology is not
shown and a compensable rating is not warranted.
The preponderance of the evidence is against the veteran's
claim and the claim is denied. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 3.102, 4.84a, Diagnostic Code 6000
(2001).
ORDER
Entitlement to a compensable evaluation for uveitis is
denied.
Mark D. Hindin
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you. | 10-17-2002 | [
"Citation Nr: 0214520 Decision Date: 10/17/02 Archive Date: 10/29/02 DOCKET NO. 94-23 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a compensable evaluation for uveitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Roberts, Counsel INTRODUCTION The veteran served on active duty from June 1970 to November 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a February 1994 rating decision of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA), that continued a noncompensable rating for uveitis. This claim was previously before the Board and was the subject of an April 1998 remand to clarify whether or not the veteran desired a hearing.",
"This claim was again before the Board and was the subject of a June 1999 remand that sought to develop the evidence. This claim was again before the Board and was the subject of a March 2001 remand that sought to develop the evidence. The actions requested in those remands have been completed, and the claim is again before the Board. At a hearing held at the Board in July 2002, the veteran raised the issues of entitlement to service connection for emphysema and entitlement an evaluation in excess of 10 percent for sarcoidosis. These claims have not been adjudicated by the RO and are referred to that agency for initial consideration. FINDINGS OF FACT 1.",
"All evidence necessary for an equitable disposition of the appellant's claim has been developed and the appellant has been notified of the evidence necessary to substantiate the claim. 2. The evidence does not show that the veteran currently has active uveitis or that he has impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity as a result of his uveitis. CONCLUSION OF LAW The criteria for a compensable rating for uveitis are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 4.84a, Diagnostic Code 6000 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) was enacted on November 9, 2000. Among other things, the VCAA eliminated the well-grounded-claim requirement and modified the Secretary's duties to notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2001); see Holliday v. Principi, 14 Vet. App.",
"280, 284- 86 (2001) (holding all sections of VCAA are retroactive). The United States Court of Appeals for Veterans Claims (Court) subsequently held that the requirements of the VCAA were met where the appellant was fully notified and aware of the type of evidence required to substantiate the claim and that no additional assistance would aid in further developing the claim. 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 the claim, VCAA does not apply. 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 such assistance would aid in substantiating the claim\").",
"There is no issue as to substantial completeness of the appellant's application for benefits. See 38 U.S.C.A. § 5102. There are no outstanding records that are pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The appellant has been advised of the evidence necessary to substantiate the claim, by means of the statement of the case, the supplemental statements of the case, the Board remands, and the rating decisions issued regarding the claim. The appellant has also been informed of the pertinent provisions of the VCAA by means of the January 2002 supplemental statement of the case. The RO has informed the appellant in a June 2001 letter, as well as in the statement of the case, the supplemental statements of the case, the Board remands, and the rating decisions, of the evidence needed to substantiate the claim and of what evidence the appellant was responsible for obtaining and what evidence could be obtained by VA. The Board finds that VA has met its obligations to notify the appellant of the evidence needed to substantiate the claim and of what evidence the appellant is responsible for obtaining.",
"Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran has been provided an examination of his uveitis. At his July 2002 hearing, the veteran indicated that there were no other records of treatment for uveitis that had not been obtained by VA. Therefore, the Board finds that the statutory and regulatory requirements with regard to notice and development of the claim have been satisfied. VA has obtained all evidence that the appellant has indicated is pertinent to the claim and has satisfied the duty to assist. See 38 U.S.C.A. § 5103A. To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (to be codified at 38 C.F.R.",
"§§ 3.102, 3.156(a), 3.159, 3.326(a)). The regulations as they apply to this case were not meant to confer any rights in addition to those provided by the VCAA. 66 Fed. Reg. 45,629 (Aug. 29, 2001). The veteran established service connection for uveitis by means of an April 1973 rating decision, which assigned a noncompensable disability rating. That rating was continued by a February 1994 rating decision, which is the subject of this appeal. The severity of a disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (Schedule). Uveitis is evaluated pursuant to the criteria found in Diagnostic Code 6000 of the Schedule. 38 C.F.R.",
"§ 4.84a. Under those criteria, uveitis, in chronic form, is to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. The minimum rating during active pathology is 10 percent. 38 C.F.R. § 4.84a. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.",
"Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, the Board will evaluate the evidence to determine whether an increased rating is warranted for the veteran's present level of disability. The evidence shows that the veteran had a flare-up of uveitis in December 1998 and was put on Prednisone and the flare-up resolved. A November 8, 2001, VA examination shows that the veteran had an occasional twitch in his eye and felt that he needed new glasses. The veteran had been diagnosed with uveitis in the right eye in 1971 and had recurrent uveitis in 1998. Distance visual acuity with correction was 20/20 in the right eye, 20/25 in the left eye, and 20/20 with both eyes. Near visual acuity was 20/20 in the right eye, left eye, and both eyes.",
"His best corrected visual acuity was 20/20. Slit-lamp examination was unremarkable other than posterior synechiae in the right eye. Intraocular pressure was 20 mmHg in both eyes. The anterior chambers were deep and quiet in both eyes. Dilated fundus examination was preformed and revealed a cup-to-disc ratio of 0.35 in the right eye and 0.25 in the left eye. Macula, vessels, and periphery were unremarkable in both eyes. The examiner diagnosed a history of uveitis twice in the right eye, refractive error, and presbyopia. The examiner provided a November 13, 2001, addendum to the report. The addendum shows that the veteran's uveitis was not active and was in remission. It was originally active in 1971 in the right eye and flared in 1998 in the right eye briefly. There was no impairment of visual acuity or the visual field. There was no pain, rest requirement, or episodic incapacity. The only remnants of the previous episodes of uveitis were the objective findings of posterior synechiae in the right eye, which were completely asymptomatic.",
"The examiner noted that flareups of uveitis were not predictable, but at the time of the examination, the veteran was in remission. The Board finds that a compensable rating for uveitis is not warranted. Although the veteran experienced a brief flare of uveitis in his right eye in 1998, the most recent evidence from the November 2001 VA examination shows that the veteran's uveitis is in remission. The evidence shows that he does not have any impairment of the visual field or of visual acuity. The evidence shows that there is no pain, rest requirement, or episodic incapacity. The veteran's hearing testimony shows that he does not dispute these findings. Therefore, under the criteria for the evaluation of uveitis, a compensable rating is not warranted on the basis of impairment of visual acuity or field loss, pain, rest- requirements, or episodic incapacity as those signs are not shown.",
"Furthermore, the criteria provide a minimum rating of 10 percent \"during active pathology.\" As the veteran's uveitis is currently in remission, active pathology is not shown and a compensable rating is not warranted. The preponderance of the evidence is against the veteran's claim and the claim is denied. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 4.84a, Diagnostic Code 6000 (2001). ORDER Entitlement to a compensable evaluation for uveitis is denied. Mark D. Hindin Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No.",
"107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled \"Appeal to the United States Court of Appeals for Veterans Claims.\" (1) A \"Notice of Disagreement filed on or after November 18, 1988\" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled \"Representation before VA,\" filing a \"Notice of Disagreement with respect to the claim on or after November 18, 1988\" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you."
]
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Citation Nr: 0634160
Decision Date: 11/03/06 Archive Date: 11/16/06
DOCKET NO. 01-01 584 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for low back
disability.
2. Entitlement to service connection for left hip
disability.
3. Entitlement to service connection for left leg
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The appellant is a veteran who had active duty service from
October 1968 to May 1972, and from May 1974 to May 1977. The
veteran served in Vietnam and was awarded the Combat Medic
Badge.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2000 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). In February 2004, the Board reopened a previously
denied claim for service connection for a low back
disability, and remanded the claim for additional evidentiary
development. The Board also remanded claims for service
connection for right hip disability and right leg
disability.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the
appellant if further action is required on his part.
REMAND
It appears that the appellant in this case engaged in combat,
and he has asserted that he injured his low back, left hip,
and left leg during a mortar attack. Pursuant to 38 U.S.C.A.
§ 1154(b) (West 2002), with respect to combat veterans, "The
Secretary shall accept as sufficient proof of service-
connection . . . satisfactory lay or other evidence of
service incurrence or aggravation of such injury or disease,
if consistent with the circumstances, conditions and
hardships of such service . . . Service-connection of such
injury or disease may be rebutted by clear and convincing
evidence to the contrary." See also 38 C.F.R. § 3.304(d)
(2005).
However, the United States Court of Appeals for Veterans
Claims (the Court) has further held that 38 U.S.C.A. §
1154(b) can be used only to provide a factual basis upon
which a determination could be made that a particular disease
or injury was incurred or aggravated in service, not to link
the claimed disorder etiologically to the current disorder.
See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).
Section 1154(b) does not establish service connection for a
combat veteran; it aids him by relaxing the adjudicative
evidentiary requirements for determining what happened in
service. A veteran must still generally establish his claim
by competent medical evidence tending to show a current
disability and a nexus between that disability and those
service events. See Gregory v. Brown, 8 Vet. App. 563, 567
(1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court
affirmed that the 38 U.S.C.A. § 1154(b) presumption only
relates to the question of service incurrence, it does not
relate to questions of whether the veteran has a current
disability or whether there was a nexus between the in-
service event and the current disability.
Although the record includes reports of VA examinations with
etiology opinions, certain of the examiner's conclusions
appear to be based on the lack of service medical records of
any pertinent injuries during service. However, the fact of
the low back, left hip, and left leg injuries is to be
conceded under 38 U.S.C.A.. § 1154(b) since the veteran is a
combat veteran and has reported that he was injured during
combat. Therefore, it is arguable that the VA examiner's
conclusions are based, in part, on an inaccurate factual
predicate. In order to afford the veteran every
consideration and to ensure application of 38 U.S.C.A.
§ 1154(b), the Board believes that further development is
necessary before it may properly proceed with appellate
review.
In view of the need to return the case to the RO for the
above reason, the Board would also point out that during the
pendency of this appeal, on March 3, 2006, the Court issued a
decision in the consolidated appeal Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. 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. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA 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. Appropriate
notice should also be forwarded to the veteran.
Accordingly, the case is hereby REMANDED for the following
actions:
1. The RO should send the veteran a
Veterans Claims Assistance Act of 2000
notice letter which complies with the
Court's holding in Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. The veteran's claims file should be
forwarded to the VA examiner who
conducted the July 2005 VA examination of
the low back, left hip, and left leg. If
that examiner is no longer available, the
claims file should be forwarded to
another appropriate VA examiner. After
reviewing the claims file, the examiner
should be asked to respond to the
following:
Assuming that the veteran injured his low
back, left hip, and left leg in a mortar
attack during combat as he has reported,
is it at least as likely as not (a 50% or
higher degree of probability) that any
current low back disability, left hip
disability, and/or left leg disability is
causally related to such injury? If so
please furnish the medical diagnosis for
such current low back disability, left
hip disability, or left leg disability.
Please provide a rationale for your
opinion(s) with reference to inservice
and post-service evidence.
3. After completion of the above, the RO
should review the expanded record and
determine if the benefits sought are
warranted. The RO's analysis should
include application of 38 U.S.C.A.
§ 1154(b). Unless all benefits sought
granted, the veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The veteran and his representative have the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
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 The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
____________________________________________
ALAN S. PEEVY
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) (2006). | 11-03-2006 | [
"Citation Nr: 0634160 Decision Date: 11/03/06 Archive Date: 11/16/06 DOCKET NO. 01-01 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for left hip disability. 3. Entitlement to service connection for left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The appellant is a veteran who had active duty service from October 1968 to May 1972, and from May 1974 to May 1977. The veteran served in Vietnam and was awarded the Combat Medic Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2004, the Board reopened a previously denied claim for service connection for a low back disability, and remanded the claim for additional evidentiary development. The Board also remanded claims for service connection for right hip disability and right leg disability. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on his part.",
"REMAND It appears that the appellant in this case engaged in combat, and he has asserted that he injured his low back, left hip, and left leg during a mortar attack. Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, \"The Secretary shall accept as sufficient proof of service- connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.\"",
"See also 38 C.F.R. § 3.304(d) (2005). However, the United States Court of Appeals for Veterans Claims (the Court) has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).",
"Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in- service event and the current disability.",
"Although the record includes reports of VA examinations with etiology opinions, certain of the examiner's conclusions appear to be based on the lack of service medical records of any pertinent injuries during service. However, the fact of the low back, left hip, and left leg injuries is to be conceded under 38 U.S.C.A.. § 1154(b) since the veteran is a combat veteran and has reported that he was injured during combat. Therefore, it is arguable that the VA examiner's conclusions are based, in part, on an inaccurate factual predicate. In order to afford the veteran every consideration and to ensure application of 38 U.S.C.A.",
"§ 1154(b), the Board believes that further development is necessary before it may properly proceed with appellate review. In view of the need to return the case to the RO for the above reason, the Board would also point out that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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.",
"The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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. Appropriate notice should also be forwarded to the veteran.",
"Accordingly, the case is hereby REMANDED for the following actions: 1. The RO should send the veteran a Veterans Claims Assistance Act of 2000 notice letter which complies with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran's claims file should be forwarded to the VA examiner who conducted the July 2005 VA examination of the low back, left hip, and left leg.",
"If that examiner is no longer available, the claims file should be forwarded to another appropriate VA examiner. After reviewing the claims file, the examiner should be asked to respond to the following: Assuming that the veteran injured his low back, left hip, and left leg in a mortar attack during combat as he has reported, is it at least as likely as not (a 50% or higher degree of probability) that any current low back disability, left hip disability, and/or left leg disability is causally related to such injury? If so please furnish the medical diagnosis for such current low back disability, left hip disability, or left leg disability. Please provide a rationale for your opinion(s) with reference to inservice and post-service evidence.",
"3. After completion of the above, the RO should review the expanded record and determine if the benefits sought are warranted. The RO's analysis should include application of 38 U.S.C.A. § 1154(b). Unless all benefits sought granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.",
"App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.",
"____________________________________________ ALAN S. PEEVY 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) (2006)."
]
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AFFIRM; and Opinion Filed November 16, 2015.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-14-01047-CV
MARK SHERBET AND D'NELLA SHERBET, Appellants V. RAFAELLA BENDER, Appellee
On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-12935-I
MEMORANDUM OPINION Before Justices Bridges, Stoddart, and O’Neill 1 Opinion by Justice O’Neill Appellants Mark and D’Nella Sherbet appeal from the trial court’s judgment in favor of
appellee Rafaella Bender in this suit for partition of certain real property jointly owned by the
Sherbets and Bender. In one issue, the Sherbets contend the trial court erred in ordering a
partition by sale because Bender was estopped from filing her partition suit without first offering
the Sherbets the right to purchase Bender’s ownership interest in the jointly-owned property.
Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R.
APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.
1 The Honorable Michael J. O’Neill, Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment. BACKGROUND
In November 2003, the Sherbets and Bender purchased a house located at 9329 Creel
Creek Drive, in Dallas, Texas. The Sherbets (husband and wife) owned a 50% interest in the
property, and Bender owned a 50% interest in the property. The Sherbets and Bender lived in
the house until July 2008, when Bender moved out. On September 13, 2008, Mark Sherbet sent
Bender an e-mail stating that he thought it would be best to put their agreement regarding the
house into writing. He attached a document to his e-mail setting out the terms of his proposed
agreement. According to his proposal, the Sherbets would continue to live in the house and
would pay all utility expenses. The Sherbets and Bender would each continue to pay 50% of the
mortgage payment, taxes, and insurance. Any unusual expenses necessary to maintain the value
and resale potential of the property would be shared equally by the Sherbets and Bender. He also
proposed that both parties be given a first right of refusal to purchase the other party’s interest in
the property.
Bender responded to Mark Sherbet’s e-mail the same day, stating that she was willing to
put agreements about the house into writing. In her e-mail, she made several suggestions
regarding reimbursement for past expenditures, payment for expensive repairs in the future, and
the Sherbets’ responsibility for routine repairs and maintenance. Notwithstanding the e-mail
exchange, no agreement was ever signed by the parties.
For the next five years, the Sherbets continued to live in the house, and Bender continued
to pay 50% of the mortgage payments, taxes, and insurance. In November 2012, Bender filed
suit seeking a partition by sale of the jointly-owned property. In response, the Sherbets generally
denied the allegations in Bender’s petition and asserted affirmative defenses of homestead,
waiver, and estoppel. Following a bench trial, the trial court signed a final judgment, finding that
the property was not capable of a division in kind and that Bender was entitled to an order of
–2– partition by sale. The trial court ordered that the property be sold, a receiver be appointed to
determine the market value of the property and to oversee its sale, a credit be given to the
Sherbets for certain expenses incurred, and the net proceeds be divided equally between the
parties. The trial court also entered findings of fact and conclusions of law. This appeal
followed.
PARTITION
STANDARD OF REVIEW
A trial court’s findings of fact after a bench trial have the same force and effect as a jury
verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Naik v. Naik, 438 S.W.3d 166, 172 (Tex. App.—Dallas 2014, no pet.). We review a trial court’s findings of fact
under the same legal and factual sufficiency of the evidence standards used when determining if
sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Compass Bank v. Goodman, 416 S.W.3d 715, 718 (Tex. App.—
Dallas 2013, pet. denied). In a bench trial, the trial court judges the credibility of the witnesses,
determines the weight of testimony, and resolves conflicts and inconsistencies in the testimony.
See Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992,
writ denied). As long as the evidence falls “within the zone of reasonable disagreement,” we
will not substitute our judgment for that of the fact-finder. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We review a trial court’s conclusions of law de novo and will
uphold the conclusions if the judgment can be sustained on any legal theory supported by the
evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Altus
Brands II, LLC v. Alexander, 435 S.W.3d 432, 441 (Tex. App.—Dallas 2014, no pet.).
–3– APPLICABLE LAW
To prevail in a suit for partition, “a plaintiff need only establish that he owns an interest
in the property and has a right to possession of a portion thereof.” Treviño v. Treviño, 64 S.W.3d 166, 171 (Tex. App.—San Antonio 2001, no pet.). The absolute right of a co-tenant to compel a
partition may be modified or limited by an express or implied agreement. Thomas v. McNair,
882 S.W.2d 870, 878 (Tex. App.—Corpus Christi 1994, no writ); Lichtenstein v. Lichtenstein
Bldg. Corp., 442 S.W.2d 765, 769 (Tex. Civ. App.—Corpus Christi 1969, no writ). If the parties
so agreed, the party who sought a partition would be estopped from asserting such a right.
Lichtenstein, 442 S.W.2d at 769 (citing Odstrcil v. McGlaun, 230 S.W.2d 353, 354–55 (Tex.
Civ. App.—Eastland 1950, no writ)). The relinquishment of that right has been characterized as
an estoppel or waiver. See Davis v. Davis, 44 S.W.2d 447, 450 (Tex. Civ. App.—Texarkana
1931, no writ) (holding that an agreement not to partition acts as an estoppel against the right to
partition or as a waiver of such right).
DISCUSSION
During oral argument, appellants’ counsel informed this Court that the Sherbets do not
challenge the trial court’s findings of fact and conclusions of law. And even though appellants’
brief appears to question whether Bender waived her right to file a partition suit without first
offering the Sherbets the right to buy her ownership interest in the property, appellants’ counsel
clarified during oral argument that the Sherbets do not raise a waiver issue on appeal. Instead,
the Sherbets’ sole issue on appeal is whether Bender was estopped from filing a partition suit
without first offering the Sherbets the right to buy her ownership interest in the property.
The Sherbets contend that the trial court failed to address their affirmative defense of
estoppel in its findings of fact and conclusions of law, and ask this Court to reverse and remand
to allow the trial court to consider their estoppel defense. We agree that the trial court’s findings
–4– do not specifically reference estoppel. “If the trial court’s original findings do not include any
findings on a ground of recovery or defense, then the party relying on the ground of recovery or
the defense must request additional findings of fact in proper form or the ground is waived.”
Levine v. Maverick Cty. Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 796 (Tex.
App.—San Antonio 1994, writ denied) (citing Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 907–08 (Tex. App.—Houston [14th Dist.] 1991, writ denied)); see also Briggs Equip. Trust
v. Harris Cty. Appraisal Dist., 294 S.W.3d 667, 674 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). There is nothing in the record indicating the Sherbets asked the trial court to
supplement its findings of fact and conclusions of law to address their estoppel defense. We
conclude the Sherbets failed to preserve this issue for our review.
We also conclude the Sherbets’ estoppel arguments fail on the merits. The trial court
made findings of fact and conclusions of law regarding the Sherbets’ claim that there was an
agreement between the parties not to partition the property. As a co-tenant, Bender had the
absolute right to compel a partition; however, her right could be modified or limited by an
express or implied agreement. See Thomas, 882 S.W.2d at 878; Lichtenstein, 442 S.W.2d at 769.
If the parties agreed not to partition the property, then Bender would be estopped from asserting
her right to partition. Lichtenstein, 442 S.W.2d at 769. In finding of fact number four, the trial
court found “[t]here is no enforceable agreement between the parties not to seek a partition of the
Property.” In conclusion of law number four, the trial court concluded, “[t]here is no enforceable
agreement between the Parties not to partition the Property.” In conclusion of law number five,
the trial court further concluded, “[p]laintiff did not expressly nor impliedly waive her right to
partition the Property.” Because the Sherbets’ estoppel defense depends on a threshold finding
with respect to an agreement between the parties not to partition the property, the trial court’s
–5– findings and conclusions – which the Sherbets do not challenge – negate an estoppel defense
under Lichtenstein. See id.
Nevertheless, the Sherbets rely on a theory of quasi-estoppel and contend they had a “de
facto agreement” with Bender. Quasi-estoppel is a long-standing doctrine applied to preclude
contradictory positions. See Forney 921 Lot Development Partners I, L.P. v. Paul Taylor
Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—Dallas 2011, pet. denied). It precludes a party
from asserting, to another’s disadvantage, a right inconsistent with a position previously taken.
See Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). The doctrine
applies when it would be unconscionable to allow a person to maintain a position inconsistent
with one in which he acquiesced, or from which he accepted a benefit. Id.; Forney, 349 S.W.3d
at 268. “Unlike equitable estoppel, quasi-estoppel does not require a showing of a false
representation or detrimental reliance.” Forney, 349 S.W.3d at 268 (citing Steubner Realty 19,
Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.—Houston [14th Dist.] 1991, no
writ)).
The Sherbets claim that Bender’s conduct in filing suit for partition was “fundamentally
inconsistent with her previous position” and created a “wholly unconscionable” result. The
Sherbets urge that Bender’s previous position was based upon a “de facto agreement” created by
the e-mail exchange between the parties: the Sherbets could live in the house indefinitely and
Bender would continue paying 50% of the mortgage, insurance, and taxes. And because Bender
continued to pay 50% of the mortgage, taxes, and insurance for five years after moving out of the
house, the Sherbets contend this was Bender’s “previous position” or at least a position in which
Bender acquiesced.
We disagree with the Sherbets’ reasoning. Based on our review of the evidence, there
were e-mail discussions about a possible agreement, but there was no evidence of an agreement
–6– with specific terms that was agreed upon by both parties. The fact that Bender continued paying
50% of the mortgage, taxes, and insurance for five years after moving out of the house could be
consistent with the actions of a joint-owner of property who wanted to maintain her investment
and her credit rating. There is no evidence that Bender’s conduct in filing suit for partition was
“fundamentally inconsistent with her previous position.”
We also conclude there is no evidence that Bender’s partition suit caused an
unconscionable result. The Sherbets complain that it is unconscionable that Bender could force
the sale of their house; however, Bender has a 50% ownership interest in the house. The
Sherbets complain that it is unconscionable that a third party might purchase the property and
they might be forced to move out of the house in which they had planned to live for the rest of
their lives. And they complain that it is unconscionable that they have had to incur unnecessary
litigation expenses and attorney’s fees. However, it was the Sherbets’ decision to jointly
purchase the property with Bender. Both co-owners had a statutory right of partition. The
Sherbets have not provided us with any authority to support the idea that a co-owner has a
reasonable expectation of a right of first refusal. And there is no evidence in the record that the
Sherbets tried to buy Bender’s ownership interest in the property. Having their investment
converted into cash is not unconscionable. Following the statutory procedures for partition with
a trial, judgment, and sale is not unconscionable. Receiving their share of the sale proceeds as
ordered in the trial court’s judgment is not unconscionable. Although this may not be the result
the Sherbets wanted, it is not an unconscionable result.
We conclude the Sherbets did not prove their affirmative defense of quasi-estoppel and
Bender was not estopped from filing her suit for partition of the property. The Sherbets’ sole
issue is overruled.
–7– CONCLUSION
Having overruled the Sherbets’ sole issue, we affirm the judgment of the trial court.
/Michael J. O'Neill/ MICHAEL J. O’NEILL JUSTICE, ASSIGNED
141047F.P05
–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARK SHERBET AND D’NELLA On Appeal from the 162nd Judicial District SHERBET, Appellants Court, Dallas County, Texas Trial Court Cause No. DC-12-12935-I. No. 05-14-01047-CV V. Opinion delivered by Justice O’Neill. Justices Bridges and Stoddart participating. RAFAELLA BENDER, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee RAFAELLA BENDER recover her costs of this appeal from appellants MARK SHERBET AND D’NELLA SHERBET.
Judgment entered this 16th day of November, 2015.
–9– | 09-30-2016 | [
"AFFIRM; and Opinion Filed November 16, 2015. Court of Appeals S In The Fifth District of Texas at Dallas No. 05-14-01047-CV MARK SHERBET AND D'NELLA SHERBET, Appellants V. RAFAELLA BENDER, Appellee On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-12935-I MEMORANDUM OPINION Before Justices Bridges, Stoddart, and O’Neill 1 Opinion by Justice O’Neill Appellants Mark and D’Nella Sherbet appeal from the trial court’s judgment in favor of appellee Rafaella Bender in this suit for partition of certain real property jointly owned by the Sherbets and Bender. In one issue, the Sherbets contend the trial court erred in ordering a partition by sale because Bender was estopped from filing her partition suit without first offering the Sherbets the right to purchase Bender’s ownership interest in the jointly-owned property. Because all dispositive issues are settled in law, we issue this memorandum opinion.",
"TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment. 1 The Honorable Michael J. O’Neill, Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment. BACKGROUND In November 2003, the Sherbets and Bender purchased a house located at 9329 Creel Creek Drive, in Dallas, Texas. The Sherbets (husband and wife) owned a 50% interest in the property, and Bender owned a 50% interest in the property. The Sherbets and Bender lived in the house until July 2008, when Bender moved out. On September 13, 2008, Mark Sherbet sent Bender an e-mail stating that he thought it would be best to put their agreement regarding the house into writing. He attached a document to his e-mail setting out the terms of his proposed agreement. According to his proposal, the Sherbets would continue to live in the house and would pay all utility expenses. The Sherbets and Bender would each continue to pay 50% of the mortgage payment, taxes, and insurance. Any unusual expenses necessary to maintain the value and resale potential of the property would be shared equally by the Sherbets and Bender.",
"He also proposed that both parties be given a first right of refusal to purchase the other party’s interest in the property. Bender responded to Mark Sherbet’s e-mail the same day, stating that she was willing to put agreements about the house into writing. In her e-mail, she made several suggestions regarding reimbursement for past expenditures, payment for expensive repairs in the future, and the Sherbets’ responsibility for routine repairs and maintenance. Notwithstanding the e-mail exchange, no agreement was ever signed by the parties. For the next five years, the Sherbets continued to live in the house, and Bender continued to pay 50% of the mortgage payments, taxes, and insurance. In November 2012, Bender filed suit seeking a partition by sale of the jointly-owned property. In response, the Sherbets generally denied the allegations in Bender’s petition and asserted affirmative defenses of homestead, waiver, and estoppel.",
"Following a bench trial, the trial court signed a final judgment, finding that the property was not capable of a division in kind and that Bender was entitled to an order of –2– partition by sale. The trial court ordered that the property be sold, a receiver be appointed to determine the market value of the property and to oversee its sale, a credit be given to the Sherbets for certain expenses incurred, and the net proceeds be divided equally between the parties. The trial court also entered findings of fact and conclusions of law. This appeal followed. PARTITION STANDARD OF REVIEW A trial court’s findings of fact after a bench trial have the same force and effect as a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.",
"1991); Naik v. Naik, 438 S.W.3d 166, 172 (Tex. App.—Dallas 2014, no pet.). We review a trial court’s findings of fact under the same legal and factual sufficiency of the evidence standards used when determining if sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Compass Bank v. Goodman, 416 S.W.3d 715, 718 (Tex. App.— Dallas 2013, pet. denied). In a bench trial, the trial court judges the credibility of the witnesses, determines the weight of testimony, and resolves conflicts and inconsistencies in the testimony. See Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.",
"App.—Houston [1st Dist.] 1992, writ denied). As long as the evidence falls “within the zone of reasonable disagreement,” we will not substitute our judgment for that of the fact-finder. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We review a trial court’s conclusions of law de novo and will uphold the conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Altus Brands II, LLC v. Alexander, 435 S.W.3d 432, 441 (Tex.",
"App.—Dallas 2014, no pet.). –3– APPLICABLE LAW To prevail in a suit for partition, “a plaintiff need only establish that he owns an interest in the property and has a right to possession of a portion thereof.” Treviño v. Treviño, 64 S.W.3d 166, 171 (Tex. App.—San Antonio 2001, no pet.). The absolute right of a co-tenant to compel a partition may be modified or limited by an express or implied agreement. Thomas v. McNair, 882 S.W.2d 870, 878 (Tex.",
"App.—Corpus Christi 1994, no writ); Lichtenstein v. Lichtenstein Bldg. Corp., 442 S.W.2d 765, 769 (Tex. Civ. App.—Corpus Christi 1969, no writ). If the parties so agreed, the party who sought a partition would be estopped from asserting such a right. Lichtenstein, 442 S.W.2d at 769 (citing Odstrcil v. McGlaun, 230 S.W.2d 353, 354–55 (Tex. Civ. App.—Eastland 1950, no writ)). The relinquishment of that right has been characterized as an estoppel or waiver. See Davis v. Davis, 44 S.W.2d 447, 450 (Tex. Civ. App.—Texarkana 1931, no writ) (holding that an agreement not to partition acts as an estoppel against the right to partition or as a waiver of such right). DISCUSSION During oral argument, appellants’ counsel informed this Court that the Sherbets do not challenge the trial court’s findings of fact and conclusions of law.",
"And even though appellants’ brief appears to question whether Bender waived her right to file a partition suit without first offering the Sherbets the right to buy her ownership interest in the property, appellants’ counsel clarified during oral argument that the Sherbets do not raise a waiver issue on appeal. Instead, the Sherbets’ sole issue on appeal is whether Bender was estopped from filing a partition suit without first offering the Sherbets the right to buy her ownership interest in the property.",
"The Sherbets contend that the trial court failed to address their affirmative defense of estoppel in its findings of fact and conclusions of law, and ask this Court to reverse and remand to allow the trial court to consider their estoppel defense. We agree that the trial court’s findings –4– do not specifically reference estoppel. “If the trial court’s original findings do not include any findings on a ground of recovery or defense, then the party relying on the ground of recovery or the defense must request additional findings of fact in proper form or the ground is waived.” Levine v. Maverick Cty.",
"Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 796 (Tex. App.—San Antonio 1994, writ denied) (citing Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 907–08 (Tex. App.—Houston [14th Dist.] 1991, writ denied)); see also Briggs Equip. Trust v. Harris Cty. Appraisal Dist., 294 S.W.3d 667, 674 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). There is nothing in the record indicating the Sherbets asked the trial court to supplement its findings of fact and conclusions of law to address their estoppel defense. We conclude the Sherbets failed to preserve this issue for our review.",
"We also conclude the Sherbets’ estoppel arguments fail on the merits. The trial court made findings of fact and conclusions of law regarding the Sherbets’ claim that there was an agreement between the parties not to partition the property. As a co-tenant, Bender had the absolute right to compel a partition; however, her right could be modified or limited by an express or implied agreement. See Thomas, 882 S.W.2d at 878; Lichtenstein, 442 S.W.2d at 769. If the parties agreed not to partition the property, then Bender would be estopped from asserting her right to partition. Lichtenstein, 442 S.W.2d at 769. In finding of fact number four, the trial court found “[t]here is no enforceable agreement between the parties not to seek a partition of the Property.” In conclusion of law number four, the trial court concluded, “[t]here is no enforceable agreement between the Parties not to partition the Property.” In conclusion of law number five, the trial court further concluded, “[p]laintiff did not expressly nor impliedly waive her right to partition the Property.” Because the Sherbets’ estoppel defense depends on a threshold finding with respect to an agreement between the parties not to partition the property, the trial court’s –5– findings and conclusions – which the Sherbets do not challenge – negate an estoppel defense under Lichtenstein.",
"See id. Nevertheless, the Sherbets rely on a theory of quasi-estoppel and contend they had a “de facto agreement” with Bender. Quasi-estoppel is a long-standing doctrine applied to preclude contradictory positions. See Forney 921 Lot Development Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—Dallas 2011, pet. denied). It precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken. See Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced, or from which he accepted a benefit. Id. ; Forney, 349 S.W.3d at 268. “Unlike equitable estoppel, quasi-estoppel does not require a showing of a false representation or detrimental reliance.” Forney, 349 S.W.3d at 268 (citing Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.—Houston [14th Dist.]",
"1991, no writ)). The Sherbets claim that Bender’s conduct in filing suit for partition was “fundamentally inconsistent with her previous position” and created a “wholly unconscionable” result. The Sherbets urge that Bender’s previous position was based upon a “de facto agreement” created by the e-mail exchange between the parties: the Sherbets could live in the house indefinitely and Bender would continue paying 50% of the mortgage, insurance, and taxes. And because Bender continued to pay 50% of the mortgage, taxes, and insurance for five years after moving out of the house, the Sherbets contend this was Bender’s “previous position” or at least a position in which Bender acquiesced. We disagree with the Sherbets’ reasoning. Based on our review of the evidence, there were e-mail discussions about a possible agreement, but there was no evidence of an agreement –6– with specific terms that was agreed upon by both parties. The fact that Bender continued paying 50% of the mortgage, taxes, and insurance for five years after moving out of the house could be consistent with the actions of a joint-owner of property who wanted to maintain her investment and her credit rating. There is no evidence that Bender’s conduct in filing suit for partition was “fundamentally inconsistent with her previous position.” We also conclude there is no evidence that Bender’s partition suit caused an unconscionable result. The Sherbets complain that it is unconscionable that Bender could force the sale of their house; however, Bender has a 50% ownership interest in the house. The Sherbets complain that it is unconscionable that a third party might purchase the property and they might be forced to move out of the house in which they had planned to live for the rest of their lives.",
"And they complain that it is unconscionable that they have had to incur unnecessary litigation expenses and attorney’s fees. However, it was the Sherbets’ decision to jointly purchase the property with Bender. Both co-owners had a statutory right of partition. The Sherbets have not provided us with any authority to support the idea that a co-owner has a reasonable expectation of a right of first refusal. And there is no evidence in the record that the Sherbets tried to buy Bender’s ownership interest in the property. Having their investment converted into cash is not unconscionable. Following the statutory procedures for partition with a trial, judgment, and sale is not unconscionable.",
"Receiving their share of the sale proceeds as ordered in the trial court’s judgment is not unconscionable. Although this may not be the result the Sherbets wanted, it is not an unconscionable result. We conclude the Sherbets did not prove their affirmative defense of quasi-estoppel and Bender was not estopped from filing her suit for partition of the property. The Sherbets’ sole issue is overruled. –7– CONCLUSION Having overruled the Sherbets’ sole issue, we affirm the judgment of the trial court. /Michael J. O'Neill/ MICHAEL J. O’NEILL JUSTICE, ASSIGNED 141047F.P05 –8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT MARK SHERBET AND D’NELLA On Appeal from the 162nd Judicial District SHERBET, Appellants Court, Dallas County, Texas Trial Court Cause No. DC-12-12935-I.",
"No. 05-14-01047-CV V. Opinion delivered by Justice O’Neill. Justices Bridges and Stoddart participating. RAFAELLA BENDER, Appellee In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee RAFAELLA BENDER recover her costs of this appeal from appellants MARK SHERBET AND D’NELLA SHERBET. Judgment entered this 16th day of November, 2015. –9–"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4075413/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Argued April 8, 1946. This is a bill in equity by Walter Erkess, appellee, to compel George Eisenthal and Miriam Eisenthal, his wife, appellants, to specifically perform a written contract for the sale of real estate. The chancellor granted the relief prayed for. This appeal is from the refusal of the court below to sustain exceptions to his findings and to the decree nisi. George Eisenthal and Miriam Eisenthal, appellants, by an agreement dated August 10, 1944, agreed to convey certain described premises to Walter Erkess, appellee, for $4,500. The contract provided, inter alia, for settlement within ninety (90) days from date — "time to be of the essence of this agreement", and possession to be given "at the date of settlement." Settlement was never had and appellants remained in possession. Appellee thereupon filed this bill for specific performance. At the hearing one Arthur L. Berns, appellee's agent, testified that a month after the contract was executed, Mrs. Eisenthal, wife-appellant, inquired of him whether the of ninety days. She was informed that the purchaser purchaser could make settlement in thirty days instead *Page 163 was ready, willing, and able to make settlement at any time thereafter. Settlement was not made earlier as Mrs. Eisenthal originally planned. Not having heard from appellants, Berns wrote two letters, one dated October 12, the other October 28, 1944, asking appellants to fix a date for settlement. No reply was received to these letters, and on November 1, 1944, Mrs. Eisenthal again contacted the agent. His version of the conversation that ensued was that she ". . . told me that she was not going to make settlement. I asked her why and she said, 'Well, because I cannot make settlement. I don't have any place to go to and I am not going to make settlement.' " Mrs. Eisenthal denies this repudiation. Regarding this dispute of fact, the court below said: "We have no hesitation in relying on Berns' account. He was in our opinion sincere in his intention to carry out the contract as written. His conduct was consistent with that purpose . . . He got the old deed, applied for title insurance, secured the needed mortgage . . ." On November 10, 1944, the agent wrote to appellants expressing appellee's readiness to make settlement on that date, and on November 13, 1944, counsel for appellants notified appellee of appellants' intention to rescind the contract for non-performance within the ninety days, and enclosed a check for $200 in repayment of the earnest money. The facts as stated were found by the chancellor, approved by the court en banc, and, being supported by competent evidence, are accepted here as binding: Hagdorn v. Faust, 348 Pa. 261, 35 A.2d 75. Appellants contend that appellee has failed to establish a right to specific performance because (1) no tender or offer thereof of the purchase money has been proven; (2) there was no mutuality of remedy under the contract; and, (3) appellee himself did not appear at the place for settlement on the date specified in the contract. These contentions are without merit. They completely ignore or disregard specific and amply supported facts found by the court below. *Page 164 The court below, upon ample evidence, found as a fact that appellants had repudiated their agreement and had declared their intention not to convey. Under such circumstances the law will not require a person to do a vain and useless act. What this Court said in Sidle v. Kaufman, 345 Pa. 549, 554,29 A.2d 80, is peculiarly applicable here: ". . . the vendee is relieved of all necessity of making a tender as a condition of specific performance, on the ground that the law does not require the doing of a vain and utterly useless act, and hence whether an adequate tender was made by Sidle, or no tender at all, is of no consequence in the disposition of this case. Having expressly declared the contract null and void prior to settlement day, and in the meantime having done no act recognizing its validity, the Kaufmans are not now in position to assert that a full and complete tender was not made: Penna. Mining Co. v. Smith, 207 Pa. 210, 211-12; Shrut v. Huselton,272 Pa. 113, 116; Martin v. Cybulski, 282 Pa. 297, 299; Driebe v. Fort Penn Realty Co., 331 Pa. 314, 320." The assertion that there is no mutuality of remedy is without foundation. Mutuality of obligation is one thing; mutuality of remedy another. The parties became mutually obligated to each other and each had a remedy. Cf. Driebe v. Fort Penn RealtyCo., supra. Appellee's failure to make settlement on the exact day is without material significance in the instant case. A person insisting upon the exact time of performance, within time specified, but who has himself been the cause of delay cannot, for that reason, object to specific performance. In Unatin 7-UpCompany, Inc., v. Solomon, 350 Pa. 632, 636, 39 A.2d 835, 837, the Court said: "Where a party who insists upon exact time has himself been the cause of delay, specific performance will be decreed: Vankirk v. Patterson, 201 Pa. 90, 95, 50 A. 966, 967; Loughney v. Quigley, 279 Pa. 396, 401, 124 A. 84, 86; Brown v. Hill, 280 Pa. 1, 4, 124 A. 184, 185; Paralka v. Grummel,282 Pa. 235, 238, 127 A. 619, 620. In discussing *Page 165 the efforts of an optionee to accept the option and make a tender of the purchase money within the time limited in the option this Court said in Schaeffer, to use, v. Coldren,237 Pa. 77, 84, 85 A. 98, 99: " 'He did everything that could be reasonably expected of him in serving notice of his election to exercise the option, and in making tender of the purchase money . . . It has been frequently held that acts insufficient in themselves to make a complete tender, may operate as proof of readiness to perform, so as to protect the rights of a party under a contract, where a proper tender is made impossible by reason of circumstances not due to the fault of the tenderer.' " Decree affirmed at appellants' costs. | 07-06-2016 | [
"Argued April 8, 1946. This is a bill in equity by Walter Erkess, appellee, to compel George Eisenthal and Miriam Eisenthal, his wife, appellants, to specifically perform a written contract for the sale of real estate. The chancellor granted the relief prayed for. This appeal is from the refusal of the court below to sustain exceptions to his findings and to the decree nisi. George Eisenthal and Miriam Eisenthal, appellants, by an agreement dated August 10, 1944, agreed to convey certain described premises to Walter Erkess, appellee, for $4,500. The contract provided, inter alia, for settlement within ninety (90) days from date — \"time to be of the essence of this agreement\", and possession to be given \"at the date of settlement.\" Settlement was never had and appellants remained in possession. Appellee thereupon filed this bill for specific performance.",
"At the hearing one Arthur L. Berns, appellee's agent, testified that a month after the contract was executed, Mrs. Eisenthal, wife-appellant, inquired of him whether the of ninety days. She was informed that the purchaser purchaser could make settlement in thirty days instead *Page 163 was ready, willing, and able to make settlement at any time thereafter. Settlement was not made earlier as Mrs. Eisenthal originally planned. Not having heard from appellants, Berns wrote two letters, one dated October 12, the other October 28, 1944, asking appellants to fix a date for settlement. No reply was received to these letters, and on November 1, 1944, Mrs. Eisenthal again contacted the agent. His version of the conversation that ensued was that she \". . . told me that she was not going to make settlement.",
"I asked her why and she said, 'Well, because I cannot make settlement. I don't have any place to go to and I am not going to make settlement.' \" Mrs. Eisenthal denies this repudiation. Regarding this dispute of fact, the court below said: \"We have no hesitation in relying on Berns' account. He was in our opinion sincere in his intention to carry out the contract as written. His conduct was consistent with that purpose . . . He got the old deed, applied for title insurance, secured the needed mortgage . . .\" On November 10, 1944, the agent wrote to appellants expressing appellee's readiness to make settlement on that date, and on November 13, 1944, counsel for appellants notified appellee of appellants' intention to rescind the contract for non-performance within the ninety days, and enclosed a check for $200 in repayment of the earnest money. The facts as stated were found by the chancellor, approved by the court en banc, and, being supported by competent evidence, are accepted here as binding: Hagdorn v. Faust, 348 Pa. 261, 35 A.2d 75.",
"Appellants contend that appellee has failed to establish a right to specific performance because (1) no tender or offer thereof of the purchase money has been proven; (2) there was no mutuality of remedy under the contract; and, (3) appellee himself did not appear at the place for settlement on the date specified in the contract. These contentions are without merit. They completely ignore or disregard specific and amply supported facts found by the court below. *Page 164 The court below, upon ample evidence, found as a fact that appellants had repudiated their agreement and had declared their intention not to convey. Under such circumstances the law will not require a person to do a vain and useless act. What this Court said in Sidle v. Kaufman, 345 Pa. 549, 554,29 A.2d 80, is peculiarly applicable here: \". .",
". the vendee is relieved of all necessity of making a tender as a condition of specific performance, on the ground that the law does not require the doing of a vain and utterly useless act, and hence whether an adequate tender was made by Sidle, or no tender at all, is of no consequence in the disposition of this case. Having expressly declared the contract null and void prior to settlement day, and in the meantime having done no act recognizing its validity, the Kaufmans are not now in position to assert that a full and complete tender was not made: Penna. Mining Co. v. Smith, 207 Pa. 210, 211-12; Shrut v. Huselton,272 Pa. 113, 116; Martin v. Cybulski, 282 Pa. 297, 299; Driebe v. Fort Penn Realty Co., 331 Pa. 314, 320.\" The assertion that there is no mutuality of remedy is without foundation. Mutuality of obligation is one thing; mutuality of remedy another.",
"The parties became mutually obligated to each other and each had a remedy. Cf. Driebe v. Fort Penn RealtyCo., supra. Appellee's failure to make settlement on the exact day is without material significance in the instant case. A person insisting upon the exact time of performance, within time specified, but who has himself been the cause of delay cannot, for that reason, object to specific performance. In Unatin 7-UpCompany, Inc., v. Solomon, 350 Pa. 632, 636, 39 A.2d 835, 837, the Court said: \"Where a party who insists upon exact time has himself been the cause of delay, specific performance will be decreed: Vankirk v. Patterson, 201 Pa. 90, 95, 50 A. 966, 967; Loughney v. Quigley, 279 Pa. 396, 401, 124 A. 84, 86; Brown v. Hill, 280 Pa. 1, 4, 124 A. 184, 185; Paralka v. Grummel,282 Pa. 235, 238, 127 A. 619, 620.",
"In discussing *Page 165 the efforts of an optionee to accept the option and make a tender of the purchase money within the time limited in the option this Court said in Schaeffer, to use, v. Coldren,237 Pa. 77, 84, 85 A. 98, 99: \" 'He did everything that could be reasonably expected of him in serving notice of his election to exercise the option, and in making tender of the purchase money . . . It has been frequently held that acts insufficient in themselves to make a complete tender, may operate as proof of readiness to perform, so as to protect the rights of a party under a contract, where a proper tender is made impossible by reason of circumstances not due to the fault of the tenderer.' \" Decree affirmed at appellants' costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3845243/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
LOY ROBERT BOST III, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, RespondentBost v. CommissionerNo. 8259-99United States Tax CourtT.C. Memo 2000-4; 2000 Tax Ct. Memo LEXIS 6; 79 T.C.M. 1286; January 6, 2000, Filed 2000 Tax Ct. Memo LEXIS 6">*6 An appropriate order and decision will be entered. Loy Robert Bost III, pro se.Steven M. Webster, for respondent. Powell, Carleton D.POWELLMEMORANDUM OPINIONPOWELL, SPECIAL TRIAL JUDGE: Respondent determined a deficiency in petitioner's 1996 Federal income tax in the amount of $ 4,434.The issue 2000 Tax Ct. Memo LEXIS 6">*7 is whether wages and a pension distribution are taxable under section 61. 1 Petitioner resided in Hickory, North Carolina, at the time the petition was filed.Respondent determined that petitioner received wages of $ 31,808 and a pension distribution of $ 1,270 from a so-called section 401(k) retirement account during 1996, and petitioner has stipulated these facts. Petitioner raises two arguments. First, he contends that this Court does not have jurisdiction to resolve the matter. We have frequently stated that the predicates to our jurisdiction are that a valid notice of deficiency is mailed to the taxpayer at his last known address and a timely petition is filed in this Court. See secs. 6612, 6213, Rule 13; see also Monge v. Commissioner, 93 T.C. 22">93 T.C. 22, 93 T.C. 22">27 (1989); Pyo v. Commissioner, 83 T.C. 626">83 T.C. 626, 83 T.C. 626">632 (1984).2000 Tax Ct. Memo LEXIS 6">*8 That jurisdiction is in personam. See Freytag v. Commissioner, 110 T.C. 35">110 T.C. 35, 110 T.C. 35">39 (1998). In this case a valid notice of deficiency was mailed to petitioner at his last known address, and petitioner timely filed a petition in this Court. This Court, therefore, has jurisdiction.Petitioner's second argument is that wages or compensation for labor and the pension distribution are not taxable income. This argument is frivolous. See secs. 61, 72, 402(a); see also Rowlee v. Commissioner, 80 T.C. 1111">80 T.C. 1111, 80 T.C. 1111">1119-1122 (1983).Respondent asks that a penalty be imposed under section 6673. That section provides, inter alia, that if it appears to this Court that "the taxpayer's position * * * is frivolous or groundless", the Court may impose a penalty in an amount not in excess of $ 25,000. Sec. 6673(a). This Court cautioned petitioner at the calendar call and at the trial that the positions he espoused were frivolous and warned him of the provisions of section 6673. Petitioner did not heed these warnings. We therefore award a penalty to the United States against petitioner in the2000 Tax Ct. Memo LEXIS 6">*9 amount of $ 1,500.An appropriate order and decision will be entered. Footnotes1. Section references are to the Internal Revenue Code in effect for the year in issue, and Rule references are to the Tax Court Rules of Practice and Procedure.↩ | 11-14-2018 | [
"LOY ROBERT BOST III, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, RespondentBost v. CommissionerNo. 8259-99United States Tax CourtT.C. Memo 2000-4; 2000 Tax Ct. Memo LEXIS 6; 79 T.C.M. 1286; January 6, 2000, Filed 2000 Tax Ct. Memo LEXIS 6\">*6 An appropriate order and decision will be entered. Loy Robert Bost III, pro se.Steven M. Webster, for respondent. Powell, Carleton D.POWELLMEMORANDUM OPINIONPOWELL, SPECIAL TRIAL JUDGE: Respondent determined a deficiency in petitioner's 1996 Federal income tax in the amount of $ 4,434.The issue 2000 Tax Ct. Memo LEXIS 6\">*7 is whether wages and a pension distribution are taxable under section 61. 1 Petitioner resided in Hickory, North Carolina, at the time the petition was filed.Respondent determined that petitioner received wages of $ 31,808 and a pension distribution of $ 1,270 from a so-called section 401(k) retirement account during 1996, and petitioner has stipulated these facts. Petitioner raises two arguments. First, he contends that this Court does not have jurisdiction to resolve the matter. We have frequently stated that the predicates to our jurisdiction are that a valid notice of deficiency is mailed to the taxpayer at his last known address and a timely petition is filed in this Court.",
"See secs. 6612, 6213, Rule 13; see also Monge v. Commissioner, 93 T.C. 22\">93 T.C. 22, 93 T.C. 22\">27 (1989); Pyo v. Commissioner, 83 T.C. 626\">83 T.C. 626, 83 T.C. 626\">632 (1984).2000 Tax Ct. Memo LEXIS 6\">*8 That jurisdiction is in personam. See Freytag v. Commissioner, 110 T.C. 35\">110 T.C. 35, 110 T.C. 35\">39 (1998). In this case a valid notice of deficiency was mailed to petitioner at his last known address, and petitioner timely filed a petition in this Court. This Court, therefore, has jurisdiction.Petitioner's second argument is that wages or compensation for labor and the pension distribution are not taxable income. This argument is frivolous.",
"See secs. 61, 72, 402(a); see also Rowlee v. Commissioner, 80 T.C. 1111\">80 T.C. 1111, 80 T.C. 1111\">1119-1122 (1983).Respondent asks that a penalty be imposed under section 6673. That section provides, inter alia, that if it appears to this Court that \"the taxpayer's position * * * is frivolous or groundless\", the Court may impose a penalty in an amount not in excess of $ 25,000. Sec. 6673(a). This Court cautioned petitioner at the calendar call and at the trial that the positions he espoused were frivolous and warned him of the provisions of section 6673. Petitioner did not heed these warnings. We therefore award a penalty to the United States against petitioner in the2000 Tax Ct. Memo LEXIS 6\">*9 amount of $ 1,500.An appropriate order and decision will be entered. Footnotes1.",
"Section references are to the Internal Revenue Code in effect for the year in issue, and Rule references are to the Tax Court Rules of Practice and Procedure.↩"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4332585/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION
MARGOLIS, Senior Judge. Plaintiffs brought this action against the United States contending that they had an enforceable contract with the Government to treat plaintiffs’ supervisory goodwill, which was created as a result of an acquisition of a failed thrift, as regulatory capital. As regulatory capital, the plaintiffs were permitted to amortize the goodwill over a forty-year period. Plaintiffs claim that, in enacting of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Congress breached that contract by eliminating plaintiffs’ ability to count goodwill as regulatory capital. See generally, United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996). This case is before the Court on defendant’s motion for summary judgment and plaintiffs’ cross-motion for summary judgment on defendant’s counterclaims and affirmative defenses pursuant to United States Court of Federal Claims (“RCFC”) Rule 56. Plaintiffs’ complaint states that the Government breached its contractual obligations with plaintiffs, and plaintiffs now seek compensation of $625 million in amortized goodwill regulatory capital. The Government’s summary judgment motion counterclaims that: (1) plaintiffs’ claims are forfeited under a special plea in fraud pursuant to 28 U.S.C. § 2514; (2) common law fraud renders the contract unenforceable; (3) the contract should be rescinded and $122 million repaid to the Government; and (4) plaintiffs’ prior material breach precludes damages. This Court, pursuant to RCFC 56(g), granted additional discovery, and both parties submitted additional briefing. After oral argument, and for the reasons discussed herein, the Government’s motion is denied, and plaintiffs’ motion is granted.
