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458 Mass. 295 (2010) COMMONWEALTH v. DANIEL CARR (and five companion cases[1]). No. SJC-10697. Supreme Judicial Court of Massachusetts, Middlesex. October 4, 2010. November 17, 2010. Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. Charles W. Rankin for John Sherman. Casey E. Silvia, Assistant District Attorney (Melinda L. Thompson, Assistant District Attorney, with her) for the Commonwealth. Randolph Gioia, for Daniel Carr, was present but did not argue. *296 John Reinstein, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. CORDY, J. On June 28, 2007, a grand jury indicted the defendants, two Boston College students, Daniel Carr and John Sherman, on charges that they trafficked in cocaine over fourteen grams, possessed psilocybin with intent to distribute, and possessed marijuana with intent to distribute, following discovery of the illegal drugs in their campus dormitory room. On December 17, 2007, Carr filed a motion to suppress the drugs and other evidence seized as a result of a warrantless search. Sherman filed a similar motion and a motion to suppress his statements to the college police. After an evidentiary hearing, the judge granted the defendants' motions to suppress. On interlocutory appeal, the Appeals Court reversed. Commonwealth v. Carr, 76 Mass. App. Ct. 41 (2009). We granted the defendants' application for further appellate review to consider the Commonwealth's challenge to the judge's findings that the initial warrantless entry into the room by Boston College police officers was unlawful, and that the defendants did not voluntarily consent to the subsequent search of their room. We conclude that the judge did not err in finding that the Commonwealth failed to satisfy its burden of proving the voluntary consent of the defendants to search their room. We affirm. Because the drugs and other evidence will be suppressed, we need not decide whether the initial entry into the room was lawful.[2] 1. Background. The following facts are drawn from the judge's findings and the uncontested testimony at the motion hearing. Around midnight on February 14, 2007, Sergeant John Derick of the Boston College police department received a telephone call from April Wynn, resident director of Gonzaga Hall on the Boston College campus. Wynn told Sergeant Derick that she had received a report from two students that a "weapon" was inside a room in Gonzaga Hall. Wynn brought the two students *297 to the campus police station, and they told Sergeant Derick that Daniel Carr had been bullying students and bragging about having a knife. The students stated that there was a third student, who wished to remain anonymous, who reported seeing the butt of a gun, possibly a toy gun, inside Carr's room. Sergeant Derick, along with Sergeant Anthony Cadogan and Officer Sean Daley, met with Wynn and another resident director, Austin Ash, in Wynn's office. The three officers and two resident directors then proceeded to Carr's room. The officers were all uniformed and armed. Sergeant Derick knocked on the door and announced himself as a Boston College police officer. A male voice inside the room stated, "Hold on, I've got to put my pants on." Sergeant Derick knocked again after approximately thirty seconds had elapsed, and the door was opened. Sergeant Derick entered the room and the other two officers remained just outside the doorway. There were three young men in the room. Sergeant Derick asked who lived in the room. One of the men, later identified as Zachary Taylor, stated that he did not live in the room and Sergeant Derick told him to leave. After Taylor left the room, Sergeant Derick told Carr and Sherman that he had received an anonymous report of a gun or weapon in the room. Carr stated that he had a "fake" gun but had thrown it out. Sergeant Derick then read Carr his Miranda rights and asked him where the gun was. Carr said, "I think it's under the bed" and pointed to the bed. Sergeant Derick reached under the bed and retrieved what looked like a .45 caliber handgun, but, on closer inspection, proved to be a replica gun that may have been capable of shooting a projectile. The other two officers then entered the room and Sergeant Derick asked the students if there were more weapons in the room. Sherman produced and handed over a folding knife. A smaller knife was later found in a desk drawer and a kubotan, a martial arts weapon, was also recovered. Based on his experience, Sergeant Derick believed that there could be more weapons in the room and told the defendants he wanted to search the entire room. Sergeant Cadogan handed each of the defendants a form that contained two parts: the top half, a "Miranda waiver," contained text and a line for a signature; the bottom half, "consent to search," also contained *298 text, and had a line at the bottom that did not indicate whether it was for a signature.[3] Carr asked if he could make a telephone call and was allowed to do so. Carr telephoned his father, who then spoke with Sergeant Derick, telling him, "It's just a cap gun ... a toy gun. What's the big deal?" Each defendant filled out the form, signing the Miranda waiver, but neither defendant placed a signature on the "consent to search" half of the form. Sergeant Cadogan and Officer Daley conducted a full search of the room while Sergeant Derick stepped out of the room to update Wynn and Ash. During the course of the search, Officer Daley found a bag of psilocybin mushrooms and a bag of marijuana. The defendants were then asked to step into the hallway and were placed under arrest. Subsequently, twelve bags of a white powdery substance were found in a jacket that both defendants said belonged to Taylor.[4] Two additional bags containing white powder were found under the beds. There was a footlocker in the middle of the room that contained a locked box smelling of marijuana. The officers found a key in a desk drawer and opened the box, which contained ten marijuana cigarettes, rolling papers, seeds, and the defendants' passports. The officers also found a marijuana pipe and a piece of paper listing names and amounts of money. 2. Motion to suppress. In reviewing the grant or denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and accord "substantial deference" to the judge's ultimate findings. Commonwealth v. Monteiro, 396 Mass. 123, 131 (1985), citing Commonwealth v. Doucette, 391 Mass. 443, 447 (1984). "On a motion to suppress, `[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not [the appellate] court.'" Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980). "The clear error standard is a very limited form of review.... Where there has been conflicting testimony as to a *299 particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted." Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984). A "trial judge's ruling on a motion to suppress may be reversed where the facts found are clearly erroneous or `where justice requires [that the appellate court] substitute its judgment for that of a trial judge at the final stage.'" Commonwealth v. Spagnolo, supra at 517, quoting Commonwealth v. Moon, supra. "The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court." Commonwealth v. Robinson, 399 Mass. 209, 215 (1987). a. Consent. "When the police rely on consent to justify a warrantless [search], under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], the prosecution `has the burden of proving that the consent was, in fact, freely and voluntarily given.'" Commonwealth v. Rogers, 444 Mass. 234, 237 (2005), quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968). "[T]he Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant's words or actions.... If either the officer's request or the occupant's response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to [the search], our inquiry will be over and the entry must be deemed unlawful." (Citations omitted.) Commonwealth v. Rogers, supra at 238-239. The judge found that the Commonwealth had not established that the defendants gave consent to search their room. She based this finding on what she described as "discrepant" testimony and what she found to be "equivocat[ion]" in Sergeant Cadogan's testimony. The evidence presented to the judge supports this finding.[5] *300 Sergeant Derick's only testimony on the subject was that after he stated that he would like to search the room, he "asked that they fill out the consent to search," and the defendants were handed the forms. Sergeant Cadogan testified that after Sergeant Derick said he wanted to search the room, the defendants were each given a form, and "[t]hey just filled it out." When asked if there was any verbal response, Sergeant Cadogan first stated that there was none, but on redirect examination then stated that they said, "yes."[6] On cross-examination, Sergeant Cadogan again stated that "one of them said something." When given his original *301 report from the incident to refresh his memory, Sergeant Cadogan then stated that it was his testimony that he did not hear a verbal response from either defendant.[7] Officer Daley testified that Carr *302 "stated yes" when Sergeant Derick asked if they could search the room. He also testified that he asked Sherman if they could search his part of the room and Sherman "stated yes" and began to fill out the form. However, on cross-examination by Sherman's counsel, Officer Daley stated that when he asked Sherman to fill out the form, Sherman began to fill out the form, and that was the extent of the conversation. The judge was not persuaded that there was consent to the search based on the forms that were partially filled out by the defendants. After reviewing the forms, it is clear that both defendants placed their signature on the Miranda waiver portion of the form, but neither placed a signature on the half that gives consent to search. In sum, the evidence before the judge as to consent was equivocal and supported her conclusion that the Commonwealth had not met its burden. b. Voluntariness of consent. In addition to finding that the Commonwealth had not satisfied its burden of proving actual consent, the judge went on to say that, even if she was able to "determine clearly that either defendant had given consent to search, there were coercive aspects to the officers' exercise of authority that would vitiate a finding of voluntariness." "The question whether consent was voluntary is a question of fact to be determined in the circumstances of each case, with the burden of proof on the government." Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). The Commonwealth must prove "consent unfettered by coercion, express or implied, and also something more than mere `acquiescence to a claim of lawful authority.'" Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976), quoting Bumper v. North Carolina, 391 U.S. 543, 549 (1968). While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given. See Commonwealth v. Sanna, 424 Mass. 92, 97-98 n.10 (1997); Commonwealth v. Harmond, 376 Mass. 557, 561-562 (1978). The judge's ultimate conclusion that the Commonwealth had not proved voluntary consent was supported by her subsidiary *303 findings that: (1) "[Sergeant] Derick immediately demanded the occupants' identities and ordered Taylor to leave; thus, his very first acts had a compulsory dimension to them"; (2) the "armed officers completely blocked the only exit[,] and the two resident directors [stood] in the hallway[, lending] further institutional presence"; (3) "[Sergeant] Derick signaled his distrust of the defendants"; and (4) Sergeant Derick's "pronouncement, `I would like to search the room,' sounded more like an order than a request."