FACTS
A. The Long Island Savings Bank and the Government’s Assistance Agreement In 1982, the Long Island Savings Bank (“LISB”) was converted from a New York-chartered mutual savings bank into a federally chartered savings bank whose deposit accounts are insured by the Federal Deposit Insurance Corporation (“FDIC”).1 LISB was created as a result of the 1983 merger *610between the Long Island Savings Bank of Centereach, FSB (“Centereach”), and the Long Island Savings Bank of Syosset, FSB (“Syosset”), both of which James J. Conway, Jr. served as Chairman and Chief Executive Officer (“CEO”). In 1983, after negotiations, the Federal Savings and Loan Insurance Corporation (“FSLIC”) transferred Suffolk County Phoenix, a failing thrift franchise, to LISB, quadrupling LISB’s branch network and tripling its assets to approximately $3 billion. On August 17, 1983, the FSLIC and LISB entered into an Assistance Agreement that contained restrictions pertaining to the thrift’s officers and directors, and federal guidelines and regulations governing the business aspects of the new thrift. Under the terms of the Assistance Agreement, LISB paid nothing for the franchise, but contributed $100,000 into the franchise’s controlling subsidiary, Centereach. FSLIC also infused a total of $122 million into Centereach. From December 1982 until May 1992, Conway served as Board of Trustees Chairman and CEO of LISB. B. Conway’s Law Firm and his Compensation Scheme From September 1975 until his retirement in June 1992, Conway was a partner and stockholder of Conway & Ryan PC (“the firm”).2 In 1982, Conway stopped practicing law and engaging in other professional services for the law firm. From September 1975 until December 1984, Conway owned 65% of his law firm’s outstanding stock. In December 1984, Conway transferred 51% of the firm’s stock to his daughter, Susan C. Petrelli. Petrelli became a salaried officer and director of the firm, serving until December 1990. She did not pay her father for the stock, but rather paid the firm $51,000. Conway’s daughter-in-law, Denise Whalen, was also a salaried officer and director of the firm, serving from January 1987 until December 1990. From December 1984 until January 1990, Conway’s ownership interest was 9%; however, he continued to exercise control over 60% of the firm’s stock. Conway retired from the firm in June 1992. From 1982 to 1991, Conway caused LISB to utilize the firm as LISB’s sole mortgage loan closing counsel, and he ensured that the firm had the exclusive right to represent LISB in connection with all mortgage closings without action from the Board of Directors. During this period, the firm collected approximately $20 million in fees from over 25,000 residential mortgage loan closings, which represented 80% to 90% of the firm’s income. LISB did not pay the loan closing fees, rather the borrowers did. Of this amount, 60% — or approximately $11.3 million — was paid to Conway and his family members who worked for the firm. Conway received payments and benefits from the those fees both directly from his law firm and through his daughter or daughter-in-law. Conway did not provide professional services to the firm between 1983 and 1990, but he received an annual salary and compensation from the firm during that time period. Conway did not disclose to LISB that he was being compensated by the firm from income that the firm received for providing services to LISB. When asked by LISB whether LISB had to disclose compensation received by Conway from his firm in an Annual Report statement,3 Conway indicated that he received less than $500,000 annually from the firm, thereby exempting LISB from disclosure. In 1986 and 1988, the FHLBB questioned LISB regarding LISB personnel that had a direct or indirect business interest with LISB and the nature, type, and volume of those business interests. At each of those times, Conway described his relationship as retaining “an interest in a law firm that presently renders service to [LISB] and receives remuneration from outside income of said firm.” In 1990, LISB’s outside counsel discovered Conway’s compensation from the firm. Conway would not disclose to LISB information regarding his financial arrangements with *611the firm. He did indicate to LISB’s counsel, however, that his compensation from the firm was part of a ten-year payout arrangement. No such arrangement actually existed. Conway attempted to enjoin LISB’s outside counsel from disclosing the financial information that they had on the grounds that attorney-client privilege prohibited disclosure. In 1990, the New York trial court found that Conway made false statements about his financial arrangement with the firm to LISB’s counsel and issued a gag-order regarding Conway’s finances pending appeal. On March 22,1993, the Appellate Division of the New York Supreme Court affirmed the trial court’s decision. LISB incurred approximately $1 million in legal expenses as a result of this and related litigation. In August 2000, the Appellate Division of the Supreme Court of the State of New York, upheld the disbarment of Conway. The court determined that “while chairman of the board and chief executive officer of a savings bank, [Conway] engaged in a scheme of illegal kickbacks, using his daughter and daughter-in-law as conduits to circumvent Federal law prohibiting him from receiving compensation from his former law firm, which relied on the bank for approximately 90% of its business.” C. Office of Thrift Supervision Investigation In March 1993, the Office of Thrift Supervision commenced an investigation into Conway’s compensation scheme with the firm. In September 1993, OTS and Conway initiated settlement discussions whereby Conway agreed to pay LISB $1.3 million in restitution per issuance of a consent prohibition and cease-and-desist order, signed February 1994. The consent order banned Conway from the thrift and banking industry. In 1998, Conway pled guilty to violating 18 U.S.C. § 215.4
DISCUSSION
In the absence of genuine issues of material fact, this Court may award summary judgment to a party according to the law. RCFC 56(c). In reaching summary judgment, the trial court must construe facts and resolve inferences in the light most favorable to the non-movant. Godley v. United States, 5 F.3d 1473, 1474 (Fed.Cir.1993) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). The Government contends that the plaintiffs’ claims are forfeited in two different, but related, ways. Both deal with alleged fraudulent misrepresentations made by LISB. The Government cites a conflict-of-interest between Conway’s relationship with his law firm and his relationship with LISB. Conway allegedly used his position as Chairman and CEO of LISB to make his law firm LISB’s exclusive mortgage loan closing counsel and was compensated by his firm for this referral. The Government maintains that it did not know of the relationship when it entered into the Assistance Agreement with LISB and, had it known about the arrangement, it would not have entered into the Agreement. The arrangement between Conway, his law firm, and LISB provides the Government with two possible defenses to the plaintiffs’ claim. First, the Government asserts that the arrangement violated express conditions of the Agreement and that those violations served to forfeit any claims by the plaintiffs based on a Government breach of the Agreement. Second, it contends that, even if the arrangement were not a violation of the Agreement, the plaintiffs would not be able to collect upon the Agreement because the misrepresentation of the arrangement between the entities constituted fraud against the Government. Where fraud is committed against the Government, 28 U.S.C. § 2514 mandates that the claim shall be forfeited. The essence of this case is whether Conway’s improper relationship with the firm tainted the relationship LISB had with the firm. The Government contends that because Conway was both a partner in the law firm and the CEO and Chairman of LISB, *612his actions, and thus this arrangement, should be imputed to LISB. Plaintiffs argue that this Court must distinguish between Conway placing himself personally in a conflicting relationship and his role in entering into the Assistance Agreement on behalf of LISB. This Court is being asked to determine whether a distinction between Conway and LISB exists. The Court will first examine whether the arrangement was a direct violation of the Assistance Agreement, then it will look at whether it constituted fraud against the Government, and, finally, it will address the issue of whether Conway’s conduct in this arrangement should be imputed to LISB. I. LISB’s Representations Under the Assistance Agreement The Government contends that LISB violated the Assistance Agreement in several ways and that those violations rendered the contract void, thereby causing the plaintiffs to be forced to forfeit any claims based on a Government breach of the Agreement. Sections 11(b)(5) and 8(h) of the Assistance Agreement include an express warranty by LISB that LISB was not in violation of any applicable statutes or regulations at the time of entering into the Agreement and a promise that LISB would remain in compliance with such statutes and regulations. The Government argues that LISB disregarded those provisions by acting in violation of the Real Estate Settlement Procedures Act (“RESPA”) of 1974, § 8, as amended, 12 U.S.C. § 2607, and of 12 C.F.R. §§ 563.40 and 563.17 (1983). Plaintiffs asserts that LISB complied with all applicable statutes and regulations and, therefore, was not in violation of the Assistance Agreement at any time. This Court will examine whether the arrangement between Conway, his law firm, and LISB caused LISB to be in violation of the Agreement. A. Sections 11(b)(5) and 8(h) of the Assistance Agreement In the Assistance Agreement, LISB expressly warrants both that it was not violating any statutes or regulations at the time that it entered into the Agreement and that it would continue to comply with such rules. Section 11(b)(5) of the Agreement states that LISB represents and warrants that: ... LISB is not in violation of any applicable statutes, regulations or orders of, or any restrictions imposed by, the United States of.America or any state, municipality or other political subdivision or any agency of the foregoing public units, regarding the conduct of its business and the ownership of its properties, including without limitation, all applicable statutes, regulations, orders and restrictions relating to savings and loan associations, equal employment opportunities, employment retirement income security, and environmental standards and controls where such violation would materially and adversely affect LISB’s business, operations or condition, financial or otherwise. Assistance Agreement § 11(b) (emphasis added). ^ Section 8(h) mandates that LISB will continue to be in accord with the applicable statutes and regulations: CENTEREACH and LISB will, and will cause any Service Corporation of CENTEREACH or LISB to, comply in all material respects with all applicable statutes, regulations and orders of, and all restrictions imposed by, the United States of America and any state municipality or other political subdivision or any agency of the foregoing public units, in respect of the ownership of its properties and conduct of its business, including, without limitation, all applicable statutes, regulations, orders and restrictions relating to equal employment opportunities, employment retirement income security and environmental standards and controls; provided, however, that nothing contained in this § 8(h) shall require CENTEREACH or LISB or any Service Corporation of CENTER-EACH or LISB to comply with any'law so long as the validity or applicability of such law shall be contested in good faith. Assistance Agreement § 8(h) (emphasis added). The Government contends that Conway’s dual relationship caused LISB to violate *613RESPA and 12 C.F.R. §§ 563.40 and 563.17. By doing so, the Government argues that LISB acted in violation of sections 8(h) and 11(b)(5) of the Agreement, thereby causing a breach that had the effect of absolving the Government of its responsibility to perform under the Agreement. B. Prohibitions Under RESPA, 12 U.S.C. § 2607 and 12 C.F.R. § 563.40 The Government argues that Conway’s compensation scheme violated RESPA, 12 U.S.C. § 2607 and 12 C.F.R. § 563.40, thereby causing LISB to violate Sections 11(b)(5) and 8(h) of the Agreement. RESPA §§ 2601 et seg., forbids the payment of a kickback for referring to the payor an opportunity to provide a real estate settlement service for a federally related mortgage loan. RE SPA § 2607 states: (a) Business referrals — No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person. (b) Splitting charges — No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed. (c) Fees, salaries, compensation, or other payments — Nothing in this section shall be construed as prohibiting (1) the payment of a fee (A) to attorneys at law for services actually rendered____ Similarly, 12 C.F.R. § 563.40, which incorporates the applicable provisions of RE SPA, states: (a) Loan procurement fees — No affiliated person of an insured institution may receive, either directly or indirectly, from such institution, any subsidiary thereof, or any other source any fee or other compensation of any kind in connection with the procurement of any loan from such institution or subsidiary thereof. (b) Kickbacks and unearned fees — The prohibitions contained in sections 8(a) and 8(b) of the Real Estate Settlement Procedures Act of 1974 (Pub.L.93-533) shall apply to any fee, kickback, thing of value, and any portion, split or percentage of any charge, either directly or indirectly, given to or accepted by an insured institution or subsidiary or affiliated person thereof, in connection with any loampn real property made by an insured institution or subsidiary thereof, without regard to whether the loan is within the term “federally related mortgage loan,” as defined in section 3(1) of the Act. A primary purpose of RE SPA is to eliminate improper relationships that unnecessarily increase the cost of settlement services. RESPA § 2601(b)(2). There are a multitude of relationships in the banking industry that provide for legitimate compensation for services rendered; others are entered into for the purpose of eliciting kickbacks. See e.g., Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1162 (7th Cir.1997) (disparity in compensation arrangement supported inference of kickback); DeLeon v. Beneficial Const. Co., 998 F.Supp. 859, 864 (1998) (receipt of fee without providing broker services sufficient to constitute a kickback); see also Weil v. Long Island Sav. Bank, 77 F.Supp.2d 313, 328 (1999) (Conway’s acceptance and his firm’s payment of fees paid by mortgage loan borrowers violated RESPA). C. Legal Distinctions of LISB’s Relationships Conway and his firm’s impropriety under banking laws is evident. See Weil v. Long Island Sav. Bank, 77 F.Supp.2d at 328. However, the issue that underlies the Government’s defense to the action brought by LISB is whether the law prohibited LISB’s relationship with Conway and the firm. Helpful in this determination are the analogous comments and fact examples found in the RE SPA provisions that deal with the Housing and Urban Development (“HUD”), which are essentially identical to those adopted in the banking regulations. Com*614pare 24 C.F.R. § 3500 (1983), with 12 C.F.R. § 563.40 (1983). The regulations that have been adopted by HUD which are associated with those RES-PA provisions provide guidance in the application of the law to specific factual circumstances, and provide examples of how the provisions would apply to different factual situations. This Court, as an initial matter, will analyze the facts in this case by comparison to those situations envisioned in the regulations: Conway, a partner in the law firm, directed LISB borrowers to the law firm that provided those borrowers with mortgage closing services. The firm paid its attorneys and partners, including Conway, based on the firm’s revenue from the fees charged to the borrowers. This is an analogous arrangement to one described in the regulation. See 24 C.F.R. § 3500, App. B (Fact 10). Under the HUD regulations, while a payment to Conway from the firm would violate the regulation, the relationship between LISB and the firm would not. See id. (Comment 10). Thus, under RESPA § 2607 and 12 C.F.R. § 563.40, a legal distinction would be made between LISB and Conway. Further, the facts indicate that the firm did not kickback money to LISB, rather the firm paid Conway from profits made from the borrowers. Indeed, had Conway not accepted compensation related to mortgage closing services of LISB’s borrowers, but the relationship between LISB and the firm was otherwise the same, no impropriety would exist. It was not LISB’s relationship with the firm that was improper. LISB was not violating RESPA or 12 C.F.R. § 563.40 and, therefore, LISB was not operating in an unsafe and unsound manner under 12 C.F.R. § 563.17. Consequently, LISB did not violate the provisions of the Assistance Agreement. D. Applicability of 12 C.F.R. § 563.40 to LISB’s “Affiliated Persons” Under 12 C.F.R. § 561.29, Conway is considered an ‘“affiliated person’ of an insured institution” because Conway was the CEO of LISB, see 12 C.F.R. § 561.29(a). Conway’s law firm is also considered an “affiliated institution” because it was a business organization in which Conway, LISB’s CEO, was a general partner, see 12 C.F.R. § 561.29(d)(2).5 Defendant argues that, as Conway is an “affiliated person” of LISB, he was prohibited from accepting compensation pursuant to 12 C.F.R. § 563.40. It asserts that Conway’s acceptance of such compensation created a violation of the terms of the Assistance Agreement on the part of LISB. Plaintiffs counter that 12 C.F.R. § 563.40 relates to affiliated persons receiving kickbacks in return for banks granting mortgage loans, and as LISB itself neither gave nor received kickbacks related to granting mortgage loans, 12 C.F.R. § 563.40 is inapplicable to LISB and, consequently, LISB did not violate 12 C.F.R. § 563.40. The application of 12 C.F.R. § 563.40 to the various relationships indicates that neither Conway (as LISB’s CEO) or his law firm (Conway as the firm’s partner) received compensation from LISB in exchange for LISB granting a loan. Here LISB never compensated Conway or his firm for granting a mortgage loan to a borrower. Rather, the firm was compensated by LISB’s borrowers for doing legitimate mortgage closing services, and Conway was then compensated by his firm. Although Conway and his firm are “affiliated persons,” LISB did not receive or pay either Conway or his firm for granting loans to its borrowers. Therefore, the Court finds that Conway and his firm’s status as “affiliated persons” did not cause LISB to be in violation of the Assistance Agreement. II. Fraud The Government contends that, even if Conway’s violations of law did not a constitute a violation of the Assistance Agreement *615by LISB, plaintiffs’ claims for recovery were nevertheless forfeited pursuant to 28 U.S.C. § 2514 because Conway, as LISB’s Chairman and CEO, committed fraud upon the Government in the formation and performance of the Assistance Agreement, and that, therefore, Conway’s conduct should be strictly imputed to LISB. The Court will first examine the alleged fraud and then will examine the imputation. 28 U.S.C. § 2514, Forfeiture of Fraudulent Claims, states: A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof. In such eases the United States Court of Federal Claims shall specifically find fraud or attempt and render judgment of forfeiture. 28 U.S.C. § 2514 does not define the applicable elements of fraud. Instead, the United States Court of Federal Claims has approached the issue of fraud in forfeiture of claims cases on a ease-by-case basis and has used the four common law fraud elements as a prerequisite to establishing a special plea in fraud. See Landmark Land Co. Inc. v. United States, 46 Fed.Cl. 261, 274 (2000), aff'd in part, remanded on other grounds, (Fed.Cir. July 24, 2001), rehr’g and rehr’g en banc denied, (Nov. 15, 2001); BMY-Combat Sys. Div. of Harsco Corp. v. United States, 38 Fed.Cl. 109, 128 (1997); Colorado State Bank of Walsh v. United States, 18 Cl.Ct. 611, 629-30 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990). To establish the affirmative defense of fraud, the Government must, therefore, prove by clear and convincing evidence: 1) misrepresentation of a material fact; 2) knowledge and intent to deceive or a reckless state of mind; 3) justifiable reliance on the misrepresentation by the deceived party; and 4) injury to the party deceived through reliance. J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559 (Fed.Cir.1984) (patent case); Landmark Land Co., Inc., 46 Fed.Cl. at 274; Colorado State Bank, 18 Cl.Ct. at 629-30. This Court has held that because finding fraud during the performance of a contract is not necessarily obvious and dependent on specific circumstances, the Government must prove all four elements when asserting a special plea in fraud claim to ensure that it has indeed relied on the alleged fraud and incurred a related injury. First Federal Sav. Bank of Hegewisch v. United States, 52 Fed.Cl. 774, 790-91 (2002). Otherwise, the Government would be able to avoid legitimate contractual claims against it by simply pointing to unrelated events that occurred during the performance of the contract that resulted in no harm to the Government. Id. This is unlike fraud committed in the presentation of a claim where the reliance and harm is inherent since it is the claim itself that is fraudulent. Id. Thus, this Court can concurrently analyze the Government’s 28 U.S.C. § 2514 and common law fraud arguments. This Court has applied two different lines of cases defining a special plea in fraud, both of which have been supported by the Federal Circuit. As discussed above, the first line of cases define a special plea in fraud as containing the same elements of proof as common law fraud: misrepresentation of fact, knowledge, reliance, and injury. The second line of cases ascribes to the special plea in fraud only two elements: knowledge and intent to deceive. See Glendale Federal Bank, FSB v. United States, 239 F.3d 1374; 1379 (Fed.Cir.2001) (citing Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed.Cir.1998)); Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1042 (Fed.Cir.1994) (citing McCarthy v. United States, 229 Ct.Cl. 361, 670 F.2d 996, 1004 (1982)); Supermex, Inc. v. United States, 35 Fed.Cl. 29, 42 (Fed.Cl.1996) (Court stated it was unclear whether two or four elements were required to prove fraud, but only two were needed in that case). Because this Court ultimately finds that the Government has not established elements common to both lines of analysis, the Government’s special plea in fraud fails under both. 1. Misrepresentation of Fact The Government must first prove that there has been a misrepresentation of material fact. As Chairman and CEO of *616LISB, Conway had the authority to enter into the Assistance Agreement. Conway did so knowing his conflicting dual relationship with his firm and LISB prohibited him from entering into the Assistance Agreement and from receiving compensation from his firm. The State of New York courts determined that if Conway were not LISB Chairman and CEO, he and the firm would not have been able to “engage[ ] in a scheme of illegal kickbacks, ... circumventing] Federal law prohibiting him from receiving compensation from his former law firm, which relied on the bank for approximately 90% of its business.” The evidence shows that the perpetrators of the scheme, Conway and his firm, misrepresented information and benefited from Conway’s arrangement, whereas LISB received no improper benefit from Conway’s conflict. Indeed, LISB’s independent efforts to disclose Conway’s scheme support the conclusion that, had LISB known of Conway’s conflict-of-interest, it is unlikely that LISB would have permitted Conway from misrepresenting his personal compensation scheme. 2. Knowledge of Misrepresentation The Government contends LISB had knowledge of Conway’s compensation scheme; however, it also claims that, even if it were found that LISB did not have knowledge, LISB’s lack of knowledge would be irrelevant because Conway’s conduct is strictly imputed to LISB. Although this Court will address the issue of imputation below, for the purpose of determining whether LISB committed fraud in connection with the Assistance Agreement, this Court finds that the LISB’s knowledge of a misrepresentation is pertinent in understanding the circumstances under which the allegations of fraud are being made. It was not until almost nine years into the performance of the Assistance Agreement that LISB’s outside counsel discovered the conflict-of-interest and, upon doing so, questioned Conway regarding his relationship with the firm. Conway made misrepresentations to LISB to conceal his conflict-of-interest by telling outside counsel that his compensation from the firm was part of a ten-year payout arrangement and then refusing to disclose information regarding his financial arrangements with the firm. When LISB attempted to rectify Conway’s fraud, Conway attempted to enjoin LISB from disclosing his finances. LISB incurred approximately $1 million in legal expenses derived from this and related litigation. But for LISB’s attempt to have Conway disclose his conflict-of-interest, the Government might still be unaware of its existence. The Government points to statements of LISB executives to establish that others in LISB knew of Conway’s compensation arrangement at the time LISB entered into the Assistance Agreement: Q: Do you know if the members of the board at that time knew that you had an interest in the law firm? A: ... The only ones I can absolutely be sure of would be Mr. Viklund [who signed the management questionnaires that showed Conway retaining an interest in the law firm] and Mr. Buxton [who handled the law firm’s insurance]---- Aug. 17, 2000 Deposition of James J. Conway, Jr., at 182. Q: Do you think Mr. Conway should have told the board he was receiving nearly $500,000 from the law firm? A: I think he informed everybody. Q: You were aware of that as a member of the board? A: Yes. Sept. 29, 2000 Deposition of Edwin M. Canuso, at 78. Q: Do you know how much of this million dollars that [Conway’s daughter and daughter-in-law] made occasionally came from business with the bank? A: I assume. The law firm was doing most of its business with the bank. I’m assuming that’s where the money came from. Q: Do you think Conway should have told the board that his [daughter and daughter-in-law] were earning so much money based on business with the law firm and -the bank? *617A: It was their business. I mean, I can’t say that it was their responsibility to let us know how much money they were making. Sept. 29, 2000 Deposition of Edwin M. Canuso, at 84-85. While these statement show LISB knew that Conway was receiving compensation from his firm, these statements do not establish that others in LISB knew that Conway’s firm compensation was improper. Rather, these same LISB executives indicate that they were unaware of any impropriety. Q: Based on the information that you’ve just read now in various documents, do you believe that Mr. Conway kept the board properly apprized (sic) of his activities or should he have given you more information? A: We were apprized (sic) properly. Whether or not it was correct or not, how can we judge? I mean, we received the documentation accordingly and we accepted it on face value. Q: Do you believe there’s any information Mr. Conway kept from the board that he should have disclosed? A: I wouldn’t know that. Sept. 29, 2000 Deposition of Edwin M. Canuso, at 76-77. Q: Did the board of directors ever ask Conway about his interest in the law firm? A: To my knowledge, no. Q: Do you know why not? A: It was just the accepted practice. Q: If Mr. Conway was receiving income from the law firm directly related to the services the firm was providing for the bank, would that create a conflict-of-interest? ... A: No. Oct. 25, 2000 Deposition of George Irvin, at 41^3. Although LISB knew Conway was being compensated by his firm, this Court cannot conclude that LISB knew that the arrangement was improper, and, therefore, a misrepresentation. Also, the extent to which Conway acted to conceal his conflict from LISB once LISB discovered Conway’s compensation arrangement is significant in establishing LISB’s knowledge of the impropriety of Conway’s compensation. The Government has not established that LISB’s knowledge of Conway’s compensation equates to LISB’s knowledge of a misrepresentation. 3. Justifiable Reliance A primary function and purpose of the laws and agencies responsible for regulating the banking industry is to ensure the safe and sound management of banks and the money the public entrusts to banks. Not only is this generally apparent within the law, but within the Assistance Agreement. The Government contracted for full disclosure of any conflicts-of-interest in order to assure the safe and sound management of LISB, and it relied on Conway’s statements. The Government thus justifiably relied on Conway’s misrepresentation. It is further apparent that LISB also relied on Conway to disclose his conflict. Indeed, without the action of LISB, there is no evidence that the Government would have independently discovered Conway’s conflict-of-interest. What is clear is that, for Conway to have benefited from his scheme, he needed both the Government and LISB to rely on his deception. 4. Injury It is sufficient that the “injury and the damages to the sovereign are presumed in the breach of the bond of public trust.” Supermex, Inc. v. United States, 35 Fed.Cl. 29, 42 (Fed.Cl.1996) (bribing public officials is an inherent public harm). However, it is difficult for the Court to accept the Government’s contention that plaintiffs’ conduct caused injury to the public’s trust in banks, particularly when the Government continued to accept LISB’s performance under the contract. The alleged public injury is questionable because the party that appears to have been actually injured is LISB, which spent over $1 million in litigation resolving issues surrounding Conway’s misconduct. Further, LISB fully performed its obligations under the Assistance Agreement, and the Govern*618ment sustained no cognizable injury. This is not a case of conspiracy for corporate benefit, but of concealed misstatements for personal gain. Conway could arrange his scheme only as someone who was authorized to enter into the Assistance Agreement with the Government; however, it would be incorrect to characterize his personal compensation scheme as being authorized by LISB. As LISB’s Chairman and CEO, Conway had this authority and acted on behalf of LISB; however, his fraud was not based on the Agreement; rather, the fraud resulted from his compensation arrangement with the firm. Forfeiture of Fraudulent Claims Act, 28 U.S.C. § 2514, was not intended to forfeit an otherwise valid claim merely because in some other unrelated transaction a person defrauds the Government; rather, it was intended to apply to situations where fraud was committed with regard to the very contract upon which the suit is brought. See Little v. United States, 138 Ct.Cl. 773, 778, 152 F.Supp. 84 (1957). Conway’s improper compensation relationship with his firm was not related to the Assistance Agreement, and, therefore, to forfeit LISB’s claim due to that scheme would not serve to carry out the intentions of the Forfeiture of Fraudulent Claims Act. Conway used his authority independently and without LISB’s knowledge to gain personally from his dual relationship. The Government has not submitted sufficient evidence that other members of LISB knew of Conway’s conflict and his compensation scheme to provide a material genuine issue of fact. Conway did so without LISB’s knowledge and approval, as evidenced by his concealment of this information from LISB and by LISB’s litigation with Conway over disclosure of his compensation. Because the compensation that Conway received from the firm placed LISB in unknowing liability, LISB essentially was used by its own agent, Conway, for his personal gain and not for corporate benefit. See Acme Process Equip. Co. v. United States, 171 Ct.Cl. 324, 347 F.2d 509, 519 n. 12 (1965), rev’d on other grounds. The Court therefore cannot conclude that LISB, as a corporate entity, acted fraudulently. Thus, the question remains whether Conway’s conduct alone can be imputed to LISB. III. Imputation of Conway’s Conduct to LISB A corporation can act only through its officers and agents and, when they are clothed with the authority to act for it, the corporation is responsible for their acts. Wagner Iron Works v. United States, 146 Ct.Cl. 334, 174 F.Supp. 956, 958 (1959) (citing Gleason v. Seaboard Air Line Ry. Co., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415 (1929); Standard Surety & Cas. Co. of New York v. Plantsville Nat. Bank, 158 F.2d 422 (2nd Cir.1946); Ralston Purina Co. v. Novak, 111 F.2d 631 (8th Cir.1940)). Under general rules of agency law, principals are liable even when their agents act fraudulently so long as they are acting with apparent authority. See American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 565-66, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982); Anderson v. United States, 47 Fed.Cl. 438, 448 (2000). For instance, a principal is liable for an agent’s fraud, though the agent acts solely to benefit himself, if the agent acts with apparent authority. See O'Brien Gear & Mach. Co. v. United States, 219 Ct.Cl. 187, 591 F.2d 666, 672 (1979) (fraud of the plaintiffs president, chief executive officer, and the sole owner of the corporate stock imputed to plaintiff corporation). Imputation of fraud is not, however, automatic. Under the law of imputation, courts impute the fraud of an officer to a corporation only when the officer commits the fraud (1) in the course of his employment, and (2) for the benefit of the corporation. First Federal Sav. Bank of Hegewisch, 52 Fed.Cl. at 792; see Official Committee of Unsecured Creditors v. R.F. Lafferty & Co., Inc., 267 F.3d 340, 358-59 (3rd Cir.2001). Thus, imputation of an agent’s actions to his principal is precluded where the agent’s actions are taken for the purpose of defrauding the principal. Trilon Educational Corp. v. United States, 217 Ct.Cl. 266, 578 F.2d 1356, 1361 (1978) (noting that an individual’s criminal conviction of fraud on an unrelated contract bid that resulted in debarment need not *619inevitably be imputed to an affiliated firm). Thus, for there to be strict imputation, the Government must establish that indeed the perpetrator of the fraud acted on behalf of the corporate entity, and not merely for his own personal benefit. For purposes of imputation, the important distinction is not between LISB and Conway, rather it is between Conway’s duties as CEO and Chairman versus his individual conduct. Apparent authority is defined as when a “principal permits the agent to exercise or which he holds [the agent] out as possessing.” Strann v. United States, 2 Cl.Ct. 782, 789 (1983) (quoting S. Williston, A Treatise on the Law of Contracts §§ 277, n. 11 (W. Jaeger 3d ed.1959 and 1982 Supp.); citing Restatement (Second) of Agency § 8 (1958)). Determining whether apparent authority exists requires scrutiny into the principal’s behavior in the relationship with its agent. Strann, 2 Cl.Ct. at 789. As LISB’s CEO and Chairman, it would appear that, in entering into the Assistance Agreement, Conway acted within the scope of his employment. However, the circumstances here show that, once LISB became aware of Conway’s compensation scheme, LISB acted to disclose Conway’s compensation and Conway fought to prevent LISB from disclosing that information. LISB’s independent efforts to disclose Conway’s compensation scheme and Conway’s efforts to rebuff LISB’s efforts weigh heavily in supporting the conclusion that Conway’s personal compensation scheme was not authorized by LISB. It is undisputed that Conway, as LISB’s CEO and Chairman, had the authority to enter into the Assistance Agreement on behalf of LISB. It cannot be said, however, that LISB authorized or approved Conway’s personal compensation scheme with the firm. The fraud here was not in entering into the Assistance Agreement, rather the fraud the Government challenges is with regard to Conway’s compensation scheme, an arrangement that was neither found within the scope of Conway’s duties as LISB’s CEO and Chairman nor approved of by LISB. When an agent’s motive and conduct demonstrate that he has abandoned his principal’s interest and is acting to defraud his principal, entirely for his own or another’s purpose, his knowledge and misconduct will not be imputed to his principal. Acme Process Equip. Co. v. United States, 347 F.2d at 519 n. 12. The rationale for this exception is clear in that the law presumes that the wrongdoer would not perform his usual duty to disclose all material facts regarding his action if such disclosure would reveal the fraud that he committed. This is evidenced by the fact that, had the knowledge that the Government seeks to impute to LISB actually been disclosed to LISB, the success of Conway’s scheme would have been impaired. The second part of the imputation test is whether the fraudulent conduct was perpetrated for the benefit of LISB. Official Committee of Unsecured Creditors, 267 F.3d at 359. Under this prong, fraudulent conduct will not be imputed if the officer’s interests were adverse to the corporation and not for the benefit of the corporation. Id.; First Federal Sav. Bank of Hegewisch, 52 Fed.Cl. at 792-93 (adopting the adverse interest exception); see Crocker v. United States, 49 Ct.Cl. 85, 1913 WL 1286 (1913) (where an agent goes beyond the scope of his authority and commits a wrong or fraud to accomplish a purpose designedly his own, the principal is not liable). The Government has not established that LISB benefited, monetarily or otherwise, from Conway’s misrepresentation. Only Conway received compensation from his firm. LISB did not pay the loan closing fees or provide the firm with payment, rather the individual borrowers did. There is no evidence that LISB as a corporate entity or that LISB’s officers (other than Conway) received compensation under Conway’s scheme. The fraud benefited only Conway, his family, and his law firm; it did not benefit LISB. Because this Court finds that the Assistance Agreement was not actually tainted by illegality or impropriety, that is, that the Agreement was used a tool of an independent conflict-of-interest, rather than the actual product of the conflict, the Court finds that the Agreement is not void ab initio. Godley v. United States, 5 F.3d at 1475 n. 1 (noting *620that although the court in K & R Engineering Co. v. United States, 222 Ct.Cl. 340, 616 F.2d 469 (1980), misread the factual predicate of United States v. Mississippi Valley Generating Co., 364 U.S. 520, 565, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961), it was correct in that, for a contract to be void ab initio, the contract must be the actual product of the conflict-of-interest, not an agreement entered into separately from the conflict-of-interest, or condoned by the company whose agent acts with its authority). Here, plaintiffs took action to uncover Conway’s conflict-of-interest. Likewise, the Government’s assertion that the Agreement is void or voidable because of Conway’s misrepresentations is also inapposite because Conway’s personal misconduct does not render the Agreement void or voidable. LISB was innocent of the misconduct and complied with banking regulations, and thus, LISB committed no fraud under the Agreement’s terms. Lastly, because the contract itself is not tainted by Conway’s conflict-of-interest, and has remained pure in formation and performance, rescission would be improper. See Nebco v. United States, 23 Cl.Ct. 635, 642 (1991).
CONCLUSION
For the reasons stated herein, plaintiffs’ motion for summary judgment regarding defendant’s fraud counterclaims and defenses is granted. Defendant’s motion for summary judgment is denied.
. From December 1982 through August 1989, LISB was subject to regulation and supervision by the FHLBB. Since August 1989, LISB has been subject to regulation and supervision by the Office of Thrift Supervision (“OTS”), the successor to the FHLBB, whose purpose is to maintain administrative enforcement proceedings.
. In August 1985, Conway & Ryan PC changed its name to Power, Meehan & Petrelli, PC. In 1990, the firm changed its name again, this time to Power, Meehan & Power, PC.
. In accordance with 12 C.F.R. § 563.45.
. 18 U.S.C. § 215 (Receipt of commissions or gifts for procuring loans) states that a director or officer commits a crime when he corruptly solicits or corruptly accepts anything of value from another person or entity intending to be rewarded in connection with any business or transaction of an insured depository institution.
. 12 C.F.R. § 561.29 states: Affiliated person. — The term “affiliated person” of an insured institution [LISB] means the following: (a) A director, officer, or controlling person of such institution [Conway as LISB’s CEO]; (d) Any corporation or organization (other than the insured institution or a corporation or organization through which the insured institution operates) of which a director, officer or controlling person of such institution: ... (d)(2) Is a general partner ... [Conway’s law firm] | 07-20-2022 | [
"OPINION MARGOLIS, Senior Judge. Plaintiffs brought this action against the United States contending that they had an enforceable contract with the Government to treat plaintiffs’ supervisory goodwill, which was created as a result of an acquisition of a failed thrift, as regulatory capital. As regulatory capital, the plaintiffs were permitted to amortize the goodwill over a forty-year period. Plaintiffs claim that, in enacting of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Congress breached that contract by eliminating plaintiffs’ ability to count goodwill as regulatory capital. See generally, United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996). This case is before the Court on defendant’s motion for summary judgment and plaintiffs’ cross-motion for summary judgment on defendant’s counterclaims and affirmative defenses pursuant to United States Court of Federal Claims (“RCFC”) Rule 56.",
"Plaintiffs’ complaint states that the Government breached its contractual obligations with plaintiffs, and plaintiffs now seek compensation of $625 million in amortized goodwill regulatory capital. The Government’s summary judgment motion counterclaims that: (1) plaintiffs’ claims are forfeited under a special plea in fraud pursuant to 28 U.S.C. § 2514; (2) common law fraud renders the contract unenforceable; (3) the contract should be rescinded and $122 million repaid to the Government; and (4) plaintiffs’ prior material breach precludes damages. This Court, pursuant to RCFC 56(g), granted additional discovery, and both parties submitted additional briefing. After oral argument, and for the reasons discussed herein, the Government’s motion is denied, and plaintiffs’ motion is granted. FACTS A. The Long Island Savings Bank and the Government’s Assistance Agreement In 1982, the Long Island Savings Bank (“LISB”) was converted from a New York-chartered mutual savings bank into a federally chartered savings bank whose deposit accounts are insured by the Federal Deposit Insurance Corporation (“FDIC”).1 LISB was created as a result of the 1983 merger *610between the Long Island Savings Bank of Centereach, FSB (“Centereach”), and the Long Island Savings Bank of Syosset, FSB (“Syosset”), both of which James J. Conway, Jr. served as Chairman and Chief Executive Officer (“CEO”). In 1983, after negotiations, the Federal Savings and Loan Insurance Corporation (“FSLIC”) transferred Suffolk County Phoenix, a failing thrift franchise, to LISB, quadrupling LISB’s branch network and tripling its assets to approximately $3 billion.",
"On August 17, 1983, the FSLIC and LISB entered into an Assistance Agreement that contained restrictions pertaining to the thrift’s officers and directors, and federal guidelines and regulations governing the business aspects of the new thrift. Under the terms of the Assistance Agreement, LISB paid nothing for the franchise, but contributed $100,000 into the franchise’s controlling subsidiary, Centereach. FSLIC also infused a total of $122 million into Centereach. From December 1982 until May 1992, Conway served as Board of Trustees Chairman and CEO of LISB. B. Conway’s Law Firm and his Compensation Scheme From September 1975 until his retirement in June 1992, Conway was a partner and stockholder of Conway & Ryan PC (“the firm”).2 In 1982, Conway stopped practicing law and engaging in other professional services for the law firm. From September 1975 until December 1984, Conway owned 65% of his law firm’s outstanding stock. In December 1984, Conway transferred 51% of the firm’s stock to his daughter, Susan C. Petrelli.",
"Petrelli became a salaried officer and director of the firm, serving until December 1990. She did not pay her father for the stock, but rather paid the firm $51,000. Conway’s daughter-in-law, Denise Whalen, was also a salaried officer and director of the firm, serving from January 1987 until December 1990. From December 1984 until January 1990, Conway’s ownership interest was 9%; however, he continued to exercise control over 60% of the firm’s stock. Conway retired from the firm in June 1992.",
"From 1982 to 1991, Conway caused LISB to utilize the firm as LISB’s sole mortgage loan closing counsel, and he ensured that the firm had the exclusive right to represent LISB in connection with all mortgage closings without action from the Board of Directors. During this period, the firm collected approximately $20 million in fees from over 25,000 residential mortgage loan closings, which represented 80% to 90% of the firm’s income. LISB did not pay the loan closing fees, rather the borrowers did. Of this amount, 60% — or approximately $11.3 million — was paid to Conway and his family members who worked for the firm.",
"Conway received payments and benefits from the those fees both directly from his law firm and through his daughter or daughter-in-law. Conway did not provide professional services to the firm between 1983 and 1990, but he received an annual salary and compensation from the firm during that time period. Conway did not disclose to LISB that he was being compensated by the firm from income that the firm received for providing services to LISB.",
"When asked by LISB whether LISB had to disclose compensation received by Conway from his firm in an Annual Report statement,3 Conway indicated that he received less than $500,000 annually from the firm, thereby exempting LISB from disclosure. In 1986 and 1988, the FHLBB questioned LISB regarding LISB personnel that had a direct or indirect business interest with LISB and the nature, type, and volume of those business interests.",
"At each of those times, Conway described his relationship as retaining “an interest in a law firm that presently renders service to [LISB] and receives remuneration from outside income of said firm.” In 1990, LISB’s outside counsel discovered Conway’s compensation from the firm. Conway would not disclose to LISB information regarding his financial arrangements with *611the firm. He did indicate to LISB’s counsel, however, that his compensation from the firm was part of a ten-year payout arrangement. No such arrangement actually existed. Conway attempted to enjoin LISB’s outside counsel from disclosing the financial information that they had on the grounds that attorney-client privilege prohibited disclosure. In 1990, the New York trial court found that Conway made false statements about his financial arrangement with the firm to LISB’s counsel and issued a gag-order regarding Conway’s finances pending appeal. On March 22,1993, the Appellate Division of the New York Supreme Court affirmed the trial court’s decision. LISB incurred approximately $1 million in legal expenses as a result of this and related litigation. In August 2000, the Appellate Division of the Supreme Court of the State of New York, upheld the disbarment of Conway.",
"The court determined that “while chairman of the board and chief executive officer of a savings bank, [Conway] engaged in a scheme of illegal kickbacks, using his daughter and daughter-in-law as conduits to circumvent Federal law prohibiting him from receiving compensation from his former law firm, which relied on the bank for approximately 90% of its business.” C. Office of Thrift Supervision Investigation In March 1993, the Office of Thrift Supervision commenced an investigation into Conway’s compensation scheme with the firm. In September 1993, OTS and Conway initiated settlement discussions whereby Conway agreed to pay LISB $1.3 million in restitution per issuance of a consent prohibition and cease-and-desist order, signed February 1994. The consent order banned Conway from the thrift and banking industry. In 1998, Conway pled guilty to violating 18 U.S.C.",
"§ 215.4 DISCUSSION In the absence of genuine issues of material fact, this Court may award summary judgment to a party according to the law. RCFC 56(c). In reaching summary judgment, the trial court must construe facts and resolve inferences in the light most favorable to the non-movant. Godley v. United States, 5 F.3d 1473, 1474 (Fed.Cir.1993) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). The Government contends that the plaintiffs’ claims are forfeited in two different, but related, ways. Both deal with alleged fraudulent misrepresentations made by LISB. The Government cites a conflict-of-interest between Conway’s relationship with his law firm and his relationship with LISB. Conway allegedly used his position as Chairman and CEO of LISB to make his law firm LISB’s exclusive mortgage loan closing counsel and was compensated by his firm for this referral. The Government maintains that it did not know of the relationship when it entered into the Assistance Agreement with LISB and, had it known about the arrangement, it would not have entered into the Agreement.",
"The arrangement between Conway, his law firm, and LISB provides the Government with two possible defenses to the plaintiffs’ claim. First, the Government asserts that the arrangement violated express conditions of the Agreement and that those violations served to forfeit any claims by the plaintiffs based on a Government breach of the Agreement. Second, it contends that, even if the arrangement were not a violation of the Agreement, the plaintiffs would not be able to collect upon the Agreement because the misrepresentation of the arrangement between the entities constituted fraud against the Government. Where fraud is committed against the Government, 28 U.S.C. § 2514 mandates that the claim shall be forfeited.",
"The essence of this case is whether Conway’s improper relationship with the firm tainted the relationship LISB had with the firm. The Government contends that because Conway was both a partner in the law firm and the CEO and Chairman of LISB, *612his actions, and thus this arrangement, should be imputed to LISB. Plaintiffs argue that this Court must distinguish between Conway placing himself personally in a conflicting relationship and his role in entering into the Assistance Agreement on behalf of LISB. This Court is being asked to determine whether a distinction between Conway and LISB exists.",
"The Court will first examine whether the arrangement was a direct violation of the Assistance Agreement, then it will look at whether it constituted fraud against the Government, and, finally, it will address the issue of whether Conway’s conduct in this arrangement should be imputed to LISB. I. LISB’s Representations Under the Assistance Agreement The Government contends that LISB violated the Assistance Agreement in several ways and that those violations rendered the contract void, thereby causing the plaintiffs to be forced to forfeit any claims based on a Government breach of the Agreement. Sections 11(b)(5) and 8(h) of the Assistance Agreement include an express warranty by LISB that LISB was not in violation of any applicable statutes or regulations at the time of entering into the Agreement and a promise that LISB would remain in compliance with such statutes and regulations.",
"The Government argues that LISB disregarded those provisions by acting in violation of the Real Estate Settlement Procedures Act (“RESPA”) of 1974, § 8, as amended, 12 U.S.C. § 2607, and of 12 C.F.R. §§ 563.40 and 563.17 (1983). Plaintiffs asserts that LISB complied with all applicable statutes and regulations and, therefore, was not in violation of the Assistance Agreement at any time. This Court will examine whether the arrangement between Conway, his law firm, and LISB caused LISB to be in violation of the Agreement. A. Sections 11(b)(5) and 8(h) of the Assistance Agreement In the Assistance Agreement, LISB expressly warrants both that it was not violating any statutes or regulations at the time that it entered into the Agreement and that it would continue to comply with such rules. Section 11(b)(5) of the Agreement states that LISB represents and warrants that: ... LISB is not in violation of any applicable statutes, regulations or orders of, or any restrictions imposed by, the United States of.America or any state, municipality or other political subdivision or any agency of the foregoing public units, regarding the conduct of its business and the ownership of its properties, including without limitation, all applicable statutes, regulations, orders and restrictions relating to savings and loan associations, equal employment opportunities, employment retirement income security, and environmental standards and controls where such violation would materially and adversely affect LISB’s business, operations or condition, financial or otherwise. Assistance Agreement § 11(b) (emphasis added).",
"^ Section 8(h) mandates that LISB will continue to be in accord with the applicable statutes and regulations: CENTEREACH and LISB will, and will cause any Service Corporation of CENTEREACH or LISB to, comply in all material respects with all applicable statutes, regulations and orders of, and all restrictions imposed by, the United States of America and any state municipality or other political subdivision or any agency of the foregoing public units, in respect of the ownership of its properties and conduct of its business, including, without limitation, all applicable statutes, regulations, orders and restrictions relating to equal employment opportunities, employment retirement income security and environmental standards and controls; provided, however, that nothing contained in this § 8(h) shall require CENTEREACH or LISB or any Service Corporation of CENTER-EACH or LISB to comply with any'law so long as the validity or applicability of such law shall be contested in good faith. Assistance Agreement § 8(h) (emphasis added).",
"The Government contends that Conway’s dual relationship caused LISB to violate *613RESPA and 12 C.F.R. §§ 563.40 and 563.17. By doing so, the Government argues that LISB acted in violation of sections 8(h) and 11(b)(5) of the Agreement, thereby causing a breach that had the effect of absolving the Government of its responsibility to perform under the Agreement. B. Prohibitions Under RESPA, 12 U.S.C. § 2607 and 12 C.F.R. § 563.40 The Government argues that Conway’s compensation scheme violated RESPA, 12 U.S.C. § 2607 and 12 C.F.R. § 563.40, thereby causing LISB to violate Sections 11(b)(5) and 8(h) of the Agreement.",
"RESPA §§ 2601 et seg., forbids the payment of a kickback for referring to the payor an opportunity to provide a real estate settlement service for a federally related mortgage loan. RE SPA § 2607 states: (a) Business referrals — No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person. (b) Splitting charges — No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed. (c) Fees, salaries, compensation, or other payments — Nothing in this section shall be construed as prohibiting (1) the payment of a fee (A) to attorneys at law for services actually rendered____ Similarly, 12 C.F.R. § 563.40, which incorporates the applicable provisions of RE SPA, states: (a) Loan procurement fees — No affiliated person of an insured institution may receive, either directly or indirectly, from such institution, any subsidiary thereof, or any other source any fee or other compensation of any kind in connection with the procurement of any loan from such institution or subsidiary thereof.",
"(b) Kickbacks and unearned fees — The prohibitions contained in sections 8(a) and 8(b) of the Real Estate Settlement Procedures Act of 1974 (Pub.L.93-533) shall apply to any fee, kickback, thing of value, and any portion, split or percentage of any charge, either directly or indirectly, given to or accepted by an insured institution or subsidiary or affiliated person thereof, in connection with any loampn real property made by an insured institution or subsidiary thereof, without regard to whether the loan is within the term “federally related mortgage loan,” as defined in section 3(1) of the Act.",
"A primary purpose of RE SPA is to eliminate improper relationships that unnecessarily increase the cost of settlement services. RESPA § 2601(b)(2). There are a multitude of relationships in the banking industry that provide for legitimate compensation for services rendered; others are entered into for the purpose of eliciting kickbacks. See e.g., Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1162 (7th Cir.1997) (disparity in compensation arrangement supported inference of kickback); DeLeon v. Beneficial Const. Co., 998 F.Supp. 859, 864 (1998) (receipt of fee without providing broker services sufficient to constitute a kickback); see also Weil v. Long Island Sav. Bank, 77 F.Supp.2d 313, 328 (1999) (Conway’s acceptance and his firm’s payment of fees paid by mortgage loan borrowers violated RESPA). C. Legal Distinctions of LISB’s Relationships Conway and his firm’s impropriety under banking laws is evident.",
"See Weil v. Long Island Sav. Bank, 77 F.Supp.2d at 328. However, the issue that underlies the Government’s defense to the action brought by LISB is whether the law prohibited LISB’s relationship with Conway and the firm. Helpful in this determination are the analogous comments and fact examples found in the RE SPA provisions that deal with the Housing and Urban Development (“HUD”), which are essentially identical to those adopted in the banking regulations. Com*614pare 24 C.F.R. § 3500 (1983), with 12 C.F.R. § 563.40 (1983). The regulations that have been adopted by HUD which are associated with those RES-PA provisions provide guidance in the application of the law to specific factual circumstances, and provide examples of how the provisions would apply to different factual situations.",
"This Court, as an initial matter, will analyze the facts in this case by comparison to those situations envisioned in the regulations: Conway, a partner in the law firm, directed LISB borrowers to the law firm that provided those borrowers with mortgage closing services. The firm paid its attorneys and partners, including Conway, based on the firm’s revenue from the fees charged to the borrowers. This is an analogous arrangement to one described in the regulation. See 24 C.F.R.",
"§ 3500, App. B (Fact 10). Under the HUD regulations, while a payment to Conway from the firm would violate the regulation, the relationship between LISB and the firm would not. See id. (Comment 10). Thus, under RESPA § 2607 and 12 C.F.R. § 563.40, a legal distinction would be made between LISB and Conway. Further, the facts indicate that the firm did not kickback money to LISB, rather the firm paid Conway from profits made from the borrowers. Indeed, had Conway not accepted compensation related to mortgage closing services of LISB’s borrowers, but the relationship between LISB and the firm was otherwise the same, no impropriety would exist.",
"It was not LISB’s relationship with the firm that was improper. LISB was not violating RESPA or 12 C.F.R. § 563.40 and, therefore, LISB was not operating in an unsafe and unsound manner under 12 C.F.R. § 563.17. Consequently, LISB did not violate the provisions of the Assistance Agreement. D. Applicability of 12 C.F.R. § 563.40 to LISB’s “Affiliated Persons” Under 12 C.F.R. § 561.29, Conway is considered an ‘“affiliated person’ of an insured institution” because Conway was the CEO of LISB, see 12 C.F.R. § 561.29(a).",
"Conway’s law firm is also considered an “affiliated institution” because it was a business organization in which Conway, LISB’s CEO, was a general partner, see 12 C.F.R. § 561.29(d)(2).5 Defendant argues that, as Conway is an “affiliated person” of LISB, he was prohibited from accepting compensation pursuant to 12 C.F.R. § 563.40. It asserts that Conway’s acceptance of such compensation created a violation of the terms of the Assistance Agreement on the part of LISB. Plaintiffs counter that 12 C.F.R. § 563.40 relates to affiliated persons receiving kickbacks in return for banks granting mortgage loans, and as LISB itself neither gave nor received kickbacks related to granting mortgage loans, 12 C.F.R.",
"§ 563.40 is inapplicable to LISB and, consequently, LISB did not violate 12 C.F.R. § 563.40. The application of 12 C.F.R. § 563.40 to the various relationships indicates that neither Conway (as LISB’s CEO) or his law firm (Conway as the firm’s partner) received compensation from LISB in exchange for LISB granting a loan. Here LISB never compensated Conway or his firm for granting a mortgage loan to a borrower. Rather, the firm was compensated by LISB’s borrowers for doing legitimate mortgage closing services, and Conway was then compensated by his firm. Although Conway and his firm are “affiliated persons,” LISB did not receive or pay either Conway or his firm for granting loans to its borrowers. Therefore, the Court finds that Conway and his firm’s status as “affiliated persons” did not cause LISB to be in violation of the Assistance Agreement.",
"II. Fraud The Government contends that, even if Conway’s violations of law did not a constitute a violation of the Assistance Agreement *615by LISB, plaintiffs’ claims for recovery were nevertheless forfeited pursuant to 28 U.S.C. § 2514 because Conway, as LISB’s Chairman and CEO, committed fraud upon the Government in the formation and performance of the Assistance Agreement, and that, therefore, Conway’s conduct should be strictly imputed to LISB. The Court will first examine the alleged fraud and then will examine the imputation. 28 U.S.C. § 2514, Forfeiture of Fraudulent Claims, states: A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof. In such eases the United States Court of Federal Claims shall specifically find fraud or attempt and render judgment of forfeiture. 28 U.S.C. § 2514 does not define the applicable elements of fraud.",
"Instead, the United States Court of Federal Claims has approached the issue of fraud in forfeiture of claims cases on a ease-by-case basis and has used the four common law fraud elements as a prerequisite to establishing a special plea in fraud. See Landmark Land Co. Inc. v. United States, 46 Fed.Cl. 261, 274 (2000), aff'd in part, remanded on other grounds, (Fed.Cir. July 24, 2001), rehr’g and rehr’g en banc denied, (Nov. 15, 2001); BMY-Combat Sys. Div. of Harsco Corp. v. United States, 38 Fed.Cl. 109, 128 (1997); Colorado State Bank of Walsh v. United States, 18 Cl.Ct. 611, 629-30 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990). To establish the affirmative defense of fraud, the Government must, therefore, prove by clear and convincing evidence: 1) misrepresentation of a material fact; 2) knowledge and intent to deceive or a reckless state of mind; 3) justifiable reliance on the misrepresentation by the deceived party; and 4) injury to the party deceived through reliance. J.P. Stevens & Co. v. Lex Tex, Ltd., 747 F.2d 1553, 1559 (Fed.Cir.1984) (patent case); Landmark Land Co., Inc., 46 Fed.Cl. at 274; Colorado State Bank, 18 Cl.Ct.",
"at 629-30. This Court has held that because finding fraud during the performance of a contract is not necessarily obvious and dependent on specific circumstances, the Government must prove all four elements when asserting a special plea in fraud claim to ensure that it has indeed relied on the alleged fraud and incurred a related injury. First Federal Sav. Bank of Hegewisch v. United States, 52 Fed.Cl. 774, 790-91 (2002). Otherwise, the Government would be able to avoid legitimate contractual claims against it by simply pointing to unrelated events that occurred during the performance of the contract that resulted in no harm to the Government. Id. This is unlike fraud committed in the presentation of a claim where the reliance and harm is inherent since it is the claim itself that is fraudulent.",
"Id. Thus, this Court can concurrently analyze the Government’s 28 U.S.C. § 2514 and common law fraud arguments. This Court has applied two different lines of cases defining a special plea in fraud, both of which have been supported by the Federal Circuit. As discussed above, the first line of cases define a special plea in fraud as containing the same elements of proof as common law fraud: misrepresentation of fact, knowledge, reliance, and injury. The second line of cases ascribes to the special plea in fraud only two elements: knowledge and intent to deceive. See Glendale Federal Bank, FSB v. United States, 239 F.3d 1374; 1379 (Fed.Cir.2001) (citing Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed.Cir.1998)); Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1042 (Fed.Cir.1994) (citing McCarthy v. United States, 229 Ct.Cl. 361, 670 F.2d 996, 1004 (1982)); Supermex, Inc. v. United States, 35 Fed.Cl. 29, 42 (Fed.Cl.1996) (Court stated it was unclear whether two or four elements were required to prove fraud, but only two were needed in that case).",
"Because this Court ultimately finds that the Government has not established elements common to both lines of analysis, the Government’s special plea in fraud fails under both. 1. Misrepresentation of Fact The Government must first prove that there has been a misrepresentation of material fact. As Chairman and CEO of *616LISB, Conway had the authority to enter into the Assistance Agreement. Conway did so knowing his conflicting dual relationship with his firm and LISB prohibited him from entering into the Assistance Agreement and from receiving compensation from his firm. The State of New York courts determined that if Conway were not LISB Chairman and CEO, he and the firm would not have been able to “engage[ ] in a scheme of illegal kickbacks, ... circumventing] Federal law prohibiting him from receiving compensation from his former law firm, which relied on the bank for approximately 90% of its business.” The evidence shows that the perpetrators of the scheme, Conway and his firm, misrepresented information and benefited from Conway’s arrangement, whereas LISB received no improper benefit from Conway’s conflict.",
"Indeed, LISB’s independent efforts to disclose Conway’s scheme support the conclusion that, had LISB known of Conway’s conflict-of-interest, it is unlikely that LISB would have permitted Conway from misrepresenting his personal compensation scheme. 2. Knowledge of Misrepresentation The Government contends LISB had knowledge of Conway’s compensation scheme; however, it also claims that, even if it were found that LISB did not have knowledge, LISB’s lack of knowledge would be irrelevant because Conway’s conduct is strictly imputed to LISB. Although this Court will address the issue of imputation below, for the purpose of determining whether LISB committed fraud in connection with the Assistance Agreement, this Court finds that the LISB’s knowledge of a misrepresentation is pertinent in understanding the circumstances under which the allegations of fraud are being made. It was not until almost nine years into the performance of the Assistance Agreement that LISB’s outside counsel discovered the conflict-of-interest and, upon doing so, questioned Conway regarding his relationship with the firm.",
"Conway made misrepresentations to LISB to conceal his conflict-of-interest by telling outside counsel that his compensation from the firm was part of a ten-year payout arrangement and then refusing to disclose information regarding his financial arrangements with the firm. When LISB attempted to rectify Conway’s fraud, Conway attempted to enjoin LISB from disclosing his finances. LISB incurred approximately $1 million in legal expenses derived from this and related litigation. But for LISB’s attempt to have Conway disclose his conflict-of-interest, the Government might still be unaware of its existence. The Government points to statements of LISB executives to establish that others in LISB knew of Conway’s compensation arrangement at the time LISB entered into the Assistance Agreement: Q: Do you know if the members of the board at that time knew that you had an interest in the law firm? A: ... The only ones I can absolutely be sure of would be Mr. Viklund [who signed the management questionnaires that showed Conway retaining an interest in the law firm] and Mr. Buxton [who handled the law firm’s insurance]---- Aug. 17, 2000 Deposition of James J. Conway, Jr., at 182. Q: Do you think Mr. Conway should have told the board he was receiving nearly $500,000 from the law firm?",
"A: I think he informed everybody. Q: You were aware of that as a member of the board? A: Yes. Sept. 29, 2000 Deposition of Edwin M. Canuso, at 78. Q: Do you know how much of this million dollars that [Conway’s daughter and daughter-in-law] made occasionally came from business with the bank? A: I assume. The law firm was doing most of its business with the bank. I’m assuming that’s where the money came from. Q: Do you think Conway should have told the board that his [daughter and daughter-in-law] were earning so much money based on business with the law firm and -the bank?",
"*617A: It was their business. I mean, I can’t say that it was their responsibility to let us know how much money they were making. Sept. 29, 2000 Deposition of Edwin M. Canuso, at 84-85. While these statement show LISB knew that Conway was receiving compensation from his firm, these statements do not establish that others in LISB knew that Conway’s firm compensation was improper. Rather, these same LISB executives indicate that they were unaware of any impropriety. Q: Based on the information that you’ve just read now in various documents, do you believe that Mr. Conway kept the board properly apprized (sic) of his activities or should he have given you more information?",
"A: We were apprized (sic) properly. Whether or not it was correct or not, how can we judge? I mean, we received the documentation accordingly and we accepted it on face value. Q: Do you believe there’s any information Mr. Conway kept from the board that he should have disclosed? A: I wouldn’t know that. Sept. 29, 2000 Deposition of Edwin M. Canuso, at 76-77. Q: Did the board of directors ever ask Conway about his interest in the law firm? A: To my knowledge, no. Q: Do you know why not? A: It was just the accepted practice. Q: If Mr. Conway was receiving income from the law firm directly related to the services the firm was providing for the bank, would that create a conflict-of-interest?",
"... A: No. Oct. 25, 2000 Deposition of George Irvin, at 41^3. Although LISB knew Conway was being compensated by his firm, this Court cannot conclude that LISB knew that the arrangement was improper, and, therefore, a misrepresentation. Also, the extent to which Conway acted to conceal his conflict from LISB once LISB discovered Conway’s compensation arrangement is significant in establishing LISB’s knowledge of the impropriety of Conway’s compensation. The Government has not established that LISB’s knowledge of Conway’s compensation equates to LISB’s knowledge of a misrepresentation. 3. Justifiable Reliance A primary function and purpose of the laws and agencies responsible for regulating the banking industry is to ensure the safe and sound management of banks and the money the public entrusts to banks.",
"Not only is this generally apparent within the law, but within the Assistance Agreement. The Government contracted for full disclosure of any conflicts-of-interest in order to assure the safe and sound management of LISB, and it relied on Conway’s statements. The Government thus justifiably relied on Conway’s misrepresentation. It is further apparent that LISB also relied on Conway to disclose his conflict. Indeed, without the action of LISB, there is no evidence that the Government would have independently discovered Conway’s conflict-of-interest. What is clear is that, for Conway to have benefited from his scheme, he needed both the Government and LISB to rely on his deception. 4. Injury It is sufficient that the “injury and the damages to the sovereign are presumed in the breach of the bond of public trust.” Supermex, Inc. v. United States, 35 Fed.Cl. 29, 42 (Fed.Cl.1996) (bribing public officials is an inherent public harm).",
"However, it is difficult for the Court to accept the Government’s contention that plaintiffs’ conduct caused injury to the public’s trust in banks, particularly when the Government continued to accept LISB’s performance under the contract. The alleged public injury is questionable because the party that appears to have been actually injured is LISB, which spent over $1 million in litigation resolving issues surrounding Conway’s misconduct. Further, LISB fully performed its obligations under the Assistance Agreement, and the Govern*618ment sustained no cognizable injury. This is not a case of conspiracy for corporate benefit, but of concealed misstatements for personal gain. Conway could arrange his scheme only as someone who was authorized to enter into the Assistance Agreement with the Government; however, it would be incorrect to characterize his personal compensation scheme as being authorized by LISB.",
"As LISB’s Chairman and CEO, Conway had this authority and acted on behalf of LISB; however, his fraud was not based on the Agreement; rather, the fraud resulted from his compensation arrangement with the firm. Forfeiture of Fraudulent Claims Act, 28 U.S.C. § 2514, was not intended to forfeit an otherwise valid claim merely because in some other unrelated transaction a person defrauds the Government; rather, it was intended to apply to situations where fraud was committed with regard to the very contract upon which the suit is brought. See Little v. United States, 138 Ct.Cl. 773, 778, 152 F.Supp. 84 (1957). Conway’s improper compensation relationship with his firm was not related to the Assistance Agreement, and, therefore, to forfeit LISB’s claim due to that scheme would not serve to carry out the intentions of the Forfeiture of Fraudulent Claims Act. Conway used his authority independently and without LISB’s knowledge to gain personally from his dual relationship. The Government has not submitted sufficient evidence that other members of LISB knew of Conway’s conflict and his compensation scheme to provide a material genuine issue of fact.",
"Conway did so without LISB’s knowledge and approval, as evidenced by his concealment of this information from LISB and by LISB’s litigation with Conway over disclosure of his compensation. Because the compensation that Conway received from the firm placed LISB in unknowing liability, LISB essentially was used by its own agent, Conway, for his personal gain and not for corporate benefit. See Acme Process Equip. Co. v. United States, 171 Ct.Cl. 324, 347 F.2d 509, 519 n. 12 (1965), rev’d on other grounds.",
"The Court therefore cannot conclude that LISB, as a corporate entity, acted fraudulently. Thus, the question remains whether Conway’s conduct alone can be imputed to LISB. III. Imputation of Conway’s Conduct to LISB A corporation can act only through its officers and agents and, when they are clothed with the authority to act for it, the corporation is responsible for their acts. Wagner Iron Works v. United States, 146 Ct.Cl. 334, 174 F.Supp. 956, 958 (1959) (citing Gleason v. Seaboard Air Line Ry. Co., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415 (1929); Standard Surety & Cas. Co. of New York v. Plantsville Nat. Bank, 158 F.2d 422 (2nd Cir.1946); Ralston Purina Co. v. Novak, 111 F.2d 631 (8th Cir.1940)). Under general rules of agency law, principals are liable even when their agents act fraudulently so long as they are acting with apparent authority.",
"See American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 565-66, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982); Anderson v. United States, 47 Fed.Cl. 438, 448 (2000). For instance, a principal is liable for an agent’s fraud, though the agent acts solely to benefit himself, if the agent acts with apparent authority. See O'Brien Gear & Mach. Co. v. United States, 219 Ct.Cl. 187, 591 F.2d 666, 672 (1979) (fraud of the plaintiffs president, chief executive officer, and the sole owner of the corporate stock imputed to plaintiff corporation).",
"Imputation of fraud is not, however, automatic. Under the law of imputation, courts impute the fraud of an officer to a corporation only when the officer commits the fraud (1) in the course of his employment, and (2) for the benefit of the corporation. First Federal Sav. Bank of Hegewisch, 52 Fed.Cl. at 792; see Official Committee of Unsecured Creditors v. R.F. Lafferty & Co., Inc., 267 F.3d 340, 358-59 (3rd Cir.2001). Thus, imputation of an agent’s actions to his principal is precluded where the agent’s actions are taken for the purpose of defrauding the principal. Trilon Educational Corp. v. United States, 217 Ct.Cl. 266, 578 F.2d 1356, 1361 (1978) (noting that an individual’s criminal conviction of fraud on an unrelated contract bid that resulted in debarment need not *619inevitably be imputed to an affiliated firm). Thus, for there to be strict imputation, the Government must establish that indeed the perpetrator of the fraud acted on behalf of the corporate entity, and not merely for his own personal benefit. For purposes of imputation, the important distinction is not between LISB and Conway, rather it is between Conway’s duties as CEO and Chairman versus his individual conduct. Apparent authority is defined as when a “principal permits the agent to exercise or which he holds [the agent] out as possessing.” Strann v. United States, 2 Cl.Ct.",
"782, 789 (1983) (quoting S. Williston, A Treatise on the Law of Contracts §§ 277, n. 11 (W. Jaeger 3d ed.1959 and 1982 Supp. ); citing Restatement (Second) of Agency § 8 (1958)). Determining whether apparent authority exists requires scrutiny into the principal’s behavior in the relationship with its agent. Strann, 2 Cl.Ct. at 789. As LISB’s CEO and Chairman, it would appear that, in entering into the Assistance Agreement, Conway acted within the scope of his employment. However, the circumstances here show that, once LISB became aware of Conway’s compensation scheme, LISB acted to disclose Conway’s compensation and Conway fought to prevent LISB from disclosing that information. LISB’s independent efforts to disclose Conway’s compensation scheme and Conway’s efforts to rebuff LISB’s efforts weigh heavily in supporting the conclusion that Conway’s personal compensation scheme was not authorized by LISB.",
"It is undisputed that Conway, as LISB’s CEO and Chairman, had the authority to enter into the Assistance Agreement on behalf of LISB. It cannot be said, however, that LISB authorized or approved Conway’s personal compensation scheme with the firm. The fraud here was not in entering into the Assistance Agreement, rather the fraud the Government challenges is with regard to Conway’s compensation scheme, an arrangement that was neither found within the scope of Conway’s duties as LISB’s CEO and Chairman nor approved of by LISB. When an agent’s motive and conduct demonstrate that he has abandoned his principal’s interest and is acting to defraud his principal, entirely for his own or another’s purpose, his knowledge and misconduct will not be imputed to his principal.",
"Acme Process Equip. Co. v. United States, 347 F.2d at 519 n. 12. The rationale for this exception is clear in that the law presumes that the wrongdoer would not perform his usual duty to disclose all material facts regarding his action if such disclosure would reveal the fraud that he committed. This is evidenced by the fact that, had the knowledge that the Government seeks to impute to LISB actually been disclosed to LISB, the success of Conway’s scheme would have been impaired. The second part of the imputation test is whether the fraudulent conduct was perpetrated for the benefit of LISB. Official Committee of Unsecured Creditors, 267 F.3d at 359. Under this prong, fraudulent conduct will not be imputed if the officer’s interests were adverse to the corporation and not for the benefit of the corporation. Id. ; First Federal Sav.",
"Bank of Hegewisch, 52 Fed.Cl. at 792-93 (adopting the adverse interest exception); see Crocker v. United States, 49 Ct.Cl. 85, 1913 WL 1286 (1913) (where an agent goes beyond the scope of his authority and commits a wrong or fraud to accomplish a purpose designedly his own, the principal is not liable). The Government has not established that LISB benefited, monetarily or otherwise, from Conway’s misrepresentation. Only Conway received compensation from his firm. LISB did not pay the loan closing fees or provide the firm with payment, rather the individual borrowers did. There is no evidence that LISB as a corporate entity or that LISB’s officers (other than Conway) received compensation under Conway’s scheme. The fraud benefited only Conway, his family, and his law firm; it did not benefit LISB. Because this Court finds that the Assistance Agreement was not actually tainted by illegality or impropriety, that is, that the Agreement was used a tool of an independent conflict-of-interest, rather than the actual product of the conflict, the Court finds that the Agreement is not void ab initio. Godley v. United States, 5 F.3d at 1475 n. 1 (noting *620that although the court in K & R Engineering Co. v. United States, 222 Ct.Cl.",
"340, 616 F.2d 469 (1980), misread the factual predicate of United States v. Mississippi Valley Generating Co., 364 U.S. 520, 565, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961), it was correct in that, for a contract to be void ab initio, the contract must be the actual product of the conflict-of-interest, not an agreement entered into separately from the conflict-of-interest, or condoned by the company whose agent acts with its authority). Here, plaintiffs took action to uncover Conway’s conflict-of-interest. Likewise, the Government’s assertion that the Agreement is void or voidable because of Conway’s misrepresentations is also inapposite because Conway’s personal misconduct does not render the Agreement void or voidable. LISB was innocent of the misconduct and complied with banking regulations, and thus, LISB committed no fraud under the Agreement’s terms. Lastly, because the contract itself is not tainted by Conway’s conflict-of-interest, and has remained pure in formation and performance, rescission would be improper. See Nebco v. United States, 23 Cl.Ct. 635, 642 (1991). CONCLUSION For the reasons stated herein, plaintiffs’ motion for summary judgment regarding defendant’s fraud counterclaims and defenses is granted.",
"Defendant’s motion for summary judgment is denied. . From December 1982 through August 1989, LISB was subject to regulation and supervision by the FHLBB. Since August 1989, LISB has been subject to regulation and supervision by the Office of Thrift Supervision (“OTS”), the successor to the FHLBB, whose purpose is to maintain administrative enforcement proceedings. . In August 1985, Conway & Ryan PC changed its name to Power, Meehan & Petrelli, PC. In 1990, the firm changed its name again, this time to Power, Meehan & Power, PC. . In accordance with 12 C.F.R. § 563.45. . 18 U.S.C. § 215 (Receipt of commissions or gifts for procuring loans) states that a director or officer commits a crime when he corruptly solicits or corruptly accepts anything of value from another person or entity intending to be rewarded in connection with any business or transaction of an insured depository institution. .",
"12 C.F.R. § 561.29 states: Affiliated person. — The term “affiliated person” of an insured institution [LISB] means the following: (a) A director, officer, or controlling person of such institution [Conway as LISB’s CEO]; (d) Any corporation or organization (other than the insured institution or a corporation or organization through which the insured institution operates) of which a director, officer or controlling person of such institution: ... (d)(2) Is a general partner ... [Conway’s law firm]"
]
| https://www.courtlistener.com/api/rest/v3/opinions/6651478/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Filed 6/12/13 (unmodified opinion and publication order attached) CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C069153
Plaintiff and Respondent, (Super. Ct. No. 09F00826)
v. ORDER MODIFYING OPINION ZANG HER, CHANGE IN JUDGMENT Defendant and Appellant.
THE COURT: It is ordered that the opinion filed herein on May 14, 2013, and subsequently ordered filed for partial publication on May 29, 2013, be modified as follows: On page 2, after the words “we affirm” in the last sentence of the first full paragraph, insert the following footnote, which will require renumbering of all subsequent footnotes: Defendant died in December 2012. Defendant‟s death during the pendency of the appeal abates all further proceedings in the case. (People v. Dail (1943) 22 Cal.2d 642, 659.) However, we exercise our inherent authority to retain the appeal for issuance of this opinion since it raises important issues of public interest that are likely to recur in other cases. (See, e.g., People v. Nottoli (2011) 199 Cal.App.4th 531, 535, fn. 3.)
1 On page 15, delete the Disposition and insert the following Disposition in its place: As noted at the beginning of our opinion, defendant has died, and his death abates all further proceedings in the case. (People v. Dail, supra, 22 Cal.2d at p. 659.) We therefore remand the case to the trial court with directions to enter an order that all proceedings in the case have permanently abated. (See In re Jackson (1985) 39 Cal.3d 464, 480.)
BY THE COURT:
ROBIE , Acting P. J.
MAURO , J.
2 Filed 5/14/13 Certified for partial publication 5/29/13 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----
THE PEOPLE, C069153
Plaintiff and Respondent, (Super. Ct. No. 09F00826)
v.
ZANG HER,
Defendant and Appellant.
John Lone Eagle was found strangled to death with a telephone cord in his Carmichael bedroom. About $4,000 was missing from his bedroom. DNA consistent with the genetic profile of defendant Zang Her was found in three places in the house -- on a latex glove that was tangled in the telephone cord around John Lone Eagle‟s neck, on a pillow in the same bedroom, and in a blood spot on the entryway floor to the house. Defendant was also linked to John Lone Eagle through defendant‟s wife and an acquaintance. A jury found defendant guilty of first degree burglary and first degree murder with the special circumstance that the murder was committed during a burglary. The jury did not reach a verdict on whether defendant personally used a weapon (the telephone cord).
1 Defendant appeals from the resulting prison sentence of life without the possibility of parole, raising three issues relating to the evidence and the jury‟s composition. Finding no merit in these contentions, we affirm. FACTUAL AND PROCEDURAL BACKGROUND A The Prosecution’s Case John Lone Eagle operated a business out of his home in which he bought and sold foreclosed homes. He employed four or five women to help him, and he transacted a lot of business in cash, which he kept in the house, oftentimes in plain view. In the summer of 2004 when he was murdered, John Lone Eagle was in poor health and was not very mobile. One August morning, an employee arrived at his house to start work. The door was unlocked and the house had been ransacked. She went into his bedroom and saw him on the bed with a pillow over his head. When she shook him and he was unresponsive, she noticed there was blood all over his pillow and shirt. She called 911. Police arrived and pronounced John Lone Eagle dead. He had been strangled with a telephone cord that was still around his neck. Forensics testing by criminalists Kristie Abbott and Jeffrey Herbert was conducted on the pillow, the glove, and blood stains found on the ground in the entryway to the house, on the wall behind the front door, and on the wall of the stairwell. As to three blood stains on the pillowcase, they contained a mixture of DNA from two contributors. In one of those samples (DNA 5), the major contributor had a DNA profile that “was the same” (meaning the profile matched defendant‟s at all 15 designated loci on the genome) as the reference profile of defendant‟s, and the minor contributor had a DNA profile that matched John Lone Eagle‟s. In the Asian population, the chance of a random person having a DNA profile matching defendant‟s was 1 in 150 quintillion. The two mixed-source samples (DNA 7 and DNA 9) on the pillowcase contained John Lone
2 Eagle‟s DNA profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial profile for the minor contributor to each mixture is consistent with the profile of the major contributor to DNA 5.” As to the glove, it contained defendant‟s DNA on the inside of three fingers that also contained John Lone Eagle‟s DNA. Defendant‟s and John Lone Eagle‟s DNA were also detected in a mixture on two other spots on the glove, which also contained an “additional allele” that indicated there was a third contributor. As to the blood stain found in the entryway on the ground, it contained about an even mixture of defendant‟s and John Lone Eagle‟s DNA profiles, as measured by a formula known as the combined probability of inclusion. The chances that a random person in the Hispanic population could have been a contributor to the sample were 1 in 140 million. In the African American and Caucasian populations, it would have been even rarer. When using this formula, criminalist Herbert assumed the entryway blood sample contained DNA from only two people, both males, and there was no allelic dropout. Had he not made those assumptions, the numbers would have been “more common.” As to the blood stain on the wall in the stairwell, it contained DNA from only one person -- John Lone Eagle. As to the blood stain on the wall behind the front door, it contained DNA from an unknown male. Besides being linked to John Lone Eagle through DNA, defendant was linked to John Lone Eagle through defendant‟s wife and through an acquaintance named Derek Wong. About two months after the murder, police found a piece of paper in Wong‟s house that contained John Lone Eagle‟s address. In a recorded phone call between defendant and his wife, defendant admitted being introduced to Wong by his wife.
3 B The Defense Defendant worked for a paint store at the time of the murder. As part of his job, defendant often had to wear latex gloves that were similar to the one found at the crime scene. Based on this evidence, defense counsel argued that defendant‟s discarded work gloves were used by the real killer when he murdered John Lone Eagle. DISCUSSION I The Trial Court Was Within Its Discretion To Admit Partial DNA Profile Evidence Without Accompanying Statistical Analysis Defendant contends the trial court erred in allowing the People to admit testimony that a partial DNA profile in two mixed-source samples on John Lone Eagle‟s pillowcase was consistent with defendant‟s genetic profile. He argues that because the testimony about those samples was not accompanied by any statistical analysis, it had no probative value. As we will explain, defendant is wrong. In California, only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is that “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) An appellate court reviews a trial court‟s evidentiary rulings for abuse of discretion. (People v. Venegas (1998) 18 Cal.4th 47, 93.) Here, the trial court ruled that the People‟s expert could testify the partial DNA profile detected in both mixed-source samples was consistent with defendant‟s DNA because it was relevant circumstantial evidence of the perpetrator‟s identity in the context of other DNA evidence. This ruling was well within the court‟s discretion. One of the People‟s DNA experts, Kristie Abbott, testified only that the alleles in the partial profiles were “consistent” (as opposed to being a “match”) with defendant‟s DNA profile, meaning he could not be excluded as a possible contributor. The
4 prosecutor in closing argument used the same nomenclature when arguing that the alleles in the partial profile were “consistent” with defendant.1 This evidence and argument was consistent with case law -- both in California and beyond -- that DNA testimony need not be accompanied by statistical analysis. In California, Division Five of the First Appellate District upheld admission of testimony that DNA evidence at the scene “ „belonged to‟ ” the defendant, where the People did not provide statistical support for that conclusion. (People v. Cua (2011) 191 Cal.App.4th 582, 596, 597, 600.) Other state courts have ruled in cases similar to the one here that evidence of a partial DNA profile consistent with the defendant‟s profile is relevant and admissible absent statistical analysis. The Nevada Supreme Court explained it this way: “DNA nonexclusion evidence is admissible in the absence of supporting statistical data reflecting the percentage of the population that could be excluded as long as the nonexclusion evidence is relevant, because any danger of unfair prejudice or of misleading the jury is substantially outweighed by the defendant‟s ability to cross- examine or offer expert witness evidence as to probative value.” (Rodriguez v. State (2012) 273 P.3d 845, 851.) A Missouri appellate court ruled as follows in response to a defendant‟s contention that, without that statistical analysis, the conclusions of the People‟s DNA experts were irrelevant and, therefore, inadmissible: “Even though a full genetic profile was not obtained, the circuit court could rely on the partial profiles that left [the defendant] as a possible source of the DNA along with the other evidence in determining guilt. „The weight to be afforded this evidence was within the province of the [fact-finder] to decide.‟ ” (State v. Harding (2010) 323 S.W.3d 810, 817-818.)
1 Defendant argues the prosecutor took the argument too far by arguing, “You are also seeing, at least at an extremely low level, alleles that are consistent with defendant but no other person.” Contrary to defendant‟s suggestion, the phrase “no other person” referred not to the entire population, but to John Lone Eagle and to other people whose DNA was tested as part of the investigation in this case.
5 The rationale of these cases applies here. The evidence of the two partial profiles was relevant because they were consistent with the profile of the major contributor of the other blood stains on the pillow and therefore had a tendency in reason to show that defendant murdered John Lone Eagle. Specifically, Abbott testified the three blood stains on the pillowcase contained a mixture of DNA from two contributors. In one of those samples (DNA 5), the major contributor had a DNA profile that “was the same” as the reference profile of defendant‟s, and the minor contributor had a DNA profile that matched John Lone Eagle‟s. In the Asian population, the chance of a random person having a DNA profile matching defendant‟s was 1 in 150 quintillion. Abbott further testified the two mixed-source samples (DNA 7 and DNA 9) contained the victim‟s DNA profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial profile for the minor contributor to each mixture is consistent with the profile of the major contributor to DNA 5.” Thus, because the partial profile was consistent with the profile of the major contributor to the other blood stains on the pillow, which bore defendant‟s profile, it was relevant to support the People‟s theory that defendant killed John Lone Eagle. The court did not abuse its discretion in admitting the evidence. II The Trial Court Did Not Violate Defendant’s Constitutional Rights When It Placed Certain Restrictions On The Cross-Examination Of The People’s DNA Experts Defendant contends the trial court violated his federal constitutional rights by limiting his cross-examining of Jeffrey Herbert about criticism of Herbert‟s statistical methods in a prior case and of Kristie Abbott about shortcomings at the Sacramento County crime laboratory (the crime lab) that were unrelated to the work in this case. As we explain, there was no error.
6 A Factual Background Defendant filed a motion requesting he be allowed to impeach Herbert with evidence of the following: Herbert‟s method of calculating probability statistics was criticized in a prior case, People v. Smith (06F00122); Herbert incorrectly testified in Smith the chance of a random person other than the defendant being a contributor to a mixed-source DNA sample was 1 in 95,000 when it was really 1 in 13; lack of understanding of statistical analysis of mixed-source samples led to the crime lab‟s removing him from his position analyzing DNA evidence; Herbert concealed criticisms of his work (i.e., he falsely testified in Smith that his work was approved following an administrative review); and he failed a competency exam at the crime lab. Defendant also requested he be allowed to introduce evidence that audits of the crime lab in 2005 and 2010 uncovered deficiencies that led to delayed reaccreditation. Specifically, there were insufficient studies of the crime lab‟s internal validation of DNA testing methods; there was insufficient chain of custody for evidence; there were problems with the scope of authorization for DNA analysts; the entrance to the biology unit was not secured; and there were deficient protocols for reducing DNA contamination. The prosecutor argued that the criticisms of Herbert in Smith were mostly irrelevant because in Smith, unlike here, it was improper to assume there were only two donors to the mixed-source sample and there were strong indications of “allelic drop out” (meaning the sample level was very low so one could not see the complete DNA profile). Thus, while Herbert‟s use of the combined probability of inclusion method was arguably inappropriate in Smith, it was not inappropriate here. Explaining to the jury why the two cases were different would be an undue consumption of time, “basically a trial within a trial to flesh out these issues.” If the defense wanted to elicit that there were “dings” on Herbert‟s record, defense counsel could do that in a few, very focused questions on cross-
7 examination. Finally, the testimony in Smith did not show Herbert had lied or misled the jury when he stood by his random match calculation of 1 in 95,000. The trial court ruled defense counsel could question Herbert about the appropriateness of using the combined probability of inclusion method in this case and about errors in using that method in Smith and whether he received “some outside criticism,” but it would not permit a “full-blown inquiry” into Smith because it would be “enormously time consuming . . . [and] illuminating of . . . virtually nothing.” Defense counsel could not ask Herbert questions suggesting he lied in his testimony in Smith because the transcripts did not support that he did. Defense counsel could ask Herbert whether he failed the competency exam, but the prosecutor could then elicit that thereafter he passed it. Defense counsel could ask whether Herbert‟s DNA case work had been restricted, but counsel could not elicit the details. As for delays in the accreditation of the crime lab, the court ruled defense counsel could ask Abbott and Herbert about those only if the shortcomings cited in the audits had a direct bearing on the DNA analysis in this case. At trial, defense counsel briefly cross-examined Herbert. Defense counsel did not ask Herbert if he made any mistakes in another case that resulted in outside criticism. He did not ask whether Herbert had failed a competency exam and whether there were limitations placed on him participating in DNA cases. At trial, during defense counsel‟s cross-examination of Abbott, he did not ask questions about whether the DNA analysis in this case could have been compromised by any of the shortcomings cited in the audits.