[8] The judge found that "an objective person would not have felt able to refuse the officer's request or leave the room." Each of her subsidiary findings were in turn based on testimony adduced at the hearing. The Appeals Court concluded "as a matter of ... independent judgment that the facts and circumstances establish that the consent was free and voluntary and neither coerced nor mere acquiescence to a claim of lawful authority." Commonwealth v. Carr, 76 Mass. App. Ct. 41, 52 (2009). Because a finding of voluntariness is a question of fact, it should not be reversed absent clear error by the judge. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). "So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it. `Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881 (1989). The judge was in the best position to assess the weight and credibility of the testimony given at the motion hearing. Although the Appeals Court reviewed the evidence presented and concluded that consent was voluntarily given, its alternate view of the facts and circumstances does not indicate clear error on the part of the judge, and we find none.[9] 3. Conclusion. The Commonwealth failed to satisfy its burden to prove that consent was freely and voluntarily given; therefore, *304 we affirm the judge's order allowing suppression of the drugs and other evidence seized in an illegal search of the defendants' room. So ordered. NOTES [1] Two against Daniel Carr and three against John Sherman. [2] Sherman's motion to suppress statements he made to the Boston College police officers on the night of February 14, 2007, is based on claimed inadequate Miranda warnings on the Miranda waiver and consent to search form that he signed. The judge did not address the issue, and neither the Commonwealth nor the defendants raise it on appeal. Sherman does not point to any statements he made before the unconsented-to search that are relevant to the charges pending against him. [3] The officers also testified as to their recollections of what the defendants said after Sergeant Derick stated that he wanted to search the entire room. We summarize and discuss that testimony below. [4] Taylor was later arrested and charged with possession of cocaine. [5] In a footnote, the Appeals Court concluded that, because Carr stated in an affidavit that he "gave police permission to search," the issue of actual consent has been conceded by the defendants. Commonwealth v. Carr, 76 Mass. App. Ct. 41, 45 n.5 (2009). The affidavit was not part of the evidentiary record before the judge and cannot be considered on appeal. The question of actual consent was a live and contested issue argued at the motion hearing. The judge properly ruled on the evidence presented by the Commonwealth, which did not include Carr's affidavit. [6] On direct examination of Sergeant Cadogan, the following exchange took place:
THE PROSECUTOR: "Okay. Did you ask if you could search the room?" DEFENSE COUNSEL FOR CARR: "Objection." THE JUDGE: "I'll allow it." THE WITNESS: "Correct." THE PROSECUTOR: "Okay. And then you gave the paper?" THE WITNESS: "Correct." THE JUDGE: "And what was the response?" THE WITNESS: "They just filled it out, Your Honor." THE JUDGE: "So you asked the question. Was the question asked to both gentlemen?" THE WITNESS: "Both gentlemen." THE JUDGE: "And what was the response, if any?" THE WITNESS: "Well, we have a we asked them we have a consent to search form. Do you want us searching your room. You need to fill this out, and they just filled it out, Your Honor. Just one party had to make a phone call." THE JUDGE: "Specifically to that question, did either of the students make any verbal response?" THE WITNESS: "No, ma'am." THE PROSECUTOR: "They did not say `yes' or `no' when asked if you could search the room?" THE WITNESS: "I think one of them said `yes,' but it was no[t], `no, you can't search my room.'" THE PROSECUTOR: "Okay. Did they say `yes' or did they say `no'?" THE WITNESS: "They said yes." THE JUDGE: "Who is it? When you say `they,' could you be more specific? Did both of them say, `yes, you can search.'" THE WITNESS: "The one that wasn't on the phone, he was in the room. He said, `Yes, you can search the room.' And then shortly after the party that was on the phone came off and filled out the form." [7] The following exchange then took place on recross-examination of Sergeant Cadogan by Sherman's defense counsel:
DEFENSE COUNSEL FOR SHERMAN: "So, as you sit here today your testimony is you think one of them may have said something." THE WITNESS: "I know one of them said something." DEFENSE COUNSEL FOR SHERMAN: "You know one of them said something?" THE WITNESS: "Correct." DEFENSE COUNSEL FOR SHERMAN: "Now, do you recall writing a report?" THE WITNESS: "Do I recall writing a report?" DEFENSE COUNSEL FOR SHERMAN: "Yep." THE WITNESS: "You have a copy." DEFENSE COUNSEL FOR SHERMAN: "You wrote a report." THE WITNESS: "I did." DEFENSE COUNSEL FOR SHERMAN: "And there's nothing in the report about any verbal agreement by John Sherman that you could search his room; is that right?" THE WITNESS: "I'd have to look at the report, sir." DEFENSE COUNSEL FOR SHERMAN: "Okay. Same report. And I'd just ask you to pay attention to the third paragraph. You can read it to yourself." ... DEFENSE COUNSEL FOR SHERMAN: "So, there's nothing in here about Mr. Sherman giving verbal permission to search, correct?" THE WITNESS: "Correct." DEFENSE COUNSEL FOR SHERMAN: "So you described it in your report essentially what your first answer was to that question, correct?" THE WITNESS: "Correct." DEFENSE COUNSEL FOR SHERMAN: "That the individual was asked for permission to search and given a form?" THE WITNESS: "Correct." DEFENSE COUNSEL FOR SHERMAN: "And there's nothing here in your report about Mr. Sherman saying, `Yes, you can search.'" THE WITNESS: "He didn't say no either." DEFENSE COUNSEL FOR SHERMAN: "Okay. It's not innothing in here." THE WITNESS: "Correct." THE JUDGE: "Your memory now is that you didn't hear any verbal response. A form was handed to this gentleman? THE WITNESS: "Correct" THE JUDGE: "Okay. So that's your testimony." THE WITNESS: "Correct." [8] It is also plain from the record that this encounter took place around midnight. [9] The judge also concluded that any consent was obtained through the exploitation of a prior illegality the initial entry into the room. We do not consider this in our assessment of her conclusions that consent had not been established and consent was not given voluntarily. | 10-30-2013 | [
"458 Mass. 295 (2010) COMMONWEALTH v. DANIEL CARR (and five companion cases[1]). No. SJC-10697. Supreme Judicial Court of Massachusetts, Middlesex. October 4, 2010. November 17, 2010. Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. Charles W. Rankin for John Sherman. Casey E. Silvia, Assistant District Attorney (Melinda L. Thompson, Assistant District Attorney, with her) for the Commonwealth. Randolph Gioia, for Daniel Carr, was present but did not argue.",
"*296 John Reinstein, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. CORDY, J. On June 28, 2007, a grand jury indicted the defendants, two Boston College students, Daniel Carr and John Sherman, on charges that they trafficked in cocaine over fourteen grams, possessed psilocybin with intent to distribute, and possessed marijuana with intent to distribute, following discovery of the illegal drugs in their campus dormitory room. On December 17, 2007, Carr filed a motion to suppress the drugs and other evidence seized as a result of a warrantless search. Sherman filed a similar motion and a motion to suppress his statements to the college police. After an evidentiary hearing, the judge granted the defendants' motions to suppress. On interlocutory appeal, the Appeals Court reversed. Commonwealth v. Carr, 76 Mass.",
"App. Ct. 41 (2009). We granted the defendants' application for further appellate review to consider the Commonwealth's challenge to the judge's findings that the initial warrantless entry into the room by Boston College police officers was unlawful, and that the defendants did not voluntarily consent to the subsequent search of their room. We conclude that the judge did not err in finding that the Commonwealth failed to satisfy its burden of proving the voluntary consent of the defendants to search their room. We affirm. Because the drugs and other evidence will be suppressed, we need not decide whether the initial entry into the room was lawful. [2] 1. Background. The following facts are drawn from the judge's findings and the uncontested testimony at the motion hearing. Around midnight on February 14, 2007, Sergeant John Derick of the Boston College police department received a telephone call from April Wynn, resident director of Gonzaga Hall on the Boston College campus. Wynn told Sergeant Derick that she had received a report from two students that a \"weapon\" was inside a room in Gonzaga Hall. Wynn brought the two students *297 to the campus police station, and they told Sergeant Derick that Daniel Carr had been bullying students and bragging about having a knife. The students stated that there was a third student, who wished to remain anonymous, who reported seeing the butt of a gun, possibly a toy gun, inside Carr's room. Sergeant Derick, along with Sergeant Anthony Cadogan and Officer Sean Daley, met with Wynn and another resident director, Austin Ash, in Wynn's office.",
"The three officers and two resident directors then proceeded to Carr's room. The officers were all uniformed and armed. Sergeant Derick knocked on the door and announced himself as a Boston College police officer. A male voice inside the room stated, \"Hold on, I've got to put my pants on.\" Sergeant Derick knocked again after approximately thirty seconds had elapsed, and the door was opened. Sergeant Derick entered the room and the other two officers remained just outside the doorway. There were three young men in the room. Sergeant Derick asked who lived in the room. One of the men, later identified as Zachary Taylor, stated that he did not live in the room and Sergeant Derick told him to leave. After Taylor left the room, Sergeant Derick told Carr and Sherman that he had received an anonymous report of a gun or weapon in the room. Carr stated that he had a \"fake\" gun but had thrown it out.",
"Sergeant Derick then read Carr his Miranda rights and asked him where the gun was. Carr said, \"I think it's under the bed\" and pointed to the bed. Sergeant Derick reached under the bed and retrieved what looked like a .45 caliber handgun, but, on closer inspection, proved to be a replica gun that may have been capable of shooting a projectile. The other two officers then entered the room and Sergeant Derick asked the students if there were more weapons in the room. Sherman produced and handed over a folding knife. A smaller knife was later found in a desk drawer and a kubotan, a martial arts weapon, was also recovered.",