8 B The Court’s Limitations On Questioning Herbert And Abbott Did Not Violate Defendant’s Constitutional Rights 1. Precluding Defense Counsel From Cross-Examining Herbert Regarding Details Of The Smith Case Defendant contends the court violated his right to confrontation when it limited its cross-examination of Herbert about details of the Smith case. As noted, the trial court ruled defense counsel could question Herbert about the appropriateness of using the combined probability of inclusion method in this case and about errors in using that method in Smith and whether he received “some outside criticism,” but it would not permit a “full-blown inquiry” into Smith because it would be “enormously time consuming . . . [and] illuminating of . . . virtually nothing.” There was no violation of defendant‟s right to confront the witnesses against him with this ruling. The key issue here regarding the validity of the random match probability statistics for the DNA sample in the entryway was whether the combined probability of inclusion method was appropriately applied for that sample -- not to a sample in another case. As to the sample in this case, defense counsel was allowed to elicit testimony from Herbert that he assumed the entryway blood sample contained DNA from only two people, both males, and there was no allelic dropout. Had he not made those assumptions, the numbers would have been “more common.” He was also allowed to elicit that alleles could be measured with confidence at only seven of the 13 loci. Under the trial court‟s ruling, defense counsel was also permitted to elicit (although he did not) that Herbert‟s use of the combined probability of inclusion method under those circumstances was inappropriate. Compared to this questioning, asking Herbert about mistakes he made in the Smith case using the combined probability of inclusion method would have been of little relevance while having the potential to confuse the issue and take up an undue amount of
9 time. On this record, there was no violation of defendant‟s right to confront the witnesses against him by limiting this evidence. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683] [trial judges retain wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, confusion of the issues or interrogation that is only marginally relevant].) Similarly, the trial court‟s ruling prohibiting defense counsel from questioning Herbert about his testimony in Smith did not violate defendant‟s right to confront the witnesses against him. Contrary to defendant‟s position both at the trial court and on appeal, the transcript does not show Herbert gave “willfully false testimony” about criticism of the statistics he provided in Smith. The transcript shows that Herbert acknowledged there was a “dispute” about the statistics he provided in Smith but that Herbert stood by his work, finding no errors and that his report was approved by his supervisor. As the trial court correctly found, defense counsel could not ask Herbert questions suggesting he lied in his testimony in Smith because the transcripts did not support that he did. As such, cross-examining him about this testimony in Smith would not have shed any negative light on Herbert‟s veracity. 2. Precluding Defense Counsel From Cross-Examining Herbert And Abbott Regarding Deficiencies In The Crime Lab Defendant contends the court violated his federal right to confront the witnesses against him when it precluded defense counsel from cross-examining Herbert and Abbott regarding deficiencies in the crime lab cited in two audit reports. Defendant fails to acknowledge the court did give defense counsel the opportunity to introduce such evidence if counsel could establish the shortcomings cited in the audit had a direct bearing on the DNA analysis in this case. Defense counsel made no attempt to do so in either cross-examination. Absent that link, evidence about the shortcomings in the audits would not have had a tendency in reason to help the jury evaluate the reliability of test
10 results reported by Herbert and Abbott in this case. As such, the exclusion did not violate defendant‟s right to confrontation. 3. No Violation Of Defendant’s Due Process Rights In an argument related to the two above, defendant contends the court‟s limitations on his cross-examination of Herbert and Abbott also violated his due process right to present a defense and to have a fair trial. Similar to the right to confrontation, a defendant‟s due process right to present a defense and have a fair trial apply only to “relevant and material” evidence that is of a significant probative value to the defense. (Washington v. Texas (1967) 388 U.S. 14, 23 [18 L.Ed.2d 1019,1025].) The exclusion of defense evidence on a minor or subsidiary point does not interfere with these rights. (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) As we have explained, although the trial court placed limits on defense counsel‟s cross-examination of Herbert and Abbott, defense counsel was still permitted to question them about all aspects of their DNA testing in this case, a little bit about the testing in Smith, and any aspect of the crime lab audits that had a bearing on the reliability of that testing. As we have explained, this was the relevant evidence. As the court allowed defendant to introduce this evidence, there was no violation of defendant‟s due process right to present a defense and to have a fair trial. III The Trial Court Did Not Err In Dismissing Juror No. 12 Defendant contends the trial court violated his right to a decision by a unanimous and impartial jury when it dismissed Juror No. 12. He argues the court‟s inquiry: (1) intruded into the jury‟s deliberative process; and (2) did not reveal grounds to dismiss the juror because she was merely applying the presumption of innocence. As we will explain, defendant‟s first argument is forfeited and his second one lacks merit.
11 A Background Regarding The Dismissal Of Juror No. 12 The day following the first day of deliberations, Juror No. 6 reported to the bailiff that Juror No. 12 “had decided on the first day of the trial how she was going to vote.” “She also said she was going to vote strictly on her feelings . . . there was no point in talking about [the facts] with the rest of the jurors because she had already made up her mind on how she was going to vote.” After conferring with counsel, the court interviewed Juror No. 6, Juror No. 1 (the foreperson), Juror No. 7, and Juror No. 12. Thereafter, the court ruled Juror No. 12 had violated its instructions in several respects, “most significantly, by having reached her conclusion as to this case before the deliberative process even began.” Accordingly, the court dismissed Juror No. 12, replaced her with an alternate, and instructed the jury to begin deliberations anew. B Defendant Forfeited His Contention That The Court Conducted An Intrusive Inquiry Into The Jury Deliberations Defendant contends the court violated his constitutional rights to a fair trial and impartial jury by conducting an intrusive inquiry into deliberations. Specifically, he claims the court improperly asked Juror No. 12 about her thought process when it asked her questions about her “feelings” in the case. Defendant has forfeited this claim by failing to object to the method by which the court conducted its inquiry. During the court‟s inquiry of Juror No. 12, defense counsel never objected to the manner in which the court was questioning her. After the court finished questioning Juror No. 12 and asked both attorneys for their thoughts, defense counsel argued only that the juror‟s response about her feelings was “really the very, very, very natural human process of approaching problems.” When the court suggested that inquiring further with the other jurors might help determine whether Juror No. 12 was “willing to set that gut
12 feeling aside and listen to the evidence, apply that law and collegi[all]y deliberate with the other jurors,” defense counsel said, “Right, that inquiry needs to be made; I agree.” Under these circumstances, where defense counsel did not object to the court‟s inquiry and even agreed to a similar further inquiry of the other jurors, defendant has forfeited his argument that the questioning of the juror was improper. (People v. Avila (2009) 46 Cal.4th 680, 727-728 [defendant forfeited his contention that the trial court‟s questioning of a juror “was not „even-handed,‟ and that the court „did not adequately question jurors as to the actual statements made, while delving into the deliberative process‟ ” because counsel agreed to the questioning and even suggested further questioning].) C The Court Did Not Err In Dismissing Juror No. 12 Defendant contends the court erred in dismissing Juror No. 12 because she was simply a holdout juror who was passionate and adamant about her opinion. “ „We review for abuse of discretion the trial court‟s determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court‟s ruling, we will uphold it. [Citation.] . . . [H]owever, . . . a juror‟s inability to perform as a juror “ „must appear in the record as a demonstrable reality.‟ ” [Citation.]‟ ” (People v. Cleveland (2001) 25 Cal.4th 466, 474.) As we explain, there was no abuse of discretion here. Juror No. 12‟s inability to perform as a juror was based on substantial evidence in the form of testimony from three other jurors and Juror No. 12‟s responses to the court‟s questioning. There was substantial evidence Juror No. 12 had reached a conclusion about how the case should be decided even before the deliberative process began and then refused to deliberate. Specifically, three jurors testified Juror No. 12 had made up her mind before deliberations began and refused to deliberate. And Juror No. 12 partially confirmed their version of events.
13 Juror No. 6 testified that Juror No. 12 “had specified from day one she had decided how she felt about the case and . . . had known from the very first time when she walked in how she was going to vote.” When other jurors “discussed with her that she was supposed to be basing her opinions on the facts of the case, she said she knew what the facts were and she was going with her feeling and she didn‟t care.” When other jurors started expressing their opinions about the case, Juror No. 12 “was busy doing stuff in her binder and wasn‟t paying attention anymore, and every time somebody would talk to her she‟d start yelling.” She mentioned that she did not want to miss her vacation with her grandson and “didn‟t want this to take too long.” Juror No. 1 testified that Juror No. 12 had made up her mind from the first day she walked in. Juror No. 12 said she was basing her opinion on her “feelings” and “intuition” and “not facts.” When other jurors tried to remind her she needed to work with the other jurors and discuss all their viewpoints, Juror No. 12‟s response was, “I don‟t care.” She also mentioned her grandson was coming to town and “she doesn‟t have time to do this.” Juror No. 7 testified that Juror No. 12 “mentioned the first day, that she had already decided.” “I‟ve already made up my mind. Nothing anyone says will change my mind. . . . From the very beginning, I had decided.” Juror No. 12 somewhat corroborated the testimony of the other jurors when she testified that “when I came in . . . looking at the defendant and everything that was presented before me, there was a feeling before the process started.” It was a “gut feeling” that made her “lean . . . toward a certain decision.” She listened to the court‟s instructions about “leav[ing] feelings out of this” but she was “not a robot” and felt “feelings have to come into decision-making” -- those “innate, gut, intuitive feelings that I cannot just dismiss.” She did mention that her grandson was going to be visiting and she “want[e]d the deliberation process to go faster than slower.” Based on these jurors‟ testimony, there was substantial evidence to support the trial court‟s determination that Juror No. 12 was unable to perform as a juror and
14 therefore no abuse of discretion in excusing her. (See People v. Feagin (1995) 34 Cal.App.4th 1427, 1436-1437 [where several jurors testified that the at-issue juror was unwilling to participate in the jury discussions, had refused to explain her thoughts, and had already made up her mind, the court found substantial evidence to support the finding the at-issue juror was unable to perform her functions as a juror as a demonstrable reality, and there was no abuse of discretion in excusing her].) Because we have concluded the trial court did not abuse its discretion in excusing Juror No. 12, her discharge did not violate defendant‟s constitutional rights. (People v. Lomax (2010) 49 Cal.4th 530, 591.) DISPOSITION The judgment is affirmed.
ROBIE , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
15 Filed 5/29/13 CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C069153
Plaintiff and Respondent, (Super. Ct. No. 09F00826)
v. ORDER CERTIFYING OPINION FOR PARTIAL ZANG HER, PUBLICATION
Defendant and Appellant.
THE COURT: The opinion in the above-entitled matter filed on May 14, 2013, 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 except for parts II and III of the Discussion, and it is so ordered. BY THE COURT:
ROBIE , Acting P. J.
MAURO , J.
DUARTE , J.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II and III of the Discussion.
16 EDITORIAL LISTING
APPEAL from a judgment of the Superior Court of Sacramento County, Steve White, Judge. Affirmed.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Daniel B. Bernstein, Deputies Attorney General, for Plaintiff and Respondent.
17 | 08-12-2013 | [
"Filed 6/12/13 (unmodified opinion and publication order attached) CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C069153 Plaintiff and Respondent, (Super. Ct. No. 09F00826) v. ORDER MODIFYING OPINION ZANG HER, CHANGE IN JUDGMENT Defendant and Appellant. THE COURT: It is ordered that the opinion filed herein on May 14, 2013, and subsequently ordered filed for partial publication on May 29, 2013, be modified as follows: On page 2, after the words “we affirm” in the last sentence of the first full paragraph, insert the following footnote, which will require renumbering of all subsequent footnotes: Defendant died in December 2012.",
"Defendant‟s death during the pendency of the appeal abates all further proceedings in the case. (People v. Dail (1943) 22 Cal.2d 642, 659.) However, we exercise our inherent authority to retain the appeal for issuance of this opinion since it raises important issues of public interest that are likely to recur in other cases. (See, e.g., People v. Nottoli (2011) 199 Cal.App.4th 531, 535, fn. 3.) 1 On page 15, delete the Disposition and insert the following Disposition in its place: As noted at the beginning of our opinion, defendant has died, and his death abates all further proceedings in the case.",
"(People v. Dail, supra, 22 Cal.2d at p. 659.) We therefore remand the case to the trial court with directions to enter an order that all proceedings in the case have permanently abated. (See In re Jackson (1985) 39 Cal.3d 464, 480.) BY THE COURT: ROBIE , Acting P. J. MAURO , J. 2 Filed 5/14/13 Certified for partial publication 5/29/13 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C069153 Plaintiff and Respondent, (Super. Ct. No. 09F00826) v. ZANG HER, Defendant and Appellant. John Lone Eagle was found strangled to death with a telephone cord in his Carmichael bedroom. About $4,000 was missing from his bedroom. DNA consistent with the genetic profile of defendant Zang Her was found in three places in the house -- on a latex glove that was tangled in the telephone cord around John Lone Eagle‟s neck, on a pillow in the same bedroom, and in a blood spot on the entryway floor to the house. Defendant was also linked to John Lone Eagle through defendant‟s wife and an acquaintance.",
"A jury found defendant guilty of first degree burglary and first degree murder with the special circumstance that the murder was committed during a burglary. The jury did not reach a verdict on whether defendant personally used a weapon (the telephone cord). 1 Defendant appeals from the resulting prison sentence of life without the possibility of parole, raising three issues relating to the evidence and the jury‟s composition. Finding no merit in these contentions, we affirm. FACTUAL AND PROCEDURAL BACKGROUND A The Prosecution’s Case John Lone Eagle operated a business out of his home in which he bought and sold foreclosed homes. He employed four or five women to help him, and he transacted a lot of business in cash, which he kept in the house, oftentimes in plain view.",
"In the summer of 2004 when he was murdered, John Lone Eagle was in poor health and was not very mobile. One August morning, an employee arrived at his house to start work. The door was unlocked and the house had been ransacked. She went into his bedroom and saw him on the bed with a pillow over his head. When she shook him and he was unresponsive, she noticed there was blood all over his pillow and shirt. She called 911. Police arrived and pronounced John Lone Eagle dead. He had been strangled with a telephone cord that was still around his neck. Forensics testing by criminalists Kristie Abbott and Jeffrey Herbert was conducted on the pillow, the glove, and blood stains found on the ground in the entryway to the house, on the wall behind the front door, and on the wall of the stairwell. As to three blood stains on the pillowcase, they contained a mixture of DNA from two contributors.",
"In one of those samples (DNA 5), the major contributor had a DNA profile that “was the same” (meaning the profile matched defendant‟s at all 15 designated loci on the genome) as the reference profile of defendant‟s, and the minor contributor had a DNA profile that matched John Lone Eagle‟s. In the Asian population, the chance of a random person having a DNA profile matching defendant‟s was 1 in 150 quintillion. The two mixed-source samples (DNA 7 and DNA 9) on the pillowcase contained John Lone 2 Eagle‟s DNA profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial profile for the minor contributor to each mixture is consistent with the profile of the major contributor to DNA 5.” As to the glove, it contained defendant‟s DNA on the inside of three fingers that also contained John Lone Eagle‟s DNA. Defendant‟s and John Lone Eagle‟s DNA were also detected in a mixture on two other spots on the glove, which also contained an “additional allele” that indicated there was a third contributor.",
"As to the blood stain found in the entryway on the ground, it contained about an even mixture of defendant‟s and John Lone Eagle‟s DNA profiles, as measured by a formula known as the combined probability of inclusion. The chances that a random person in the Hispanic population could have been a contributor to the sample were 1 in 140 million. In the African American and Caucasian populations, it would have been even rarer. When using this formula, criminalist Herbert assumed the entryway blood sample contained DNA from only two people, both males, and there was no allelic dropout. Had he not made those assumptions, the numbers would have been “more common.” As to the blood stain on the wall in the stairwell, it contained DNA from only one person -- John Lone Eagle. As to the blood stain on the wall behind the front door, it contained DNA from an unknown male.",
"Besides being linked to John Lone Eagle through DNA, defendant was linked to John Lone Eagle through defendant‟s wife and through an acquaintance named Derek Wong. About two months after the murder, police found a piece of paper in Wong‟s house that contained John Lone Eagle‟s address. In a recorded phone call between defendant and his wife, defendant admitted being introduced to Wong by his wife. 3 B The Defense Defendant worked for a paint store at the time of the murder. As part of his job, defendant often had to wear latex gloves that were similar to the one found at the crime scene.",
"Based on this evidence, defense counsel argued that defendant‟s discarded work gloves were used by the real killer when he murdered John Lone Eagle. DISCUSSION I The Trial Court Was Within Its Discretion To Admit Partial DNA Profile Evidence Without Accompanying Statistical Analysis Defendant contends the trial court erred in allowing the People to admit testimony that a partial DNA profile in two mixed-source samples on John Lone Eagle‟s pillowcase was consistent with defendant‟s genetic profile.",
"He argues that because the testimony about those samples was not accompanied by any statistical analysis, it had no probative value. As we will explain, defendant is wrong. In California, only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is that “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) An appellate court reviews a trial court‟s evidentiary rulings for abuse of discretion. (People v. Venegas (1998) 18 Cal.4th 47, 93.) Here, the trial court ruled that the People‟s expert could testify the partial DNA profile detected in both mixed-source samples was consistent with defendant‟s DNA because it was relevant circumstantial evidence of the perpetrator‟s identity in the context of other DNA evidence. This ruling was well within the court‟s discretion.",
"One of the People‟s DNA experts, Kristie Abbott, testified only that the alleles in the partial profiles were “consistent” (as opposed to being a “match”) with defendant‟s DNA profile, meaning he could not be excluded as a possible contributor. The 4 prosecutor in closing argument used the same nomenclature when arguing that the alleles in the partial profile were “consistent” with defendant.1 This evidence and argument was consistent with case law -- both in California and beyond -- that DNA testimony need not be accompanied by statistical analysis. In California, Division Five of the First Appellate District upheld admission of testimony that DNA evidence at the scene “ „belonged to‟ ” the defendant, where the People did not provide statistical support for that conclusion. (People v. Cua (2011) 191 Cal.App.4th 582, 596, 597, 600.) Other state courts have ruled in cases similar to the one here that evidence of a partial DNA profile consistent with the defendant‟s profile is relevant and admissible absent statistical analysis.",
"The Nevada Supreme Court explained it this way: “DNA nonexclusion evidence is admissible in the absence of supporting statistical data reflecting the percentage of the population that could be excluded as long as the nonexclusion evidence is relevant, because any danger of unfair prejudice or of misleading the jury is substantially outweighed by the defendant‟s ability to cross- examine or offer expert witness evidence as to probative value.” (Rodriguez v. State (2012) 273 P.3d 845, 851.) A Missouri appellate court ruled as follows in response to a defendant‟s contention that, without that statistical analysis, the conclusions of the People‟s DNA experts were irrelevant and, therefore, inadmissible: “Even though a full genetic profile was not obtained, the circuit court could rely on the partial profiles that left [the defendant] as a possible source of the DNA along with the other evidence in determining guilt. „The weight to be afforded this evidence was within the province of the [fact-finder] to decide.‟ ” (State v. Harding (2010) 323 S.W.3d 810, 817-818.)",
"1 Defendant argues the prosecutor took the argument too far by arguing, “You are also seeing, at least at an extremely low level, alleles that are consistent with defendant but no other person.” Contrary to defendant‟s suggestion, the phrase “no other person” referred not to the entire population, but to John Lone Eagle and to other people whose DNA was tested as part of the investigation in this case. 5 The rationale of these cases applies here. The evidence of the two partial profiles was relevant because they were consistent with the profile of the major contributor of the other blood stains on the pillow and therefore had a tendency in reason to show that defendant murdered John Lone Eagle. Specifically, Abbott testified the three blood stains on the pillowcase contained a mixture of DNA from two contributors. In one of those samples (DNA 5), the major contributor had a DNA profile that “was the same” as the reference profile of defendant‟s, and the minor contributor had a DNA profile that matched John Lone Eagle‟s.",
"In the Asian population, the chance of a random person having a DNA profile matching defendant‟s was 1 in 150 quintillion. Abbott further testified the two mixed-source samples (DNA 7 and DNA 9) contained the victim‟s DNA profile and alleles from a minor contributor at “two and four” of the 15 loci. “The partial profile for the minor contributor to each mixture is consistent with the profile of the major contributor to DNA 5.” Thus, because the partial profile was consistent with the profile of the major contributor to the other blood stains on the pillow, which bore defendant‟s profile, it was relevant to support the People‟s theory that defendant killed John Lone Eagle. The court did not abuse its discretion in admitting the evidence. II The Trial Court Did Not Violate Defendant’s Constitutional Rights When It Placed Certain Restrictions On The Cross-Examination Of The People’s DNA Experts Defendant contends the trial court violated his federal constitutional rights by limiting his cross-examining of Jeffrey Herbert about criticism of Herbert‟s statistical methods in a prior case and of Kristie Abbott about shortcomings at the Sacramento County crime laboratory (the crime lab) that were unrelated to the work in this case. As we explain, there was no error.",
"6 A Factual Background Defendant filed a motion requesting he be allowed to impeach Herbert with evidence of the following: Herbert‟s method of calculating probability statistics was criticized in a prior case, People v. Smith (06F00122); Herbert incorrectly testified in Smith the chance of a random person other than the defendant being a contributor to a mixed-source DNA sample was 1 in 95,000 when it was really 1 in 13; lack of understanding of statistical analysis of mixed-source samples led to the crime lab‟s removing him from his position analyzing DNA evidence; Herbert concealed criticisms of his work (i.e., he falsely testified in Smith that his work was approved following an administrative review); and he failed a competency exam at the crime lab. Defendant also requested he be allowed to introduce evidence that audits of the crime lab in 2005 and 2010 uncovered deficiencies that led to delayed reaccreditation. Specifically, there were insufficient studies of the crime lab‟s internal validation of DNA testing methods; there was insufficient chain of custody for evidence; there were problems with the scope of authorization for DNA analysts; the entrance to the biology unit was not secured; and there were deficient protocols for reducing DNA contamination. The prosecutor argued that the criticisms of Herbert in Smith were mostly irrelevant because in Smith, unlike here, it was improper to assume there were only two donors to the mixed-source sample and there were strong indications of “allelic drop out” (meaning the sample level was very low so one could not see the complete DNA profile).",
"Thus, while Herbert‟s use of the combined probability of inclusion method was arguably inappropriate in Smith, it was not inappropriate here. Explaining to the jury why the two cases were different would be an undue consumption of time, “basically a trial within a trial to flesh out these issues.” If the defense wanted to elicit that there were “dings” on Herbert‟s record, defense counsel could do that in a few, very focused questions on cross- 7 examination. Finally, the testimony in Smith did not show Herbert had lied or misled the jury when he stood by his random match calculation of 1 in 95,000.",
"The trial court ruled defense counsel could question Herbert about the appropriateness of using the combined probability of inclusion method in this case and about errors in using that method in Smith and whether he received “some outside criticism,” but it would not permit a “full-blown inquiry” into Smith because it would be “enormously time consuming . . . [and] illuminating of . .",
". virtually nothing.” Defense counsel could not ask Herbert questions suggesting he lied in his testimony in Smith because the transcripts did not support that he did. Defense counsel could ask Herbert whether he failed the competency exam, but the prosecutor could then elicit that thereafter he passed it. Defense counsel could ask whether Herbert‟s DNA case work had been restricted, but counsel could not elicit the details. As for delays in the accreditation of the crime lab, the court ruled defense counsel could ask Abbott and Herbert about those only if the shortcomings cited in the audits had a direct bearing on the DNA analysis in this case. At trial, defense counsel briefly cross-examined Herbert. Defense counsel did not ask Herbert if he made any mistakes in another case that resulted in outside criticism.",
"He did not ask whether Herbert had failed a competency exam and whether there were limitations placed on him participating in DNA cases. At trial, during defense counsel‟s cross-examination of Abbott, he did not ask questions about whether the DNA analysis in this case could have been compromised by any of the shortcomings cited in the audits. 8 B The Court’s Limitations On Questioning Herbert And Abbott Did Not Violate Defendant’s Constitutional Rights 1. Precluding Defense Counsel From Cross-Examining Herbert Regarding Details Of The Smith Case Defendant contends the court violated his right to confrontation when it limited its cross-examination of Herbert about details of the Smith case. As noted, the trial court ruled defense counsel could question Herbert about the appropriateness of using the combined probability of inclusion method in this case and about errors in using that method in Smith and whether he received “some outside criticism,” but it would not permit a “full-blown inquiry” into Smith because it would be “enormously time consuming .",
". . [and] illuminating of . . . virtually nothing.” There was no violation of defendant‟s right to confront the witnesses against him with this ruling. The key issue here regarding the validity of the random match probability statistics for the DNA sample in the entryway was whether the combined probability of inclusion method was appropriately applied for that sample -- not to a sample in another case. As to the sample in this case, defense counsel was allowed to elicit testimony from Herbert that he assumed the entryway blood sample contained DNA from only two people, both males, and there was no allelic dropout. Had he not made those assumptions, the numbers would have been “more common.” He was also allowed to elicit that alleles could be measured with confidence at only seven of the 13 loci.",
"Under the trial court‟s ruling, defense counsel was also permitted to elicit (although he did not) that Herbert‟s use of the combined probability of inclusion method under those circumstances was inappropriate. Compared to this questioning, asking Herbert about mistakes he made in the Smith case using the combined probability of inclusion method would have been of little relevance while having the potential to confuse the issue and take up an undue amount of 9 time. On this record, there was no violation of defendant‟s right to confront the witnesses against him by limiting this evidence. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683] [trial judges retain wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, confusion of the issues or interrogation that is only marginally relevant].) Similarly, the trial court‟s ruling prohibiting defense counsel from questioning Herbert about his testimony in Smith did not violate defendant‟s right to confront the witnesses against him.",
"Contrary to defendant‟s position both at the trial court and on appeal, the transcript does not show Herbert gave “willfully false testimony” about criticism of the statistics he provided in Smith. The transcript shows that Herbert acknowledged there was a “dispute” about the statistics he provided in Smith but that Herbert stood by his work, finding no errors and that his report was approved by his supervisor. As the trial court correctly found, defense counsel could not ask Herbert questions suggesting he lied in his testimony in Smith because the transcripts did not support that he did. As such, cross-examining him about this testimony in Smith would not have shed any negative light on Herbert‟s veracity. 2.",
"Precluding Defense Counsel From Cross-Examining Herbert And Abbott Regarding Deficiencies In The Crime Lab Defendant contends the court violated his federal right to confront the witnesses against him when it precluded defense counsel from cross-examining Herbert and Abbott regarding deficiencies in the crime lab cited in two audit reports. Defendant fails to acknowledge the court did give defense counsel the opportunity to introduce such evidence if counsel could establish the shortcomings cited in the audit had a direct bearing on the DNA analysis in this case. Defense counsel made no attempt to do so in either cross-examination. Absent that link, evidence about the shortcomings in the audits would not have had a tendency in reason to help the jury evaluate the reliability of test 10 results reported by Herbert and Abbott in this case.",
"As such, the exclusion did not violate defendant‟s right to confrontation. 3. No Violation Of Defendant’s Due Process Rights In an argument related to the two above, defendant contends the court‟s limitations on his cross-examination of Herbert and Abbott also violated his due process right to present a defense and to have a fair trial. Similar to the right to confrontation, a defendant‟s due process right to present a defense and have a fair trial apply only to “relevant and material” evidence that is of a significant probative value to the defense. (Washington v. Texas (1967) 388 U.S. 14, 23 [18 L.Ed.2d 1019,1025].)",
"The exclusion of defense evidence on a minor or subsidiary point does not interfere with these rights. (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) As we have explained, although the trial court placed limits on defense counsel‟s cross-examination of Herbert and Abbott, defense counsel was still permitted to question them about all aspects of their DNA testing in this case, a little bit about the testing in Smith, and any aspect of the crime lab audits that had a bearing on the reliability of that testing. As we have explained, this was the relevant evidence. As the court allowed defendant to introduce this evidence, there was no violation of defendant‟s due process right to present a defense and to have a fair trial. III The Trial Court Did Not Err In Dismissing Juror No. 12 Defendant contends the trial court violated his right to a decision by a unanimous and impartial jury when it dismissed Juror No. 12. He argues the court‟s inquiry: (1) intruded into the jury‟s deliberative process; and (2) did not reveal grounds to dismiss the juror because she was merely applying the presumption of innocence. As we will explain, defendant‟s first argument is forfeited and his second one lacks merit.",
"11 A Background Regarding The Dismissal Of Juror No. 12 The day following the first day of deliberations, Juror No. 6 reported to the bailiff that Juror No. 12 “had decided on the first day of the trial how she was going to vote.” “She also said she was going to vote strictly on her feelings . . . there was no point in talking about [the facts] with the rest of the jurors because she had already made up her mind on how she was going to vote.” After conferring with counsel, the court interviewed Juror No. 6, Juror No. 1 (the foreperson), Juror No. 7, and Juror No.",
"12. Thereafter, the court ruled Juror No. 12 had violated its instructions in several respects, “most significantly, by having reached her conclusion as to this case before the deliberative process even began.” Accordingly, the court dismissed Juror No. 12, replaced her with an alternate, and instructed the jury to begin deliberations anew. B Defendant Forfeited His Contention That The Court Conducted An Intrusive Inquiry Into The Jury Deliberations Defendant contends the court violated his constitutional rights to a fair trial and impartial jury by conducting an intrusive inquiry into deliberations. Specifically, he claims the court improperly asked Juror No. 12 about her thought process when it asked her questions about her “feelings” in the case. Defendant has forfeited this claim by failing to object to the method by which the court conducted its inquiry. During the court‟s inquiry of Juror No.",
"12, defense counsel never objected to the manner in which the court was questioning her. After the court finished questioning Juror No. 12 and asked both attorneys for their thoughts, defense counsel argued only that the juror‟s response about her feelings was “really the very, very, very natural human process of approaching problems.” When the court suggested that inquiring further with the other jurors might help determine whether Juror No. 12 was “willing to set that gut 12 feeling aside and listen to the evidence, apply that law and collegi[all]y deliberate with the other jurors,” defense counsel said, “Right, that inquiry needs to be made; I agree.” Under these circumstances, where defense counsel did not object to the court‟s inquiry and even agreed to a similar further inquiry of the other jurors, defendant has forfeited his argument that the questioning of the juror was improper. (People v. Avila (2009) 46 Cal.4th 680, 727-728 [defendant forfeited his contention that the trial court‟s questioning of a juror “was not „even-handed,‟ and that the court „did not adequately question jurors as to the actual statements made, while delving into the deliberative process‟ ” because counsel agreed to the questioning and even suggested further questioning].) C The Court Did Not Err In Dismissing Juror No.",
"12 Defendant contends the court erred in dismissing Juror No. 12 because she was simply a holdout juror who was passionate and adamant about her opinion. “ „We review for abuse of discretion the trial court‟s determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court‟s ruling, we will uphold it. [Citation.] . . . [H]owever, . . . a juror‟s inability to perform as a juror “ „must appear in the record as a demonstrable reality.‟ ” [Citation. ]‟ ” (People v. Cleveland (2001) 25 Cal.4th 466, 474.) As we explain, there was no abuse of discretion here. Juror No. 12‟s inability to perform as a juror was based on substantial evidence in the form of testimony from three other jurors and Juror No. 12‟s responses to the court‟s questioning. There was substantial evidence Juror No. 12 had reached a conclusion about how the case should be decided even before the deliberative process began and then refused to deliberate. Specifically, three jurors testified Juror No. 12 had made up her mind before deliberations began and refused to deliberate. And Juror No.",
"12 partially confirmed their version of events. 13 Juror No. 6 testified that Juror No. 12 “had specified from day one she had decided how she felt about the case and . . . had known from the very first time when she walked in how she was going to vote.” When other jurors “discussed with her that she was supposed to be basing her opinions on the facts of the case, she said she knew what the facts were and she was going with her feeling and she didn‟t care.” When other jurors started expressing their opinions about the case, Juror No. 12 “was busy doing stuff in her binder and wasn‟t paying attention anymore, and every time somebody would talk to her she‟d start yelling.” She mentioned that she did not want to miss her vacation with her grandson and “didn‟t want this to take too long.” Juror No. 1 testified that Juror No. 12 had made up her mind from the first day she walked in. Juror No. 12 said she was basing her opinion on her “feelings” and “intuition” and “not facts.” When other jurors tried to remind her she needed to work with the other jurors and discuss all their viewpoints, Juror No.",
"12‟s response was, “I don‟t care.” She also mentioned her grandson was coming to town and “she doesn‟t have time to do this.” Juror No. 7 testified that Juror No. 12 “mentioned the first day, that she had already decided.” “I‟ve already made up my mind. Nothing anyone says will change my mind. . . . From the very beginning, I had decided.” Juror No. 12 somewhat corroborated the testimony of the other jurors when she testified that “when I came in . . . looking at the defendant and everything that was presented before me, there was a feeling before the process started.” It was a “gut feeling” that made her “lean . . . toward a certain decision.” She listened to the court‟s instructions about “leav[ing] feelings out of this” but she was “not a robot” and felt “feelings have to come into decision-making” -- those “innate, gut, intuitive feelings that I cannot just dismiss.” She did mention that her grandson was going to be visiting and she “want[e]d the deliberation process to go faster than slower.” Based on these jurors‟ testimony, there was substantial evidence to support the trial court‟s determination that Juror No.",
"12 was unable to perform as a juror and 14 therefore no abuse of discretion in excusing her. (See People v. Feagin (1995) 34 Cal.App.4th 1427, 1436-1437 [where several jurors testified that the at-issue juror was unwilling to participate in the jury discussions, had refused to explain her thoughts, and had already made up her mind, the court found substantial evidence to support the finding the at-issue juror was unable to perform her functions as a juror as a demonstrable reality, and there was no abuse of discretion in excusing her].)",
"Because we have concluded the trial court did not abuse its discretion in excusing Juror No. 12, her discharge did not violate defendant‟s constitutional rights. (People v. Lomax (2010) 49 Cal.4th 530, 591.) DISPOSITION The judgment is affirmed. ROBIE , Acting P. J. We concur: MAURO , J. DUARTE , J. 15 Filed 5/29/13 CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C069153 Plaintiff and Respondent, (Super. Ct. No. 09F00826) v. ORDER CERTIFYING OPINION FOR PARTIAL ZANG HER, PUBLICATION Defendant and Appellant. THE COURT: The opinion in the above-entitled matter filed on May 14, 2013, 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 except for parts II and III of the Discussion, and it is so ordered.",
"BY THE COURT: ROBIE , Acting P. J. MAURO , J. DUARTE , J. Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II and III of the Discussion. 16 EDITORIAL LISTING APPEAL from a judgment of the Superior Court of Sacramento County, Steve White, Judge. Affirmed. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Daniel B. Bernstein, Deputies Attorney General, for Plaintiff and Respondent. 17"
]
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Yak Brunt, J.— The first question to be considered upon this appeal is the sufficiency of the proof of the demand and protest of the draft, and this depends upon the question as to whether the design of the notarial seal printed on the certificate of protest is such a seal as would authorize the reading in evidence of the certificate of protest without further proof. It was not contended, upon the argument of this appeal, that the certificate of protest could be received in evidence unless sealed by the notary. The whole course of legislation in this State shows that, in the absence of statutory provisions, a mere impression upon paper was not considered as a sufficient seal. In 1815, the Legislature enacted “ that the impression of the seal of any court by stamp should be a sufficient sealing in all eases where sealing is required.” In 1822, the Legislature also provided “ that it should be lawful for certain State officers to affix the proper seal by making an impression directly on the paper, which should be as valid as if made on a wafer or on wax.” In 1848, it further enacted “ that in all cases where a seal of any court or of any public officer shall be authorized or required by law, the same may be affixed by making an impression directly on the paper, as if made on a wafer or on wax; ” but the Legislature further says, that the foregoing provision “ shall not extend to private seals, which shall be made as heretofore on wafer, wax, or some similar substance.” In the same year it was enacted that the seal of any corporation authorized or required by law, “ may be affixed by making an impression directly upon the paper, which shall be as valid as if made on a wafer or on wax.” The clear import of these enactments is to authorize the impression of the seal immediately upon the paper, without the intervention of any wafer, wax, or other similar substance; and that, prior to these enactments, it was necessary to the validity of the seal, that it should be impressed upon wafer, wax, or some other similar substance. The impression of the seal can be made directly upon the paper only when the design of the seal is impressed upon the paper itself, and does not require any other substance to exhibit it. In the case now under considera*462tion, the seal being merely an imprint of ink upon the surface of the paper, is neither an impression made directly upon the paper, as required by our statutes, neither is it an impression upon a wafer, wax, or some other similar substance, as required by the common law. Various authorities have been- cited by the counsel for the respective parties, but none of the cases seem to have any application to the question now under consideration, except the cases of The Bank of Rochester v. Gray (2 Hill, 221) and Ross v. Bedell (5 Duer, 462), and these cases sustain the view which I have already suggested. It seems, therefore, that it was error to admit the certificate of protest, it not being under seal; and the judgment must be reversed, unless the defendant is bound by the promise which he made to pay after the maturity of the draft. Parsons on Notes and Bills (vol. I, p. 595) lays down the rule “ that a promise to pay after maturity, with full knowledge of laches, is binding upon the party promising, without further proof of demand, protest, or notice ; ” and, at p. 601, he says, “ a mere promise to pay is not sufficient. The plaintiff in each ■case must go further and prove knowledge on the part of the party promising of the facts.” The certificate of protest being excluded from consideration because of the want of a proper seal, there is no evidence in the case that the draft was ever presented for acceptance, or protested for non-acceptance. In considering, therefore, the defendant’s promise to pay, we must, therefore, assume that the case is presented without any attempt to prove a demand or protest. A failure to make' a demand would undoubtedly be laches upon- the part of the plaintiffs, and a knowledge of such laches must be had by the defendant at the time of making the promise, in order that it should be binding. The evidence in this case shows not only that the defendant had no knowledge of the failure of the plaintiffs to make a demand, but, on the contrary thereof, the promise was made at a time when he supposed that a proper demand and protest of the draft had been made, and that a proper notice thereof was being given to him. It is clear, therefore, that the defendant had not full knowledge *463of the facts at the time of making the promise, and the same is not binding upon him. The judgment must be reversed, and a new trial ordered, with costs to abide the event. Bobinson, J., concurred. Judgment reversed. | 02-05-2022 | [
"Yak Brunt, J.— The first question to be considered upon this appeal is the sufficiency of the proof of the demand and protest of the draft, and this depends upon the question as to whether the design of the notarial seal printed on the certificate of protest is such a seal as would authorize the reading in evidence of the certificate of protest without further proof. It was not contended, upon the argument of this appeal, that the certificate of protest could be received in evidence unless sealed by the notary.",
"The whole course of legislation in this State shows that, in the absence of statutory provisions, a mere impression upon paper was not considered as a sufficient seal. In 1815, the Legislature enacted “ that the impression of the seal of any court by stamp should be a sufficient sealing in all eases where sealing is required.” In 1822, the Legislature also provided “ that it should be lawful for certain State officers to affix the proper seal by making an impression directly on the paper, which should be as valid as if made on a wafer or on wax.” In 1848, it further enacted “ that in all cases where a seal of any court or of any public officer shall be authorized or required by law, the same may be affixed by making an impression directly on the paper, as if made on a wafer or on wax; ” but the Legislature further says, that the foregoing provision “ shall not extend to private seals, which shall be made as heretofore on wafer, wax, or some similar substance.” In the same year it was enacted that the seal of any corporation authorized or required by law, “ may be affixed by making an impression directly upon the paper, which shall be as valid as if made on a wafer or on wax.” The clear import of these enactments is to authorize the impression of the seal immediately upon the paper, without the intervention of any wafer, wax, or other similar substance; and that, prior to these enactments, it was necessary to the validity of the seal, that it should be impressed upon wafer, wax, or some other similar substance.",
"The impression of the seal can be made directly upon the paper only when the design of the seal is impressed upon the paper itself, and does not require any other substance to exhibit it. In the case now under considera*462tion, the seal being merely an imprint of ink upon the surface of the paper, is neither an impression made directly upon the paper, as required by our statutes, neither is it an impression upon a wafer, wax, or some other similar substance, as required by the common law. Various authorities have been- cited by the counsel for the respective parties, but none of the cases seem to have any application to the question now under consideration, except the cases of The Bank of Rochester v. Gray (2 Hill, 221) and Ross v. Bedell (5 Duer, 462), and these cases sustain the view which I have already suggested. It seems, therefore, that it was error to admit the certificate of protest, it not being under seal; and the judgment must be reversed, unless the defendant is bound by the promise which he made to pay after the maturity of the draft. Parsons on Notes and Bills (vol.",
"I, p. 595) lays down the rule “ that a promise to pay after maturity, with full knowledge of laches, is binding upon the party promising, without further proof of demand, protest, or notice ; ” and, at p. 601, he says, “ a mere promise to pay is not sufficient. The plaintiff in each ■case must go further and prove knowledge on the part of the party promising of the facts.” The certificate of protest being excluded from consideration because of the want of a proper seal, there is no evidence in the case that the draft was ever presented for acceptance, or protested for non-acceptance. In considering, therefore, the defendant’s promise to pay, we must, therefore, assume that the case is presented without any attempt to prove a demand or protest. A failure to make' a demand would undoubtedly be laches upon- the part of the plaintiffs, and a knowledge of such laches must be had by the defendant at the time of making the promise, in order that it should be binding.",
"The evidence in this case shows not only that the defendant had no knowledge of the failure of the plaintiffs to make a demand, but, on the contrary thereof, the promise was made at a time when he supposed that a proper demand and protest of the draft had been made, and that a proper notice thereof was being given to him. It is clear, therefore, that the defendant had not full knowledge *463of the facts at the time of making the promise, and the same is not binding upon him. The judgment must be reversed, and a new trial ordered, with costs to abide the event. Bobinson, J., concurred. Judgment reversed."
]
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W.B. Hull, administrator of the estate of J.R. Hull, deceased, appeals from a judgment and decree rendered in an action commenced December 15, 1941, by the administrator to quiet title to land constituting a homestead adjoining Hopeton townsite, McKinley township, Woods county, Okla. By the judgment, possession of the lands was awarded to J.R. Baxter and title thereto was quieted in him. J.R. Baxter relied upon a resale tax deed, dated May 12, 1941, issued to him by the county treasurer of Woods county on the day that the consideration of $6.69 was paid. The resale tax deed was recorded seven days thereafter. The land was sold at resale by the county for the lien of taxes delinquent in the years 1936 to 1940, inclusive. Plaintiff in error relies upon the rule stated in Grimes v. Carter, 185 Okla. 469, 94 P.2d 544, that "Where a taxpayer . . . tenders to the treasurer . . . sufficient funds with which to redeem his land . . . taxpayer has done all the law requires of him . . . (as an 'equitable defense against such tax deed')"; also that despite nonpayment of taxes delinquent against land where nonpayment is due to misinformation or miscalculation of the tax collector, after inquiry by the property owner "any tax deed issued against the property, so long as the owner remains in ignorance of another or greater tax burden, will be treated as subject to cancellation upon equitable consideration." Headley v. Hall, 191 Okla. 352,129 P. 1018; Martin v. Bodovitz, 194 Okla. 614, 153 P.2d 825. In Ponder v. Ebey, 194 Okla. 407, 152 P.2d 268, this court held: "A taxpayer has the burden of making appropriate inquiry of the proper official to ascertain the extent of the tax burden on his property, and upon such inquiry, it is the duty of such official to impart correct information, and such taxpayer does not lose his right to redeem by permitting the appointed time to elapse, or by paying less than the proper amount, or otherwise failing to comply with the directions of the statute when this is caused by the fraud, inability of the officer to furnish the necessary information, or by his mistake, negligence, or misinformation, or by misleading advice given by him." Alexander v. James, 195 Okla. 309, 157 P.2d 456; Thompson v. Freeman, 194 Okla. 554, 153 P.2d 99; McKinney v. Farrow,194 Okla. 397, 152 P.2d 265. Where such a taxpayer has "requested a statement of such taxes" and paid all demanded of him by the treasurer, there can be no valid sale thereafter for taxes which the treasurer failed to demand. Pottsville Lbr. Co. v. Wells, 157 Pa. 5, 27 A. 408. In the case at bar, it is established by the evidence that J.R. Hull, since deceased, in his lifetime on two different occasions went to the office of the county treasurer of Woods county and expressed to that official his desire and ability to pay all of his taxes, real and personal, and the taxpayer on both occasions tendered to the county treasurer a description of the particular properties upon which he desired to make payment, included in which was the property involved in the case at bar and described by the taxpayer as being the Hopeton property in school district 119, McKinley township. There is undisputed testimony of record that the property involved is the only property within McKinley township that was then owned by the taxpayer, since deceased. On both occasions of the tender by the taxpayer, the county treasurer received and accepted payment of certain taxes, executed and delivered to the taxpayer a tax receipt, but the tax receipt so executed and delivered did not include a description of the Hopeton property. The county treasurer *Page 427 was acquainted with the taxpayer, J.R. Hull, and recalled the transaction above described, but did not remember the exact date thereof. The county treasurer admitted her errors (C.M. 124) and recalled occasions when request was made of her for permission to pay all of their taxes and when the taxpayer thought they had paid all their taxes, she nevertheless issued instruments of deficiencies as against the property, and if taxpayers came back, it was due to errors in original computations which she had made (C.M. 128). The official testified that the property was listed on the tax rolls by description as well as by names of the owners, but that she, as county treasurer, would not know where to look for taxes assessed against the property unless she knew the description (C.M. 129). The trial court found, under the evidence submitted, "that on two occasions the owner of this property made a request of the county treasurer of said county for a statement of his taxes," and it is evident from the testimony, clear, cogent, and convincing, that the property involved "was omitted by the treasurer from that statement, and that such omission thereby misled and deceived the owner of the property into the belief that it was not upon the tax rolls of the county" (C.M. 151). It was noted by the trial court that it was held in such instances that "the failure of the county treasurer was a constructive fraud"; that the sale of the property for the nonpayment of taxes for the year for which inquiry and tender of taxes were made "was such an act on the part of the county treasurer as to excuse the taxpayer from the payment." The taxpayer is supposed to know the correct description of his property, but when, as in the case at bar, the taxpayer makes tender to the county treasurer of either money in payment of taxes or a description capable of being rendered more complete, and either or both are accepted and acted upon by the county treasurer, a duty devolves upon that official to give notice to the taxpayer of the deficiency in either description of the property or payment made for taxes assessed against it. Title 68 Ohio St. 1941 § 201[68-201]. Otherwise, in the absence of actual notice to the taxpayer, a presumption arises that "the owner remains in ignorance of another or greater tax burden (which) will be treated as subject to cancellation upon equitable consideration." Headley v. Hall, supra. Likewise, under the evidence adduced, it is clear, cogent, and convincing that this taxpayer, since deceased, "requested a statement of taxes (for which his property was subsequently sold and for which the resale tax deed was issued to defendant in error) and paid all demanded of him by the treasurer." Therefore, there was no valid sale for the taxes levied against the property involved which the treasurer failed to demand. Pottsville Lbr. Co. v. Wells, supra. Likewise, under equitable consideration enjoined upon us by our prior opinions, it may be well said in the case at bar that nonpayment of delinquent taxes was due to misinformation and miscalculation of the tax collector after inquiry by the owner of the realty, and that the owner of the realty, aged and infirm, continued to act in good faith until his demise, and that he did all that he was required to do to discharge his realty from the tax burden. Martin v. Bodovitz, supra. It was the duty of the county treasurer to impart correct information, and since it is established that by the errors and admissions, correct information as to the burden of taxes imposed upon the homestead of J.R. Hull was not imparted to him by the official charged with that duty, J.R. Hull did not in his lifetime lose his right to redeem such property by the mere lapse of time because of the inability of the officer to furnish information upon the inquiries so made, and unquestionably the right of redemption of J.R. Hull, deceased, within the period of limitations, was available to his administrators. *Page 428 Reversed. HURST, V.C.J., and OSBORN, BAYLESS, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. | 07-06-2016 | [
"W.B. Hull, administrator of the estate of J.R. Hull, deceased, appeals from a judgment and decree rendered in an action commenced December 15, 1941, by the administrator to quiet title to land constituting a homestead adjoining Hopeton townsite, McKinley township, Woods county, Okla. By the judgment, possession of the lands was awarded to J.R. Baxter and title thereto was quieted in him. J.R. Baxter relied upon a resale tax deed, dated May 12, 1941, issued to him by the county treasurer of Woods county on the day that the consideration of $6.69 was paid. The resale tax deed was recorded seven days thereafter. The land was sold at resale by the county for the lien of taxes delinquent in the years 1936 to 1940, inclusive. Plaintiff in error relies upon the rule stated in Grimes v. Carter, 185 Okla. 469, 94 P.2d 544, that \"Where a taxpayer . . .",
"tenders to the treasurer . . . sufficient funds with which to redeem his land . . . taxpayer has done all the law requires of him . . . (as an 'equitable defense against such tax deed')\"; also that despite nonpayment of taxes delinquent against land where nonpayment is due to misinformation or miscalculation of the tax collector, after inquiry by the property owner \"any tax deed issued against the property, so long as the owner remains in ignorance of another or greater tax burden, will be treated as subject to cancellation upon equitable consideration.\"",
"Headley v. Hall, 191 Okla. 352,129 P. 1018; Martin v. Bodovitz, 194 Okla. 614, 153 P.2d 825. In Ponder v. Ebey, 194 Okla. 407, 152 P.2d 268, this court held: \"A taxpayer has the burden of making appropriate inquiry of the proper official to ascertain the extent of the tax burden on his property, and upon such inquiry, it is the duty of such official to impart correct information, and such taxpayer does not lose his right to redeem by permitting the appointed time to elapse, or by paying less than the proper amount, or otherwise failing to comply with the directions of the statute when this is caused by the fraud, inability of the officer to furnish the necessary information, or by his mistake, negligence, or misinformation, or by misleading advice given by him.\"",
"Alexander v. James, 195 Okla. 309, 157 P.2d 456; Thompson v. Freeman, 194 Okla. 554, 153 P.2d 99; McKinney v. Farrow,194 Okla. 397, 152 P.2d 265. Where such a taxpayer has \"requested a statement of such taxes\" and paid all demanded of him by the treasurer, there can be no valid sale thereafter for taxes which the treasurer failed to demand. Pottsville Lbr. Co. v. Wells, 157 Pa. 5, 27 A. 408. In the case at bar, it is established by the evidence that J.R. Hull, since deceased, in his lifetime on two different occasions went to the office of the county treasurer of Woods county and expressed to that official his desire and ability to pay all of his taxes, real and personal, and the taxpayer on both occasions tendered to the county treasurer a description of the particular properties upon which he desired to make payment, included in which was the property involved in the case at bar and described by the taxpayer as being the Hopeton property in school district 119, McKinley township. There is undisputed testimony of record that the property involved is the only property within McKinley township that was then owned by the taxpayer, since deceased.",
"On both occasions of the tender by the taxpayer, the county treasurer received and accepted payment of certain taxes, executed and delivered to the taxpayer a tax receipt, but the tax receipt so executed and delivered did not include a description of the Hopeton property. The county treasurer *Page 427 was acquainted with the taxpayer, J.R. Hull, and recalled the transaction above described, but did not remember the exact date thereof. The county treasurer admitted her errors (C.M. 124) and recalled occasions when request was made of her for permission to pay all of their taxes and when the taxpayer thought they had paid all their taxes, she nevertheless issued instruments of deficiencies as against the property, and if taxpayers came back, it was due to errors in original computations which she had made (C.M. 128). The official testified that the property was listed on the tax rolls by description as well as by names of the owners, but that she, as county treasurer, would not know where to look for taxes assessed against the property unless she knew the description (C.M. 129). The trial court found, under the evidence submitted, \"that on two occasions the owner of this property made a request of the county treasurer of said county for a statement of his taxes,\" and it is evident from the testimony, clear, cogent, and convincing, that the property involved \"was omitted by the treasurer from that statement, and that such omission thereby misled and deceived the owner of the property into the belief that it was not upon the tax rolls of the county\" (C.M.",
"151). It was noted by the trial court that it was held in such instances that \"the failure of the county treasurer was a constructive fraud\"; that the sale of the property for the nonpayment of taxes for the year for which inquiry and tender of taxes were made \"was such an act on the part of the county treasurer as to excuse the taxpayer from the payment.\" The taxpayer is supposed to know the correct description of his property, but when, as in the case at bar, the taxpayer makes tender to the county treasurer of either money in payment of taxes or a description capable of being rendered more complete, and either or both are accepted and acted upon by the county treasurer, a duty devolves upon that official to give notice to the taxpayer of the deficiency in either description of the property or payment made for taxes assessed against it. Title 68 Ohio St. 1941 § 201[68-201]. Otherwise, in the absence of actual notice to the taxpayer, a presumption arises that \"the owner remains in ignorance of another or greater tax burden (which) will be treated as subject to cancellation upon equitable consideration.\"",
"Headley v. Hall, supra. Likewise, under the evidence adduced, it is clear, cogent, and convincing that this taxpayer, since deceased, \"requested a statement of taxes (for which his property was subsequently sold and for which the resale tax deed was issued to defendant in error) and paid all demanded of him by the treasurer.\" Therefore, there was no valid sale for the taxes levied against the property involved which the treasurer failed to demand. Pottsville Lbr. Co. v. Wells, supra. Likewise, under equitable consideration enjoined upon us by our prior opinions, it may be well said in the case at bar that nonpayment of delinquent taxes was due to misinformation and miscalculation of the tax collector after inquiry by the owner of the realty, and that the owner of the realty, aged and infirm, continued to act in good faith until his demise, and that he did all that he was required to do to discharge his realty from the tax burden.",
"Martin v. Bodovitz, supra. It was the duty of the county treasurer to impart correct information, and since it is established that by the errors and admissions, correct information as to the burden of taxes imposed upon the homestead of J.R. Hull was not imparted to him by the official charged with that duty, J.R. Hull did not in his lifetime lose his right to redeem such property by the mere lapse of time because of the inability of the officer to furnish information upon the inquiries so made, and unquestionably the right of redemption of J.R. Hull, deceased, within the period of limitations, was available to his administrators.",
"*Page 428 Reversed. HURST, V.C.J., and OSBORN, BAYLESS, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur."
]
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HAVERFIELD, Chief Judge. Frances Britt appeals from an order granting a motion of defendant, Fidelity and Casualty Company of New York, to dismiss her complaint for declaratory relief seeking to determine coverage under her automobile liability insurance policy issued by Fidelity. On July 24, 1975 Britt purchased through Auto Liability Insurance Agency an automobile liability insurance policy issued by Fidelity and obtained a temporary insurance binder effective that date. She made premium payments on July 24, August 4 and August 18 to Auto Liability Insurance Agency. On August 18 she was involved in an automobile accident and as a result sustained personal injuries and incurred liability to a third party. Britt requested that Fidelity furnish her with personal injury protection benefits under the terms of the policy and that it defend the claim against her. Although Fidelity filed a Notice of Policy Under the Florida Financial Responsibility Law (Form SR-21) with the Bureau of Financial Responsibility on October 14, Fidelity subsequently cancelled her policy on December 31. Thereafter, by letter of May 20, 1976, Fidelity advised Britt that it was denying coverage both' as to her requests for personal injury protection benefits and defense of the third party claim. Britt then filed the instant action for declaratory relief seeking a determination of coverage under the policy. Fidelity moved to dismiss the complaint on the ground that it failed to state a cause of action under the declaratory judgment act. [Chapter 86, Florida Statutes (1975)]. After a hearing, the trial court entered an order dismissing the complaint for the above reason. We reverse. Bona fide disputes over the coverage of an insurance policy have been traditionally considered a proper subject for declaratory relief. Tavares v. Allstate Insurance Co., 342 So.2d 551 (Fla. 3d DCA 1977). After a review of the complaint and several instruments attached thereto, we conclude that the complaint presents a bona fide dispute over coverage arising out of an interpretation of the binder and policy which should have been entertained by the trial court on the merits. Cf. Cruger v. Allstate Insurance Co., 162 So.2d 690 (Fla. 3d DCA 1964); Zeagler v. Commercial Union Insurance Co. of New York, 166 So.2d 616 (Fla. 3d DCA *1171964); Jones v. New Amsterdam Casualty Co., 213 So.2d 502 (Fla. 3d DCA 1968) and Tavares, supra. Accordingly, the order of dismissal is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. | 07-29-2022 | [
"HAVERFIELD, Chief Judge. Frances Britt appeals from an order granting a motion of defendant, Fidelity and Casualty Company of New York, to dismiss her complaint for declaratory relief seeking to determine coverage under her automobile liability insurance policy issued by Fidelity. On July 24, 1975 Britt purchased through Auto Liability Insurance Agency an automobile liability insurance policy issued by Fidelity and obtained a temporary insurance binder effective that date. She made premium payments on July 24, August 4 and August 18 to Auto Liability Insurance Agency. On August 18 she was involved in an automobile accident and as a result sustained personal injuries and incurred liability to a third party. Britt requested that Fidelity furnish her with personal injury protection benefits under the terms of the policy and that it defend the claim against her. Although Fidelity filed a Notice of Policy Under the Florida Financial Responsibility Law (Form SR-21) with the Bureau of Financial Responsibility on October 14, Fidelity subsequently cancelled her policy on December 31.",
"Thereafter, by letter of May 20, 1976, Fidelity advised Britt that it was denying coverage both' as to her requests for personal injury protection benefits and defense of the third party claim. Britt then filed the instant action for declaratory relief seeking a determination of coverage under the policy. Fidelity moved to dismiss the complaint on the ground that it failed to state a cause of action under the declaratory judgment act. [Chapter 86, Florida Statutes (1975)]. After a hearing, the trial court entered an order dismissing the complaint for the above reason. We reverse. Bona fide disputes over the coverage of an insurance policy have been traditionally considered a proper subject for declaratory relief.",
"Tavares v. Allstate Insurance Co., 342 So.2d 551 (Fla. 3d DCA 1977). After a review of the complaint and several instruments attached thereto, we conclude that the complaint presents a bona fide dispute over coverage arising out of an interpretation of the binder and policy which should have been entertained by the trial court on the merits. Cf. Cruger v. Allstate Insurance Co., 162 So.2d 690 (Fla. 3d DCA 1964); Zeagler v. Commercial Union Insurance Co. of New York, 166 So.2d 616 (Fla. 3d DCA *1171964); Jones v. New Amsterdam Casualty Co., 213 So.2d 502 (Fla. 3d DCA 1968) and Tavares, supra. Accordingly, the order of dismissal is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7491273/ | 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 . 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 1-3 and 5-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Boyer (US 6,120,028). Concerning claims 1-3, the patent to Boyer (US 6,120,028) discloses a game for multiple players comprising a first deck containing a plurality of Home Cards 22a, wherein the Home Cards 22a have a face containing information, see Table 1, col. 4, lines 36-49, a second deck containing a plurality of Park Cards 24a, wherein the Park Cards 24a have a face containing information, see Table 1, col. 4, line 50 to col. 5, line 19, a third deck containing a plurality of Treasure Chest Cards 26a, wherein the Treasure Chest Cards 26c have a face containing information, see Table 1, col. 5, lines 20-36, a fourth deck containing a plurality of Community Cards 28a, wherein the Community Cards 28a have a face containing information representing an action, see Table 1, col. 5, line 37 to col. 6, line 14, and a fifth deck containing a plurality of Tree House Cards 30a, wherein the Tree House Cards have a face Regarding claim 5, Boyer’s game further comprises a playing surface 10 containing spaces 22, 24, 26, and 28 corresponding to the first deck 22a, the second deck 24a, the third deck 26a, and the fourth deck 28a, col. 2, lines 25-33. In regard to claim 6, Boyer’s game further comprises a clock “timer 60”, see Fig, 6. Printed Matter In regard to claims 1-3, recitations “first deck containing a plurality of Good Habits cards, wherein the Good Habits cards have a face containing information representing a desirable action”, “a second deck containing a plurality of Bad Habit cards, wherein the Bad Habit cards have a face containing information representing an undesirable action”, “a third deck containing a plurality of Compliment cards, wherein the Compliment cards have a face containing information representing a predetermined Compliment point value”, “a fourth deck containing a plurality of Surprise cards, wherein the Surprise cards have a face containing information representing an action which the player must complete”, and “a fifth deck containing a plurality of Excuse cards, wherein the Excuse cards have a face containing information representing an excuse” are considered recitations of printed matter. According to MPEP 2111.05 “To be given patentable weight, the printed matter and associated product must be in a functional relationship. A functional relationship can be found where the printed matter performs some function with the respect the product to which it is associated. See Lowry, 32 F.3d at 1584, 32 USPQ2d at 1035 (citing Gulack, 703 F.2d at 1386, 217 USPQ at 404). In the case of Gulack, 217 USPQ 401, Gulack’s invention comprised a circular band (substrate) and a sequence of Gulack’s claims, comprised a circular band (substrate) and informational data such as addition, subtraction, historical dates, etc. (printed matter) printed on the band. The “critical question” raised in Gulack was “whether there exists any new and unobvious functional relationship between the printed matter and the substrate”. The Court determined that Wittcoff simply exploited the band as a means of supporting the displaying information data in an endless loop configuration, wherein the data was not arranged in any particular sequence. On the other hand, the Court found Gulack’s particular sequence of digits, which has a “cyclic nature”, and the positioning of the sequence of digits on the band exploited the endless nature of the band. This exploitation provided a new and unobvious functional relationship between the printed matter and substrate. By contrast, in the present case, there is no new and unobvious functional relationship between the claimed “first deck”, “second deck”, “third deck”, “fourth deck” and “fifth deck” and the claimed printed matter in question: “Good Habit cards have a face containing information representing a desirable action”, “Bad Habit cards have a face containing information representing an undesirable action”, “Compliment cards have a face containing information representing a predetermined Compliment point”, “Excuse cards having a face information representing an action which the player must complete”, and “information representing an excuse” printed on it. The claimed plurality of cards in the “first deck”, “second deck”, “third deck”, “fourth deck” and “fifth deck” merely serve the same purpose as Boyer’s Home Cards 22a, Park Cards 24a, Treasure Chest Cards 26a, Community Cards 28a, and Tree House Cards 30a, namely it provides a substrate to support indicia such that the indicia can be displayed to users. Therefore, the claimed “Good Habit cards have a face containing information representing a desirable action”, “Bad Habit cards have a face containing information representing an undesirable action”, “Compliment cards have a face containing information representing a .
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.
Claims 4 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Boyer (US 6,120,028) as applied to claim 1 above, and further in view of Kennedy (US 2002/0117801). The patent to Kennedy (US 2002/0117801) discloses a game comprising dice 22, 24, 26, Fig. 4. One of the dice 26 teaches that it is known to place an instruction “Lose-Turn” on one of its faces. In view of such teaching, it would have been obvious to a person having ordinary skill in the art to modify Boyer’s die 40 by placing an instruction “Lose-Turn” on blank face 42f, see Boyer col. 7, line 17. This modification would have made Boyer’s game more challenging and thus more exciting to play.
Claim Rejections - 35 USC § 101
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Step 2A, Prong One: Judicial Exception Recited? Claims 7-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claims 7-10 recite the step limitations “providing a plurality of cards……”, “dividing the cards into a plurality of decks…….”, “rolling a game cube…….”, “selecting a card from the deck…….”, “responding to the information contained on the face of the selected card…….”, “selecting a card from the Compliment deck……”, etc. These steps are acts of human behavior that amount to following rules or instructions. Rules for playing a game are drawn to patent-ineligible abstract idea. In re Smith, 815 F.3d at 819 (Fed. Cir. 2016). Also in claims 7-10 other than reciting “a plurality of cards, including Good Habit cards, Bad Habit cards, and Compliment cards”, “dividing the cards into a plurality of decks, including a Good Habit deck, a Bad Habit deck, and a Compliment deck”, “rolling a game cube” nothing in the claims precludes all of the above recited step limitation from practically being performed in the human mind. For example, the claims encompass a person mentally observing the rolling of the game cube, then mentally evaluating the result of the roll and selecting a card from the deck corresponding to the game cube roll, then mentally judging by responding to the information contained on the face of the selected card. These step limitations are mental processes which are considered abstract and not patentable. Halliburton v. Walker, 73 USPQ 75.
Step 2A Prong Two: Integrated into a Practical Application? This judicial exception is not integrated into a practical application because the claimed elements of: “first deck containing a plurality of Good Habits cards”, “a second deck containing a a high level of generality. The step limitations of “rolling a game cube”, “selecting a card from the deck corresponding to the game cube roll”, “responding to the information contained on the face of the selected card, and selecting a card from the Compliment deck when the selected card is a Good Habit”, etc. are no more than mere instructions to apply the exception using the generic “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube”. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. See MPEP 2106.05(e).
Step 2B: Is there something else in the claims that ensure that they are directed to “significantly more” than a patent-ineligible concept? Claims 7-10 do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed elements of “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” do not pass the machine-or-transformation test. Machine-or-Transformation Test For a process (method) claim to be statutory subject matter, the process must: (1) be tied to another statutory class (such as a particular machine or apparatus), or transformation of the underlying subject matter (such as an article or materials) to a different state or thing. Process claims tied to a machine or apparatus must positively recite the other statutory class (the machine or apparatus) to which it is tied, for example by identifying the machine that accomplishes the method steps. Process claims providing transformation must positively recite the subject matter that is being transformed, for example by identifying the material that is being changed to a different state. If the claimed method is determined to be a statutory subject matter eligible process, then it must be determined whether the claimed invention falls within a judicial exception (law of nature, natural phenomena or abstract idea). If the claimed judicial exception is practically applied, then the claimed invention is statutory. Practical application can be realized in one of two ways: (1) Does the use of the particular machine or apparatus impose a meaningful limit on the claim’s scope? Does use of the machine or apparatus involve more than insignificant extra-solution activity? (2) Does the transformation impose a meaningful limit on the claim’s scope? Does the transformation involve more than insignificant extra-solution activity? See Bilski vs. Kappos , 130 S. Ct. 3218 (2010). The claimed invention does not recite a sufficient tie to a machine or apparatus. The machine or apparatus should implement the process (method steps), and not merely be an object upon which the process operates. The claims should be clear as to how the machine or apparatus implements the process, rather than simply stating “a machine implemented process”. The claimed apparatus of “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” are analogous to in that they represent old and conventional elements that do not add significantly more to the claims. See Alice Corp. v. CLS Bank International, 134 S. Ct. at 2358-59. As evidence, see the previously cited patent to Boyer (US 6,120,028) above. The patent to Leaf (US 3,722,885) discloses a game comprising five decks of cards, each deck having a different color, and a die 8 having a different color on each face corresponding to the different colors of each deck. See Berkheiemer v. HP, Inc., 881 F.3d 1360 (Fed. Cir. 2018). Thus, the claimed additional elements of “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” amount to nothing significantly more than instructions to players to apply the abstract idea that may be performed in the human mind. These elements are conventional and do not provide any improvement to the game. The machine or apparatus limitations should make clear that the use of the machine or apparatus in the claimed process imposes a meaningful limit on the claim's scope, and does use a machine involving more than insignificant extra-solution activity, MPEP 2106(g). Also, there is no transformation in these method claims. The above claimed steps do not transform the “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” into a different state or thing. These additional elements remain the same and do not transform into a different state or thing.
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 “Bad Habit cards”, “Surprise cards”, “game cube” 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). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN LAYNO whose telephone number is (571)272-4424. The examiner can normally be reached on Monday through Friday 9am - 5:30pm. 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, Eugene Kim can be reached on 571-272-4463. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
/BENJAMIN LAYNO/ Primary Examiner, Art Unit 3711
bhl | 2021-03-16T06:28:10 | [
"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 . 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 1-3 and 5-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Boyer (US 6,120,028). Concerning claims 1-3, the patent to Boyer (US 6,120,028) discloses a game for multiple players comprising a first deck containing a plurality of Home Cards 22a, wherein the Home Cards 22a have a face containing information, see Table 1, col. 4, lines 36-49, a second deck containing a plurality of Park Cards 24a, wherein the Park Cards 24a have a face containing information, see Table 1, col. 4, line 50 to col. 5, line 19, a third deck containing a plurality of Treasure Chest Cards 26a, wherein the Treasure Chest Cards 26c have a face containing information, see Table 1, col. 5, lines 20-36, a fourth deck containing a plurality of Community Cards 28a, wherein the Community Cards 28a have a face containing information representing an action, see Table 1, col. 5, line 37 to col. 6, line 14, and a fifth deck containing a plurality of Tree House Cards 30a, wherein the Tree House Cards have a face Regarding claim 5, Boyer’s game further comprises a playing surface 10 containing spaces 22, 24, 26, and 28 corresponding to the first deck 22a, the second deck 24a, the third deck 26a, and the fourth deck 28a, col. 2, lines 25-33.",
"In regard to claim 6, Boyer’s game further comprises a clock “timer 60”, see Fig, 6. Printed Matter In regard to claims 1-3, recitations “first deck containing a plurality of Good Habits cards, wherein the Good Habits cards have a face containing information representing a desirable action”, “a second deck containing a plurality of Bad Habit cards, wherein the Bad Habit cards have a face containing information representing an undesirable action”, “a third deck containing a plurality of Compliment cards, wherein the Compliment cards have a face containing information representing a predetermined Compliment point value”, “a fourth deck containing a plurality of Surprise cards, wherein the Surprise cards have a face containing information representing an action which the player must complete”, and “a fifth deck containing a plurality of Excuse cards, wherein the Excuse cards have a face containing information representing an excuse” are considered recitations of printed matter.",
"According to MPEP 2111.05 “To be given patentable weight, the printed matter and associated product must be in a functional relationship. A functional relationship can be found where the printed matter performs some function with the respect the product to which it is associated. See Lowry, 32 F.3d at 1584, 32 USPQ2d at 1035 (citing Gulack, 703 F.2d at 1386, 217 USPQ at 404). In the case of Gulack, 217 USPQ 401, Gulack’s invention comprised a circular band (substrate) and a sequence of Gulack’s claims, comprised a circular band (substrate) and informational data such as addition, subtraction, historical dates, etc. (printed matter) printed on the band. The “critical question” raised in Gulack was “whether there exists any new and unobvious functional relationship between the printed matter and the substrate”. The Court determined that Wittcoff simply exploited the band as a means of supporting the displaying information data in an endless loop configuration, wherein the data was not arranged in any particular sequence. On the other hand, the Court found Gulack’s particular sequence of digits, which has a “cyclic nature”, and the positioning of the sequence of digits on the band exploited the endless nature of the band.",
"This exploitation provided a new and unobvious functional relationship between the printed matter and substrate. By contrast, in the present case, there is no new and unobvious functional relationship between the claimed “first deck”, “second deck”, “third deck”, “fourth deck” and “fifth deck” and the claimed printed matter in question: “Good Habit cards have a face containing information representing a desirable action”, “Bad Habit cards have a face containing information representing an undesirable action”, “Compliment cards have a face containing information representing a predetermined Compliment point”, “Excuse cards having a face information representing an action which the player must complete”, and “information representing an excuse” printed on it. The claimed plurality of cards in the “first deck”, “second deck”, “third deck”, “fourth deck” and “fifth deck” merely serve the same purpose as Boyer’s Home Cards 22a, Park Cards 24a, Treasure Chest Cards 26a, Community Cards 28a, and Tree House Cards 30a, namely it provides a substrate to support indicia such that the indicia can be displayed to users.",
"Therefore, the claimed “Good Habit cards have a face containing information representing a desirable action”, “Bad Habit cards have a face containing information representing an undesirable action”, “Compliment cards have a face containing information representing a . 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.",
"Claims 4 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Boyer (US 6,120,028) as applied to claim 1 above, and further in view of Kennedy (US 2002/0117801). The patent to Kennedy (US 2002/0117801) discloses a game comprising dice 22, 24, 26, Fig. 4. One of the dice 26 teaches that it is known to place an instruction “Lose-Turn” on one of its faces. In view of such teaching, it would have been obvious to a person having ordinary skill in the art to modify Boyer’s die 40 by placing an instruction “Lose-Turn” on blank face 42f, see Boyer col. 7, line 17.",
"This modification would have made Boyer’s game more challenging and thus more exciting to play. Claim Rejections - 35 USC § 101 Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Step 2A, Prong One: Judicial Exception Recited? Claims 7-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claims 7-10 recite the step limitations “providing a plurality of cards……”, “dividing the cards into a plurality of decks…….”, “rolling a game cube…….”, “selecting a card from the deck…….”, “responding to the information contained on the face of the selected card…….”, “selecting a card from the Compliment deck……”, etc. These steps are acts of human behavior that amount to following rules or instructions.",
"Rules for playing a game are drawn to patent-ineligible abstract idea. In re Smith, 815 F.3d at 819 (Fed. Cir. 2016). Also in claims 7-10 other than reciting “a plurality of cards, including Good Habit cards, Bad Habit cards, and Compliment cards”, “dividing the cards into a plurality of decks, including a Good Habit deck, a Bad Habit deck, and a Compliment deck”, “rolling a game cube” nothing in the claims precludes all of the above recited step limitation from practically being performed in the human mind. For example, the claims encompass a person mentally observing the rolling of the game cube, then mentally evaluating the result of the roll and selecting a card from the deck corresponding to the game cube roll, then mentally judging by responding to the information contained on the face of the selected card. These step limitations are mental processes which are considered abstract and not patentable. Halliburton v. Walker, 73 USPQ 75.",
"Step 2A Prong Two: Integrated into a Practical Application? This judicial exception is not integrated into a practical application because the claimed elements of: “first deck containing a plurality of Good Habits cards”, “a second deck containing a a high level of generality. The step limitations of “rolling a game cube”, “selecting a card from the deck corresponding to the game cube roll”, “responding to the information contained on the face of the selected card, and selecting a card from the Compliment deck when the selected card is a Good Habit”, etc.",
"are no more than mere instructions to apply the exception using the generic “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube”. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. See MPEP 2106.05(e). Step 2B: Is there something else in the claims that ensure that they are directed to “significantly more” than a patent-ineligible concept? Claims 7-10 do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed elements of “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” do not pass the machine-or-transformation test.",
"Machine-or-Transformation Test For a process (method) claim to be statutory subject matter, the process must: (1) be tied to another statutory class (such as a particular machine or apparatus), or transformation of the underlying subject matter (such as an article or materials) to a different state or thing. Process claims tied to a machine or apparatus must positively recite the other statutory class (the machine or apparatus) to which it is tied, for example by identifying the machine that accomplishes the method steps. Process claims providing transformation must positively recite the subject matter that is being transformed, for example by identifying the material that is being changed to a different state. If the claimed method is determined to be a statutory subject matter eligible process, then it must be determined whether the claimed invention falls within a judicial exception (law of nature, natural phenomena or abstract idea).",
"If the claimed judicial exception is practically applied, then the claimed invention is statutory. Practical application can be realized in one of two ways: (1) Does the use of the particular machine or apparatus impose a meaningful limit on the claim’s scope? Does use of the machine or apparatus involve more than insignificant extra-solution activity? (2) Does the transformation impose a meaningful limit on the claim’s scope? Does the transformation involve more than insignificant extra-solution activity? See Bilski vs. Kappos , 130 S. Ct. 3218 (2010). The claimed invention does not recite a sufficient tie to a machine or apparatus.",
"The machine or apparatus should implement the process (method steps), and not merely be an object upon which the process operates. The claims should be clear as to how the machine or apparatus implements the process, rather than simply stating “a machine implemented process”. The claimed apparatus of “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” are analogous to in that they represent old and conventional elements that do not add significantly more to the claims. See Alice Corp. v. CLS Bank International, 134 S. Ct. at 2358-59.",
"As evidence, see the previously cited patent to Boyer (US 6,120,028) above. The patent to Leaf (US 3,722,885) discloses a game comprising five decks of cards, each deck having a different color, and a die 8 having a different color on each face corresponding to the different colors of each deck. See Berkheiemer v. HP, Inc., 881 F.3d 1360 (Fed. Cir. 2018). Thus, the claimed additional elements of “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” amount to nothing significantly more than instructions to players to apply the abstract idea that may be performed in the human mind. These elements are conventional and do not provide any improvement to the game. The machine or apparatus limitations should make clear that the use of the machine or apparatus in the claimed process imposes a meaningful limit on the claim's scope, and does use a machine involving more than insignificant extra-solution activity, MPEP 2106(g). Also, there is no transformation in these method claims. The above claimed steps do not transform the “first deck containing a plurality of Good Habits cards”, “a second deck containing a plurality of Bad Habit cards”, “a third deck containing a plurality of Compliment cards”, “a fourth deck containing a plurality of Surprise cards,”, “a fifth deck containing a plurality of Excuse cards, and “a game cube” into a different state or thing.",
"These additional elements remain the same and do not transform into a different state or thing. 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 “Bad Habit cards”, “Surprise cards”, “game cube” 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). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance. Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN LAYNO whose telephone number is (571)272-4424. The examiner can normally be reached on Monday through Friday 9am - 5:30pm.",
"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, Eugene Kim can be reached on 571-272-4463. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. /BENJAMIN LAYNO/ Primary Examiner, Art Unit 3711 bhl"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam.
The writ of error is dismissed on the authority of § 237 of the Judicial Code, as amended by the act of February 13, 1925 (43 Stat. 936, 937), for lack of jurisdiction. Treating the writ of error as an application for certiorari, the certiorari is denied for .the reason th?it, if granted, the case would have to be affirmed' on the authority of Gilcrease v. McCullough, 249 U. S. 178. | 09-09-2022 | [
"Per Curiam. The writ of error is dismissed on the authority of § 237 of the Judicial Code, as amended by the act of February 13, 1925 (43 Stat. 936, 937), for lack of jurisdiction. Treating the writ of error as an application for certiorari, the certiorari is denied for .the reason th?it, if granted, the case would have to be affirmed' on the authority of Gilcrease v. McCullough, 249 U. S. 178."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8146700/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Merrell and Greenbaum, JJ. | 01-06-2022 | [
"Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Merrell and Greenbaum, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5257961/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1 Reported in 227 N.W. 426. Appeal by Sarah R. Gensler, as administratrix of the estate of Molly Parcker, deceased, from a judgment of the district court refusing to vacate the allowance in the probate court of two claims which had been compromised and settled by the claimants and the administratrix, and also settling the account of the administratrix after disallowing in part certain items claimed by her. In respect to the allowance of the two claims in the probate court, the question has not been raised, whether if they have been formally allowed by the probate court as provided by statute [G. S. 1923 (2 Mason, 1927) § 8816] the only review is by appeal from the order of allowance rather than in the indirect method here attempted. Dunnell, Minn. Pr. Law, § 896. On this phase of the case, the one point for appellant is that Mr. Dretchko, the attorney then representing the sole heir (Lupu Parcker, an alien residing in Roumania) was not authorized to dispose of the claims by compromise and settlement. The question so made, as to the sufficiency of the power of attorney under which Mr. Dretchko acted, is out of the case for the simple reason that the settled case shows that Lupu Parcker, as sole heir, appeared at the trial in the district court by another attorney, Mr. Friedman. When the case was called for trial, Mr. Friedman appeared for both the heir and the claimants. On behalf of his clients, including the heir, he moved for judgment on the pleadings and continued to represent all three during the entire course of the proceeding and in support of the action of the probate court. His authority was not questioned in the district court, and it is too late to question it here. So Mr. Dretchko's settlement of the claims for the heir has been ratified, and appellant is therefore in no position to question his authority. *Page 411 So far as the appeal involves the final account of appellant as administratrix and the disallowance in part of certain items thereof, it is sufficient to say that she has not sustained the burden resting upon her of showing that any error was committed in that respect. Judgment affirmed. | 07-05-2016 | [
"1 Reported in 227 N.W. 426. Appeal by Sarah R. Gensler, as administratrix of the estate of Molly Parcker, deceased, from a judgment of the district court refusing to vacate the allowance in the probate court of two claims which had been compromised and settled by the claimants and the administratrix, and also settling the account of the administratrix after disallowing in part certain items claimed by her. In respect to the allowance of the two claims in the probate court, the question has not been raised, whether if they have been formally allowed by the probate court as provided by statute [G. S. 1923 (2 Mason, 1927) § 8816] the only review is by appeal from the order of allowance rather than in the indirect method here attempted. Dunnell, Minn. Pr. Law, § 896.",
"On this phase of the case, the one point for appellant is that Mr. Dretchko, the attorney then representing the sole heir (Lupu Parcker, an alien residing in Roumania) was not authorized to dispose of the claims by compromise and settlement. The question so made, as to the sufficiency of the power of attorney under which Mr. Dretchko acted, is out of the case for the simple reason that the settled case shows that Lupu Parcker, as sole heir, appeared at the trial in the district court by another attorney, Mr. Friedman. When the case was called for trial, Mr. Friedman appeared for both the heir and the claimants. On behalf of his clients, including the heir, he moved for judgment on the pleadings and continued to represent all three during the entire course of the proceeding and in support of the action of the probate court. His authority was not questioned in the district court, and it is too late to question it here.",
"So Mr. Dretchko's settlement of the claims for the heir has been ratified, and appellant is therefore in no position to question his authority. *Page 411 So far as the appeal involves the final account of appellant as administratrix and the disallowance in part of certain items thereof, it is sufficient to say that she has not sustained the burden resting upon her of showing that any error was committed in that respect. Judgment affirmed."
]
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Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 1 of 4 PageID #: 113
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
BARBARA TULLY, KATHARINE BLACK, ) MARC BLACK, SHELLY BROWN, ) DAVID CARTER, REBECCA GAINES, ) JANICE JOHNSON, ELIZABETH KMIECIAK, ) CHAQUITTA MCCLEARY, ) KATHERINE PAOLACCI, DAVID SLIVKA, ) DOMINIC TUMMINELLO, and ) INDIANA VOTE BY MAIL, INC., individually, ) and on behalf of those similarly situated, ) ) Plaintiffs, ) ) -vs- ) Case No. 1:20-cv-01271-JPH-DLP ) PAUL OKESON, S. ANTHONY LONG, ) SUZANNAH WILSON OVERHOLT, and ) ZACHARY E. KLUTZ, in their official ) capacity as members of the Indiana ) Election Commission, and ) CONNIE LAWSON, in her official ) capacity as the Indiana Secretary of State, ) ) Defendants. )
DECLARATION OF DAVID SLIVKA
I, David Slivka, after being duly sworn and subject to the penalties for perjury, declare I am over
the age of eighteen, have personal knowledge of the following matters, would so testify in open court if
called, and am competent to render this testimony:
1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the
November 3, 2020 general election (“General Election”).
2. As a respiratory therapist, I know the importance of social distancing because COVID-19
can be transferred through a cough or sneeze, or just by breathing within six feet of another person. At a
voting center or polling place it would be difficult, if not impossible, to maintain proper social distancing. Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 2 of 4 PageID #: 114
To ensure that no one gets sick or dies from this serious disease, everyone should have the option of
voting by mail. I would not feel safe voting in person.
3. I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate
being absent from my county of residence on that day, and I do not intend to work as a precinct election
officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by
the election board in my county of residence to administer the General Election. I do not anticipate
being confined to my home on Election Day, or to a health care facility, or a hospital because of a
personal illness or injury. I do not anticipate caring for an individual confined to a private residence
because of illness or injury for 12 hours on Election Day.
4. I do not suffer from any condition that disables me from performing most of the
activities of daily living. I do not anticipate being scheduled to work at my regular place of
employment on Election Day during the entire twelve hours the polls will be open. I resided at
my current address in November 2018, and I do not anticipate moving my principal residence
between now and Election Day. I do not anticipate being prevented from voting on Election Day
due to a religious holiday or other observance. I am not a participant in an address
confidentiality program. I am not a member of the military or public service officer, and I have
not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in
the 2020 general election due to the unavailability of transportation to the polls, and I am able to
sign my name.
5. My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other
named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely
vote by mail in the General Election and I want all members of the proposed Class to have the
same opportunity.
2 Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 3 of 4 PageID #: 115
6. Therefore, I share a common goal with all members of the proposed Class: to
have the option to safely vote by mail and to avoid voting in person, which, due to the possibility
of contracting COVID-19, may endanger me, my family, poll workers and other people, and
which would expose all of us to a substantial risk of serious harm.
7. I do not believe there is an actual or potential conflict of interest between
members of the proposed class and myself and the other named Plaintiffs. Even if there were a
potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe
voting by mail for all in the General Election.
8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously
represent me, all named individual Plaintiffs, and members of the certified Class, so that we will
all be able to safely vote by mail in the General Election.
9. If a Class is certified in this lawsuit, I understand that I may be a representative of
the Class. I will have the responsibility to fairly and adequately represent the Class and to stay
engaged with the lawsuit. I will honor and fulfill that responsibility.
10. If a Class is certified in this lawsuit, I understand that any settlement would have
to be approved by the Court. I understand that I will be consulted about any settlement, and
have a right to express my views about the settlement to the Court.
11. This Declaration does not contain all my anticipated testimony in this matter.
Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is
true and correct.
_______________________ _________________________ Date David Slivka
3 Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 4 of 4 PageID #: 116 | 2020-06-08 | [
"Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 1 of 4 PageID #: 113 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION BARBARA TULLY, KATHARINE BLACK, ) MARC BLACK, SHELLY BROWN, ) DAVID CARTER, REBECCA GAINES, ) JANICE JOHNSON, ELIZABETH KMIECIAK, ) CHAQUITTA MCCLEARY, ) KATHERINE PAOLACCI, DAVID SLIVKA, ) DOMINIC TUMMINELLO, and ) INDIANA VOTE BY MAIL, INC., individually, ) and on behalf of those similarly situated, ) ) Plaintiffs, ) ) -vs- ) Case No.",
"1:20-cv-01271-JPH-DLP ) PAUL OKESON, S. ANTHONY LONG, ) SUZANNAH WILSON OVERHOLT, and ) ZACHARY E. KLUTZ, in their official ) capacity as members of the Indiana ) Election Commission, and ) CONNIE LAWSON, in her official ) capacity as the Indiana Secretary of State, ) ) Defendants. ) DECLARATION OF DAVID SLIVKA I, David Slivka, after being duly sworn and subject to the penalties for perjury, declare I am over the age of eighteen, have personal knowledge of the following matters, would so testify in open court if called, and am competent to render this testimony: 1. I am a registered voter in Marion County in the State of Indiana. I intend to vote in the November 3, 2020 general election (“General Election”).",
"2. As a respiratory therapist, I know the importance of social distancing because COVID-19 can be transferred through a cough or sneeze, or just by breathing within six feet of another person. At a voting center or polling place it would be difficult, if not impossible, to maintain proper social distancing. Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 2 of 4 PageID #: 114 To ensure that no one gets sick or dies from this serious disease, everyone should have the option of voting by mail. I would not feel safe voting in person. 3.",
"I will be under 65 years of age on November 3, 2020 (“Election Day”). I do not anticipate being absent from my county of residence on that day, and I do not intend to work as a precinct election officer, a watcher, or a challenger for the General Election. I am not, nor do I intend to be, employed by the election board in my county of residence to administer the General Election.",
"I do not anticipate being confined to my home on Election Day, or to a health care facility, or a hospital because of a personal illness or injury. I do not anticipate caring for an individual confined to a private residence because of illness or injury for 12 hours on Election Day. 4. I do not suffer from any condition that disables me from performing most of the activities of daily living. I do not anticipate being scheduled to work at my regular place of employment on Election Day during the entire twelve hours the polls will be open.",
"I resided at my current address in November 2018, and I do not anticipate moving my principal residence between now and Election Day. I do not anticipate being prevented from voting on Election Day due to a religious holiday or other observance. I am not a participant in an address confidentiality program. I am not a member of the military or public service officer, and I have not been adjudicated a serious sex offender. I do not anticipate being prevented from voting in the 2020 general election due to the unavailability of transportation to the polls, and I am able to sign my name. 5.",
"My overriding goal in this lawsuit is to obtain njunctive relief for myself, the other named Plaintiffs, and for members of the proposed class. Above all, I want to be able to safely vote by mail in the General Election and I want all members of the proposed Class to have the same opportunity. 2 Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 3 of 4 PageID #: 115 6. Therefore, I share a common goal with all members of the proposed Class: to have the option to safely vote by mail and to avoid voting in person, which, due to the possibility of contracting COVID-19, may endanger me, my family, poll workers and other people, and which would expose all of us to a substantial risk of serious harm.",
"7. I do not believe there is an actual or potential conflict of interest between members of the proposed class and myself and the other named Plaintiffs. Even if there were a potential conflict, it would be dwarfed by our overwhelming common goal of obtaining safe voting by mail for all in the General Election. 8. If a Class is certified in this lawsuit, I understand that my lawyers will vigorously represent me, all named individual Plaintiffs, and members of the certified Class, so that we will all be able to safely vote by mail in the General Election. 9. If a Class is certified in this lawsuit, I understand that I may be a representative of the Class. I will have the responsibility to fairly and adequately represent the Class and to stay engaged with the lawsuit. I will honor and fulfill that responsibility. 10. If a Class is certified in this lawsuit, I understand that any settlement would have to be approved by the Court. I understand that I will be consulted about any settlement, and have a right to express my views about the settlement to the Court. 11.",
"This Declaration does not contain all my anticipated testimony in this matter. Pursuant to 28 U.S.C. § 1746, I hereby declare under penalties of perjury that the foregoing is true and correct. _______________________ _________________________ Date David Slivka 3 Case 1:20-cv-01271-JPH-DLP Document 13-12 Filed 06/08/20 Page 4 of 4 PageID #: 116"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/135815637/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NUMBER 13-12-00731-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG ____________________________________________________________
DANIEL GONZALEZ, Appellant,
v.
ALLY FINANCIAL, INC. F/K/A GMAC INC. D/B/A GMAC AND BERT OGDEN CHEVROLET, INC., Appellees. ____________________________________________________________
On appeal from the 206th District Court of Hidalgo County, Texas. ____________________________________________________________
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion Per Curiam
This appeal was abated by this Court on January 9, 2013, and the parties were
ordered to mediation. This cause is now before the Court on the parties’ joint motion to
dismiss the appeal with prejudice. The parties request that this Court dismiss this case with prejudice to each party re-filing the same. Accordingly, this case is hereby
REINSTATED.
The Court, having considered the documents on file and the joint motion to dismiss
with prejudice, is of the opinion that the motion should be granted. See TEX. R. APP. P.
42.1(a). The joint motion to dismiss is GRANTED, and the appeal is hereby DISMISSED
WITH PREJUDICE. Costs will be taxed against appellant. See TEX. R. APP. P. 42.1(d)
("Absent agreement of the parties, the court will tax costs against the appellant.").
Having dismissed the appeal at the parties’ request, no motion for rehearing will be
entertained, and our mandate will issue forthwith. Any pending motions are dismissed
as moot.
PER CURIAM
Delivered and filed the 6th day of June, 2013.
2 | 10-16-2015 | [
"NUMBER 13-12-00731-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ DANIEL GONZALEZ, Appellant, v. ALLY FINANCIAL, INC. F/K/A GMAC INC. D/B/A GMAC AND BERT OGDEN CHEVROLET, INC., Appellees. ____________________________________________________________ On appeal from the 206th District Court of Hidalgo County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion Per Curiam This appeal was abated by this Court on January 9, 2013, and the parties were ordered to mediation. This cause is now before the Court on the parties’ joint motion to dismiss the appeal with prejudice. The parties request that this Court dismiss this case with prejudice to each party re-filing the same. Accordingly, this case is hereby REINSTATED.",
"The Court, having considered the documents on file and the joint motion to dismiss with prejudice, is of the opinion that the motion should be granted. See TEX. R. APP. P. 42.1(a). The joint motion to dismiss is GRANTED, and the appeal is hereby DISMISSED WITH PREJUDICE. Costs will be taxed against appellant. See TEX. R. APP. P. 42.1(d) (\"Absent agreement of the parties, the court will tax costs against the appellant.\"). Having dismissed the appeal at the parties’ request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Any pending motions are dismissed as moot. PER CURIAM Delivered and filed the 6th day of June, 2013.",
"2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3089015/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1226604
Decision Date: 08/01/12 Archive Date: 08/10/12
DOCKET NO. 05-18 317 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to an initial disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to November 1, 2010, and in excess of 40 percent thereafter.
2. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy, to include consideration of whether a separate compensable evaluation is warranted prior to April 17, 2009.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. R. dela Rosa, Associate Counsel
INTRODUCTION
The Veteran had active military service from August 1968 to August 1972, February 1991 to April 1991, and April 1996 to July 1996.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2003 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, a Board videoconference hearing was held before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The Board remanded the issue of entitlement to service connection for a cervical spine condition in January 2012. This claim was subsequently granted by the RO in a rating decision dated in February 2012. As the Veteran did not appeal the ratings or effective dates assigned for this disability, this represents a complete grant of the Veteran's appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).
In September 2010, the Board remanded the issue on appeal for a new examination after the Veteran reported a worsening of limitation of motion in his low back. In September 2011, the RO granted service connection for left lower extremity radiculopathy with an evaluation of 10 percent, effective April 17, 2009. The RO noted that the grant of service connection was an inferred issue that was intertwined with the Veteran's claim for increased evaluation for the lumbar spine disability; as such, this matter is also before the Board at this time.
The Veteran again raised the issue of an earlier effective date for the grant of service connection for the lumbar spine disability. See Board hearing transcript at p. 13. As this matter was last adjudicated in August 2006 and was not the subject of a notice of disagreement, it is referred to the RO for appropriate action.
The issue of entitlement to an increased rating for left lower extremity radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington DC.