"Based on his experience, Sergeant Derick believed that there could be more weapons in the room and told the defendants he wanted to search the entire room. Sergeant Cadogan handed each of the defendants a form that contained two parts: the top half, a \"Miranda waiver,\" contained text and a line for a signature; the bottom half, \"consent to search,\" also contained *298 text, and had a line at the bottom that did not indicate whether it was for a signature. [3] Carr asked if he could make a telephone call and was allowed to do so. Carr telephoned his father, who then spoke with Sergeant Derick, telling him, \"It's just a cap gun ... a toy gun. What's the big deal?\" Each defendant filled out the form, signing the Miranda waiver, but neither defendant placed a signature on the \"consent to search\" half of the form. Sergeant Cadogan and Officer Daley conducted a full search of the room while Sergeant Derick stepped out of the room to update Wynn and Ash.",
"During the course of the search, Officer Daley found a bag of psilocybin mushrooms and a bag of marijuana. The defendants were then asked to step into the hallway and were placed under arrest. Subsequently, twelve bags of a white powdery substance were found in a jacket that both defendants said belonged to Taylor. [4] Two additional bags containing white powder were found under the beds. There was a footlocker in the middle of the room that contained a locked box smelling of marijuana. The officers found a key in a desk drawer and opened the box, which contained ten marijuana cigarettes, rolling papers, seeds, and the defendants' passports.",
"The officers also found a marijuana pipe and a piece of paper listing names and amounts of money. 2. Motion to suppress. In reviewing the grant or denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and accord \"substantial deference\" to the judge's ultimate findings. Commonwealth v. Monteiro, 396 Mass. 123, 131 (1985), citing Commonwealth v. Doucette, 391 Mass. 443, 447 (1984). \"On a motion to suppress, `[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not [the appellate] court.'\" Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Moon, 380 Mass.",
"751, 756 (1980). \"The clear error standard is a very limited form of review.... Where there has been conflicting testimony as to a *299 particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted.\" Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984). A \"trial judge's ruling on a motion to suppress may be reversed where the facts found are clearly erroneous or `where justice requires [that the appellate court] substitute its judgment for that of a trial judge at the final stage.'\" Commonwealth v. Spagnolo, supra at 517, quoting Commonwealth v. Moon, supra. \"The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court.\" Commonwealth v. Robinson, 399 Mass.",
"209, 215 (1987). a. Consent. \"When the police rely on consent to justify a warrantless [search], under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], the prosecution `has the burden of proving that the consent was, in fact, freely and voluntarily given.'\" Commonwealth v. Rogers, 444 Mass. 234, 237 (2005), quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968). \"[T]he Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant's words or actions.... If either the officer's request or the occupant's response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to [the search], our inquiry will be over and the entry must be deemed unlawful.\"",
"(Citations omitted.) Commonwealth v. Rogers, supra at 238-239. The judge found that the Commonwealth had not established that the defendants gave consent to search their room. She based this finding on what she described as \"discrepant\" testimony and what she found to be \"equivocat[ion]\" in Sergeant Cadogan's testimony. The evidence presented to the judge supports this finding. [5] *300 Sergeant Derick's only testimony on the subject was that after he stated that he would like to search the room, he \"asked that they fill out the consent to search,\" and the defendants were handed the forms. Sergeant Cadogan testified that after Sergeant Derick said he wanted to search the room, the defendants were each given a form, and \"[t]hey just filled it out.\" When asked if there was any verbal response, Sergeant Cadogan first stated that there was none, but on redirect examination then stated that they said, \"yes.",
"\"[6] On cross-examination, Sergeant Cadogan again stated that \"one of them said something.\" When given his original *301 report from the incident to refresh his memory, Sergeant Cadogan then stated that it was his testimony that he did not hear a verbal response from either defendant. [7] Officer Daley testified that Carr *302 \"stated yes\" when Sergeant Derick asked if they could search the room. He also testified that he asked Sherman if they could search his part of the room and Sherman \"stated yes\" and began to fill out the form. However, on cross-examination by Sherman's counsel, Officer Daley stated that when he asked Sherman to fill out the form, Sherman began to fill out the form, and that was the extent of the conversation. The judge was not persuaded that there was consent to the search based on the forms that were partially filled out by the defendants.",
"After reviewing the forms, it is clear that both defendants placed their signature on the Miranda waiver portion of the form, but neither placed a signature on the half that gives consent to search. In sum, the evidence before the judge as to consent was equivocal and supported her conclusion that the Commonwealth had not met its burden. b. Voluntariness of consent. In addition to finding that the Commonwealth had not satisfied its burden of proving actual consent, the judge went on to say that, even if she was able to \"determine clearly that either defendant had given consent to search, there were coercive aspects to the officers' exercise of authority that would vitiate a finding of voluntariness.\"",
"\"The question whether consent was voluntary is a question of fact to be determined in the circumstances of each case, with the burden of proof on the government.\" Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). The Commonwealth must prove \"consent unfettered by coercion, express or implied, and also something more than mere `acquiescence to a claim of lawful authority.'\" Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976), quoting Bumper v. North Carolina, 391 U.S. 543, 549 (1968). While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given. See Commonwealth v. Sanna, 424 Mass. 92, 97-98 n.10 (1997); Commonwealth v. Harmond, 376 Mass.",
"557, 561-562 (1978). The judge's ultimate conclusion that the Commonwealth had not proved voluntary consent was supported by her subsidiary *303 findings that: (1) \"[Sergeant] Derick immediately demanded the occupants' identities and ordered Taylor to leave; thus, his very first acts had a compulsory dimension to them\"; (2) the \"armed officers completely blocked the only exit[,] and the two resident directors [stood] in the hallway[, lending] further institutional presence\"; (3) \"[Sergeant] Derick signaled his distrust of the defendants\"; and (4) Sergeant Derick's \"pronouncement, `I would like to search the room,' sounded more like an order than a request. \"[8] The judge found that \"an objective person would not have felt able to refuse the officer's request or leave the room.\" Each of her subsidiary findings were in turn based on testimony adduced at the hearing. The Appeals Court concluded \"as a matter of ... independent judgment that the facts and circumstances establish that the consent was free and voluntary and neither coerced nor mere acquiescence to a claim of lawful authority.\"",
"Commonwealth v. Carr, 76 Mass. App. Ct. 41, 52 (2009). Because a finding of voluntariness is a question of fact, it should not be reversed absent clear error by the judge. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). \"So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it. `Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'\" Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting Gallagher v. Taylor, 26 Mass. App.",
"Ct. 876, 881 (1989). The judge was in the best position to assess the weight and credibility of the testimony given at the motion hearing. Although the Appeals Court reviewed the evidence presented and concluded that consent was voluntarily given, its alternate view of the facts and circumstances does not indicate clear error on the part of the judge, and we find none. [9] 3. Conclusion. The Commonwealth failed to satisfy its burden to prove that consent was freely and voluntarily given; therefore, *304 we affirm the judge's order allowing suppression of the drugs and other evidence seized in an illegal search of the defendants' room. So ordered. NOTES [1] Two against Daniel Carr and three against John Sherman. [2] Sherman's motion to suppress statements he made to the Boston College police officers on the night of February 14, 2007, is based on claimed inadequate Miranda warnings on the Miranda waiver and consent to search form that he signed. The judge did not address the issue, and neither the Commonwealth nor the defendants raise it on appeal.",
"Sherman does not point to any statements he made before the unconsented-to search that are relevant to the charges pending against him. [3] The officers also testified as to their recollections of what the defendants said after Sergeant Derick stated that he wanted to search the entire room. We summarize and discuss that testimony below. [4] Taylor was later arrested and charged with possession of cocaine. [5] In a footnote, the Appeals Court concluded that, because Carr stated in an affidavit that he \"gave police permission to search,\" the issue of actual consent has been conceded by the defendants. Commonwealth v. Carr, 76 Mass. App. Ct. 41, 45 n.5 (2009). The affidavit was not part of the evidentiary record before the judge and cannot be considered on appeal. The question of actual consent was a live and contested issue argued at the motion hearing. The judge properly ruled on the evidence presented by the Commonwealth, which did not include Carr's affidavit. [6] On direct examination of Sergeant Cadogan, the following exchange took place: THE PROSECUTOR: \"Okay.",
"Did you ask if you could search the room?\" DEFENSE COUNSEL FOR CARR: \"Objection.\" THE JUDGE: \"I'll allow it.\" THE WITNESS: \"Correct.\" THE PROSECUTOR: \"Okay. And then you gave the paper?\" THE WITNESS: \"Correct.\" THE JUDGE: \"And what was the response?\" THE WITNESS: \"They just filled it out, Your Honor.\" THE JUDGE: \"So you asked the question. Was the question asked to both gentlemen?\" THE WITNESS: \"Both gentlemen.\" THE JUDGE: \"And what was the response, if any?\"",
"THE WITNESS: \"Well, we have a we asked them we have a consent to search form. Do you want us searching your room. You need to fill this out, and they just filled it out, Your Honor. Just one party had to make a phone call.\" THE JUDGE: \"Specifically to that question, did either of the students make any verbal response?\" THE WITNESS: \"No, ma'am.\" THE PROSECUTOR: \"They did not say `yes' or `no' when asked if you could search the room?\"",