FINDINGS OF FACT
1. Prior to July 6, 2010, the Veteran's low back disability is manifested by no more than moderate limitation of motion; flexion was limited at its worst to 60 degrees on repetitive use, and there was normal extension, normal right and left lateral rotation and normal right and left lateral flexion, however, the June 2003 examiner opined that the normal ranges of motion could be decreased by 30 percent during flare-ups or on use. The Veteran did not have ankylosis or incapacitating episodes.
2. From September 26, 2003, to July 6, 2010, the Veteran's low back disability is not manifested by forward flexion which more nearly approximates 30 degrees or less, nor does the evidence show ankylosis.
3. From July 6, 2010, the Veteran's low back disability is manifested by maximum restriction on ranges of motion including lumbar extension, side bending, and rotation; and limitation of motion on flexion at its worst is to 15 degrees; it is not manifested by incapacitating episodes or ankylosis.
4. The February 13, 2012, VA spine examination showed objective evidence of a neurologic abnormality, moderate radiculopathy in the right lower extremity, that is associated with the service-connected lumbar spine disability.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for a lumbar spine disability limitation of motion have not been met prior to July 6, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.71a, Diagnostic Codes 5003, 5285-5295 (as in effect from September 23, 2002 to September 26, 2003), and Diagnostic Codes 5003, 5235-5243 (2011).
2. The criteria for a 40 percent rating, but no higher, for a lumbar spine disability limitation of motion are met from July 6, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, § 4.71a, Diagnostic Codes 5003, 5285-5295 (as in effect from September 23, 2002 to September 26, 2003), and Diagnostic Codes 5003, 5235-5243 (2011).
3. The criteria for a separate rating for right lower extremity radiculopathy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 8520 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks an initial disability rating in excess of 20 percent lumbar spine disability prior to November 1, 2010, and in excess of 40 percent thereafter.
In a rating decision dated in October 2003 the RO granted service connection for a lumbar spine condition and assigned a 10 percent disability rating effective November 22, 2002, pursuant to Diagnostic Code 5237, which pertains to lumbosacral strain. The Veteran has appealed this initial rating. In a rating decision dated in December 2005 the RO increased the rating to 20 percent effective November 22, 2002. In a rating decision dated in September 2011, the RO again increased the rating to 40 percent effective November 1, 2010.
Applicable law provides that a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned for the service-connected lumbar spine condition, therefore, the issue remains in appellate status.
Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Following an initial award of service connection for a disability, separate ratings can be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. As will be explained below, the Board finds that staged ratings of 20 and 40 percent are warranted in this case.
As regards the joints, consideration will be given to factors such as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45.
Under the criteria in effect when the claim for service connection was filed, a 20 percent rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in standing position; and a 40 percent rating was warranted for severe lumbosacral strain with evidence of listing of the whole spine, positive Goldthwaite's sign, marked limitation of forward bending in standing position, or loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). A 60 percent evaluation was warranted for residuals of a fractured vertebra if there was abnormal mobility requiring a neck brace (jury mast) but no spinal cord involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002). A 60 percent evaluation was warranted for complete bony fixation (ankylosis) of the spine at a favorable angle and a 100 percent evaluation was given for ankylosis of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie- Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a, Diagnostic Code 5286 (2002). A 100 percent evaluation for residuals of fracture of a vertebra was warranted if there was spinal cord involvement and the injured individual was bedridden or required long leg braces. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002).
In addition to the foregoing, a 50 percent evaluation was warranted for unfavorable ankylosis of the lumbar spine, and a 40 percent evaluation was warranted for favorable ankylosis of the lumbar spine (Diagnostic Code 5289) (2002).
The rating schedule also provided for a 10 percent rating for slight limitation of motion of the lumbar spine. A 20 percent rating was warranted for moderate limitation of motion, and a 40 percent rating required severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).
The current General Rating Formula for Diseases and Injuries of the Spine provides for a 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is less than 120 degrees; or where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (effective September 26, 2003). A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id.
The General Rating Formula for Diseases and Injuries of the Spine are used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1).
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (2).
The schedule also includes criteria for evaluation of nerve injuries. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.
When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123.
Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve.
Other potentially applicable criteria include that for evaluation of intervertebral disc syndrome. Under the provisions of Diagnostic Code 5293, intervertebral disc syndrome (preoperatively or postoperatively) was rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopædic and neurologic manifestations along with ratings for all other disabilities, whichever method resulted in the higher rating. 38 CFR 4.71a, Diagnostic Code 5293 (in effect from September 23, 2002, through September 25, 2003). A 10 percent rating was warranted under Diagnostic Code 5293 for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Id. A 20 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; and a 40 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. The highest rating of 60 percent was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id.
Effective September 26, 2003, the rating criteria for intervertebral disc syndrome remained the same but a notation was added indicating that the disorder could be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. See 68 Fed. Reg. 51454 (Aug. 27, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective from September 26, 2003).
An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, (Note 1).
The schedule also provides for compensation for arthritis due to trauma and substantiated by x-ray findings. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the involved joint(s). When, however, the limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. In the absence of limitation of motion, a 10 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, (Note 1).
The Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal. See VAOPGCPREC 7-2003. However, the effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change. VAOPGCPREC 3-2000, 65 Fed. Reg. 33,421 (2000).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Factual Background
In June 2003 the Veteran was accorded a compensation and pension (C&P) spine examination. During the examination the Veteran reported pain on the left side of his low back with radiation to his left buttock. He had difficulty driving long distances or moving fast when the pain came on. Physical examination of the lumbosacral spine revealed no tenderness of the lumbosacral spine of either sciatic notch. Flexion was from 0 to 90 degrees and right and left lateral bending were from 0 to 30 degrees each. The examiner noted these measurements were normal. The diagnosis was chronic lumbosacral syndrome with left sciatica. The examiner noted that the Veteran's range of motion of the lumbosacral spine could be decreased by 30 percent during a flare-up or during overuse.
A May 2003 physician's note reported that the Veteran suffered from a back, neck, and head injury in October 2002 and has continued to have constant discomfort.
In April 2004 the Veteran was accorded a C&P infectious, immune, and nutritional disabilities examination. During the examination the Veteran reported mild low back discomfort with radiating pain down his left leg and numbness sensation down his left foot with periodic exacerbation with lifting, bending, driving, and standing for long periods of time. He was able to walk 1/4 of a mile with exacerbation of pain in his lower extremities and back. Physical examination revealed tenderness of the lower paraspinal muscle. Deep tendon reflexes were +2 bilaterally in the upper and lower extremities. His gait was normal and his coordination was intact.
In November 2005, the Veteran presented testimony before a decision review officer. The Veteran reported that he had radiating back pain to the right side of his body that occurred four to five days a week.
VA medical records showed that he complained of chronic low back pain. An examination of the Veteran's spine in August 2007 revealed some curvature to the left secondary to muscle spasms. There were no areas of tenderness along the spine. The diagnosis was lumbosacral strain. In August 2008, the Veteran reported that his back pain affected his ability to maintain balance at times. Physical examination revealed his coordination and gait were normal. He had tenderness in the low back area and to the left sacroiliac area. The impression was chronic low back pain with degenerative disc disease at multiple levels. A May 2008 MRI revealed joint space narrowing and degenerative disc disease noted at L2-L3, L3-L4, L4-L5, and L5-S1. There was a central and left paracentral bulge of disc material at L3-L4 and L4-L5 identified. A February 2009 MRI revealed joint space narrowing at L2-L3, L3-L4, L4-L5, and L5-S1 with degenerative disc disease. The diagnosis was lumbar radiculopathy.
In April 2009 the Veteran was accorded another C&P spine examination. During the examination the Veteran reported diffuse, deep, and constant pain in the lower back that he rated at seven to eight on a 10 point scale (moderate to severe pain). He reported flare-ups at least twice a day and rated the pain during flare-ups as a 10/10. He denied incapacitation and additional functional limitation. He denied a history of weight loss or gain in the past 12 months and denied fever, fatigue, dizziness, and numbness. He also denied use of orthotic devices or braces. He reported that his low back has slowed him down regarding his activities of daily living, occupation, and driving. Physical examination of the lumbosacral spine revealed normal curvature and it was tender to percussion. Forward flexion was from 0 to 90 degrees with pain at 60 degrees, extension was from 0 to 30 degrees with pain at 30 degrees, left lateral flexion was from 0 to 30 degrees, right lateral flexion was from 0 to 30 degrees with pain at 30 degrees, left lateral rotation was from 0 to 30 degrees with pain at 30 degrees, and right lateral rotation was from 0 to 30 degrees with pain at 30 degrees. The Veteran experienced pain with range of motion and repetition of three produced increased pain, weakness, lack of endurance, fatigue, and incoordination. Range of motion after repetition revealed forward flexion to 60 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees with no loss of range of motion. A CT scan of the lumbar spine revealed mild central disc protrusion at L4-L5, moderately severe spinal stenosis at L3-L4, and moderate central canal stenosis at L3-L4. The diagnosis was mild degenerative joint disease of the lumbar spine.
In June 2010, the Veteran underwent a lumbar puncture which revealed stenosis of the central canal at all lumbar levels and spondylosis throughout the lumbar spine.
During the June 2010 Board hearing, the Veteran testified that his back pain was an 8 out of 10 on a daily basis. He reported that he wore a back brace and used a cane whenever he could. He testified that he could not stand for a long period of time and could not sit for long periods of time without experiencing pain. He reported that he was self employed.
On July 6, 2010, the Veteran commenced physical therapy. The Veteran reported that he had good days and bad days based on his back pain and activity tolerance. The Veteran reported that on his good days he was able to walk upright. His main complaints involved prolonged standing of more than 20 minutes, walking far distances, squatting down to pick up objects, an inability to ascend steps, and sitting in an upright position. An MRI revealed, in pertinent part, degenerative disc disease along the spine. The therapist noted that the Veteran had a kyphotic curve throughout his spine. He had a flattened thoracic spine and forward head and shoulder with impingement bilaterally. The therapist also noted that the Veteran had a slow, slightly unsteady gait with significant kyphosis through his spinal region. The Veteran also exhibited decreased step length and width. Range of motion of the lumbar spine showed that the examiner was unable to test his lumbar flexion. The Veteran exhibited maximal restriction upon extension, side bending, and rotation. The Veteran reported that he had constant pain throughout his cervical and lumbar region rated as 10/10. The therapist found that the Veteran had impaired postural dysfunction, low activity tolerance, muscle movement weakness, inefficient gait, balance disturbances, and joint immobility.
In November 2010 the Veteran was accorded another C&P spine examination. During the examination the Veteran reported low back pain with radiation down the left leg to the foot with associated numbness, tingling, and weakness. He denied a history of urinary incontinence and retention requiring catheterization. He reported a history of urinary urgency, frequency of less than one hour, and episodes of nocturia occurring three times a night. He denied fecal incontinence, obstipation, and erectile dysfunction. He reported numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. The Veteran reported that these symptoms were related to his claimed disability and reported that he fell the previous week on his left lateral trunk. The Veteran also reported a history of fatigue, decreased motion, stiffness, weakness, spasm, and pain in his low back. He described the pain as throbbing, stabbing, and sharp. He reported the severity was severe and constant and occurred daily. He reported radiation of pain down his left leg that was throbbing and sharp. He reported 3 episodes of incapacitating episodes in the past 12 months, two episodes lasting around five hours and another episode lasting six hours. He reported that he used a cane and was unable to walk more than a few yards.
Physical examination revealed a stooped posture and he had a slow propulsion gait. He had no evidence of abnormal spinal curvatures to include no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. He exhibited guarding, pain with motion, and tenderness on the left and right. He did not exhibit spasm, atrophy, or weakness. The examiner found that the localized tenderness or guarding was not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Active range of motion was as follows: flexion was from 0 to 15 degrees, extension was from 0 to -5 degrees, left lateral flexion was from 0 to 5 degrees, left lateral rotation was from 0 to 10 degrees, right lateral flexion was from 0 to 5 degrees, and right lateral rotation was from 0 to 10 degrees. There was objective evidence of pain on active range of motion but no additional limitations after three repetitions. An x-ray revealed narrowing of multiple disc spaces, more marked at L4-L5 and L5-S1. There was also mild anterior compression of T12 vertebra of uncertain age and duration. The diagnosis was lumbar degenerative disc disease with mild disc protrusion L4-L5 level with moderately severe spinal stenosis due to disc bulge at L3-L4. The examiner found that the Veteran may have increased pain with heaving lifting or carrying, repetitive bending or stooping activities, or overhead activities that necessitate lumbar extension. The examiner further noted that the Veteran works with computers and is self-employed. As he had a sedentary job that would not necessitate low back flexion, extension, or rotation, his current employment should be an appropriate vocation for the Veteran as long as he can take intermittent breaks and change positions every hour or so.
In September 2011 a VA medical opinion concerning the left lower extremity was provided. The examiner determined that a lower extremity neurological impairment was due to the Veteran's lumbar spine condition. She indicated that MRI results showed disc bulges at L3-L4 and L4-L5 and a CT scan showed a central canal and spinal stenosis at L3-L4 and a disc bulge at L4-L5 on the left. His physical exam also showed decreased motor strength of the left knee extensors and flexion and decreased sensation of the medial aspect of the left calf and the web space between the first and second toes. Thus it was at least as likely as not that the Veteran has an L3-L4 and L4-L5 lumbar radiculopathy.
In February 2012 the Veteran was accorded a disability benefit questionnaire (DBQ) examination. Diagnoses included degenerative disc disease, multilevel and lumbar radiculopathy at L3-L4, L4-L5, and L5-S1. During the examination, the Veteran reported flare-ups resulting from sitting or standing for long periods of time. Range of motion, measured with a goniometer, revealed forward flexion from 0 to 20 degrees with pain occurring at 20 degrees, extension from 0 to 5 degrees with pain occurring at 5 degrees, right lateral flexion from 0 to 5 degrees with pain occurring at 5 degrees, left lateral flexion from 0 to 5 degrees with pain occurring at 5 degrees, right lateral rotation from 0 to 10 degrees with pain occurring at 10 degrees, and left lateral rotation from 0 to 10 degrees with pain occurring at 10 degrees. The examiner noted that the Veteran seemed to be in a lot of pain during the examination and was guarded. The Veteran was able to perform repetitive-use testing without change to range of motion. The Veteran did not have any additional limitation in range of motion following repetitive-use. He experienced less movement than normal; weakened movement; excess fatigability; pain on movement; and interference with sitting, standing, and weight-bearing after repetitive use. The Veteran exhibited localized tenderness or pain to palpation on the paraspinal muscles. He also exhibited guarding or muscle spasm of the thoracolumbar back but it did not result in abnormal gait or spinal contour. Hip flexion was 5/5 bilaterally, knee extension was 5/5 in the right and 4/5 in the left, ankle plantar flexion was 4/5 bilaterally, ankle dorsiflexion was 4/5 bilaterally, and great toe extension was 4/5 bilaterally. The Veteran did not have muscle atrophy. Reflexes were 2+ in both knees and 1+ in the right ankle and 2+ in the left ankle. A sensory examination was normal in the upper anterior thigh and thigh and knee, bilaterally. He had decreased sensation to light touch in the bilateral lower legs/ankles and in the bilateral feet/toes. Straight leg raises were positive bilaterally. The Veteran exhibited radicular pain. He expressed constant, severe pain; moderate, intermittent pain; mild paresthesias and/or dysesthesias; and mild numbness in both lower extremities. The examiner indicated that the sciatic nerve was involved in both the right and left lower extremities and opined that the Veteran had moderate radiculopathy bilaterally. The examiner found the Veteran did not have any other neurological abnormalities such as bowel or bladder problems. The examiner also noted that the Veteran had intervertebral disc syndrome but noted no incapacitating episodes over the past 12 months. The Veteran reported that he used a wheelchair on occasion and a cane constantly. Imaging studies revealed evidence of arthritis but not evidence of vertebral fracture. The examiner noted that an April 2004 nerve conduction and electromyography test was consistent with the clinical impression of lumbar radiculopathy. The examiner also indicated that the Veteran's back condition would impact his ability to work.
Analysis
With respect to the Veteran's claim for an increased rating prior to November 1, 2010, the Board is mindful of the fact that it will be necessary to consider former Diagnostic Codes in addition to the criteria arising out of revisions to the Codes relating to spine disabilities effective in and after September 2003.
With respect to Diagnostic Code 5292, which was in effect when the Veteran filed his claim, and which pertains to limitation of motion of the lumbar spine, the Board finds that an increased rating of 40 percent, but no higher, is warranted from July 6, 2010. The medical evidence dated July 6, 2010, shows that the Veteran's ranges of motion on lumbar extension, side bending, and rotation were at maximum restriction upon examination. Additionally, the Veteran walked with a slow and slightly unsteady gait with significant kyphosis throughout his spinal region. The Veteran reported constant pain throughout his spine rated as 10/10 and noted complaints with restrictions on standing, walking, squatting, ascending steps, and sitting upright. The Board has considered the Veteran's reports and the medical evidence of maximum restriction of motion on extension, side bending and rotation, and finds that the criteria for a 40 percent disability rating, under Diagnostic Code 5292, are met from July 6, 2010. This is the maximum rating that is available for limitation of motion, accordingly consideration of whether a higher rating is warranted based on flare-ups, weakness, fatigability, incoordination or pain on movement from July 6, 2010, is not warranted. See Johnson v. Brown, 9 Vet. App. 7 (1996).
However, the Board finds that the evidence does not show that the Veteran's limitation of motion was severe, under Diagnostic Code 5292, prior to July 6, 2010. In addition, a rating in excess of 20 percent is not warranted from September 26, 2003, to July 6, 2010, based on the amended criteria. His range of motion in June 2003 was normal in every range, however, the examiner did report that range of motion could be decreased by 30 percent during flare-ups or on use. On examination in April 2009, all ranges of motion were normal except flexion, which was limited to 60 degrees, on repetitive use. Flexion limited to 60 degrees on repetitive use supports the 20 percent rating as do the first examiner's reports that range of motion could be decreased up to 30 percent on flare-ups, which means the Veteran could lose up to 10 degrees on every range of motion except flexion which would result in a loss of 30 degrees of motion such that the Veteran would have flexion to 60 degrees. The range of motion shown on repetitive use and projected on flare-ups, however, does not more nearly approximate severe limitation of motion. Even with the range of motion that would be lost on flare-ups or use, the Veteran still has 60 degrees of flexion and at least 20 degrees of motion on every other range of motion. This would result in, at worst, a combined range of motion of 160 degrees. Under the current criteria, flexion limited to 60 degrees and combined range of motion limited to 120 degrees warrants a 20 percent evaluation, and no higher, from September 26, 2003, to July 6, 2010. Similarly under the old criteria, a higher evaluation is not warranted prior to July 6, 2010, as the Veteran has 60 degrees of flexion and at least 20 degrees of motion on every other range of motion even taking into account factors such as painful motion, weakened movement, excess fatigability and incoordination, to include on flare-ups. Moreover, on examination in 2009, the Veteran had limitation on motion on repetitive use to 60 degrees on flexion and the other ranges of motion were normal. At that examination, the Veteran reported flare-ups but denied additional functional limitations. These findings more nearly approximate moderate limitation of motion rather than severe limitation of motion. The Veteran's reports of pain have been considered competent, credible and probative, however, as discussed above the evidence as a whole does not show that a higher evaluation is warranted, prior to July 6, 2010, under Diagnostic Code 5292 or under the criteria in effect from September 26, 2003. As discussed above, the first showing in the evidence that the criteria for a 40 percent rating were met is on July 6, 2010, when maximum restriction of multiple ranges of motion was shown.
Additionally, the preponderance of the evidence of record is against finding that a rating in excess of 20 percent, prior to July 6, 2010, and in excess of 40 percent thereafter is warranted at any period of time covered by this claim, pursuant to Diagnostic Codes 5285, 5286, and 5289 as the evidence does not show that the Veteran has residuals of a vertebral fracture, complete with bony fixation (ankylosis) of the spine, or ankylosis of the lumbar spine. Imaging studies conducted during the February 2012 VA examination revealed no evidence of vertebral fracture. Also, at no time did the Veteran exhibit ankylosis. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Dorland's Illustrated Medical Dictionary (Dorland's) 94 (30th ed., 2003). While maximum restriction of range of motion was found on July 6, 2010, and the clinician indicated that flexion could not be tested, the clinician did not state that the Veteran had ankylosis. Moreover, the other range of motion studies of record show that the Veteran did have mobility of the spine. A rating in excess of 20 percent from September 26, 2003, when the General Rating Formula for Diseases and Injuries of the Spine became effective, to July 6, 2010, on the basis of ankylosis is also not warranted as the evidence does not show there is ankylosis of the entire thoracolumbar spine or unfavorable ankylosis.
To warrant a 40 percent rating pursuant to Diagnostic Code 5295, prior to July 6, 2010, severe lumbosacral strain with evidence of listing of the whole spine, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion is required. The evidence revealed that the Veteran was limited in forward bending, as evidenced by forward flexion limited on use or on flare-ups to 60 degrees, however, as only 30 degrees of flexion is lost, this represents moderate limitation of motion rather than marked limitation. While the Veteran was noted to have a curvature of the spine, listing of the whole spine was not shown. While the first examiner did indicate that the Veteran could lose up to 30 percent of his ranges of motion, including lateral motion, on use, and there is evidence of osteo-arthritic changes, this does not warrant a higher evaluation in the absence of abnormal mobility on forced motion. The evidence of record does not show the presence of abnormal mobility on forced motion or a positive Goldthwaite's sign. Instead of severe disability, the evidence shows that the Veteran has muscle spasms and a potential loss of lateral motion on use, which meets the criteria for a 20 percent evaluation but no higher under Diagnostic Code 5295.
Pursuant to the criteria for intervertebral disc syndrome which became effective in September 2002, the Board finds that the evidence does not show that the Veteran has incapacitating episodes requiring bed rest as prescribed by a physician. While the Veteran has reported that he has experienced incapacitation, the evidence does not include evidence showing that a physician prescribed bed rest.
The Board has also considered the criteria set forth in Diagnostic Code 5003. However, as the Veteran is currently assigned a rating for his limitation of motion, a separate rating is not warranted pursuant to Code 5003 as that would constitute pyramiding. See 38 C.F.R. § 4.14. Moreover, a higher rating than 20 percent is not otherwise available pursuant to Code 5003.
The Veteran is already service-connected for left lower extremity radiculopathy. However, as an objective medical finding of right lower extremity radiculopathy associated with the service-connected disability was shown on examination in February 2012, the Board finds that he is entitled to a separate rating for right lower extremity radiculopathy under Diagnostic Code 8520.
While the Veteran reported a history of urinary urgency, frequency of less than one hour, and episodes of nocturia occurring three times a night during the November 2010 VA examination, upon examination in February 2012, the examiner found that he did not have any bowel or bladder neurologic abnormalities associated with the service-connected disability. Accordingly, a separate evaluation on that basis is not for consideration.
The Board has considered the lay statements of the Veteran that a higher rating is warranted based on his symptoms, however, while his statements are competent, credible, and probative, the entirety of the evidence as discussed above does not show that the criteria for a rating in excess of 20 percent prior to July 6, 2010, and in excess of 40 percent thereafter are met or approximated. In that regard, the VA examination reports are highly probative evidence as medical clinicians conducted testing to determine the extent of the Veteran's disability, including his range of motion with consideration of factors such as pain, to include on use and on flare-ups.
The issue of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1). The Court of Appeals for Veterans Claims clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
The Board finds that an exceptional disability picture is not shown in this case. Interference with employment due to pain with various movements including on heavy lifting and carrying, repetitive bending or stooping, or overhead activities requiring extension were noted. However, the Veteran's signs and symptoms, including pain, spasms, and limitation of motion, fit within the rating criteria as was discussed above. The evidence does not show that the rating criteria are inadequate. The assignment of a 20 and 40 percent rating already contemplate that there is commensurate industrial impairment. Referral by the RO to the Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is thus not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996).
Finally, where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran is self-employed and has not alleged that he was unemployable during the course of the appeal due to the service-connected disability. While the February 2012 examiner indicated that the Veteran's service-connected back impacted his ability to work, there is no evidence of unemployability; accordingly, TDIU is not raised by the record.
Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, VA had no additional duty to notify in this case once service connection was granted.
VA 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.
In March 2010, September 2010, and February 2012, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was provided with diagnostic criteria in the February 2012 supplemental statement of the case. However, the RO provided the Veteran with Diagnostic Code 5293 in effect prior to September 2002, which are not applicable to this case as the Veteran's claim was not filed until November 2002. Nevertheless, as the RO also provided the correct diagnostic criteria pertaining to intervertebral disc syndrome as in effect from September 2002, there is no prejudice to the Veteran. Additionally, the Veteran was asked to identify and authorize the release of any additional medical evidence by way of an October 2010 letter. Additional VA medical records and private medical records were associated with the claims folder and VA examinations were provided on remand. The VA examiners conducted examinations, which included range of motion studies, such that the Board's determination is an informed one. Moreover, the Board finds the VA examinations complied with the previous Board remands in that weakened movement, excess fatigability, and incoordination were addressed. Moreover, the examiners noted the effects of pain on range of motion. Accordingly, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions.
Regarding the duty to assist, service treatment records have been obtained and made a part of the record, as have VA treatment records and private medical records. There is no indication that the Veteran has provided information to the RO about relevant records that are outstanding, accordingly, the Board finds that there is no duty to assist in that regard that is unmet. The Board is satisfied that VA has sufficiently discharged its duty in this matter.
With respect to the aforementioned Board hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran testified concerning the severity of his lumbar spine disability. Granted, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the Veteran's claim for an increased rating. However, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claim for an increased evaluation. Further, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied.
ORDER
Entitlement to an initial disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to July 6, 2010, is denied.
A disability rating of 40 percent, but no higher, for the service-connected lumbar spine disability is granted from July 6, 2010, subject to the law and regulations governing the payment of monetary benefits.
Entitlement to a separate rating for right lower radiculopathy is granted, subject to the statutes and regulations governing the payment of monetary benefits.
REMAND
In September 2011, the RO granted service connection for the left lower extremity radiculopathy with an evaluation of 10 percent, effective April 17, 2009. The RO noted that the grant of service connection was an inferred issue that was intertwined with the Veteran's claim for increased evaluation for the lumbar spine disability. The RO issued a Supplemental Statement of the Case in September 2011 and February 2012 that did not reference the separate entitlement to a 10 percent rating for left lower extremity radiculopathy. In an April 2012 statement, the Veteran averred that the effective date for the left lower extremity radiculopathy should be adjusted to an earlier date of April 9, 2004. As this is part of the Veteran's appeal seeking a higher initial rating, a separate appeal of the effective date for the left lower extremity is not required. VA regulations provide that the agency of original jurisdiction will furnish the Veteran with a Supplemental Statement of the Case if there is a material defect in the Statement of the Case or prior Supplemental Statement of the Case. See 38 C.F.R. § 19.31(b)(2). Review of the record reveals that the Veteran was not issued a Supplemental Statement of the Case to address the separate rating for the left lower extremity. As the RO determined that the separate grant of service connection for left lower extremity radiculopathy was intertwined with the Veteran's claim for an increased evaluation for his lumbar spine disability, the omission of this issue in the September 2011 and February 2012 Supplemental Statement of the Case represents a material defect. Accordingly, the case must be remanded pursuant to 38 C.F.R. § 19.31.
Additionally, during the April 2009 VA examination, the examiner referenced an EMG of the upper and lower extremities. The EMG results are not contained in the claims file or on Virtual VA.
VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should obtain all VA medical records dating from January 5, 2012, to include EMG results dated in April 2009.
Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for the following action:
1. Obtain VAMC medical records dating from January 5, 2012, to include EMG results dated in April 2009.
2. The Veteran and his representative must be furnished a Supplemental Statement of the Case in accordance with 38 C.F.R. § 19.31(b)(2), which addresses the issue of the rating assigned to the left lower extremity disability including consideration of whether a compensable rating is warranted prior to April 17, 2009. Provide the Veteran with an opportunity to respond and then return the case to the Board, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims 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).
____________________________________________
S. S. TOTH
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) (2011).
Department of Veterans Affairs | 08-01-2012 | [
"Citation Nr: 1226604 Decision Date: 08/01/12 Archive Date: 08/10/12 DOCKET NO. 05-18 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to November 1, 2010, and in excess of 40 percent thereafter. 2. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy, to include consideration of whether a separate compensable evaluation is warranted prior to April 17, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active military service from August 1968 to August 1972, February 1991 to April 1991, and April 1996 to July 1996.",
"This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2003 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, a Board videoconference hearing was held before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The Board remanded the issue of entitlement to service connection for a cervical spine condition in January 2012. This claim was subsequently granted by the RO in a rating decision dated in February 2012.",
"As the Veteran did not appeal the ratings or effective dates assigned for this disability, this represents a complete grant of the Veteran's appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In September 2010, the Board remanded the issue on appeal for a new examination after the Veteran reported a worsening of limitation of motion in his low back. In September 2011, the RO granted service connection for left lower extremity radiculopathy with an evaluation of 10 percent, effective April 17, 2009.",
"The RO noted that the grant of service connection was an inferred issue that was intertwined with the Veteran's claim for increased evaluation for the lumbar spine disability; as such, this matter is also before the Board at this time. The Veteran again raised the issue of an earlier effective date for the grant of service connection for the lumbar spine disability. See Board hearing transcript at p. 13. As this matter was last adjudicated in August 2006 and was not the subject of a notice of disagreement, it is referred to the RO for appropriate action. The issue of entitlement to an increased rating for left lower extremity radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington DC. FINDINGS OF FACT 1.",
"Prior to July 6, 2010, the Veteran's low back disability is manifested by no more than moderate limitation of motion; flexion was limited at its worst to 60 degrees on repetitive use, and there was normal extension, normal right and left lateral rotation and normal right and left lateral flexion, however, the June 2003 examiner opined that the normal ranges of motion could be decreased by 30 percent during flare-ups or on use. The Veteran did not have ankylosis or incapacitating episodes.",
"2. From September 26, 2003, to July 6, 2010, the Veteran's low back disability is not manifested by forward flexion which more nearly approximates 30 degrees or less, nor does the evidence show ankylosis. 3. From July 6, 2010, the Veteran's low back disability is manifested by maximum restriction on ranges of motion including lumbar extension, side bending, and rotation; and limitation of motion on flexion at its worst is to 15 degrees; it is not manifested by incapacitating episodes or ankylosis. 4. The February 13, 2012, VA spine examination showed objective evidence of a neurologic abnormality, moderate radiculopathy in the right lower extremity, that is associated with the service-connected lumbar spine disability.",
"CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability limitation of motion have not been met prior to July 6, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.71a, Diagnostic Codes 5003, 5285-5295 (as in effect from September 23, 2002 to September 26, 2003), and Diagnostic Codes 5003, 5235-5243 (2011). 2. The criteria for a 40 percent rating, but no higher, for a lumbar spine disability limitation of motion are met from July 6, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, § 4.71a, Diagnostic Codes 5003, 5285-5295 (as in effect from September 23, 2002 to September 26, 2003), and Diagnostic Codes 5003, 5235-5243 (2011). 3.",
"The criteria for a separate rating for right lower extremity radiculopathy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 8520 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks an initial disability rating in excess of 20 percent lumbar spine disability prior to November 1, 2010, and in excess of 40 percent thereafter. In a rating decision dated in October 2003 the RO granted service connection for a lumbar spine condition and assigned a 10 percent disability rating effective November 22, 2002, pursuant to Diagnostic Code 5237, which pertains to lumbosacral strain. The Veteran has appealed this initial rating. In a rating decision dated in December 2005 the RO increased the rating to 20 percent effective November 22, 2002.",
"In a rating decision dated in September 2011, the RO again increased the rating to 40 percent effective November 1, 2010. Applicable law provides that a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned for the service-connected lumbar spine condition, therefore, the issue remains in appellate status.",
"Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Following an initial award of service connection for a disability, separate ratings can be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999).",
"In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. As will be explained below, the Board finds that staged ratings of 20 and 40 percent are warranted in this case. As regards the joints, consideration will be given to factors such as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.",
"); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc. ); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc. ); excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45. Under the criteria in effect when the claim for service connection was filed, a 20 percent rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in standing position; and a 40 percent rating was warranted for severe lumbosacral strain with evidence of listing of the whole spine, positive Goldthwaite's sign, marked limitation of forward bending in standing position, or loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion. 38 C.F.R.",
"§ 4.71a, Diagnostic Code 5295 (2002). A 60 percent evaluation was warranted for residuals of a fractured vertebra if there was abnormal mobility requiring a neck brace (jury mast) but no spinal cord involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002). A 60 percent evaluation was warranted for complete bony fixation (ankylosis) of the spine at a favorable angle and a 100 percent evaluation was given for ankylosis of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie- Strumpell type) or without other joint involvement (Bechterew type).",
"38 C.F.R. § 4.71a, Diagnostic Code 5286 (2002). A 100 percent evaluation for residuals of fracture of a vertebra was warranted if there was spinal cord involvement and the injured individual was bedridden or required long leg braces. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002). In addition to the foregoing, a 50 percent evaluation was warranted for unfavorable ankylosis of the lumbar spine, and a 40 percent evaluation was warranted for favorable ankylosis of the lumbar spine (Diagnostic Code 5289) (2002). The rating schedule also provided for a 10 percent rating for slight limitation of motion of the lumbar spine. A 20 percent rating was warranted for moderate limitation of motion, and a 40 percent rating required severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).",
"The current General Rating Formula for Diseases and Injuries of the Spine provides for a 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is less than 120 degrees; or where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (effective September 26, 2003). A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.",
"38 C.F.R. § 4.71a. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. The General Rating Formula for Diseases and Injuries of the Spine are used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.",
"The normal ranges of motion for each component of spinal motion provided are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (2). The schedule also includes criteria for evaluation of nerve injuries. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term \"incomplete paralysis\" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.",
"When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.",
"Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. Other potentially applicable criteria include that for evaluation of intervertebral disc syndrome. Under the provisions of Diagnostic Code 5293, intervertebral disc syndrome (preoperatively or postoperatively) was rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopædic and neurologic manifestations along with ratings for all other disabilities, whichever method resulted in the higher rating. 38 CFR 4.71a, Diagnostic Code 5293 (in effect from September 23, 2002, through September 25, 2003). A 10 percent rating was warranted under Diagnostic Code 5293 for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.",
"Id. A 20 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; and a 40 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. The highest rating of 60 percent was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months.",
"Id. Effective September 26, 2003, the rating criteria for intervertebral disc syndrome remained the same but a notation was added indicating that the disorder could be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. See 68 Fed. Reg. 51454 (Aug. 27, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective from September 26, 2003). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R.",
"§ 4.71a, Diagnostic Code 5243, (Note 1). The schedule also provides for compensation for arthritis due to trauma and substantiated by x-ray findings. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the involved joint(s). When, however, the limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. In the absence of limitation of motion, a 10 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.",
"38 C.F.R. § 4.71a, Diagnostic Code 5003, (Note 1). The Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal. See VAOPGCPREC 7-2003. However, the effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change. VAOPGCPREC 3-2000, 65 Fed. Reg. 33,421 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R.",
"§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background In June 2003 the Veteran was accorded a compensation and pension (C&P) spine examination. During the examination the Veteran reported pain on the left side of his low back with radiation to his left buttock. He had difficulty driving long distances or moving fast when the pain came on. Physical examination of the lumbosacral spine revealed no tenderness of the lumbosacral spine of either sciatic notch. Flexion was from 0 to 90 degrees and right and left lateral bending were from 0 to 30 degrees each. The examiner noted these measurements were normal. The diagnosis was chronic lumbosacral syndrome with left sciatica. The examiner noted that the Veteran's range of motion of the lumbosacral spine could be decreased by 30 percent during a flare-up or during overuse. A May 2003 physician's note reported that the Veteran suffered from a back, neck, and head injury in October 2002 and has continued to have constant discomfort. In April 2004 the Veteran was accorded a C&P infectious, immune, and nutritional disabilities examination.",
"During the examination the Veteran reported mild low back discomfort with radiating pain down his left leg and numbness sensation down his left foot with periodic exacerbation with lifting, bending, driving, and standing for long periods of time. He was able to walk 1/4 of a mile with exacerbation of pain in his lower extremities and back. Physical examination revealed tenderness of the lower paraspinal muscle. Deep tendon reflexes were +2 bilaterally in the upper and lower extremities. His gait was normal and his coordination was intact. In November 2005, the Veteran presented testimony before a decision review officer. The Veteran reported that he had radiating back pain to the right side of his body that occurred four to five days a week. VA medical records showed that he complained of chronic low back pain.",
"An examination of the Veteran's spine in August 2007 revealed some curvature to the left secondary to muscle spasms. There were no areas of tenderness along the spine. The diagnosis was lumbosacral strain. In August 2008, the Veteran reported that his back pain affected his ability to maintain balance at times. Physical examination revealed his coordination and gait were normal. He had tenderness in the low back area and to the left sacroiliac area. The impression was chronic low back pain with degenerative disc disease at multiple levels. A May 2008 MRI revealed joint space narrowing and degenerative disc disease noted at L2-L3, L3-L4, L4-L5, and L5-S1. There was a central and left paracentral bulge of disc material at L3-L4 and L4-L5 identified.",
"A February 2009 MRI revealed joint space narrowing at L2-L3, L3-L4, L4-L5, and L5-S1 with degenerative disc disease. The diagnosis was lumbar radiculopathy. In April 2009 the Veteran was accorded another C&P spine examination. During the examination the Veteran reported diffuse, deep, and constant pain in the lower back that he rated at seven to eight on a 10 point scale (moderate to severe pain). He reported flare-ups at least twice a day and rated the pain during flare-ups as a 10/10.",
"He denied incapacitation and additional functional limitation. He denied a history of weight loss or gain in the past 12 months and denied fever, fatigue, dizziness, and numbness. He also denied use of orthotic devices or braces. He reported that his low back has slowed him down regarding his activities of daily living, occupation, and driving. Physical examination of the lumbosacral spine revealed normal curvature and it was tender to percussion. Forward flexion was from 0 to 90 degrees with pain at 60 degrees, extension was from 0 to 30 degrees with pain at 30 degrees, left lateral flexion was from 0 to 30 degrees, right lateral flexion was from 0 to 30 degrees with pain at 30 degrees, left lateral rotation was from 0 to 30 degrees with pain at 30 degrees, and right lateral rotation was from 0 to 30 degrees with pain at 30 degrees. The Veteran experienced pain with range of motion and repetition of three produced increased pain, weakness, lack of endurance, fatigue, and incoordination.",
"Range of motion after repetition revealed forward flexion to 60 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees with no loss of range of motion. A CT scan of the lumbar spine revealed mild central disc protrusion at L4-L5, moderately severe spinal stenosis at L3-L4, and moderate central canal stenosis at L3-L4. The diagnosis was mild degenerative joint disease of the lumbar spine. In June 2010, the Veteran underwent a lumbar puncture which revealed stenosis of the central canal at all lumbar levels and spondylosis throughout the lumbar spine.",
"During the June 2010 Board hearing, the Veteran testified that his back pain was an 8 out of 10 on a daily basis. He reported that he wore a back brace and used a cane whenever he could. He testified that he could not stand for a long period of time and could not sit for long periods of time without experiencing pain. He reported that he was self employed. On July 6, 2010, the Veteran commenced physical therapy. The Veteran reported that he had good days and bad days based on his back pain and activity tolerance. The Veteran reported that on his good days he was able to walk upright. His main complaints involved prolonged standing of more than 20 minutes, walking far distances, squatting down to pick up objects, an inability to ascend steps, and sitting in an upright position. An MRI revealed, in pertinent part, degenerative disc disease along the spine. The therapist noted that the Veteran had a kyphotic curve throughout his spine.",
"He had a flattened thoracic spine and forward head and shoulder with impingement bilaterally. The therapist also noted that the Veteran had a slow, slightly unsteady gait with significant kyphosis through his spinal region. The Veteran also exhibited decreased step length and width. Range of motion of the lumbar spine showed that the examiner was unable to test his lumbar flexion. The Veteran exhibited maximal restriction upon extension, side bending, and rotation. The Veteran reported that he had constant pain throughout his cervical and lumbar region rated as 10/10. The therapist found that the Veteran had impaired postural dysfunction, low activity tolerance, muscle movement weakness, inefficient gait, balance disturbances, and joint immobility. In November 2010 the Veteran was accorded another C&P spine examination. During the examination the Veteran reported low back pain with radiation down the left leg to the foot with associated numbness, tingling, and weakness. He denied a history of urinary incontinence and retention requiring catheterization.",
"He reported a history of urinary urgency, frequency of less than one hour, and episodes of nocturia occurring three times a night. He denied fecal incontinence, obstipation, and erectile dysfunction. He reported numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. The Veteran reported that these symptoms were related to his claimed disability and reported that he fell the previous week on his left lateral trunk. The Veteran also reported a history of fatigue, decreased motion, stiffness, weakness, spasm, and pain in his low back.",
"He described the pain as throbbing, stabbing, and sharp. He reported the severity was severe and constant and occurred daily. He reported radiation of pain down his left leg that was throbbing and sharp. He reported 3 episodes of incapacitating episodes in the past 12 months, two episodes lasting around five hours and another episode lasting six hours. He reported that he used a cane and was unable to walk more than a few yards. Physical examination revealed a stooped posture and he had a slow propulsion gait. He had no evidence of abnormal spinal curvatures to include no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. He exhibited guarding, pain with motion, and tenderness on the left and right. He did not exhibit spasm, atrophy, or weakness. The examiner found that the localized tenderness or guarding was not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Active range of motion was as follows: flexion was from 0 to 15 degrees, extension was from 0 to -5 degrees, left lateral flexion was from 0 to 5 degrees, left lateral rotation was from 0 to 10 degrees, right lateral flexion was from 0 to 5 degrees, and right lateral rotation was from 0 to 10 degrees. There was objective evidence of pain on active range of motion but no additional limitations after three repetitions.",
"An x-ray revealed narrowing of multiple disc spaces, more marked at L4-L5 and L5-S1. There was also mild anterior compression of T12 vertebra of uncertain age and duration. The diagnosis was lumbar degenerative disc disease with mild disc protrusion L4-L5 level with moderately severe spinal stenosis due to disc bulge at L3-L4. The examiner found that the Veteran may have increased pain with heaving lifting or carrying, repetitive bending or stooping activities, or overhead activities that necessitate lumbar extension. The examiner further noted that the Veteran works with computers and is self-employed. As he had a sedentary job that would not necessitate low back flexion, extension, or rotation, his current employment should be an appropriate vocation for the Veteran as long as he can take intermittent breaks and change positions every hour or so. In September 2011 a VA medical opinion concerning the left lower extremity was provided. The examiner determined that a lower extremity neurological impairment was due to the Veteran's lumbar spine condition.",
"She indicated that MRI results showed disc bulges at L3-L4 and L4-L5 and a CT scan showed a central canal and spinal stenosis at L3-L4 and a disc bulge at L4-L5 on the left. His physical exam also showed decreased motor strength of the left knee extensors and flexion and decreased sensation of the medial aspect of the left calf and the web space between the first and second toes. Thus it was at least as likely as not that the Veteran has an L3-L4 and L4-L5 lumbar radiculopathy. In February 2012 the Veteran was accorded a disability benefit questionnaire (DBQ) examination. Diagnoses included degenerative disc disease, multilevel and lumbar radiculopathy at L3-L4, L4-L5, and L5-S1. During the examination, the Veteran reported flare-ups resulting from sitting or standing for long periods of time. Range of motion, measured with a goniometer, revealed forward flexion from 0 to 20 degrees with pain occurring at 20 degrees, extension from 0 to 5 degrees with pain occurring at 5 degrees, right lateral flexion from 0 to 5 degrees with pain occurring at 5 degrees, left lateral flexion from 0 to 5 degrees with pain occurring at 5 degrees, right lateral rotation from 0 to 10 degrees with pain occurring at 10 degrees, and left lateral rotation from 0 to 10 degrees with pain occurring at 10 degrees.",
"The examiner noted that the Veteran seemed to be in a lot of pain during the examination and was guarded. The Veteran was able to perform repetitive-use testing without change to range of motion. The Veteran did not have any additional limitation in range of motion following repetitive-use. He experienced less movement than normal; weakened movement; excess fatigability; pain on movement; and interference with sitting, standing, and weight-bearing after repetitive use. The Veteran exhibited localized tenderness or pain to palpation on the paraspinal muscles.",
"He also exhibited guarding or muscle spasm of the thoracolumbar back but it did not result in abnormal gait or spinal contour. Hip flexion was 5/5 bilaterally, knee extension was 5/5 in the right and 4/5 in the left, ankle plantar flexion was 4/5 bilaterally, ankle dorsiflexion was 4/5 bilaterally, and great toe extension was 4/5 bilaterally. The Veteran did not have muscle atrophy. Reflexes were 2+ in both knees and 1+ in the right ankle and 2+ in the left ankle.",
"A sensory examination was normal in the upper anterior thigh and thigh and knee, bilaterally. He had decreased sensation to light touch in the bilateral lower legs/ankles and in the bilateral feet/toes. Straight leg raises were positive bilaterally. The Veteran exhibited radicular pain. He expressed constant, severe pain; moderate, intermittent pain; mild paresthesias and/or dysesthesias; and mild numbness in both lower extremities. The examiner indicated that the sciatic nerve was involved in both the right and left lower extremities and opined that the Veteran had moderate radiculopathy bilaterally. The examiner found the Veteran did not have any other neurological abnormalities such as bowel or bladder problems. The examiner also noted that the Veteran had intervertebral disc syndrome but noted no incapacitating episodes over the past 12 months. The Veteran reported that he used a wheelchair on occasion and a cane constantly. Imaging studies revealed evidence of arthritis but not evidence of vertebral fracture.",