"THE WITNESS: \"I think one of them said `yes,' but it was no[t], `no, you can't search my room.'\" THE PROSECUTOR: \"Okay. Did they say `yes' or did they say `no'?\" THE WITNESS: \"They said yes.\" THE JUDGE: \"Who is it? When you say `they,' could you be more specific? Did both of them say, `yes, you can search.'\" THE WITNESS: \"The one that wasn't on the phone, he was in the room. He said, `Yes, you can search the room.' And then shortly after the party that was on the phone came off and filled out the form.\" [7] The following exchange then took place on recross-examination of Sergeant Cadogan by Sherman's defense counsel: DEFENSE COUNSEL FOR SHERMAN: \"So, as you sit here today your testimony is you think one of them may have said something.\"",
"THE WITNESS: \"I know one of them said something.\" DEFENSE COUNSEL FOR SHERMAN: \"You know one of them said something?\" THE WITNESS: \"Correct.\" DEFENSE COUNSEL FOR SHERMAN: \"Now, do you recall writing a report?\" THE WITNESS: \"Do I recall writing a report?\" DEFENSE COUNSEL FOR SHERMAN: \"Yep.\" THE WITNESS: \"You have a copy.\" DEFENSE COUNSEL FOR SHERMAN: \"You wrote a report.\" THE WITNESS: \"I did.\" DEFENSE COUNSEL FOR SHERMAN: \"And there's nothing in the report about any verbal agreement by John Sherman that you could search his room; is that right?\" THE WITNESS: \"I'd have to look at the report, sir.\"",
"DEFENSE COUNSEL FOR SHERMAN: \"Okay. Same report. And I'd just ask you to pay attention to the third paragraph. You can read it to yourself.\" ... DEFENSE COUNSEL FOR SHERMAN: \"So, there's nothing in here about Mr. Sherman giving verbal permission to search, correct?\" THE WITNESS: \"Correct.\" DEFENSE COUNSEL FOR SHERMAN: \"So you described it in your report essentially what your first answer was to that question, correct?\" THE WITNESS: \"Correct.\" DEFENSE COUNSEL FOR SHERMAN: \"That the individual was asked for permission to search and given a form?\" THE WITNESS: \"Correct.\" DEFENSE COUNSEL FOR SHERMAN: \"And there's nothing here in your report about Mr. Sherman saying, `Yes, you can search.'\" THE WITNESS: \"He didn't say no either.\"",
"DEFENSE COUNSEL FOR SHERMAN: \"Okay. It's not innothing in here.\" THE WITNESS: \"Correct.\" THE JUDGE: \"Your memory now is that you didn't hear any verbal response. A form was handed to this gentleman? THE WITNESS: \"Correct\" THE JUDGE: \"Okay. So that's your testimony.\" THE WITNESS: \"Correct.\" [8] It is also plain from the record that this encounter took place around midnight. [9] The judge also concluded that any consent was obtained through the exploitation of a prior illegality the initial entry into the room. We do not consider this in our assessment of her conclusions that consent had not been established and consent was not given voluntarily."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2480881/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In an action to determine adverse claims to real property pursuant to RPAPL article 15, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), entered August 23, 1989, as denied that branch of their motion which was for summary judgment dismissing the complaint. Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants’ motion which was for summary judgment is granted, and the complaint is dismissed. In support of the defendants’ motion for summary judgment, the defendant Peter Bistrian submitted evidence in admissible form which established that in August of 1969 he acquired title to certain property located in the Village of Southampton. He averred that he never "conveyed or granted any of [his] interest” in the subject property, and that he "never signed or delivered any instrument of conveyance” to the plaintiff. In light of these sworn statements, which were fully supported by numerous documents, the burden was shifted to the plaintiff, as the party resisting the defendants’ motion for summary judgment, to produce evidence showing the existence of a triable issue of fact. This the plaintiff failed to do. The plaintiff’s essential claim is that he became the owner of a 25% interest in the subject property by virtue of an "agreement” dated September 11, 1969. According to this agreement, the plaintiff was supposed to enter into a joint venture with the two defendants. As part of this "agreement”, the three parties would share ownership in the subject property, upon which the business of their joint venture was to be conducted, and the plaintiff would have a 25% interest in that property. There is no proof that plaintiff ever participated in the joint venture which was contemplated in the 1969 agreement. This document cannot reasonably be considered as an instrument intended to convey an interest in real property. The "agreement” contains no recitation of consideration, and it contains no words which could be construed as a manifestation of an intent to have the agreement serve as the vehicle for the conveyance of title. Also, the parties expressly described the agreement as an "interim” one, and they expressly stated that it was their "intention to enter into a more formal partnership or corporate arrangement for the * * * ownership of [the subject] property”. A more formal agreement was *579never made. Under these circumstances, the interim agreement between the parties was "obviously not intended as a muniment of title” (Cohen v Cohen, 188 App Div 933; 43 NY Jur 2d, Deeds, § 18). Since the plaintiff failed to demonstrate the existence of any issue of fact requiring a trial with respect to the defendants’ ownership of the subject property, summary judgment should have been granted to the defendants. Mangano, P. J., Bracken, Kunzeman and Kooper, JJ., concur. | 01-13-2022 | [
"In an action to determine adverse claims to real property pursuant to RPAPL article 15, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J. ), entered August 23, 1989, as denied that branch of their motion which was for summary judgment dismissing the complaint. Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants’ motion which was for summary judgment is granted, and the complaint is dismissed. In support of the defendants’ motion for summary judgment, the defendant Peter Bistrian submitted evidence in admissible form which established that in August of 1969 he acquired title to certain property located in the Village of Southampton. He averred that he never \"conveyed or granted any of [his] interest” in the subject property, and that he \"never signed or delivered any instrument of conveyance” to the plaintiff.",
"In light of these sworn statements, which were fully supported by numerous documents, the burden was shifted to the plaintiff, as the party resisting the defendants’ motion for summary judgment, to produce evidence showing the existence of a triable issue of fact. This the plaintiff failed to do. The plaintiff’s essential claim is that he became the owner of a 25% interest in the subject property by virtue of an \"agreement” dated September 11, 1969. According to this agreement, the plaintiff was supposed to enter into a joint venture with the two defendants. As part of this \"agreement”, the three parties would share ownership in the subject property, upon which the business of their joint venture was to be conducted, and the plaintiff would have a 25% interest in that property.",
"There is no proof that plaintiff ever participated in the joint venture which was contemplated in the 1969 agreement. This document cannot reasonably be considered as an instrument intended to convey an interest in real property. The \"agreement” contains no recitation of consideration, and it contains no words which could be construed as a manifestation of an intent to have the agreement serve as the vehicle for the conveyance of title. Also, the parties expressly described the agreement as an \"interim” one, and they expressly stated that it was their \"intention to enter into a more formal partnership or corporate arrangement for the * * * ownership of [the subject] property”. A more formal agreement was *579never made. Under these circumstances, the interim agreement between the parties was \"obviously not intended as a muniment of title” (Cohen v Cohen, 188 App Div 933; 43 NY Jur 2d, Deeds, § 18).",
"Since the plaintiff failed to demonstrate the existence of any issue of fact requiring a trial with respect to the defendants’ ownership of the subject property, summary judgment should have been granted to the defendants. Mangano, P. J., Bracken, Kunzeman and Kooper, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5936003/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: [NYC] [17M] I was in a park that turned out to be private, got a Desk Appearance ticket for trespassing only. I was smoking weed but wasnt charged. Do I tell my attorney that I was smoking? I dont want my parents to find out about the smoking. Question:So yeah Im in a small situation here, certainly not the worst but its definitely annoying. So I was in a park with some friends and we were smoking weed, we finish and stay within the park for a bit. Then 2 cops show up with the owner of the park. The cops tell us that the owner said that he told us to leave (he never told us to leave the vicinity) and that he said we ignored him(again he never told us anything. The owner said he recognized us (which is false because this was the first time Ive been to that park, and the first time ive smoked outside ever). They end up not charging me with possession (because I didn't have any weed on me) and they cant charge me with using it either because I wasn't within the vicinity of a "burning blunt" as the cops described. They only charge me with trespassing (door to the park was wide open and the guy never came to tell us to leave, so that is kind of weird). We were arrested and brought to the precinct and processed. The cops said we didn't need our rights read to us for some reason I cant remember. So as cliche and immature as this sounds, do I have to tell my attorney that I smoked (this is because I really dont want my parents to find out about my smoking as it would be another rift in an already stressed family-my fault I know-)? I was only arrested for trespassing, and it seems to me that since I was only charged with that, I could just explain to him that I was in the park, and completely not mention the smoking weed portion of that incident (since I was only charged with trespassing). My parents will be able to see and hear everything I tell the attorney. Also there was a camera in the park that was in our view, do police collect video evidence for DATs like that? Do they show evidence at the arraignment? Im kinda nervous to be honest.
so to recap (TLDR): I was smoking weed in a park I thought was public, but was actually private. Got arrested for TRESPASSING ONLY so here are my main concerns:
(a)-Can I just tell my attorney about the trespassing portion of the incident without mentioning the smoking weed portion of the incident? Is there a way to go through this process without my parents finding out I smoked that night(I know this sounds really immature but my family is kind of in a skew right now).
and
(b)-Is it safe to obstruct that information from him.
P.S. Yes I know it was stupid to smoke outside. I was being an idiot and thought that the park would be fine. Obviously my idiocy took the cake on that one. Since then I really just lost interest in smoking weed altogether. Thanks for the help, and I apologize for the long post. Answer #1: You know what happens when your attorney doesn't have all the information? Your attorney gets blindsided by this information and then you get screwed, and your attorney either can't do their job or just drops you as a client entirely if they can. | 01-30-2018 | [
"Title: [NYC] [17M] I was in a park that turned out to be private, got a Desk Appearance ticket for trespassing only. I was smoking weed but wasnt charged. Do I tell my attorney that I was smoking? I dont want my parents to find out about the smoking. Question:So yeah Im in a small situation here, certainly not the worst but its definitely annoying. So I was in a park with some friends and we were smoking weed, we finish and stay within the park for a bit. Then 2 cops show up with the owner of the park. The cops tell us that the owner said that he told us to leave (he never told us to leave the vicinity) and that he said we ignored him(again he never told us anything. The owner said he recognized us (which is false because this was the first time Ive been to that park, and the first time ive smoked outside ever). They end up not charging me with possession (because I didn't have any weed on me) and they cant charge me with using it either because I wasn't within the vicinity of a \"burning blunt\" as the cops described.",
"They only charge me with trespassing (door to the park was wide open and the guy never came to tell us to leave, so that is kind of weird). We were arrested and brought to the precinct and processed. The cops said we didn't need our rights read to us for some reason I cant remember. So as cliche and immature as this sounds, do I have to tell my attorney that I smoked (this is because I really dont want my parents to find out about my smoking as it would be another rift in an already stressed family-my fault I know-)? I was only arrested for trespassing, and it seems to me that since I was only charged with that, I could just explain to him that I was in the park, and completely not mention the smoking weed portion of that incident (since I was only charged with trespassing). My parents will be able to see and hear everything I tell the attorney. Also there was a camera in the park that was in our view, do police collect video evidence for DATs like that?",
"Do they show evidence at the arraignment? Im kinda nervous to be honest. so to recap (TLDR): I was smoking weed in a park I thought was public, but was actually private. Got arrested for TRESPASSING ONLY so here are my main concerns: (a)-Can I just tell my attorney about the trespassing portion of the incident without mentioning the smoking weed portion of the incident? Is there a way to go through this process without my parents finding out I smoked that night(I know this sounds really immature but my family is kind of in a skew right now). and (b)-Is it safe to obstruct that information from him. P.S. Yes I know it was stupid to smoke outside. I was being an idiot and thought that the park would be fine.",
"Obviously my idiocy took the cake on that one. Since then I really just lost interest in smoking weed altogether. Thanks for the help, and I apologize for the long post. Answer #1: You know what happens when your attorney doesn't have all the information? Your attorney gets blindsided by this information and then you get screwed, and your attorney either can't do their job or just drops you as a client entirely if they can."
]
| https://www.reddit.com/r/legaladvice/comments/7u5akh/nyc_17m_i_was_in_a_park_that_turned_out_to_be/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM: * The Federal Public Defender appointed to represent Enrique Uresti-Martinez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Uresti-Martinez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 11-05-2022 | [
"PER CURIAM: * The Federal Public Defender appointed to represent Enrique Uresti-Martinez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Uresti-Martinez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8463453/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
164 S.E.2d 889 (1968) 3 N.C. App. 309 STATE of North Carolina ex rel. UTILITIES COMMISSION, and Duke Power Company v. UNION ELECTRIC MEMBERSHIP CORPORATION. No. 6810UC395. Court of Appeals of North Carolina. December 31, 1968. *891 Edward B. Hipp and Larry G. Ford, Raleigh, for North Carolina Utilities Commission. William I. Ward, Jr., and George W. Ferguson, Jr., Charlotte, for plaintiff appellee, Duke Power Co. Crisp, Twiggs & Wells, by William T. Crisp and Hugh A. Wells, Raleigh, and Clark & Huffman, by Richard S. Clark, Monroe, for defendant appellant, Union Electric Membership Corp. BRITT, Judge. The majority order adopted by the Utilities Commission was based upon the premise that the provisions of G.S. 62-110.2(b) (5) are applicable to the factual situation covered by this case. Said section reads as follows: "(b) In areas outside of municipalities, electric suppliers shall have rights and be subject to restrictions as follows: * * * * * * (5) Any premises initially requiring electric service after April 20, 1965 which are not located wholly within 300 feet of the lines of any electric supplier and are not located partially within 300 feet of the lines of two or more electric suppliers may be served by any electric supplier which the consumer chooses, unless such premises are located wholly or partially within an area assigned to an electric supplier pursuant to subsection (c) hereof, and any electric supplier not so chosen by the consumer shall not thereafter furnish service to such premises." Duke contends, and the Utilities Commission concluded, that the facts of this case fall squarely within the quoted statute. The question presented can be stated as follows: May an electric supplier, upon a request of a consumer, provide electric service to such consumer on premises initially requiring electrice service after 20 April 1965, if such premises are located outside of a municipality, are not located wholly within 300 feet of the lines of any electric supplier, are not located partially within 300 feet of the lines of two or more electric suppliers, and are not located wholly or partially within an area assigned to an electric supplier pursuant to subsection (c) of G.S. § 62-110.2? We answer the question in the affirmative. Determination of this appeal necessitates a consideration of Chapter 287 of the 1965 Session Laws codified as G.S. § 62-110.1, et seq. Clearly, one of the purposes of Chapter 287 is to vest the Utilities Commission with authority and responsibility to assign territory to electric suppliers; this purpose is set forth in G.S. § 62-110.2(c) (1) as follows: "(c) (1) In order to avoid unnecessary duplication of electric facilities, the Commission is authorized and directed to assign, as soon as practicable after January 1, 1966, to electric suppliers all areas, by adequately defined boundaries, that are outside the corporate limits of municipalities and that are more than 300 feet from the lines of all electric suppliers as such lines exist on the dates of the assignments; provided, that the Commission may leave unassigned any area in which *892 the Commission, in its discretion, determines that the existing lines of two or more electric suppliers are in such close proximity that no substantial avoidance of duplication of facilities would be accomplished by assignment of such area. The Commission shall make assignments of areas in accordance with public convenience and necessity, considering, among other things, the location of existing lines and facilities of electric suppliers and the adequacy and dependability of the service of electric suppliers, but not considering rate differentials among electric suppliers." It is equally clear that another purpose of Chapter 287 of the 1965 Session Laws, and particularly the section codified as G.S. § 62-110.2(b), is to declare certain rights of electric suppliers in areas outside of municipalities pending the assignment of territory. Thus, in the action before us, we must consider certain rights given an electric supplier and a consumer by the General Assembly. Appellant contends that a determination of this appeal does not rest entirely upon the consideration of the provisions of G.S. § 62-110.2 but also upon certain other provisions of Chapter 62 of the General Statutes, particularly G.S. §§ 62-2, 62-30, 62-31, 62-32, 62-42, and 62-73. Appellant contends that G.S. § 62-110.2 must be considered and construed in pari materia with said other sections of Chapter 62. Our Supreme Court has spoken many times on the question of interpretation of statutes. "Where there are two provisions in a statute, one of which is special or particular and the other general, which, if standing alone, would conflict with the particular provision, the special will be taken as intended to constitute an exception to the general provision, as the General Assembly is not to be presumed to have intended a conflict." Davis v. N. C. Granite Corporation, 259 N.C. 672, 131 S.E.2d 335; 7 Strong, N.C. Index 2d, Statutes, § 5, p. 73. It is also a rule of statutory construction that "[w]here one statute deals with the subject matter in detail with reference to a particular situation and another statute deals with the same subject matter in general and comprehensive terms, the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto, especially when the particular statute is later enacted." 7 Strong, N.C. Index 2d, Statutes, § 5, p. 73. In Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E.2d 505, Barnhill, J. (later C. J.), said: "If the words of the law are clear and precise, and the true meaning evident on the face of the enactment, there is no room for construction." In State Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22, our Supreme Court through Branch, J., declared: "`When the language of a statute is plain and free from ambiguity, expressing a single, definite, and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended, and the statute must be interpreted accordingly.' State ex rel. Long v. Smitherman, 251 N.C. 682, 111 S.E.2d 834." G.S. 62-110.2(b) (5) deals with the specific factual situation presented by this appeal. The other sections of Chapter 62 referred to by Union deal with general powers and responsibilities of the Utilities Commission. In Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., 255 N.C. 258, 120 S.E.2d 749, our Supreme Court, in an opinion written by Bobbitt, J., declared: "In Carolina Power & Light Co. v. Johnston County Electric Membership Corp., 211 N.C. 717, 192 S.E. 105, decided in 1937, this Court held that an electric membership corporation and a public utility corporation were free to compete in rural areas. Unless restricted by the provisions *893 of Article 8 of their contract of January 5, 1956, plaintiff and defendant may continue to do so." Finding of fact No. 16 of the Utilities Commission order, which was not excepted to by Union, states: "16. Prior to March 12, 1965, complainant and defendant had a contract between them which provided, inter alia, `nor shall either party, unless ordered to do so by a properly constituted authority, duplicate the other's facilities.' On March 12, 1965, counsel for all of the electric membership corporations in the State and all electric public utilities entered into an agreement that their territorial relationships would be governed by G.S. 62-110.2 rather than by the provisions of any contracts as herein referred to." Inasmuch as the contract existing between Union and Duke prior to 12 March 1965 was terminated and they, along with other electric membership corporations and electric public utilities in North Carolina, agreed that their territorial relationships would be governed by G.S. § 62-110.2, the "free[dom] to compete in rural areas" declared in Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., Supra, would be applicable unless forbidden by some provision of G.S. § 62-110.2. Subsection (b) (5) of G.S. § 62-110.2 is clear and precise in declaring the rights of an electric supplier in the factual situation presented by this appeal. As stated in the Commission order, to accept the argument of Union, the Commission or the court would, in effect, amend G.S. § 62-110.2(b) (5) by adding a clause providing "unless the Utilities Commission shall find that the consumer's choice creates unreasonable duplication of facilities." We cannot accept this argument. In North Carolina Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643, a case dealing with statutory construction, Parker, J. (now C. J.), speaking for our Supreme Court, said: "* * * The General Assembly having thus formally and clearly expressed its will, the Court is without power to interpolate or superimpose conditions and limitations which the statutory exception does not of itself contain. * * *" Union insists that it is the duty and responsibility of the Utilities Commission to assert itself in the case at bar and similar instances in order to prevent the unnecessary, extravagant and wasteful duplication of electric facilities. We do not hold that the Utilities Commission lacks authority, in a proper proceeding, to prohibit the construction by an electric power utility of a proposed extension or expansion of its facilities, if the Commission should determine on competent evidence that such construction would be an unnecessary and wasteful investment of the utility's funds. Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., Supra. We do hold that on the facts presented in the case before us, and in the face of the provisions of G.S. § 62-110.2(b) (5), the Commission was justified in not taking such action in this case. The Commission found as a fact, and Union made no exception to the finding, that the construction in this case was at a cost of $2,335.00; that the cost to Union would have been $1,485.00; that "it would be profitable for either Duke or Union to provide service in the entire subdivision, particularly to the 29 homes which are to be all electric." The first paragraph of "Conclusions" in the Utilities Commission order reads as follows: "The facts found above would seem to present in the present case the following issue for decision by the Commission: `Does a consumer, residing outside the boundary of a municipality and in an area not yet assigned to any electric supplier under G.S. 62-110.2(c), have the right to select and obtain electricity from the *894 electric supplier of his choice when the structure to be served is not wholly within 300 feet of an existing line of any electric supplier?'" Union excepted to, and assigns as error, this conclusion. We hold that the quoted conclusion is subject to the right of the electric supplier chosen to deny the service unless required by the Utilities Commission. Union's exception No. 6 relates to the following conclusion of the Commission: "We feel that under the language of G.S. 62-110.2(b) (5), it is abundantly clear that the Legislature intended that, pending assignment of a rural area to any one electric supplier, a consumer requiring initial service to premises not within 300 feet of any existing supplier's lines has the unrestricted choice of suppliers and the chosen supplier has the unrestricted right to serve such consumer. Furthermore, as specifically stated in the final clause of the statute, `any electric supplier not so chosen by the consumer shall not thereafter furnish service to such premises.'" We hold that the "unrestricted choice of suppliers" on the part of the consumer is subject to the willingness of the chosen supplier to serve unless compelled by the Utilities Commission. Except for the modification above-mentioned, we hold that the final order of the Utilities Commission was without error and the assignments of error brought forward by appellant are overruled. The Utilities Commission will modify its order in accordance with this opinion. Modified and Affirmed. FRANK M. PARKER, J., concurs. BROCK, J., dissents. BROCK, Judge (dissenting). I cannot agree with the majority opinion that by the enactment of G.S. § 62-110.2(b) (5) the legislature intended to divest the Utilities Commission of power to inquire into the question of duplication of facilities which might be caused by a consumer's choice of an electric supplier where the conditions of the statute are otherwise met. And it seems to me that the majority opinion has conceded a right to the exercise of discretion under the statute by the supplier and the Utilities Commission with its statement as follows: "We hold that the `unrestricted choice of suppliers' on the part of the consumer is subject to the willingness of the chosen supplier to serve unless compelled by the Utilities Commission." (Emphasis added.) Nevertheless the majority opinion affirms the dismissal of this proceeding by the Utilities Commission upon the grounds that G.S. § 62-110.2(b) (5) deprives it of power to make and enforce a determination of whether the extension of Duke's lines in this case is reasonable, or whether it constitutes an unreasonable and wasteful duplication of facilities as alleged by Union Electric. In my opinion the statute in question does not divest the Utilities Commission of the power and the duty to make and enforce a determination from the facts of the case whether the choice of supplier made by a consumer, otherwise qualified to make a choice under this statute, would cause an unwarranted duplication of facilities. It may be that the extension of its lines by Duke in this case is proper under the criteria permitting duplication, but the Utilities Commission should be required to make an appropriate determination. I vote to remand for appropriate findings and conclusions. | 10-30-2013 | [
"164 S.E.2d 889 (1968) 3 N.C. App. 309 STATE of North Carolina ex rel. UTILITIES COMMISSION, and Duke Power Company v. UNION ELECTRIC MEMBERSHIP CORPORATION. No. 6810UC395. Court of Appeals of North Carolina. December 31, 1968. *891 Edward B. Hipp and Larry G. Ford, Raleigh, for North Carolina Utilities Commission. William I. Ward, Jr., and George W. Ferguson, Jr., Charlotte, for plaintiff appellee, Duke Power Co. Crisp, Twiggs & Wells, by William T. Crisp and Hugh A. Wells, Raleigh, and Clark & Huffman, by Richard S. Clark, Monroe, for defendant appellant, Union Electric Membership Corp. BRITT, Judge. The majority order adopted by the Utilities Commission was based upon the premise that the provisions of G.S. 62-110.2(b) (5) are applicable to the factual situation covered by this case. Said section reads as follows: \"(b) In areas outside of municipalities, electric suppliers shall have rights and be subject to restrictions as follows: * * * * * * (5) Any premises initially requiring electric service after April 20, 1965 which are not located wholly within 300 feet of the lines of any electric supplier and are not located partially within 300 feet of the lines of two or more electric suppliers may be served by any electric supplier which the consumer chooses, unless such premises are located wholly or partially within an area assigned to an electric supplier pursuant to subsection (c) hereof, and any electric supplier not so chosen by the consumer shall not thereafter furnish service to such premises.\"",
"Duke contends, and the Utilities Commission concluded, that the facts of this case fall squarely within the quoted statute. The question presented can be stated as follows: May an electric supplier, upon a request of a consumer, provide electric service to such consumer on premises initially requiring electrice service after 20 April 1965, if such premises are located outside of a municipality, are not located wholly within 300 feet of the lines of any electric supplier, are not located partially within 300 feet of the lines of two or more electric suppliers, and are not located wholly or partially within an area assigned to an electric supplier pursuant to subsection (c) of G.S. § 62-110.2? We answer the question in the affirmative. Determination of this appeal necessitates a consideration of Chapter 287 of the 1965 Session Laws codified as G.S. § 62-110.1, et seq.",
"Clearly, one of the purposes of Chapter 287 is to vest the Utilities Commission with authority and responsibility to assign territory to electric suppliers; this purpose is set forth in G.S. § 62-110.2(c) (1) as follows: \"(c) (1) In order to avoid unnecessary duplication of electric facilities, the Commission is authorized and directed to assign, as soon as practicable after January 1, 1966, to electric suppliers all areas, by adequately defined boundaries, that are outside the corporate limits of municipalities and that are more than 300 feet from the lines of all electric suppliers as such lines exist on the dates of the assignments; provided, that the Commission may leave unassigned any area in which *892 the Commission, in its discretion, determines that the existing lines of two or more electric suppliers are in such close proximity that no substantial avoidance of duplication of facilities would be accomplished by assignment of such area. The Commission shall make assignments of areas in accordance with public convenience and necessity, considering, among other things, the location of existing lines and facilities of electric suppliers and the adequacy and dependability of the service of electric suppliers, but not considering rate differentials among electric suppliers.\" It is equally clear that another purpose of Chapter 287 of the 1965 Session Laws, and particularly the section codified as G.S.",
"§ 62-110.2(b), is to declare certain rights of electric suppliers in areas outside of municipalities pending the assignment of territory. Thus, in the action before us, we must consider certain rights given an electric supplier and a consumer by the General Assembly. Appellant contends that a determination of this appeal does not rest entirely upon the consideration of the provisions of G.S. § 62-110.2 but also upon certain other provisions of Chapter 62 of the General Statutes, particularly G.S. §§ 62-2, 62-30, 62-31, 62-32, 62-42, and 62-73. Appellant contends that G.S. § 62-110.2 must be considered and construed in pari materia with said other sections of Chapter 62. Our Supreme Court has spoken many times on the question of interpretation of statutes. \"Where there are two provisions in a statute, one of which is special or particular and the other general, which, if standing alone, would conflict with the particular provision, the special will be taken as intended to constitute an exception to the general provision, as the General Assembly is not to be presumed to have intended a conflict.\"",
"Davis v. N. C. Granite Corporation, 259 N.C. 672, 131 S.E.2d 335; 7 Strong, N.C. Index 2d, Statutes, § 5, p. 73. It is also a rule of statutory construction that \"[w]here one statute deals with the subject matter in detail with reference to a particular situation and another statute deals with the same subject matter in general and comprehensive terms, the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto, especially when the particular statute is later enacted.\" 7 Strong, N.C. Index 2d, Statutes, § 5, p. 73. In Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E.2d 505, Barnhill, J. (later C. J.",
"), said: \"If the words of the law are clear and precise, and the true meaning evident on the face of the enactment, there is no room for construction.\" In State Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22, our Supreme Court through Branch, J., declared: \"`When the language of a statute is plain and free from ambiguity, expressing a single, definite, and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended, and the statute must be interpreted accordingly.'",