"The examiner noted that an April 2004 nerve conduction and electromyography test was consistent with the clinical impression of lumbar radiculopathy. The examiner also indicated that the Veteran's back condition would impact his ability to work. Analysis With respect to the Veteran's claim for an increased rating prior to November 1, 2010, the Board is mindful of the fact that it will be necessary to consider former Diagnostic Codes in addition to the criteria arising out of revisions to the Codes relating to spine disabilities effective in and after September 2003. With respect to Diagnostic Code 5292, which was in effect when the Veteran filed his claim, and which pertains to limitation of motion of the lumbar spine, the Board finds that an increased rating of 40 percent, but no higher, is warranted from July 6, 2010.",
"The medical evidence dated July 6, 2010, shows that the Veteran's ranges of motion on lumbar extension, side bending, and rotation were at maximum restriction upon examination. Additionally, the Veteran walked with a slow and slightly unsteady gait with significant kyphosis throughout his spinal region. The Veteran reported constant pain throughout his spine rated as 10/10 and noted complaints with restrictions on standing, walking, squatting, ascending steps, and sitting upright. The Board has considered the Veteran's reports and the medical evidence of maximum restriction of motion on extension, side bending and rotation, and finds that the criteria for a 40 percent disability rating, under Diagnostic Code 5292, are met from July 6, 2010.",
"This is the maximum rating that is available for limitation of motion, accordingly consideration of whether a higher rating is warranted based on flare-ups, weakness, fatigability, incoordination or pain on movement from July 6, 2010, is not warranted. See Johnson v. Brown, 9 Vet. App. 7 (1996). However, the Board finds that the evidence does not show that the Veteran's limitation of motion was severe, under Diagnostic Code 5292, prior to July 6, 2010. In addition, a rating in excess of 20 percent is not warranted from September 26, 2003, to July 6, 2010, based on the amended criteria. His range of motion in June 2003 was normal in every range, however, the examiner did report that range of motion could be decreased by 30 percent during flare-ups or on use. On examination in April 2009, all ranges of motion were normal except flexion, which was limited to 60 degrees, on repetitive use. Flexion limited to 60 degrees on repetitive use supports the 20 percent rating as do the first examiner's reports that range of motion could be decreased up to 30 percent on flare-ups, which means the Veteran could lose up to 10 degrees on every range of motion except flexion which would result in a loss of 30 degrees of motion such that the Veteran would have flexion to 60 degrees.",
"The range of motion shown on repetitive use and projected on flare-ups, however, does not more nearly approximate severe limitation of motion. Even with the range of motion that would be lost on flare-ups or use, the Veteran still has 60 degrees of flexion and at least 20 degrees of motion on every other range of motion. This would result in, at worst, a combined range of motion of 160 degrees. Under the current criteria, flexion limited to 60 degrees and combined range of motion limited to 120 degrees warrants a 20 percent evaluation, and no higher, from September 26, 2003, to July 6, 2010. Similarly under the old criteria, a higher evaluation is not warranted prior to July 6, 2010, as the Veteran has 60 degrees of flexion and at least 20 degrees of motion on every other range of motion even taking into account factors such as painful motion, weakened movement, excess fatigability and incoordination, to include on flare-ups. Moreover, on examination in 2009, the Veteran had limitation on motion on repetitive use to 60 degrees on flexion and the other ranges of motion were normal.",
"At that examination, the Veteran reported flare-ups but denied additional functional limitations. These findings more nearly approximate moderate limitation of motion rather than severe limitation of motion. The Veteran's reports of pain have been considered competent, credible and probative, however, as discussed above the evidence as a whole does not show that a higher evaluation is warranted, prior to July 6, 2010, under Diagnostic Code 5292 or under the criteria in effect from September 26, 2003. As discussed above, the first showing in the evidence that the criteria for a 40 percent rating were met is on July 6, 2010, when maximum restriction of multiple ranges of motion was shown. Additionally, the preponderance of the evidence of record is against finding that a rating in excess of 20 percent, prior to July 6, 2010, and in excess of 40 percent thereafter is warranted at any period of time covered by this claim, pursuant to Diagnostic Codes 5285, 5286, and 5289 as the evidence does not show that the Veteran has residuals of a vertebral fracture, complete with bony fixation (ankylosis) of the spine, or ankylosis of the lumbar spine. Imaging studies conducted during the February 2012 VA examination revealed no evidence of vertebral fracture.",
"Also, at no time did the Veteran exhibit ankylosis. Ankylosis is defined as \"immobility and consolidation of a joint due to disease, injury, or surgical procedure.\" See Dorland's Illustrated Medical Dictionary (Dorland's) 94 (30th ed., 2003). While maximum restriction of range of motion was found on July 6, 2010, and the clinician indicated that flexion could not be tested, the clinician did not state that the Veteran had ankylosis. Moreover, the other range of motion studies of record show that the Veteran did have mobility of the spine. A rating in excess of 20 percent from September 26, 2003, when the General Rating Formula for Diseases and Injuries of the Spine became effective, to July 6, 2010, on the basis of ankylosis is also not warranted as the evidence does not show there is ankylosis of the entire thoracolumbar spine or unfavorable ankylosis. To warrant a 40 percent rating pursuant to Diagnostic Code 5295, prior to July 6, 2010, severe lumbosacral strain with evidence of listing of the whole spine, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion is required.",
"The evidence revealed that the Veteran was limited in forward bending, as evidenced by forward flexion limited on use or on flare-ups to 60 degrees, however, as only 30 degrees of flexion is lost, this represents moderate limitation of motion rather than marked limitation. While the Veteran was noted to have a curvature of the spine, listing of the whole spine was not shown. While the first examiner did indicate that the Veteran could lose up to 30 percent of his ranges of motion, including lateral motion, on use, and there is evidence of osteo-arthritic changes, this does not warrant a higher evaluation in the absence of abnormal mobility on forced motion. The evidence of record does not show the presence of abnormal mobility on forced motion or a positive Goldthwaite's sign.",
"Instead of severe disability, the evidence shows that the Veteran has muscle spasms and a potential loss of lateral motion on use, which meets the criteria for a 20 percent evaluation but no higher under Diagnostic Code 5295. Pursuant to the criteria for intervertebral disc syndrome which became effective in September 2002, the Board finds that the evidence does not show that the Veteran has incapacitating episodes requiring bed rest as prescribed by a physician. While the Veteran has reported that he has experienced incapacitation, the evidence does not include evidence showing that a physician prescribed bed rest. The Board has also considered the criteria set forth in Diagnostic Code 5003.",
"However, as the Veteran is currently assigned a rating for his limitation of motion, a separate rating is not warranted pursuant to Code 5003 as that would constitute pyramiding. See 38 C.F.R. § 4.14. Moreover, a higher rating than 20 percent is not otherwise available pursuant to Code 5003. The Veteran is already service-connected for left lower extremity radiculopathy. However, as an objective medical finding of right lower extremity radiculopathy associated with the service-connected disability was shown on examination in February 2012, the Board finds that he is entitled to a separate rating for right lower extremity radiculopathy under Diagnostic Code 8520. While the Veteran reported a history of urinary urgency, frequency of less than one hour, and episodes of nocturia occurring three times a night during the November 2010 VA examination, upon examination in February 2012, the examiner found that he did not have any bowel or bladder neurologic abnormalities associated with the service-connected disability.",
"Accordingly, a separate evaluation on that basis is not for consideration. The Board has considered the lay statements of the Veteran that a higher rating is warranted based on his symptoms, however, while his statements are competent, credible, and probative, the entirety of the evidence as discussed above does not show that the criteria for a rating in excess of 20 percent prior to July 6, 2010, and in excess of 40 percent thereafter are met or approximated. In that regard, the VA examination reports are highly probative evidence as medical clinicians conducted testing to determine the extent of the Veteran's disability, including his range of motion with consideration of factors such as pain, to include on use and on flare-ups. The issue of an extra-schedular rating was also considered in this case under 38 C.F.R.",
"§ 3.321(b)(1). The Court of Appeals for Veterans Claims clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as \"governing norms.\" Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.",
"The Board finds that an exceptional disability picture is not shown in this case. Interference with employment due to pain with various movements including on heavy lifting and carrying, repetitive bending or stooping, or overhead activities requiring extension were noted. However, the Veteran's signs and symptoms, including pain, spasms, and limitation of motion, fit within the rating criteria as was discussed above. The evidence does not show that the rating criteria are inadequate. The assignment of a 20 and 40 percent rating already contemplate that there is commensurate industrial impairment. Referral by the RO to the Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is thus not warranted. See Bagwell v. Brown, 9 Vet. App.",
"337 (1996). Finally, where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim \"identify the benefit sought\" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App.",
"447 (2009). In this case, the Veteran is self-employed and has not alleged that he was unemployable during the course of the appeal due to the service-connected disability. While the February 2012 examiner indicated that the Veteran's service-connected back impacted his ability to work, there is no evidence of unemployability; accordingly, TDIU is not raised by the record. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R.",
"§§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).",
"In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, VA had no additional duty to notify in this case once service connection was granted. VA 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. In March 2010, September 2010, and February 2012, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was provided with diagnostic criteria in the February 2012 supplemental statement of the case. However, the RO provided the Veteran with Diagnostic Code 5293 in effect prior to September 2002, which are not applicable to this case as the Veteran's claim was not filed until November 2002. Nevertheless, as the RO also provided the correct diagnostic criteria pertaining to intervertebral disc syndrome as in effect from September 2002, there is no prejudice to the Veteran. Additionally, the Veteran was asked to identify and authorize the release of any additional medical evidence by way of an October 2010 letter.",
"Additional VA medical records and private medical records were associated with the claims folder and VA examinations were provided on remand. The VA examiners conducted examinations, which included range of motion studies, such that the Board's determination is an informed one. Moreover, the Board finds the VA examinations complied with the previous Board remands in that weakened movement, excess fatigability, and incoordination were addressed. Moreover, the examiners noted the effects of pain on range of motion. Accordingly, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions. Regarding the duty to assist, service treatment records have been obtained and made a part of the record, as have VA treatment records and private medical records.",
"There is no indication that the Veteran has provided information to the RO about relevant records that are outstanding, accordingly, the Board finds that there is no duty to assist in that regard that is unmet. The Board is satisfied that VA has sufficiently discharged its duty in this matter. With respect to the aforementioned Board hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran testified concerning the severity of his lumbar spine disability.",
"Granted, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the Veteran's claim for an increased rating. However, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claim for an increased evaluation. Further, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied.",
"ORDER Entitlement to an initial disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to July 6, 2010, is denied. A disability rating of 40 percent, but no higher, for the service-connected lumbar spine disability is granted from July 6, 2010, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a separate rating for right lower radiculopathy is granted, subject to the statutes and regulations governing the payment of monetary benefits. REMAND In September 2011, the RO granted service connection for the left lower extremity radiculopathy with an evaluation of 10 percent, effective April 17, 2009. The RO noted that the grant of service connection was an inferred issue that was intertwined with the Veteran's claim for increased evaluation for the lumbar spine disability.",
"The RO issued a Supplemental Statement of the Case in September 2011 and February 2012 that did not reference the separate entitlement to a 10 percent rating for left lower extremity radiculopathy. In an April 2012 statement, the Veteran averred that the effective date for the left lower extremity radiculopathy should be adjusted to an earlier date of April 9, 2004. As this is part of the Veteran's appeal seeking a higher initial rating, a separate appeal of the effective date for the left lower extremity is not required. VA regulations provide that the agency of original jurisdiction will furnish the Veteran with a Supplemental Statement of the Case if there is a material defect in the Statement of the Case or prior Supplemental Statement of the Case. See 38 C.F.R. § 19.31(b)(2). Review of the record reveals that the Veteran was not issued a Supplemental Statement of the Case to address the separate rating for the left lower extremity. As the RO determined that the separate grant of service connection for left lower extremity radiculopathy was intertwined with the Veteran's claim for an increased evaluation for his lumbar spine disability, the omission of this issue in the September 2011 and February 2012 Supplemental Statement of the Case represents a material defect.",
"Accordingly, the case must be remanded pursuant to 38 C.F.R. § 19.31. Additionally, during the April 2009 VA examination, the examiner referenced an EMG of the upper and lower extremities. The EMG results are not contained in the claims file or on Virtual VA. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App.",
"611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should obtain all VA medical records dating from January 5, 2012, to include EMG results dated in April 2009. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for the following action: 1. Obtain VAMC medical records dating from January 5, 2012, to include EMG results dated in April 2009. 2. The Veteran and his representative must be furnished a Supplemental Statement of the Case in accordance with 38 C.F.R.",
"§ 19.31(b)(2), which addresses the issue of the rating assigned to the left lower extremity disability including consideration of whether a compensable rating is warranted prior to April 17, 2009. Provide the Veteran with an opportunity to respond and then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).",
"These claims 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). ____________________________________________ S. S. TOTH 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) (2011). Department of Veterans Affairs"
]
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275 Cal.App.2d 1007 (1969) THE PEOPLE, Plaintiff and Appellant, v. JOSEPH PAUL MARCHESE, Defendant and Respondent. Crim. No. 16369. California Court of Appeals. Second Dist., Div. One. Sept. 2, 1969. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Maurice H. Oppenheim, Deputy District Attorneys, for Plaintiff and Appellant. Patten, Faith & Sandford and Jules Sandford for Defendant and Respondent. LILLIE, J. The People appeal from order dismissing an information on defendant's motion under section 995, Penal Code. Defendant was charged with one count of possession of marijuana and two counts of possession for sale of dangerous drugs. [1] Around 4:40 a.m. on September 8, 1968, defendant, driving a 1967 Mercury Cougar, ran into a building; Officer *1008 Gibson arrived on the scene at about the same time. He saw the car on the wrong side of the street resting against the building; defendant, the sole occupant, was seated behind the wheel; the Cougar had major front end damage. The officer asked him if he was hurt; defendant said he was not but that he was drunk; the officer told him to get out of the vehicle but he was unable to do so unassisted. Defendant seemed to be unsteady and in a dazed condition, his eyes appeared to be watery and glassy and a strong odor of alcohol emanated from his breath; the officer concluded that he was intoxicated. Defendant was arrested for drunk driving ( 23102, subd. (a), Veh. Code) and advised of "applied [sic] consent," and his constitutional rights; defendant chose a blood analysis and Officer Gibson took him to St. Luke's Hospital for a blood test and then booked him. Officer Scannell, who arrived at about the same time as Officer Gibson, saw defendant seated behind the steering wheel and observed that he seemed dazed; defendant had a slurred accent and his balance was such that Sergeant Teal had to assist him in getting out of the vehicle; the officer was present when defendant was arrested and knew that Officer Gibson was taking him to the hospital for a blood alcohol test. After defendant was removed Officer Scannell remained at the scene to make out the accident report and impound the vehicle; as a check list he used the Highway Patrol Check Sheet Form 180 to record anything of value found in the vehicle; he proceeded to inventory the contents of the interior of the car; when he came to the spare tire he was to check, he discovered the trunk was locked and the key to it was not in the car; he passed over this item and continued with the inventory; before he completed it the tow truck arrived and while the driver, Mr. Clark, was sweeping the debris off the street, Clark found in the debris the key to the trunk. Officer Scannell then opened the trunk and saw a closed duffel bag which he unzipped and in which he found several plastic bags containing miscellaneous cigarettes and leafy material, measuring spoon with a burned bottom, corn cob pipe and pill containers containing capsules and pills; in the trunk he also found a colander, sifter with marijuana residue, plastic container and Zig Zag papers. It was established that the duffel bag contained marijuana and dangerous drugs--8 hand-rolled marijuana cigarettes, 6 grams marijuana, 1 gram hashish, 400 amphetamine tablets and 135 sodium secobarbital capsules. Viewing the totality of circumstances (People v. Williams, 67 Cal.2d 226, 231 [60 Cal.Rptr. 472, 430 P.2d 30]; People v. *1009 Webb, 66 Cal.2d 107, 126 [56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708]; People v. Norris, 262 Cal.App.2d Supp. 897, 898 [68 Cal.Rptr. 582]), we conclude that the evidence recovered from the trunk of the vehicle was lawfully obtained. Defendant was the sole occupant of the vehicle and when he was arrested, taken to the hospital for a blood alcohol test and booked, [fn. 1] there remained no one to take charge of the vehicle and remove it. The Cougar had collided with a building, was on the wrong side of the street resting against the side of the building and had extensive front end damage. Thus, damaged, unattended and resting partly on private property, the vehicle had to be removed, and a tow truck was called. The Cougar was properly impounded. ( 22651, subd. (h), Veh. Code; People v. Roth, 261 Cal.App.2d 430, 435-436 [68 Cal.Rptr. 49]; People v. Garcia, 214 Cal.App.2d 681, 684 [29 Cal.Rptr. 609]; People v. Nebbitt, 183 Cal.App.2d 452, 459 [7 Cal.Rptr. 8].) Around five minutes after the accident occurred, immediately upon defendant's removal from the scene and before the tow truck arrived, preparatory to impounding the vehicle, Officer Scannell proceeded to take inventory of its contents. "While Upton [People v. Upton, 257 Cal.App.2d 677 [65 Cal.Rptr. 103]] states that the Constitution does not permit 'an otherwise unreasonable search of a car simply because the police have a statutory authority to impound it under Vehicle Code, sections 22650 and 22651' this means no more than that those sections cannot be used as a subterfuge to cover up otherwise illegal activity, i.e. where the officers are actually engaged in the process of ferreting out evidence to be used in a criminal prosecution they cannot justify such activity under the guise that they were making 'an inventory' for purpose of impounding. A different result obtains where the officers were in fact acting in good faith and making such an inventory. (Cf. State v. Severance (1968) 108 N.H. 404 [237 A.2d 683, 686].)" (People v. Norris, 262 Cal.App.2d Supp. 897, 899 [68 Cal.Rptr. 582].) Thus where an officer is engaged in the making of a good faith inventory preparatory to or in the *1010 immediate process of impounding a car the activity is constitutional. (People v. Norris, 262 Cal.App.2d Supp. 897, 899 [68 Cal.Rptr. 582]; People v. Upton, 257 Cal.App.2d 677, 682 [65 Cal.Rptr. 103]; People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]; People v. Nebbitt, 183 Cal.App.2d 452, 460-461 [7 Cal.Rptr. 8]; People v. Ortiz, 147 Cal.App.2d 248, 251 [305 P.2d 145].) A review of the entire record convinces us of the officer's good faith in making an inventory clearly preparatory to impounding the vehicle. First, Officer Scannell throughout his testimony consistently claimed that the inventory was made in connection with impounding the Cougar; there is no evidence to the contrary. Second, it is readily apparent that the officer was not engaged in the process of "ferreting out evidence" to be used in a criminal prosecution; nothing indicates he was seeking contraband or anything else. His sole intention was to inventory the contents of the vehicle for his own protection as well as for the protection of the owner and the garageman, and take for safekeeping anything of value. This was entirely proper. (People v. Jones, 263 Cal.App.2d 818, 823 [70 Cal.Rptr. 13]; People v. Roth, 261 Cal.App.2d 430, 435 [68 Cal.Rptr. 49]; People v. Harris, 256 Cal.App.2d 455, 461 [63 Cal.Rptr. 849]; People v. Garcia, 241 Cal.App.2d 681, 684 [29 Cal.Rptr. 609]; People v. Ortiz, 147 Cal.App.2d 248, 251 [305 P.2d 145].) Third, the inventory was a part of the "customary and well justified procedure" (People v. Ortiz, 147 Cal.App.2d 248, 250 [305 P.2d 145]; People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]) preliminary to the lawful impounding of the vehicle; there is no question of its constitutionality in terms of it having been properly occasioned. (People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]; People v. Nebbitt, 183 Cal.App.2d 452, 461 [7 Cal.Rptr. 8].) Fourth, Officer Scannell used the regular Highway Patrol Check Sheet Form 180 as a check list to record those articles of value found in the vehicle. Fifth, the officer's conduct in checking the items on the check sheet form was normal, reasonable and routine--immediately after defendant departed he began to inventory the contents of the interior of the car, registration, cushions, glove compartment, etc.; when he came to the spare tire listed on the form he passed over the item unable to check it because he could not open the trunk; he made no effort to force it open; while continuing down the list the tow truck arrived and the key was recovered; to finish the inventory, he opened the trunk wherein he found the zippered duffel bag and its contents. At this point the officer discontinued the inventory. *1011 Of course, the conduct of Officer Scannell in looking in the trunk and bag cannot be constitutionally justified by the fact that it uncovered the contraband (People v. Brown, 45 Cal.2d 640, 643 [290 P.2d 528]); neither is it necessarily constitutionally vulnerable because it turned up evidence of a crime different than the one for which defendant was arrested. (People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88].) [2] However, the lower court found that there was no justification for opening a locked trunk. We think the court was in error. First, the Highway Patrol Check Sheet Form 180, the ordinary check list used in a routine inventory, contemplates that the inventory will take the officer making it to the trunk of the vehicle, for the items listed include the spare tire which is normally kept in the trunk. Officer Scannell opened the trunk not to search for evidence but to check the spare tire and list all items therein which may be of value. Second, a closed duffel bag in a locked trunk normally would indicate to a reasonable person that something of value is contained therein, and it seems to us that it was the officer's responsibility for his own protection, as well as that of the owner and the garageman to determine if the contents were of value, specifically list them and take them for safekeeping. The trunk key having been found and available could be used to remove valuables from the trunk if any were left there during the time the vehicle was being held. Little protection to the officer, the owner and the garageman would be afforded if all the officer could list would be "one duffel bag." Finally, having opened the duffel bag and found the plastic bags, it must have been fairly obvious to the police officer that contraband was contained therein; he was not required during the lawful inventory to close his eyes to evidence of another crime. For the foregoing reasons the order is reversed. Wood, P. J., and Thompson, J., concurred. NOTES [fn. 1] 1. Section 22651, subdivision (h), Vehicle Code, provides that an officer may remove a vehicle "When an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay." Section 40302, subdivision (d), Vehicle Code, provides that whenever any person is arrested for any violation of the Vehicle Code not declared to be a felony he shall be taken without unnecessary delay before a magistrate "When the person arrested is charged with violating Section 23102 ...." | 10-30-2013 | [
"275 Cal.App.2d 1007 (1969) THE PEOPLE, Plaintiff and Appellant, v. JOSEPH PAUL MARCHESE, Defendant and Respondent. Crim. No. 16369. California Court of Appeals. Second Dist., Div. One. Sept. 2, 1969. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Maurice H. Oppenheim, Deputy District Attorneys, for Plaintiff and Appellant. Patten, Faith & Sandford and Jules Sandford for Defendant and Respondent. LILLIE, J. The People appeal from order dismissing an information on defendant's motion under section 995, Penal Code. Defendant was charged with one count of possession of marijuana and two counts of possession for sale of dangerous drugs. [1] Around 4:40 a.m. on September 8, 1968, defendant, driving a 1967 Mercury Cougar, ran into a building; Officer *1008 Gibson arrived on the scene at about the same time. He saw the car on the wrong side of the street resting against the building; defendant, the sole occupant, was seated behind the wheel; the Cougar had major front end damage. The officer asked him if he was hurt; defendant said he was not but that he was drunk; the officer told him to get out of the vehicle but he was unable to do so unassisted.",
"Defendant seemed to be unsteady and in a dazed condition, his eyes appeared to be watery and glassy and a strong odor of alcohol emanated from his breath; the officer concluded that he was intoxicated. Defendant was arrested for drunk driving ( 23102, subd. (a), Veh. Code) and advised of \"applied [sic] consent,\" and his constitutional rights; defendant chose a blood analysis and Officer Gibson took him to St. Luke's Hospital for a blood test and then booked him. Officer Scannell, who arrived at about the same time as Officer Gibson, saw defendant seated behind the steering wheel and observed that he seemed dazed; defendant had a slurred accent and his balance was such that Sergeant Teal had to assist him in getting out of the vehicle; the officer was present when defendant was arrested and knew that Officer Gibson was taking him to the hospital for a blood alcohol test.",
"After defendant was removed Officer Scannell remained at the scene to make out the accident report and impound the vehicle; as a check list he used the Highway Patrol Check Sheet Form 180 to record anything of value found in the vehicle; he proceeded to inventory the contents of the interior of the car; when he came to the spare tire he was to check, he discovered the trunk was locked and the key to it was not in the car; he passed over this item and continued with the inventory; before he completed it the tow truck arrived and while the driver, Mr. Clark, was sweeping the debris off the street, Clark found in the debris the key to the trunk. Officer Scannell then opened the trunk and saw a closed duffel bag which he unzipped and in which he found several plastic bags containing miscellaneous cigarettes and leafy material, measuring spoon with a burned bottom, corn cob pipe and pill containers containing capsules and pills; in the trunk he also found a colander, sifter with marijuana residue, plastic container and Zig Zag papers.",
"It was established that the duffel bag contained marijuana and dangerous drugs--8 hand-rolled marijuana cigarettes, 6 grams marijuana, 1 gram hashish, 400 amphetamine tablets and 135 sodium secobarbital capsules. Viewing the totality of circumstances (People v. Williams, 67 Cal.2d 226, 231 [60 Cal.Rptr. 472, 430 P.2d 30]; People v. *1009 Webb, 66 Cal.2d 107, 126 [56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708]; People v. Norris, 262 Cal.App.2d Supp. 897, 898 [68 Cal.Rptr. 582]), we conclude that the evidence recovered from the trunk of the vehicle was lawfully obtained. Defendant was the sole occupant of the vehicle and when he was arrested, taken to the hospital for a blood alcohol test and booked, [fn.",
"1] there remained no one to take charge of the vehicle and remove it. The Cougar had collided with a building, was on the wrong side of the street resting against the side of the building and had extensive front end damage. Thus, damaged, unattended and resting partly on private property, the vehicle had to be removed, and a tow truck was called. The Cougar was properly impounded. ( 22651, subd. (h), Veh. Code; People v. Roth, 261 Cal.App.2d 430, 435-436 [68 Cal.Rptr. 49]; People v. Garcia, 214 Cal.App.2d 681, 684 [29 Cal.Rptr. 609]; People v. Nebbitt, 183 Cal.App.2d 452, 459 [7 Cal.Rptr. 8].) Around five minutes after the accident occurred, immediately upon defendant's removal from the scene and before the tow truck arrived, preparatory to impounding the vehicle, Officer Scannell proceeded to take inventory of its contents.",
"\"While Upton [People v. Upton, 257 Cal.App.2d 677 [65 Cal.Rptr. 103]] states that the Constitution does not permit 'an otherwise unreasonable search of a car simply because the police have a statutory authority to impound it under Vehicle Code, sections 22650 and 22651' this means no more than that those sections cannot be used as a subterfuge to cover up otherwise illegal activity, i.e. where the officers are actually engaged in the process of ferreting out evidence to be used in a criminal prosecution they cannot justify such activity under the guise that they were making 'an inventory' for purpose of impounding. A different result obtains where the officers were in fact acting in good faith and making such an inventory. (Cf.",
"State v. Severance (1968) 108 N.H. 404 [237 A.2d 683, 686].)\" (People v. Norris, 262 Cal.App.2d Supp. 897, 899 [68 Cal.Rptr. 582].) Thus where an officer is engaged in the making of a good faith inventory preparatory to or in the *1010 immediate process of impounding a car the activity is constitutional. (People v. Norris, 262 Cal.App.2d Supp. 897, 899 [68 Cal.Rptr. 582]; People v. Upton, 257 Cal.App.2d 677, 682 [65 Cal.Rptr. 103]; People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]; People v. Nebbitt, 183 Cal.App.2d 452, 460-461 [7 Cal.Rptr. 8]; People v. Ortiz, 147 Cal.App.2d 248, 251 [305 P.2d 145].) A review of the entire record convinces us of the officer's good faith in making an inventory clearly preparatory to impounding the vehicle. First, Officer Scannell throughout his testimony consistently claimed that the inventory was made in connection with impounding the Cougar; there is no evidence to the contrary.",
"Second, it is readily apparent that the officer was not engaged in the process of \"ferreting out evidence\" to be used in a criminal prosecution; nothing indicates he was seeking contraband or anything else. His sole intention was to inventory the contents of the vehicle for his own protection as well as for the protection of the owner and the garageman, and take for safekeeping anything of value. This was entirely proper. (People v. Jones, 263 Cal.App.2d 818, 823 [70 Cal.Rptr.",
"13]; People v. Roth, 261 Cal.App.2d 430, 435 [68 Cal.Rptr. 49]; People v. Harris, 256 Cal.App.2d 455, 461 [63 Cal.Rptr. 849]; People v. Garcia, 241 Cal.App.2d 681, 684 [29 Cal.Rptr. 609]; People v. Ortiz, 147 Cal.App.2d 248, 251 [305 P.2d 145].) Third, the inventory was a part of the \"customary and well justified procedure\" (People v. Ortiz, 147 Cal.App.2d 248, 250 [305 P.2d 145]; People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]) preliminary to the lawful impounding of the vehicle; there is no question of its constitutionality in terms of it having been properly occasioned. (People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]; People v. Nebbitt, 183 Cal.App.2d 452, 461 [7 Cal.Rptr. 8].) Fourth, Officer Scannell used the regular Highway Patrol Check Sheet Form 180 as a check list to record those articles of value found in the vehicle. Fifth, the officer's conduct in checking the items on the check sheet form was normal, reasonable and routine--immediately after defendant departed he began to inventory the contents of the interior of the car, registration, cushions, glove compartment, etc.",
"; when he came to the spare tire listed on the form he passed over the item unable to check it because he could not open the trunk; he made no effort to force it open; while continuing down the list the tow truck arrived and the key was recovered; to finish the inventory, he opened the trunk wherein he found the zippered duffel bag and its contents. At this point the officer discontinued the inventory. *1011 Of course, the conduct of Officer Scannell in looking in the trunk and bag cannot be constitutionally justified by the fact that it uncovered the contraband (People v. Brown, 45 Cal.2d 640, 643 [290 P.2d 528]); neither is it necessarily constitutionally vulnerable because it turned up evidence of a crime different than the one for which defendant was arrested.",
"(People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88].) [2] However, the lower court found that there was no justification for opening a locked trunk. We think the court was in error. First, the Highway Patrol Check Sheet Form 180, the ordinary check list used in a routine inventory, contemplates that the inventory will take the officer making it to the trunk of the vehicle, for the items listed include the spare tire which is normally kept in the trunk. Officer Scannell opened the trunk not to search for evidence but to check the spare tire and list all items therein which may be of value. Second, a closed duffel bag in a locked trunk normally would indicate to a reasonable person that something of value is contained therein, and it seems to us that it was the officer's responsibility for his own protection, as well as that of the owner and the garageman to determine if the contents were of value, specifically list them and take them for safekeeping.",
"The trunk key having been found and available could be used to remove valuables from the trunk if any were left there during the time the vehicle was being held. Little protection to the officer, the owner and the garageman would be afforded if all the officer could list would be \"one duffel bag.\" Finally, having opened the duffel bag and found the plastic bags, it must have been fairly obvious to the police officer that contraband was contained therein; he was not required during the lawful inventory to close his eyes to evidence of another crime. For the foregoing reasons the order is reversed. Wood, P. J., and Thompson, J., concurred. NOTES [fn.",
"1] 1. Section 22651, subdivision (h), Vehicle Code, provides that an officer may remove a vehicle \"When an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay.\" Section 40302, subdivision (d), Vehicle Code, provides that whenever any person is arrested for any violation of the Vehicle Code not declared to be a felony he shall be taken without unnecessary delay before a magistrate \"When the person arrested is charged with violating Section 23102 ....\""
]
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The opinion of the court was delivered by Beasley, Chief Justice. The defendants set up that they have acquired from the plaintiff a legal title to the premises in dispute. It was, at the trial, satisfactorily shown that the proceedings requisite under their charter to give the city the fee in the property for the purposes of a public street, had been taken up to the point of a payment of the damages, which had been awarded to the plaintiff. This act of payment, it is admitted, has not been performed; and the only substantial question which has been raised, is whether such act has not been dispensed with by the plaintiff himself, That the statute regulating these proceedings requires payment of these damages, as a prerequisite to the vesting of the title in the city, is incontrovertibly clear. This is the provision in question, viz.: “ That upon completing the report aforesaid, of the commissioners of assessment, assessing the value of the lands so taken, and the damages thereby, the city treasurer shall tender and pay to the owner of said lauds, if a resident of the city, the amount of such assessment due him; but if such owner is not a resident of the said city, or upon inquiry he cannot be found therein, or is a *122lunatic or idiot, or if for any other lawful cause he is incapacitated to receive the same, or if such owner will not accept the same and sign a proper receipt therefor when tendered, then the treasurer shall make affidavit of such facts, and file the same with the city clerk; and the board of aldermen shall, after inquiring into the facts of the case, by resolution, direct the amount of such assessment to be placed either in the city treasury or some bank, for the use of the person to whom it may be due ; and upon filing such receipt of the owner, or the passing of such resolution by the said board of aldermen, the said lands shall be vested in the city of Bergen, and the city officers may proceed with such improvement, &c. In view of the plain directions of this enactment, it is not necessary to advert to the question that was slightly touched on in the argument before the court, whether the legislature has the power to take lands for public streets without ¡compensation being first made to the owner. For present purposes, it is enough to perceive, in the language just quoted, a manifest intention to require compensation to be made to the land owner. By force of this law, land for a public use cannot be taken in invitum, except by pre-payment or a tender of the statutory indemnity. Consequently, as I have already remarked, the only inquiry is on the point of the alleged waiver by the plaintiff of this prerequisite of payment. The circumstances relied on are, that the plaintiff permitted the defendants to take the premises in question for the public use, and that he made demands upon the city for the moneys awarded to him. But I have been entirely unable to perceive how either or both of these facts can have the effect of passing a legal title to the lands in controversy. It is very apparent that such facts may give the defendants a strong claim to the title in a court of equity upon payment of the consideration awarded; because, before that tribunal the transaction can be enforced in the mode in which both parties contemplated its performance, that is, by force of a *123decree the plaintiff would get his money and the defendants the land. But here, before this court of law, the defendants claim the title without having paid, and without even now tendering the money. To such a result, I do not see the faintest trace of a consent on the side of the plaintiff. He gave no consent to the entry upon his lands by the defendants. By the doing of that act, they became mere trespassers. The acquiescence of the plaintiff in this invasion cannot, at law, affect his title, because he had the right to rely on the statutory condition, that before such title could be taken from him, his damages must be paid. An inference from such a circumstance, that it was the intention of the land owner to let the title of his property pass away from him before a receipt of his consideration, would be most unreasonable. Jfor does the other fact, that he demanded the damages awarded, evince a purpose to yield his title before the payment of the moneys due to him. The statute declared that the payment of these moneys should be a condition precedent to the acquisition of title by the city. It is not app’rent, therefore, how a demand of the performance of such conditions precedent can be a waiver of such performance. It is to be borne in mind that there is a' marked distinction in the legal doctrine of waiver — when applied to conditions that are to create an estate, and when applied to those that are to destroy an estate. In the former class of cases, where the estate is to arise in the doing of a certain act, there is no rigor in requiring such act to be reasonably performed; and the consequence is, that in order to constitute a waiver of the performance of such a condition, the intention to give up the right must be indisputable. All the cases cited stand on this ground. The strongest case in favor of the doctrine contended for by the defence, is that of Leathe v. Bullard, 8 Gray 545. The facts were these: The grant was in consideration of cartain sums to be paid monthly to the grantor and his wife during life, and the deed contained a condition that it was not to take effect until the grantee had executed a bond with sureties to secure the payments. This bond was *124never executed, but the grantee was put into possession, and for more than two years paid the monthly installments, and it was held that the estate had vested on, the ground of an implied waiver of the condition. It will be at once perceived that the acts of the grantor in this case were of such a character as not to be consistent with fair dealing, unless upon the assumption that he had dispensed with the execution of the condition precedent. The money that he had taken did not belong to him, if the estate in the land had not passed to the grantee; the unavoidable inference, therefore,, was that he had discharged the grantor from his obligation to give the bond. This case, I think, is reconcilable with the-rule that a waiver of the execution of a condition precedent must, in point of intention, he clearly made ou*i. With respect to conditions subsequent, a different doctrine prevails.. Such conditions are not favored in law, and their rigorous-exaction is regarded as a kind of summum jus. They tend to destroy estates already vested, and, consequently, the doctrine of waiver when applied to them, receives a more liberal and equitable interpretation. The cases in this line would mislead, if used with respect to conditions precedent. In the facts of the present case, I do not discover anything which has been done by the plaintiff, which, reasonably interpreted, can be considered as indication of an intention to dispense. with the payment of the money due him as a prerequisite-to the vesting of the title to the premises in the city of Bergen, The consequence is, that the city has no defence to this actio<n at law. Their rights are equitable, and they must seek another forum. The rule must be discharged. Cited in Jersey City v. Fitzpatrick, 8 Stew. Eq. 97; Gardner v. Jersey City, 5 Stew. Eq. 586; Mayor, &c., of Jersey City, v. Gardner, 6 Stew. Eq. 622. | 09-09-2022 | [
"The opinion of the court was delivered by Beasley, Chief Justice. The defendants set up that they have acquired from the plaintiff a legal title to the premises in dispute. It was, at the trial, satisfactorily shown that the proceedings requisite under their charter to give the city the fee in the property for the purposes of a public street, had been taken up to the point of a payment of the damages, which had been awarded to the plaintiff. This act of payment, it is admitted, has not been performed; and the only substantial question which has been raised, is whether such act has not been dispensed with by the plaintiff himself, That the statute regulating these proceedings requires payment of these damages, as a prerequisite to the vesting of the title in the city, is incontrovertibly clear.",
"This is the provision in question, viz. : “ That upon completing the report aforesaid, of the commissioners of assessment, assessing the value of the lands so taken, and the damages thereby, the city treasurer shall tender and pay to the owner of said lauds, if a resident of the city, the amount of such assessment due him; but if such owner is not a resident of the said city, or upon inquiry he cannot be found therein, or is a *122lunatic or idiot, or if for any other lawful cause he is incapacitated to receive the same, or if such owner will not accept the same and sign a proper receipt therefor when tendered, then the treasurer shall make affidavit of such facts, and file the same with the city clerk; and the board of aldermen shall, after inquiring into the facts of the case, by resolution, direct the amount of such assessment to be placed either in the city treasury or some bank, for the use of the person to whom it may be due ; and upon filing such receipt of the owner, or the passing of such resolution by the said board of aldermen, the said lands shall be vested in the city of Bergen, and the city officers may proceed with such improvement, &c. In view of the plain directions of this enactment, it is not necessary to advert to the question that was slightly touched on in the argument before the court, whether the legislature has the power to take lands for public streets without ¡compensation being first made to the owner.",
"For present purposes, it is enough to perceive, in the language just quoted, a manifest intention to require compensation to be made to the land owner. By force of this law, land for a public use cannot be taken in invitum, except by pre-payment or a tender of the statutory indemnity. Consequently, as I have already remarked, the only inquiry is on the point of the alleged waiver by the plaintiff of this prerequisite of payment. The circumstances relied on are, that the plaintiff permitted the defendants to take the premises in question for the public use, and that he made demands upon the city for the moneys awarded to him.",
"But I have been entirely unable to perceive how either or both of these facts can have the effect of passing a legal title to the lands in controversy. It is very apparent that such facts may give the defendants a strong claim to the title in a court of equity upon payment of the consideration awarded; because, before that tribunal the transaction can be enforced in the mode in which both parties contemplated its performance, that is, by force of a *123decree the plaintiff would get his money and the defendants the land. But here, before this court of law, the defendants claim the title without having paid, and without even now tendering the money.",
"To such a result, I do not see the faintest trace of a consent on the side of the plaintiff. He gave no consent to the entry upon his lands by the defendants. By the doing of that act, they became mere trespassers. The acquiescence of the plaintiff in this invasion cannot, at law, affect his title, because he had the right to rely on the statutory condition, that before such title could be taken from him, his damages must be paid. An inference from such a circumstance, that it was the intention of the land owner to let the title of his property pass away from him before a receipt of his consideration, would be most unreasonable. Jfor does the other fact, that he demanded the damages awarded, evince a purpose to yield his title before the payment of the moneys due to him. The statute declared that the payment of these moneys should be a condition precedent to the acquisition of title by the city.",
"It is not app’rent, therefore, how a demand of the performance of such conditions precedent can be a waiver of such performance. It is to be borne in mind that there is a' marked distinction in the legal doctrine of waiver — when applied to conditions that are to create an estate, and when applied to those that are to destroy an estate. In the former class of cases, where the estate is to arise in the doing of a certain act, there is no rigor in requiring such act to be reasonably performed; and the consequence is, that in order to constitute a waiver of the performance of such a condition, the intention to give up the right must be indisputable. All the cases cited stand on this ground. The strongest case in favor of the doctrine contended for by the defence, is that of Leathe v. Bullard, 8 Gray 545.",
"The facts were these: The grant was in consideration of cartain sums to be paid monthly to the grantor and his wife during life, and the deed contained a condition that it was not to take effect until the grantee had executed a bond with sureties to secure the payments. This bond was *124never executed, but the grantee was put into possession, and for more than two years paid the monthly installments, and it was held that the estate had vested on, the ground of an implied waiver of the condition. It will be at once perceived that the acts of the grantor in this case were of such a character as not to be consistent with fair dealing, unless upon the assumption that he had dispensed with the execution of the condition precedent. The money that he had taken did not belong to him, if the estate in the land had not passed to the grantee; the unavoidable inference, therefore,, was that he had discharged the grantor from his obligation to give the bond. This case, I think, is reconcilable with the-rule that a waiver of the execution of a condition precedent must, in point of intention, he clearly made ou*i. With respect to conditions subsequent, a different doctrine prevails..",
"Such conditions are not favored in law, and their rigorous-exaction is regarded as a kind of summum jus. They tend to destroy estates already vested, and, consequently, the doctrine of waiver when applied to them, receives a more liberal and equitable interpretation. The cases in this line would mislead, if used with respect to conditions precedent. In the facts of the present case, I do not discover anything which has been done by the plaintiff, which, reasonably interpreted, can be considered as indication of an intention to dispense. with the payment of the money due him as a prerequisite-to the vesting of the title to the premises in the city of Bergen, The consequence is, that the city has no defence to this actio<n at law. Their rights are equitable, and they must seek another forum. The rule must be discharged. Cited in Jersey City v. Fitzpatrick, 8 Stew. Eq. 97; Gardner v. Jersey City, 5 Stew.",
"Eq. 586; Mayor, &c., of Jersey City, v. Gardner, 6 Stew. Eq. 622."
]
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The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Julian et al (US 2006.0286996).
1. Julian teaches the communication apparatus in a communication system including a plurality of communication apparatuses, the communication apparatus comprising: a controller configured to, in a wireless communication start process (candidate serving cell selection would correspond to claims start process for the selected serving cell see figures 12-15, paragraphs 89-91) during idle mode (note that since transmission has not started when selections are being made, the apparatus would be in an idle, i.e. non-transmitting mode) with another communication apparatus, considering power information related to a power amount of a signal to be transmitted from the communication apparatus to candidate communication apparatuses that are candidates for performing the wireless communication (candidate set see for example figures 2, 3, paragraphs 37, 38), calculate a transmission power amount for the candidate communication apparatuses, and perform a control such that a candidate communication apparatus for which the calculated transmission power amount is the smallest becomes the other communication apparatus for performing the wireless communication (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91); and a transmitter configured to transmit a signal to the other communication apparatus considering with the power information (terminal uses selected base see paragraphs 47, 84, 91);
2. Julian teaches the communication apparatus according to claim 1, wherein the power information includes reception sensitivities of antennas of the candidate communication apparatuses, and the controller calculates transmission power amounts for the candidate communication apparatuses considering with the reception sensitivities (feedback used to calculate power see paragraphs 90, 94, 102). 3. Julian teaches the communication apparatus according to claim 2, further comprising a receiver configured to receive the reception sensitivities from information notified by the candidate communication apparatuses (receiver for feedback signals see paragraphs 90, 94, 102). 4. Julian teaches the communication apparatus according to claim 2, further comprising a receiver configured to receive the reception sensitivities by receiving signals including the reception sensitivities that are transmitted to the communication apparatus by the candidate communication apparatuses (receiver for feedback signals see paragraphs 90, 94, 102).
6. Julian teaches the communication apparatus according to claim 5, further comprising a receiver configured to receive the required reception power by receiving signals including the required reception power that is transmitted to the communication apparatus by the candidate communication apparatuses (receiver for feedback signals see paragraphs 90, 94, 102). 7. Julian teaches the communication apparatus according to claim 5, wherein the controller calculates, as the transmission power amount for the candidate communication apparatuses, a power amount obtained by adding to the required reception power a reception sensitivity decrease power indicating a power amount that is reduced according to the reception sensitivity at the candidate communication apparatuses (feedback used to calculate power see paragraphs 90, 94, 102). 8. Julian teaches the communication apparatus according to claim 5, wherein the power information further includes a wireless decrease power indicating a power amount to be reduced in a wireless section until a radio wave transmitted by the communication apparatus to the candidate communication apparatuses reaches the candidate communication apparatuses (power control commands used in power calculations see paragraph 91), and the controller calculates, as the transmission power 9. Julian teaches the communication apparatus according to claim 1, wherein the power information is an increased power amount by which the candidate communication apparatuses requests the communication apparatus to increase the transmission power of the communication apparatus (power control commands used in power calculations see paragraph 91), and the controller calculates transmission power for each of the candidate communication apparatuses considering with the increased amount of power (feedback used to calculate power see paragraphs 90, 94, 102). 10. Julian teaches the communication apparatus according to claim 9, wherein the controller further transmits a connection request for requesting a wireless connection to the candidate communication apparatuses, receives a response including the increased power amount to the connection request (power control commands used in power calculations see paragraph 91), and calculates the transmission power amount for the candidate communication apparatuses according to initial transmission power with which the connection request is transmitted to the candidate communication apparatuses and the increased power amount included in the received response (feedback used to calculate power see paragraphs 90, 94, 102). 11. Julian teaches the communication apparatus according to claim 10, wherein the controller calculates, as the transmission power amount for the candidate 12. Julian teaches the communication apparatus according to claim 1, wherein the candidate communication apparatuses are base station apparatuses that perform a process of relaying a communication of the communication apparatus in which a packet received from the communication apparatus is transmitted to a destination, and a packet addressed to the communication apparatus is transmitted to the communication apparatus (base stations see figure 1, TDMA, i.e. packet transmissions paragraph 5). 13. Julian teaches the communication apparatus according to claim 1, wherein performing a wireless communication with the other communication apparatus includes changing a communication apparatus in wireless communication with the communication apparatus to the other communication apparatus (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91). 14. Julian teaches the communication apparatus according to claim 1, wherein the transmitter transmits a signal to the other communication apparatus using a random access channel in consideration with the power information (random access using CDMA, TDMA, FDMA see paragraph 5).
15. Julian teaches the communication apparatus in a communication system including a plurality of communication apparatuses, the communication apparatus comprising:
a communicator configured to, when the other communication apparatus wirelessly communicates with the own communication apparatus considering with the transmission power amount for the own communication apparatus calculated from the power information, perform the wireless communication with the other communication apparatus (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91) (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91); wherein the power information is a required reception power at the candidate communication apparatus included in notification information, the notification information being sent from the candidate communication apparatus as a cell-specific information (feedback from candidate cells see figures 12-15, paragraphs 89, 94, 96,98).
16. Julian teaches the communication apparatus according to claim 15, wherein the power information includes a reception sensitivity of an antenna of the own communication apparatus, and the other communication apparatus calculates the transmission power amount considering with the reception sensitivity (feedback of received signals see for example figures 12-15, paragraphs 90, 91). 17. Julian teaches the communication apparatus according to claim 16, wherein the information transmitter includes the reception sensitivity in information notified to the plurality of communication apparatuses (feedback of received signals see for example figures 12-15, paragraphs 90, 91). 18. Julian teaches the communication apparatus according to claim 16, wherein the information transmitter transmits information including the reception sensitivity to be transmitted to the other communication apparatus (feedback of received signals see for example figures 12-15, paragraphs 90, 91).
19. Julian teaches the communication system comprising a plurality of communication apparatuses, wherein a first communication apparatus (terminal figure 1 item 120, paragraph 28), when performing a wireless communication start process (candidate serving cell selection would correspond to claims start process for the selected serving cell see figures 12-15, paragraphs 89-91) during idle mode (note that since transmission has not started when selections are being made, the apparatus would be in an idle, i.e. non-transmitting the third communication apparatus (selected, now serving base station with the lowest power see abstract, paragraphs 9, 47, 84, 91) performs the wireless communication with the first communication apparatus in response to the request from the first communication apparatus (terminal figure 1 item 120, paragraph 28).
wherein the power information is a required reception power at the third communication apparatus included in notification information, the notification information being sent from the third communication apparatus as a cell-specific information (feedback from candidate cells see figures 12-15, paragraphs 89, 94, 96,98).
Response to Amendment Applicant's arguments filed September 4, 2020 have been fully considered but they are not persuasive. Applicant argues that Julian does not teach selections “during idle mode”. As noted above since transmission has not started when selections are being made, the apparatus would be in an idle, i.e. non-transmitting mode, in broadest reasonable interpretation. If applicant has a more limiting definition, it should be present in the claim.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP J. SOBUTKA whose telephone number is (571)272-7887. The examiner can normally be reached Monday through Friday from 10:30-7:00. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Wesley Kim can be reached on (571) 272-78677867. The central fax phone number for the Office is 571-273-8300. Most facsimile-transmitted patent application related correspondence is required to be sent to the Central FAX Number.
CENTRALIZED DELIVERY POLICY: For patent related correspondence, hand carry deliveries must be made to the Customer Service Window (now located at the Randolph Building, 401 Dulany Street, Alexandria, VA 22314), and facsimile transmissions must be sent to the Central FAX number, unless an exception applies. For example, if the examiner has rejected claims in a regular U.S. patent application, and the reply to the
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).
/PHILIP SOBUTKA/Primary Examiner, Art Unit 2648
(571) 272-7887 | 2021-03-17T06:38:52 | [
"The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION 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. (a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.",
"Claims 1-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Julian et al (US 2006.0286996). 1. Julian teaches the communication apparatus in a communication system including a plurality of communication apparatuses, the communication apparatus comprising: a controller configured to, in a wireless communication start process (candidate serving cell selection would correspond to claims start process for the selected serving cell see figures 12-15, paragraphs 89-91) during idle mode (note that since transmission has not started when selections are being made, the apparatus would be in an idle, i.e. non-transmitting mode) with another communication apparatus, considering power information related to a power amount of a signal to be transmitted from the communication apparatus to candidate communication apparatuses that are candidates for performing the wireless communication (candidate set see for example figures 2, 3, paragraphs 37, 38), calculate a transmission power amount for the candidate communication apparatuses, and perform a control such that a candidate communication apparatus for which the calculated transmission power amount is the smallest becomes the other communication apparatus for performing the wireless communication (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91); and a transmitter configured to transmit a signal to the other communication apparatus considering with the power information (terminal uses selected base see paragraphs 47, 84, 91); 2.",
"Julian teaches the communication apparatus according to claim 1, wherein the power information includes reception sensitivities of antennas of the candidate communication apparatuses, and the controller calculates transmission power amounts for the candidate communication apparatuses considering with the reception sensitivities (feedback used to calculate power see paragraphs 90, 94, 102). 3. Julian teaches the communication apparatus according to claim 2, further comprising a receiver configured to receive the reception sensitivities from information notified by the candidate communication apparatuses (receiver for feedback signals see paragraphs 90, 94, 102). 4. Julian teaches the communication apparatus according to claim 2, further comprising a receiver configured to receive the reception sensitivities by receiving signals including the reception sensitivities that are transmitted to the communication apparatus by the candidate communication apparatuses (receiver for feedback signals see paragraphs 90, 94, 102). 6. Julian teaches the communication apparatus according to claim 5, further comprising a receiver configured to receive the required reception power by receiving signals including the required reception power that is transmitted to the communication apparatus by the candidate communication apparatuses (receiver for feedback signals see paragraphs 90, 94, 102). 7.",
"Julian teaches the communication apparatus according to claim 5, wherein the controller calculates, as the transmission power amount for the candidate communication apparatuses, a power amount obtained by adding to the required reception power a reception sensitivity decrease power indicating a power amount that is reduced according to the reception sensitivity at the candidate communication apparatuses (feedback used to calculate power see paragraphs 90, 94, 102). 8. Julian teaches the communication apparatus according to claim 5, wherein the power information further includes a wireless decrease power indicating a power amount to be reduced in a wireless section until a radio wave transmitted by the communication apparatus to the candidate communication apparatuses reaches the candidate communication apparatuses (power control commands used in power calculations see paragraph 91), and the controller calculates, as the transmission power 9.",
"Julian teaches the communication apparatus according to claim 1, wherein the power information is an increased power amount by which the candidate communication apparatuses requests the communication apparatus to increase the transmission power of the communication apparatus (power control commands used in power calculations see paragraph 91), and the controller calculates transmission power for each of the candidate communication apparatuses considering with the increased amount of power (feedback used to calculate power see paragraphs 90, 94, 102). 10. Julian teaches the communication apparatus according to claim 9, wherein the controller further transmits a connection request for requesting a wireless connection to the candidate communication apparatuses, receives a response including the increased power amount to the connection request (power control commands used in power calculations see paragraph 91), and calculates the transmission power amount for the candidate communication apparatuses according to initial transmission power with which the connection request is transmitted to the candidate communication apparatuses and the increased power amount included in the received response (feedback used to calculate power see paragraphs 90, 94, 102).",
"11. Julian teaches the communication apparatus according to claim 10, wherein the controller calculates, as the transmission power amount for the candidate 12. Julian teaches the communication apparatus according to claim 1, wherein the candidate communication apparatuses are base station apparatuses that perform a process of relaying a communication of the communication apparatus in which a packet received from the communication apparatus is transmitted to a destination, and a packet addressed to the communication apparatus is transmitted to the communication apparatus (base stations see figure 1, TDMA, i.e. packet transmissions paragraph 5). 13. Julian teaches the communication apparatus according to claim 1, wherein performing a wireless communication with the other communication apparatus includes changing a communication apparatus in wireless communication with the communication apparatus to the other communication apparatus (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91).",
"14. Julian teaches the communication apparatus according to claim 1, wherein the transmitter transmits a signal to the other communication apparatus using a random access channel in consideration with the power information (random access using CDMA, TDMA, FDMA see paragraph 5). 15. Julian teaches the communication apparatus in a communication system including a plurality of communication apparatuses, the communication apparatus comprising: a communicator configured to, when the other communication apparatus wirelessly communicates with the own communication apparatus considering with the transmission power amount for the own communication apparatus calculated from the power information, perform the wireless communication with the other communication apparatus (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91) (terminal selects the base station with the lowest power see abstract, paragraphs 9, 47, 84, 91); wherein the power information is a required reception power at the candidate communication apparatus included in notification information, the notification information being sent from the candidate communication apparatus as a cell-specific information (feedback from candidate cells see figures 12-15, paragraphs 89, 94, 96,98).",
"16. Julian teaches the communication apparatus according to claim 15, wherein the power information includes a reception sensitivity of an antenna of the own communication apparatus, and the other communication apparatus calculates the transmission power amount considering with the reception sensitivity (feedback of received signals see for example figures 12-15, paragraphs 90, 91). 17. Julian teaches the communication apparatus according to claim 16, wherein the information transmitter includes the reception sensitivity in information notified to the plurality of communication apparatuses (feedback of received signals see for example figures 12-15, paragraphs 90, 91). 18. Julian teaches the communication apparatus according to claim 16, wherein the information transmitter transmits information including the reception sensitivity to be transmitted to the other communication apparatus (feedback of received signals see for example figures 12-15, paragraphs 90, 91).",
"19. Julian teaches the communication system comprising a plurality of communication apparatuses, wherein a first communication apparatus (terminal figure 1 item 120, paragraph 28), when performing a wireless communication start process (candidate serving cell selection would correspond to claims start process for the selected serving cell see figures 12-15, paragraphs 89-91) during idle mode (note that since transmission has not started when selections are being made, the apparatus would be in an idle, i.e. non-transmitting the third communication apparatus (selected, now serving base station with the lowest power see abstract, paragraphs 9, 47, 84, 91) performs the wireless communication with the first communication apparatus in response to the request from the first communication apparatus (terminal figure 1 item 120, paragraph 28). wherein the power information is a required reception power at the third communication apparatus included in notification information, the notification information being sent from the third communication apparatus as a cell-specific information (feedback from candidate cells see figures 12-15, paragraphs 89, 94, 96,98).",
"Response to Amendment Applicant's arguments filed September 4, 2020 have been fully considered but they are not persuasive. Applicant argues that Julian does not teach selections “during idle mode”. As noted above since transmission has not started when selections are being made, the apparatus would be in an idle, i.e. non-transmitting mode, in broadest reasonable interpretation. If applicant has a more limiting definition, it should be present in the claim. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP J. SOBUTKA whose telephone number is (571)272-7887.",
"The examiner can normally be reached Monday through Friday from 10:30-7:00. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Wesley Kim can be reached on (571) 272-78677867. The central fax phone number for the Office is 571-273-8300. Most facsimile-transmitted patent application related correspondence is required to be sent to the Central FAX Number. CENTRALIZED DELIVERY POLICY: For patent related correspondence, hand carry deliveries must be made to the Customer Service Window (now located at the Randolph Building, 401 Dulany Street, Alexandria, VA 22314), and facsimile transmissions must be sent to the Central FAX number, unless an exception applies.",
"For example, if the examiner has rejected claims in a regular U.S. patent application, and the reply to the 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). /PHILIP SOBUTKA/Primary Examiner, Art Unit 2648 (571) 272-7887"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
HELP WELDING AND MECHANICAL CORPORATION AND SELECTIVE INSURANCE COMPANY OF AMERICA MEMORANDUM OPINION * v. Record No. 1847-97-2 PER CURIAM FEBRUARY 10, 1998 LARRY WILSON CHITTY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Cecil H. Creasey, Jr.; Sands, Anderson, Marks & Miller, on brief), for appellants.
(Louis D. Snesil, on brief), for appellee.
Help Welding and Mechanical Corporation and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Larry W. Chitty
(claimant) proved that (1) he sustained an injury by accident
arising out of his employment on August 11, 1996; (2) his average
weekly wage was $1,193.37; and (3) he was not obligated to market
his residual capacity. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A
finding by the commission that an injury did or did not arise out
of the employment is a mixed finding of law and fact and is
properly reviewable on appeal. See Jones v. Colonial
Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301
(1989). The phrase "arising out of" refers to the origin or
cause of the injury. See County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, claimant
must "show that the conditions of the workplace . . . caused the
injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989).
In ruling that claimant's injuries arose out of his
employment, the commission found as follows: The claimant is a 54-year-old welder who works for his own corporation. On August 11, 1996, he was climbing down from a truck bed some 39 inches above the ground. The claimant was attempting to step down from the truck bed to a step some 18 inches below the bed. He could not explain exactly how he missed the step and fell to the ground. However, it is clear from the claimant's description of the episode that the step was somewhat obscured from his view. We find upon Review, as did the Deputy Commissioner, that missing the step, under these circumstances, was a risk of the employment. The fall itself and the resulting low back injury and left arm fracture are not contested.
Claimant's testimony constitutes credible evidence to
support the commission's factual findings. "Where reasonable
inferences may be drawn from the evidence in support of the
2 commission's factual findings, they will not be disturbed by this
Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). Here, the evidence
supported an inference that conditions of the workplace, i.e.,
the height of the truck bed from the first step and the step's
obscure location, caused claimant's injuries.
II.
"It was the duty of the commission to make the best possible
estimate of . . . impairments of earnings from the evidence
adduced at the hearing, and to determine the average weekly
wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 441, 339 S.E.2d 570, 573 (1986). "This is a question of
fact to be determined by the Commission which, if based on
credible evidence, will not be disturbed on appeal." Id. "Thus,
if credible evidence supports the commission's findings regarding
the claimant's average weekly wage, we must uphold those
findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App.
143, 146, 415 S.E.2d 864, 866 (1992).
The commission's calculation of claimant's average weekly
wage was based upon his 1995 earnings as reflected on his W-2
form and claimant's testimony that his wages in 1996 were
approximately the same as those in 1995. No evidence
contradicted claimant's testimony. The 1995 W-2 form, coupled
with claimant's testimony, constitutes credible evidence to
support the commission's calculation of claimant's average weekly
3 wage.
4 III.
Employer contends that claimant failed to prove that he made
a reasonable effort to market his residual capacity after his
accident, and therefore, the commission erred in awarding him
temporary total disability benefits for the periods alleged. In
ruling upon this issue, the commission found as follows: [T]his argument is based upon the assumption that [claimant] could perform light work, as evidenced by his limited services to his corporation during the period August 11 through September 30, 1996. We find no medical release to return to light work with specific restrictions. Neither is there a duty on the claimant to obtain work with his business which can be performed by other employees. This would result only in some increased earnings for the corporation, at most, and there is no evidence that it would have any bearing on payment for his services. The claimant's salary, which is paid by the corporation, establishes his average weekly wage. The gross receipts or net earnings is an entirely separate matter and reflects business conditions, the solvency of the corporation, return on investments, and other business considerations.
The commission's findings are supported by the opinion of
the treating orthopedic surgeon, Dr. John W. Ayers, II. Dr.
Ayers opined that claimant was totally disabled during the period
in question. In addition, we find no support in the record or in
the case law for the proposition that in order for a totally
disabled business owner to be entitled to an award of temporary
total disability benefits, he must hire employees to continue his
business during his incapacity. Based upon this record, the
commission did not err in finding that claimant had no obligation
5 to market his residual capacity.
For the reasons stated, we affirm the commission's decision.
Affirmed.
6 | 10-09-2013 | [
"COURT OF APPEALS OF VIRGINIA Present: Judges Bray, Annunziata and Overton HELP WELDING AND MECHANICAL CORPORATION AND SELECTIVE INSURANCE COMPANY OF AMERICA MEMORANDUM OPINION * v. Record No. 1847-97-2 PER CURIAM FEBRUARY 10, 1998 LARRY WILSON CHITTY FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Cecil H. Creasey, Jr.; Sands, Anderson, Marks & Miller, on brief), for appellants. (Louis D. Snesil, on brief), for appellee. Help Welding and Mechanical Corporation and its insurer (hereinafter referred to as \"employer\") contend that the Workers' Compensation Commission erred in finding that Larry W. Chitty (claimant) proved that (1) he sustained an injury by accident arising out of his employment on August 11, 1996; (2) his average weekly wage was $1,193.37; and (3) he was not obligated to market his residual capacity. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit.",
"Accordingly, we summarily affirm the commission's decision. See Rule 5A:27. I. On appeal, we view the evidence in the light most favorable to the prevailing party below. See R.G. Moore Bldg. Corp. v. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A finding by the commission that an injury did or did not arise out of the employment is a mixed finding of law and fact and is properly reviewable on appeal. See Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301 (1989). The phrase \"arising out of\" refers to the origin or cause of the injury. See County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, claimant must \"show that the conditions of the workplace . . .",
"caused the injury.\" Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). In ruling that claimant's injuries arose out of his employment, the commission found as follows: The claimant is a 54-year-old welder who works for his own corporation. On August 11, 1996, he was climbing down from a truck bed some 39 inches above the ground. The claimant was attempting to step down from the truck bed to a step some 18 inches below the bed. He could not explain exactly how he missed the step and fell to the ground. However, it is clear from the claimant's description of the episode that the step was somewhat obscured from his view. We find upon Review, as did the Deputy Commissioner, that missing the step, under these circumstances, was a risk of the employment.",
"The fall itself and the resulting low back injury and left arm fracture are not contested. Claimant's testimony constitutes credible evidence to support the commission's factual findings. \"Where reasonable inferences may be drawn from the evidence in support of the 2 commission's factual findings, they will not be disturbed by this Court on appeal.\" Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Here, the evidence supported an inference that conditions of the workplace, i.e., the height of the truck bed from the first step and the step's obscure location, caused claimant's injuries. II. \"It was the duty of the commission to make the best possible estimate of . . . impairments of earnings from the evidence adduced at the hearing, and to determine the average weekly wage . .",
". .\" Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). \"This is a question of fact to be determined by the Commission which, if based on credible evidence, will not be disturbed on appeal.\" Id. \"Thus, if credible evidence supports the commission's findings regarding the claimant's average weekly wage, we must uphold those findings.\" Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992). The commission's calculation of claimant's average weekly wage was based upon his 1995 earnings as reflected on his W-2 form and claimant's testimony that his wages in 1996 were approximately the same as those in 1995. No evidence contradicted claimant's testimony. The 1995 W-2 form, coupled with claimant's testimony, constitutes credible evidence to support the commission's calculation of claimant's average weekly 3 wage. 4 III. Employer contends that claimant failed to prove that he made a reasonable effort to market his residual capacity after his accident, and therefore, the commission erred in awarding him temporary total disability benefits for the periods alleged.",
"In ruling upon this issue, the commission found as follows: [T]his argument is based upon the assumption that [claimant] could perform light work, as evidenced by his limited services to his corporation during the period August 11 through September 30, 1996. We find no medical release to return to light work with specific restrictions. Neither is there a duty on the claimant to obtain work with his business which can be performed by other employees. This would result only in some increased earnings for the corporation, at most, and there is no evidence that it would have any bearing on payment for his services. The claimant's salary, which is paid by the corporation, establishes his average weekly wage.",
"The gross receipts or net earnings is an entirely separate matter and reflects business conditions, the solvency of the corporation, return on investments, and other business considerations. The commission's findings are supported by the opinion of the treating orthopedic surgeon, Dr. John W. Ayers, II. Dr. Ayers opined that claimant was totally disabled during the period in question. In addition, we find no support in the record or in the case law for the proposition that in order for a totally disabled business owner to be entitled to an award of temporary total disability benefits, he must hire employees to continue his business during his incapacity. Based upon this record, the commission did not err in finding that claimant had no obligation 5 to market his residual capacity.",
"For the reasons stated, we affirm the commission's decision. Affirmed. 6"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1076087/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mr. Justice Marrero delivered the opinion of the Court. Jerónimo Rosado Pérez was prosecuted and convicted of the offense of burglary in the first degree. He was sentenced to serve an indeterminate sentence in the penitentiary at hard labor. In his appeal to this Court he assigns two errors, the second of which is to the effect that: “the trial court erred in failing to instruct the jury that the offense of burglary in the first degree requires a specific intent to commit it and that the degree of intoxication may be such as to render defendant incapable of having the intent, thus resulting in his exoneration from the commission *418of the offense.” The Fiscal of this Court agrees to the reversal for the reason stated, alleging in his brief, among other things, that “in those offenses where a specific intent is required, it is necessary for the trier of facts to consider all the evidence which defendant has been able to produce about his drunkenness before determining whether or not the accused is guilty.” We agree. The witnesses for the prosecution testified that defendant confessed his offense in their presence, but that he maintained that he was completely drunk immediately before and at the time he committed it. The defendant and his wife both testified in similar terms, when the former testified at the trial as well as in a written ■confession made before a justice of the peace. After the •evidence was presented and the corresponding instructions were given, the jury withdrew to deliberate. A few minutes later the jury was called to the courtroom by the trial judge, who addressed them in the following manner: “Defendant is present. I call you because it seems that my instructions were not sufficiently clear for the jury to have already reached a verdict within the minute of rising and sitting down. I did not order you to render the verdict here because I wished to follow the custom of the court to withdraw to the jury room to deliberate. My instructions are specific; the court orders you to convict the accused, to bring in a verdict of guilty of burglary in the first degree. You can not reach any other verdict. There is nothing to discuss or deliberate. Defendant has admitted the facts under oath in open court and he has also admitted having confessed before the Justice of the Peace and before the aggrieved person . . . I have told you that I can not give any other instructions but to convict; I can not give any instructions for acquittal.” (Italics ours.) After hearing these instructions the attorney for the defense said: “We respectfully object to the instructions of the court, to the former ones as well as to those it has just given.” Several members of the jury then addressed the trial judge who proceeded with his instructions: *419“Drunkenness is no defense for any crime. That I also forgot to tell you ... I told you that I could not, that I was precluded from giving any instructions other than to convict, because here it is the only thing possible. The only evidence introduced in this case was that presented by the prosecuting attorney which consisted of three witnesses who testified that defendant entered a public establishment at nighttime, stole and the things stolen were subsequently seized; that the accused confessed his offense before three persons, and he made an oral and a written confession before the Justice of the Peace. Besides, there is defendant’s own evidence corroborated by his wife, who testified that he committed the offense and that he was drunk at that time. That is no defense, drunkenness is no defense. A person, unless insane, because of the fact that he is drunk, is capable of committing any offense. But defendant himself has said and explained how he committed the offense: That he entered that cafetín, that he took a beer and drank it; that he went to look for a can of spaghetti; that upon leaving the cafetín he felt the temptation of committing burglary and that he committed it. That is, here the jury has no . . . No person who hears that evidence can have any doubt that the offense was committed. There is absolutely no contradiction between the witnesses for the People and those for the defense or among the witnesses themselves; nor is there any contradiction in the evidence. The only thing that defendant’s attorney has done is to honestly present what evidence he has, and to present defendant’s testimony; and all that evidence aids me, when pronouncing sentence, to be benevolent with defendant because it is not the same where a person has always led a decent life . . .” (Italics ours.) Although defendant took no specific exception to the foregoing instructions—People v. Vélez, 77 P.R.R. 775; People v. Piazza, 60 P.R.R. 561, 571; People v. Cardona, 50 P.R.R. 104, 105; People v. Quirós, 48 P.R.R. 939, 942; United States v. Daily, 139 F. 2d 7, 9—we consider that the error committed is fundamental and that it must result in reversal. Let us see. Pursuant to § 408 of the Penal Code “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, . . . with intent to commit grand or petit *420larceny, or any felony is guilty of burglary.” On the other hand, § 41 of the Penal Code provides that “no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But, whenever the actual existence of any 'particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” (Italics ours.) If the latter section of the Penal Code had merely contained the first sentence above copied, it is possible that the preceding instructions would conform to law. But such is not the case. That section contains a second sentence, whose scope and effect the trier should have kept in mind when transmitting his instructions to the jury. In relation with it we said the following in People v. Rivera, 70 P.R.R. 541, 544: “The rule adopted in those jurisdictions where provisions of law identical or similar to that contained in § 41 of our Penal Code prevail, is that drunkenness — voluntary—must be of such degree or extent that it will deprive defendant of his mental capacity to form the specific intent required by the Code for the conviction of a crime — or degree thereof — requiring such specific intent, and that the determination of that fact is essentially incumbent on the jury or on the court sitting without a jury,” quoting innumerable cases from the United States. (Italics ours.) In those cases where the accused has committed the crime charged in a state of intoxication, Burdick’s Lato of Crime, 1946 Ed., Vol. 1, p. 216, states: “It is held, however, in most states, in modification of the general rule, that if one is charged with an offense which requires, as an essential element, a specific intent, or some particular motive or purpose, other than the general or common intent required in all crimes, evidence of the accused’s intoxication at the time he committed the crime is admissible, for the *421purpose of showing that, owing to his mental condition, he was not capable of forming the specific intent, or of entertaining the motive or purpose necessarily required to constitute the crime, and upon sufficient evidence to that effect, drunkenness is generally a defense.” In Wharton’s Criminal Law, 12th ed. Yol. 1 pp. 98 and 101, the following appears: “When a particular condition of mind is requisite to constitute an offense, intoxication may be proved to explain such condition. ... If the existence of a specific intention ... is essential to the commission of a crime, the fact that an offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention.” To that effect, see also Hopt v. People, 104 U. S. 631, 26 L. ed. 873; People v. Smith, 14 Cal. 2d 541; People v. Gordan, 103 Cal. 568, 575; People v. Blake, 65 Cal. 275. Section 408 of our Penal Code explicitly requires that in order to cpmmit the offense of burglary the entering into the house, store, etc., must have been “with intent to commit grand or petit larceny ...” 1 So then, in this offense the intent plays an important role, and the determination of whether or not it existed must be left entirely to the trier of facts, which in this case was the jury which heard the case. On that point in People v. Gibson, 107 Cal. App. 76, 82, it is said that: “the essence of the offense of burglary consists in the intent with which such entry is made.” In People v. Phelan, 93 Cal. 111, appellant and two other persons were accused of burglariously entering a building with the felonious intent of committing larceny therein. The main contention of appellant Phelan was that the trial court erred in giving instructions to the jury as to his degree *422of intoxication. Upon reversing the judgment appealed from and ordering the case remanded for a new trial, the Supreme Court of the State of California on p. 113 said the following: “Entering a building with intent to commit grand or petit larceny, or any felony, constitutes burglary.The intent with which a building is entered is a necessary element to constitute a particular species of crime, viz., the crime of burglary. Therefore the jury might have taken into consideration the fact, if such were the fact, that the accused was intoxicated at the time he entered the building, in determining the purpose, motive, or intent with which he committed the act. . . . We are not at liberty to speculate as to what the verdict might have been if a proper instead of an erroneous instruction had been given. As given, the instruction withdrew from the consideration of the jury evidence which the code says a jury may consider in determining the intent with which an act is committed. “The evidence in this case tends to prove that appellant, before and at the time he entered the building, was intoxicated. Whether he was intoxicated to such a degree as to render him incapable of forming or entertaining an intent to commit grand or petit larceny, or any felony, in the building was exclusively for the determination of the jury.” We can express ourselves in similar terms in this case. An instruction to that effect must be transmitted to the jury when evidence has been presented tending to prove defendant’s intoxication before and at the time of committing the offense. As has been seen, there was such proof in this case.2 The fact that the trial judge did not permit the jury to decide whether defendant was drunk to the point where he was incapable of forming or having the intent to commit grand or petit larceny when entering his neighbor’s establishment, was an error which requires the reversal of the judgment. *423In view of the foregoing conclusions, it is unnecessary to discuss the other error assigned. The judgment appealed from will be reversed, and the case remanded to the Superior Court for a new trial.
The Spanish text says ‘‘con el propósito, etc,” but the English text, which should prevail (see § 13 of the Civil Code, 1930 ed.) reads as copied above, a more adequate translation being “con intención de cometer hurto mayor o menor.”
Deiendant says in Ms confession “that on the night of December 28, 1953, about 1 a.m., after taking a few drinks to forget my worries because I had a quarrel with my wife, I entered the store of Manolin Diaz Morales”; and in his testimony before the jury he said that on *423the night of the 28th a gentleman whom he met at the YMCA went to visit him; that they had dinner in his home and afterwards they went to his cafetín; that they kept drinking in the cafetín until 12 p.m. when his visitor returned to San Juan; that then he returned to his home and when he asked his wife to give him some dinner, she answered that there was none left; in view of that he went back to his cafetín to get a can of spaghetti and that then “I had the intention of committing that offense.” Defendant’s wife testified that her husband and the gentleman who was visiting him had dinner at her home; that afterwards they left and that her husband returned by dawn “too drunk”, that her husband (defendant) asked for some dinner to which she replied that there was none left; that then he went out and came back about an hour later “more drunk than when he left” and he went to bed with all his clothes on. | 11-23-2022 | [
"Mr. Justice Marrero delivered the opinion of the Court. Jerónimo Rosado Pérez was prosecuted and convicted of the offense of burglary in the first degree. He was sentenced to serve an indeterminate sentence in the penitentiary at hard labor. In his appeal to this Court he assigns two errors, the second of which is to the effect that: “the trial court erred in failing to instruct the jury that the offense of burglary in the first degree requires a specific intent to commit it and that the degree of intoxication may be such as to render defendant incapable of having the intent, thus resulting in his exoneration from the commission *418of the offense.” The Fiscal of this Court agrees to the reversal for the reason stated, alleging in his brief, among other things, that “in those offenses where a specific intent is required, it is necessary for the trier of facts to consider all the evidence which defendant has been able to produce about his drunkenness before determining whether or not the accused is guilty.” We agree. The witnesses for the prosecution testified that defendant confessed his offense in their presence, but that he maintained that he was completely drunk immediately before and at the time he committed it. The defendant and his wife both testified in similar terms, when the former testified at the trial as well as in a written ■confession made before a justice of the peace.",
"After the •evidence was presented and the corresponding instructions were given, the jury withdrew to deliberate. A few minutes later the jury was called to the courtroom by the trial judge, who addressed them in the following manner: “Defendant is present. I call you because it seems that my instructions were not sufficiently clear for the jury to have already reached a verdict within the minute of rising and sitting down. I did not order you to render the verdict here because I wished to follow the custom of the court to withdraw to the jury room to deliberate. My instructions are specific; the court orders you to convict the accused, to bring in a verdict of guilty of burglary in the first degree. You can not reach any other verdict.",
"There is nothing to discuss or deliberate. Defendant has admitted the facts under oath in open court and he has also admitted having confessed before the Justice of the Peace and before the aggrieved person . . . I have told you that I can not give any other instructions but to convict; I can not give any instructions for acquittal.” (Italics ours.) After hearing these instructions the attorney for the defense said: “We respectfully object to the instructions of the court, to the former ones as well as to those it has just given.” Several members of the jury then addressed the trial judge who proceeded with his instructions: *419“Drunkenness is no defense for any crime. That I also forgot to tell you ... I told you that I could not, that I was precluded from giving any instructions other than to convict, because here it is the only thing possible. The only evidence introduced in this case was that presented by the prosecuting attorney which consisted of three witnesses who testified that defendant entered a public establishment at nighttime, stole and the things stolen were subsequently seized; that the accused confessed his offense before three persons, and he made an oral and a written confession before the Justice of the Peace. Besides, there is defendant’s own evidence corroborated by his wife, who testified that he committed the offense and that he was drunk at that time. That is no defense, drunkenness is no defense.",
"A person, unless insane, because of the fact that he is drunk, is capable of committing any offense. But defendant himself has said and explained how he committed the offense: That he entered that cafetín, that he took a beer and drank it; that he went to look for a can of spaghetti; that upon leaving the cafetín he felt the temptation of committing burglary and that he committed it. That is, here the jury has no .",
". . No person who hears that evidence can have any doubt that the offense was committed. There is absolutely no contradiction between the witnesses for the People and those for the defense or among the witnesses themselves; nor is there any contradiction in the evidence. The only thing that defendant’s attorney has done is to honestly present what evidence he has, and to present defendant’s testimony; and all that evidence aids me, when pronouncing sentence, to be benevolent with defendant because it is not the same where a person has always led a decent life . .",
".” (Italics ours.) Although defendant took no specific exception to the foregoing instructions—People v. Vélez, 77 P.R.R. 775; People v. Piazza, 60 P.R.R. 561, 571; People v. Cardona, 50 P.R.R. 104, 105; People v. Quirós, 48 P.R.R. 939, 942; United States v. Daily, 139 F. 2d 7, 9—we consider that the error committed is fundamental and that it must result in reversal. Let us see. Pursuant to § 408 of the Penal Code “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, . . . with intent to commit grand or petit *420larceny, or any felony is guilty of burglary.” On the other hand, § 41 of the Penal Code provides that “no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But, whenever the actual existence of any 'particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” (Italics ours.)",
"If the latter section of the Penal Code had merely contained the first sentence above copied, it is possible that the preceding instructions would conform to law. But such is not the case. That section contains a second sentence, whose scope and effect the trier should have kept in mind when transmitting his instructions to the jury. In relation with it we said the following in People v. Rivera, 70 P.R.R. 541, 544: “The rule adopted in those jurisdictions where provisions of law identical or similar to that contained in § 41 of our Penal Code prevail, is that drunkenness — voluntary—must be of such degree or extent that it will deprive defendant of his mental capacity to form the specific intent required by the Code for the conviction of a crime — or degree thereof — requiring such specific intent, and that the determination of that fact is essentially incumbent on the jury or on the court sitting without a jury,” quoting innumerable cases from the United States. (Italics ours.)",
"In those cases where the accused has committed the crime charged in a state of intoxication, Burdick’s Lato of Crime, 1946 Ed., Vol. 1, p. 216, states: “It is held, however, in most states, in modification of the general rule, that if one is charged with an offense which requires, as an essential element, a specific intent, or some particular motive or purpose, other than the general or common intent required in all crimes, evidence of the accused’s intoxication at the time he committed the crime is admissible, for the *421purpose of showing that, owing to his mental condition, he was not capable of forming the specific intent, or of entertaining the motive or purpose necessarily required to constitute the crime, and upon sufficient evidence to that effect, drunkenness is generally a defense.” In Wharton’s Criminal Law, 12th ed. Yol. 1 pp. 98 and 101, the following appears: “When a particular condition of mind is requisite to constitute an offense, intoxication may be proved to explain such condition. ...",
"If the existence of a specific intention ... is essential to the commission of a crime, the fact that an offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention.” To that effect, see also Hopt v. People, 104 U. S. 631, 26 L. ed. 873; People v. Smith, 14 Cal.",
"2d 541; People v. Gordan, 103 Cal. 568, 575; People v. Blake, 65 Cal. 275. Section 408 of our Penal Code explicitly requires that in order to cpmmit the offense of burglary the entering into the house, store, etc., must have been “with intent to commit grand or petit larceny ...” 1 So then, in this offense the intent plays an important role, and the determination of whether or not it existed must be left entirely to the trier of facts, which in this case was the jury which heard the case. On that point in People v. Gibson, 107 Cal. App. 76, 82, it is said that: “the essence of the offense of burglary consists in the intent with which such entry is made.” In People v. Phelan, 93 Cal. 111, appellant and two other persons were accused of burglariously entering a building with the felonious intent of committing larceny therein.",
"The main contention of appellant Phelan was that the trial court erred in giving instructions to the jury as to his degree *422of intoxication. Upon reversing the judgment appealed from and ordering the case remanded for a new trial, the Supreme Court of the State of California on p. 113 said the following: “Entering a building with intent to commit grand or petit larceny, or any felony, constitutes burglary.The intent with which a building is entered is a necessary element to constitute a particular species of crime, viz., the crime of burglary. Therefore the jury might have taken into consideration the fact, if such were the fact, that the accused was intoxicated at the time he entered the building, in determining the purpose, motive, or intent with which he committed the act. . . . We are not at liberty to speculate as to what the verdict might have been if a proper instead of an erroneous instruction had been given.",
"As given, the instruction withdrew from the consideration of the jury evidence which the code says a jury may consider in determining the intent with which an act is committed. “The evidence in this case tends to prove that appellant, before and at the time he entered the building, was intoxicated. Whether he was intoxicated to such a degree as to render him incapable of forming or entertaining an intent to commit grand or petit larceny, or any felony, in the building was exclusively for the determination of the jury.” We can express ourselves in similar terms in this case.",
"An instruction to that effect must be transmitted to the jury when evidence has been presented tending to prove defendant’s intoxication before and at the time of committing the offense. As has been seen, there was such proof in this case.2 The fact that the trial judge did not permit the jury to decide whether defendant was drunk to the point where he was incapable of forming or having the intent to commit grand or petit larceny when entering his neighbor’s establishment, was an error which requires the reversal of the judgment. *423In view of the foregoing conclusions, it is unnecessary to discuss the other error assigned.",
"The judgment appealed from will be reversed, and the case remanded to the Superior Court for a new trial. The Spanish text says ‘‘con el propósito, etc,” but the English text, which should prevail (see § 13 of the Civil Code, 1930 ed.) reads as copied above, a more adequate translation being “con intención de cometer hurto mayor o menor.” Deiendant says in Ms confession “that on the night of December 28, 1953, about 1 a.m., after taking a few drinks to forget my worries because I had a quarrel with my wife, I entered the store of Manolin Diaz Morales”; and in his testimony before the jury he said that on *423the night of the 28th a gentleman whom he met at the YMCA went to visit him; that they had dinner in his home and afterwards they went to his cafetín; that they kept drinking in the cafetín until 12 p.m. when his visitor returned to San Juan; that then he returned to his home and when he asked his wife to give him some dinner, she answered that there was none left; in view of that he went back to his cafetín to get a can of spaghetti and that then “I had the intention of committing that offense.” Defendant’s wife testified that her husband and the gentleman who was visiting him had dinner at her home; that afterwards they left and that her husband returned by dawn “too drunk”, that her husband (defendant) asked for some dinner to which she replied that there was none left; that then he went out and came back about an hour later “more drunk than when he left” and he went to bed with all his clothes on."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8536954/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION *Note in the following document: 1. Texts in italic bold format are limitations quoted either directly or conceptually from claims/descriptions disclosed in the instant application. 2. Texts in regular italic format are quoted directly from cited reference or Applicant’s arguments. 3. Texts with underlining are added by the Examiner for emphasis. 4. Texts with
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 .
Continued Examination Under 37 CFR 1.114 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 June 2022 has been entered.
Status of Claims This is in response to applicant’s amendment/response file on 1 June 2022, which has been entered and made of record. Claims 1-2 and 24, 46 have been amended. Claim(s) [3*] has/have been added or cancelled. No Claim has been added or cancelled. Claims 1-3, 6-8, 17, 24-25, 27, 29, 35, 38-39, 46-49 and 52-53 are pending in the application. Response to Arguments Applicant’s arguments, see p.12-13, filed on 1 June 2022, with respect to the rejection(s) of Claim(s) 1/24/46 under 35 USC §103 have been fully considered but are moot because the arguments do not apply to any of the references being used in the current rejection. The newly amended Claim(s) 1/24/46 is/are now rejected under 35 USC §112(b). See detailed rejections below. Specification The substitute specification filed 1 June 2022 has been entered.
Drawings The drawings were received on 1 June 2022. These drawings are acceptable. However the drawings are objected to as failing to comply with: 1. 37 CFR 1.84(p)(4) because reference character “rendering engine” has been used to designate both 2210 and 2230 ([0280]). 2. 37 CFR 1.84(p)(4) because reference character “2210” has been used to designate both rendering engine ([0280]) and first step ([0281]); reference character “2220” has been used to designate both sensory data engine engine ([0280]) and second step ([0281]); reference character “2230” has been used to designate both rendering engine ([0280]) and A third step may comprise sampling energy data points of the plurality of energy-data points ([0281]). 3. 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 1626 ([0253]), 2240 ([0280]), 2250 ([0281]). The drawings are objected to because Figure 8, 13, 15 and 21 lack(s) of descriptive labels. For example, item 802 in Fig.8 should be labeled “receiving content data” (see [0160]). The drawings are further objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the limitation of wherein the plurality of rays correspond to energy propagations paths along which energy is propagated according to a 4D energy field to simultaneously define at least one holographic object within a plurality of depths that are sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position 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). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph: (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: a processing subsystem, a sensory data engine and rendering engine in Claim 24. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-3, 6-8, 17, 24-25, 27, 29, 35, 38-39, 46-49 and 52-53 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. Independent Claim(s) 1/24/46 recite(s) the plurality of rays correspond to energy propagations paths along which energy is propagated according to a 4D energy field to simultaneously define at least one holographic object within a plurality of depths that are sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position. It is unclear what are independent of a viewer focus or a viewer position whether it is the plurality of rays or the plurality of depths or energy propagation paths. Claims 2-3, 6-8, 17, 25, 27, 29, 35, 38-39, 47-49 and 52-53 are rejected due to their dependency on Claim 1/24/46.
Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph 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 the first paragraph of pre-AIA 35 U.S.C. 112: 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, 6-8, 17, 24-25, 27, 29, 35, 38-39, 46-49 and 52-53 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. Independent Claim(s) 1/24/46 recite(s) the plurality of rays correspond to energy propagations paths along which energy is propagated according to a 4D energy field to simultaneously define at least one holographic object within a plurality of depths that are sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position. The specification fails to disclose how to make it sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position. Claims 2-3, 6-8, 17, 25, 27, 29, 35, 38-39, 47-49 and 52-53 are rejected due to their dependency on Claim 1/24/46.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Takaki “High-Density Directional Display for Generating Natural Three-Dimensional Images”, Proc. Of the IEEE, vil. 94, No.3 March 2006 discloses a 3D display with light field. The depth position at which viewers perceive 3-D images does not depend on the observation position. No discrepancy appears between the convergence function and the accommodation function. Huang et al. The Light Field Stereoscope Immersive Computer Graphics via Factored Near-Eye Light Field Displays with Focus Cues, ACM Transactions on Graphics, vol. 34 No. 4, 2015 discloses a wearable VR display supporting high image resolution as well as focus cues. Any inquiry concerning this communication or earlier communications from the examiner should be directed to YINGCHUN HE whose telephone number is (571)270-7218. The examiner can normally be reached M-F 8:00-5:00 MT. 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, Xiao M Wu can be reached on 571-272-7761. 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.
/YINGCHUN HE/Primary Examiner, Art Unit 2613 | 2022-06-18T18:33:49 | [
"DETAILED ACTION *Note in the following document: 1. Texts in italic bold format are limitations quoted either directly or conceptually from claims/descriptions disclosed in the instant application. 2. Texts in regular italic format are quoted directly from cited reference or Applicant’s arguments. 3. Texts with underlining are added by the Examiner for emphasis. 4. Texts with 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 . Continued Examination Under 37 CFR 1.114 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 June 2022 has been entered. Status of Claims This is in response to applicant’s amendment/response file on 1 June 2022, which has been entered and made of record. Claims 1-2 and 24, 46 have been amended. Claim(s) [3*] has/have been added or cancelled. No Claim has been added or cancelled. Claims 1-3, 6-8, 17, 24-25, 27, 29, 35, 38-39, 46-49 and 52-53 are pending in the application. Response to Arguments Applicant’s arguments, see p.12-13, filed on 1 June 2022, with respect to the rejection(s) of Claim(s) 1/24/46 under 35 USC §103 have been fully considered but are moot because the arguments do not apply to any of the references being used in the current rejection. The newly amended Claim(s) 1/24/46 is/are now rejected under 35 USC §112(b). See detailed rejections below.",
"Specification The substitute specification filed 1 June 2022 has been entered. Drawings The drawings were received on 1 June 2022. These drawings are acceptable. However the drawings are objected to as failing to comply with: 1. 37 CFR 1.84(p)(4) because reference character “rendering engine” has been used to designate both 2210 and 2230 ([0280]). 2. 37 CFR 1.84(p)(4) because reference character “2210” has been used to designate both rendering engine ([0280]) and first step ([0281]); reference character “2220” has been used to designate both sensory data engine engine ([0280]) and second step ([0281]); reference character “2230” has been used to designate both rendering engine ([0280]) and A third step may comprise sampling energy data points of the plurality of energy-data points ([0281]). 3.",
"37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: 1626 ([0253]), 2240 ([0280]), 2250 ([0281]). The drawings are objected to because Figure 8, 13, 15 and 21 lack(s) of descriptive labels. For example, item 802 in Fig.8 should be labeled “receiving content data” (see [0160]). The drawings are further objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the limitation of wherein the plurality of rays correspond to energy propagations paths along which energy is propagated according to a 4D energy field to simultaneously define at least one holographic object within a plurality of depths that are sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position 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). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance. Claim Interpretation The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.",
"The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph: (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C.",
"112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.",
"Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.",
"Such claim limitation(s) is/are: a processing subsystem, a sensory data engine and rendering engine in Claim 24. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C.",
"112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. 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 1-3, 6-8, 17, 24-25, 27, 29, 35, 38-39, 46-49 and 52-53 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. Independent Claim(s) 1/24/46 recite(s) the plurality of rays correspond to energy propagations paths along which energy is propagated according to a 4D energy field to simultaneously define at least one holographic object within a plurality of depths that are sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position. It is unclear what are independent of a viewer focus or a viewer position whether it is the plurality of rays or the plurality of depths or energy propagation paths.",
"Claims 2-3, 6-8, 17, 25, 27, 29, 35, 38-39, 47-49 and 52-53 are rejected due to their dependency on Claim 1/24/46. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph 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 the first paragraph of pre-AIA 35 U.S.C.",
"112: 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, 6-8, 17, 24-25, 27, 29, 35, 38-39, 46-49 and 52-53 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. Independent Claim(s) 1/24/46 recite(s) the plurality of rays correspond to energy propagations paths along which energy is propagated according to a 4D energy field to simultaneously define at least one holographic object within a plurality of depths that are sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position.",
"The specification fails to disclose how to make it sufficient to substantially induce both vergence and accommodation for the at least one holographic object and are independent of a viewer focus or a viewer position. Claims 2-3, 6-8, 17, 25, 27, 29, 35, 38-39, 47-49 and 52-53 are rejected due to their dependency on Claim 1/24/46. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Takaki “High-Density Directional Display for Generating Natural Three-Dimensional Images”, Proc. Of the IEEE, vil. 94, No.3 March 2006 discloses a 3D display with light field.",
"The depth position at which viewers perceive 3-D images does not depend on the observation position. No discrepancy appears between the convergence function and the accommodation function. Huang et al. The Light Field Stereoscope Immersive Computer Graphics via Factored Near-Eye Light Field Displays with Focus Cues, ACM Transactions on Graphics, vol. 34 No. 4, 2015 discloses a wearable VR display supporting high image resolution as well as focus cues. Any inquiry concerning this communication or earlier communications from the examiner should be directed to YINGCHUN HE whose telephone number is (571)270-7218. The examiner can normally be reached M-F 8:00-5:00 MT. 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, Xiao M Wu can be reached on 571-272-7761. 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. /YINGCHUN HE/Primary Examiner, Art Unit 2613"
]
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