"State ex rel. Long v. Smitherman, 251 N.C. 682, 111 S.E.2d 834.\" G.S. 62-110.2(b) (5) deals with the specific factual situation presented by this appeal. The other sections of Chapter 62 referred to by Union deal with general powers and responsibilities of the Utilities Commission. In Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., 255 N.C. 258, 120 S.E.2d 749, our Supreme Court, in an opinion written by Bobbitt, J., declared: \"In Carolina Power & Light Co. v. Johnston County Electric Membership Corp., 211 N.C. 717, 192 S.E. 105, decided in 1937, this Court held that an electric membership corporation and a public utility corporation were free to compete in rural areas.",
"Unless restricted by the provisions *893 of Article 8 of their contract of January 5, 1956, plaintiff and defendant may continue to do so.\" Finding of fact No. 16 of the Utilities Commission order, which was not excepted to by Union, states: \"16. Prior to March 12, 1965, complainant and defendant had a contract between them which provided, inter alia, `nor shall either party, unless ordered to do so by a properly constituted authority, duplicate the other's facilities.' On March 12, 1965, counsel for all of the electric membership corporations in the State and all electric public utilities entered into an agreement that their territorial relationships would be governed by G.S. 62-110.2 rather than by the provisions of any contracts as herein referred to.\" Inasmuch as the contract existing between Union and Duke prior to 12 March 1965 was terminated and they, along with other electric membership corporations and electric public utilities in North Carolina, agreed that their territorial relationships would be governed by G.S.",
"§ 62-110.2, the \"free[dom] to compete in rural areas\" declared in Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., Supra, would be applicable unless forbidden by some provision of G.S. § 62-110.2. Subsection (b) (5) of G.S. § 62-110.2 is clear and precise in declaring the rights of an electric supplier in the factual situation presented by this appeal. As stated in the Commission order, to accept the argument of Union, the Commission or the court would, in effect, amend G.S. § 62-110.2(b) (5) by adding a clause providing \"unless the Utilities Commission shall find that the consumer's choice creates unreasonable duplication of facilities.\" We cannot accept this argument. In North Carolina Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643, a case dealing with statutory construction, Parker, J. (now C. J. ), speaking for our Supreme Court, said: \"* * * The General Assembly having thus formally and clearly expressed its will, the Court is without power to interpolate or superimpose conditions and limitations which the statutory exception does not of itself contain. * * *\" Union insists that it is the duty and responsibility of the Utilities Commission to assert itself in the case at bar and similar instances in order to prevent the unnecessary, extravagant and wasteful duplication of electric facilities. We do not hold that the Utilities Commission lacks authority, in a proper proceeding, to prohibit the construction by an electric power utility of a proposed extension or expansion of its facilities, if the Commission should determine on competent evidence that such construction would be an unnecessary and wasteful investment of the utility's funds.",
"Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., Supra. We do hold that on the facts presented in the case before us, and in the face of the provisions of G.S. § 62-110.2(b) (5), the Commission was justified in not taking such action in this case. The Commission found as a fact, and Union made no exception to the finding, that the construction in this case was at a cost of $2,335.00; that the cost to Union would have been $1,485.00; that \"it would be profitable for either Duke or Union to provide service in the entire subdivision, particularly to the 29 homes which are to be all electric.\"",
"The first paragraph of \"Conclusions\" in the Utilities Commission order reads as follows: \"The facts found above would seem to present in the present case the following issue for decision by the Commission: `Does a consumer, residing outside the boundary of a municipality and in an area not yet assigned to any electric supplier under G.S. 62-110.2(c), have the right to select and obtain electricity from the *894 electric supplier of his choice when the structure to be served is not wholly within 300 feet of an existing line of any electric supplier?'\" Union excepted to, and assigns as error, this conclusion. We hold that the quoted conclusion is subject to the right of the electric supplier chosen to deny the service unless required by the Utilities Commission.",
"Union's exception No. 6 relates to the following conclusion of the Commission: \"We feel that under the language of G.S. 62-110.2(b) (5), it is abundantly clear that the Legislature intended that, pending assignment of a rural area to any one electric supplier, a consumer requiring initial service to premises not within 300 feet of any existing supplier's lines has the unrestricted choice of suppliers and the chosen supplier has the unrestricted right to serve such consumer. Furthermore, as specifically stated in the final clause of the statute, `any electric supplier not so chosen by the consumer shall not thereafter furnish service to such premises.'\" We hold that the \"unrestricted choice of suppliers\" on the part of the consumer is subject to the willingness of the chosen supplier to serve unless compelled by the Utilities Commission. Except for the modification above-mentioned, we hold that the final order of the Utilities Commission was without error and the assignments of error brought forward by appellant are overruled. The Utilities Commission will modify its order in accordance with this opinion.",
"Modified and Affirmed. FRANK M. PARKER, J., concurs. BROCK, J., dissents. BROCK, Judge (dissenting). I cannot agree with the majority opinion that by the enactment of G.S. § 62-110.2(b) (5) the legislature intended to divest the Utilities Commission of power to inquire into the question of duplication of facilities which might be caused by a consumer's choice of an electric supplier where the conditions of the statute are otherwise met. And it seems to me that the majority opinion has conceded a right to the exercise of discretion under the statute by the supplier and the Utilities Commission with its statement as follows: \"We hold that the `unrestricted choice of suppliers' on the part of the consumer is subject to the willingness of the chosen supplier to serve unless compelled by the Utilities Commission.\" (Emphasis added.) Nevertheless the majority opinion affirms the dismissal of this proceeding by the Utilities Commission upon the grounds that G.S. § 62-110.2(b) (5) deprives it of power to make and enforce a determination of whether the extension of Duke's lines in this case is reasonable, or whether it constitutes an unreasonable and wasteful duplication of facilities as alleged by Union Electric.",
"In my opinion the statute in question does not divest the Utilities Commission of the power and the duty to make and enforce a determination from the facts of the case whether the choice of supplier made by a consumer, otherwise qualified to make a choice under this statute, would cause an unwarranted duplication of facilities. It may be that the extension of its lines by Duke in this case is proper under the criteria permitting duplication, but the Utilities Commission should be required to make an appropriate determination.",
"I vote to remand for appropriate findings and conclusions."
]
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255 Pa. Superior Ct. 166 (1978) 386 A.2d 560 COMMONWEALTH of Pennsylvania v. Richard W. RINIER, Jr., Appellant. Superior Court of Pennsylvania. Submitted December 14, 1977. Decided April 28, 1978. *168 Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant. D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. HOFFMAN, Judge: Appellant contends that the record does not demonstrate that he voluntarily and knowingly withdrew his post-verdict motions. As a remedy, appellant requests that we permit him to file post-verdict motions nunc pro tunc. Instead, we remand for an evidentiary hearing to determine whether appellant voluntarily and knowingly withdrew his post-verdict motions. *169 On July 21, 1976, a Lancaster County Court of Common Pleas jury adjudged appellant guilty of rape[1] and theft by unlawful taking.[2] After the jury returned its guilty verdicts, the lower court advised appellant that "you have the right to file a verbal motion for a new trial, which must be put in writing within seven days. Having been so advised, you will govern yourself accordingly." Appellant's trial counsel, Assistant Public Defender Howard Mummau, responded by asking leave of the court to file written motions within seven days; the court granted this request. On July 28, 1976, appellant's counsel filed timely motions requesting either an arrest of judgment or a new trial.[3] These motions alleged that the Commonwealth failed to produce sufficient evidence to sustain the guilty verdicts and that the verdicts were contrary to the evidence, the weight of the evidence, and the law. The motions also provided that appellant reserved the right to file supplemental reasons for a new trial upon transcription of the notes of testimony. Appellant's counsel attached an affidavit in which he affirmed that "the within Motions are not made for the purpose of delay, but because it is believed that an injustice has been suffered. Further, Richard W. Rinier, defendant, requested that said Motions be made." On November 3, 1976, another Assistant Public Defender, Edward F. Browne, Jr.,[4] acting on appellant's behalf, filed supplemental motions for a new trial. These motions alleged that the lower court erred in (1) granting the Commonwealth's Rule 1100(c) petition, (2) permitting appellant's wife to testify, and (3) denying appellant's trial motion for appointment of new counsel. A final motion asserted that *170 after-discovered evidence necessitated a new trial. On November 5, 1976, Attorney Browne filed an application for an evidentiary hearing on appellant's contention that after-discovered exculpatory evidence made a new trial imperative; the Commonwealth consented to this request. On December 7, 1976, the lower court granted this application and scheduled a hearing for January 4, 1977. At the conclusion of this hearing, the court reserved its decision on appellant's contention. On January 24, 1977, appellant filed a handwritten petition which requested the appointment of new counsel. Appellant asserted that continued representation by Attorney Browne would constitute a conflict of interest because appellant wished to raise the ineffective assistance of his trial counsel, a member of the same Public Defender office as Browne. Appellant's petition enumerated several alleged instances of ineffective representation; one allegation accused trial counsel of failure to communicate with appellant after trial and refusal to file certain post-verdict motions on appellant's behalf. On January 28, 1977, Browne filed a petition which cited a possible conflict of interest and therefore requested that the court permit him to withdraw from further representation of appellant. On the same day, the lower court appointed Penn B. Glazier, a private attorney, to represent appellant. On February 25, 1977, appellant's new attorney filed an application for an evidentiary hearing on appellant's contention that his trial counsel rendered ineffective assistance. The Commonwealth's answer acquiesced in appellant's request because ". . . the issue of whether Defendant was afforded effective assistance of counsel at trial is inextricably tied to the validity of the other issues which Defendant has raised in post-trial motions." Therefore, the Commonwealth desired that the hearing should be held prior to the disposition of appellant's post-verdict motions. On March 4, 1977, the lower court granted appellant's application and scheduled a hearing for April 14, 1977. *171 On April 13, 1977, appellant filed a petition for leave to withdraw his outstanding post-verdict motions. The petition provided: "The Defendant, Richard W. Rinier, Jr., having been fully advised of his rights by counsel, Penn B. Glazier, Esquire, does hereby petition your Honorable Court for leave to withdraw the Post Verdict Motions heretofore filed by him." Both appellant and his attorney, Penn Glazier, signed the petition. On the same day, the lower court granted the petition without conducting a hearing or examining appellant on his decision. On June 3, 1977, the lower court sentenced appellant to a term of imprisonment of not less than time served nor more than 3½ years on the theft conviction and to a concurrent term of 3 years probation on the rape conviction. This appeal followed; Public Defender Edward F. Browne, Jr. has submitted a brief on appellant's behalf. Appellant contends that because he did not knowingly and voluntarily withdraw his post-verdict motions, he should be allowed to file post-verdict motions nunc pro tunc.[5] Our courts have repeatedly held that a defendant's failure to raise specific issues in post-verdict motions[6] constitutes a *172 forfeiture of his right to have these issues considered on direct appeal. See, e.g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Blair, 460 Pa. 31, 33, n. 1, 331 A.2d 213, 214, n. 1 (1975). However, equally well-established is the proposition that in order for a waiver to be effective, ". . . the record must affirmatively demonstrate that the appellant was aware of his right to file posttrial motions and that he knowingly and intelligently decided not to do so." Commonwealth v. Schroth, 458 Pa. 233, 235, 328 A.2d 168, 169 (1974). See also Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977); Commonwealth v. Brown, 248 Pa.Super. 289, 375 A.2d 102 (1977). A review of Pennsylvania case law indicates that our appellate courts have adopted two different remedies when the record on direct appeal does not affirmatively demonstrate that an appellant has been fully informed of the rights and obligations attendant to post-verdict motions: (1) a remand for an evidentiary hearing to determine whether appellant voluntarily and knowingly waived his post-verdict motion rights, or (2) a remand to allow appellant to file post-verdict motions. We will review each line of cases in some detail in an attempt to reconcile this ostensible conflict in the case law. *173 Commonwealth v. Schroth, supra, provides the prototypical example of when an appellate court should order an evidentiary hearing to determine whether an appellant knowingly and voluntarily waived his right to file post-verdict motions. In Schroth, the defendant, convicted of first degree murder, did not file post-verdict motions; instead he directly appealed to the Supreme Court and raised several allegations of error for review. The Supreme Court reviewed the record and determined that the lower court had failed to advise Schroth that only issues raised in post-verdict motions could be raised on appeal. Without this warning, Schroth could have reasonably concluded that ". . . his failure to file post trial motions would not prejudice his rights on appeal, but would only operate to deny him the right to have the trial court consider the errors he alleged." Supra, 458 Pa. at 235, 328 A.2d at 169. Because of the record's ambiguity, the Court remanded for an evidentiary hearing to determine whether Schroth had made a knowing and voluntary decision not to file post-verdict motions. In Commonwealth v. Ash, 461 Pa. 670, 337 A.2d 821 (1975) (hereinafter Ash I), our Supreme Court confronted a situation almost identical to that posed in Schroth. Despite a complete failure to file post-verdict motions with the trial court, appellant raised numerous issues on direct appeal. The record did not reveal whether appellant had been informed of his right to file post-verdict motions and of the consequential effects on his right to appeal of a failure to file such motions. The Supreme Court remanded for the type of evidentiary hearing contemplated in Schroth. What distinguishes Ash from Schroth is that after the lower court conducted the evidentiary hearing and concluded that Ash had knowingly and voluntarily waived his right to file post-verdict motions, Ash filed another appeal with our Supreme Court. See Commonwealth v. Ash, 466 Pa. 471, 353 A.2d 450 (1975) (hereinafter Ash II). The Supreme Court found that the record developed at the evidentiary hearing did not support the hearing court's finding of a knowing and voluntary waiver; neither the trial court nor *174 Ash's trial counsel informed Ash of the drastic repercussions that a failure to file post-verdict motions would have on his right to appeal. Consequently, the Court remanded the case to the lower court with instructions to permit Ash to file post-verdict motions nunc pro tunc. Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975) (hereinafter Tate I), tracks the line of analysis employed in Schroth and Ash I. In Tate I, appellant, convicted of murder in the second degree, failed to file any post-verdict motions. On direct appeal, he raised specific issues for the Supreme Court's consideration. The Court perused the record and found no indication that appellant had voluntarily and knowingly waived his right to file post-verdict motions. Refusing to infer a waiver of precious appellate rights from a silent record, the Court remanded for a determination of whether appellant made a valid surrender of his post-verdict motion rights. The lower court held the required hearing and ruled that Tate had made such a waiver. Tate appealed and, in its most recent pronouncement on the standards governing a waiver of post-verdict motion rights, the Supreme Court reversed. See Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977) (hereinafter Tate II). The Court stated: "In order for a waiver to be effective in this context, the accused must be advised that a failure to raise an issue in post-verdict motions precludes raising that issue on appeal. Pa.R.Crim.P. 1123(c)(3)." Supra, 473 Pa. at 480, 375 A.2d at 342. The record disclosed that the trial court had abdicated its obligation to warn appellant pursuant to Rule 1123(c)(3). Moreover, the transcript of the evidentiary hearing on remand showed only that Tate's counsel had "discussed" post-verdict motions with his client; the transcript did not reflect the content of this discussion and hence gave no guarantee that counsel's advice had effectively remedied the trial court's disregard of its duty under Rule 1123(c). Because the Supreme Court could not determine, even after an evidentiary hearing, whether counsel specifically informed Tate of all pertinent ramifications of failing to file post-verdict motions, the Court remanded the case with *175 directions to permit Tate to file post-verdict motions nunc pro tunc. The lessons of Schroth, Ash I and II, and Tate I and II may be succinctly stated: if a trial court fails to advise a defendant on the record of the consequences of failing to file post-verdict motions and if the defendant takes a direct appeal without filing any post-verdict motions, the appellate court should remand for an evidentiary hearing on whether the defendant knowingly and voluntarily waived his right to file post-verdict motions. See Schroth; Ash I; Tate I. At this hearing, defendant's trial counsel may testify that he fully warned his client that failure to file specific post-verdict motions would work a forfeiture of any issues raised on direct appeal, and that his client nevertheless freely decided to forego post-verdict motions. Such testimony, if believed, would effectively cure the trial court's failure to observe the mandates of Rule 1123(c) and would adequately support a finding that the defendant knowingly and voluntarily waived his right to preserve issues for appellate review.[7] See Ash II; Tate II. However, if, despite an evidentiary hearing, the record still shows that neither counsel nor trial court specifically informed the defendant of the warnings required by Rule 1123(c), then the defendant must be afforded an opportunity to file post-verdict motions nunc pro tunc. See Ash II; Tate II. See also Commonwealth v. Williams, 241 Pa.Super. 226, 360 A.2d 735 (1976); Commonwealth v. Swain, 237 Pa.Super. 322, 354 A.2d 256 (1975); Commonwealth v. Wardell, 232 Pa.Super. 468, 334 A.2d 746 (1975). Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975), illustrates the line of cases which affords a different remedy to a defendant when the record on direct appeal fails to indicate affirmatively that he knowingly and voluntarily *176 waived his right to file post-verdict motions pursuant to Rule 1123. Williams and related cases sanction, in certain circumstances, a remand for the automatic filing of post-verdict motions nunc pro tunc rather than for an evidentiary hearing. In Williams, the defendant pleaded guilty to aggravated robbery and a general charge of murder; at a degree of guilt hearing, he was found guilty of murder in the first degree. Post-verdict motions were made orally but later withdrawn at the defendant's request. On appeal, Williams raised several issues not considered by the lower court. The Supreme Court reviewed the record and discovered that the trial court had instructed Williams that he could file an appeal even if he withdrew his post-verdict motions. This affirmative misrepresentation precluded a finding that Williams had a full appreciation of the consequences of withdrawing his post-verdict motions. Accordingly, the Supreme Court remanded the case to the trial court for the filing of post-verdict motions. Commonwealth v. Doman, 237 Pa.Super. 415, 352 A.2d 157 (1975), is analagous in reason and result to Williams. In Doman, the defendant, through his counsel, filed post-verdict motions. However, at the sentencing hearing, Doman's counsel suggested that his client would withdraw his postverdict motions if the court would give Doman a sentence concurrent to the one he was then serving on an unrelated conviction. The court accepted this bargain without conducting any examination of Doman's understanding of the consequences of withdrawing his post-verdict motions or even securing Doman's personal consent to the arrangement. On appeal, Doman raised a challenge to the sufficiency of the evidence to sustain his larceny conviction. Because Doman had withdrawn his post-verdict motion raising this issue, we refused to treat it on the merits. However, because the record did not demonstrate that the lower court informed Doman at the sentencing hearing of the consequences of withdrawing his post-verdict motions, we remanded *177 to allow Doman another opportunity to file postverdict motions.[8] Commonwealth v. Brown, 248 Pa.Super. 289, 375 A.2d 102 (1977), presents a very recent example of when a court on direct appeal should remand for the automatic filing of post-verdict motions nunc pro tunc instead of an evidentiary hearing. In Brown, the defendant's counsel failed to file any specific post-verdict motions; he merely filed the boilerplate contentions condemned by our Supreme Court in Commonwealth v. Blair, supra. However, our review of the record revealed the lower court's failure to inform Brown of the necessity of filing specific motions in order to preserve his claims for appellate review. Rule 1123(c)(3). Because the record evidenced that appellant had not been apprised of the requirements of Rule 1123(c), we remanded the case for the filing of post-verdict motions nunc pro tunc.[9] *178 At first blush, the remedy invoked in Schroth, Ash I and Tate I appears inconsistent with that endorsed in Williams, Doman, and Brown. Upon closer inspection, however, these cases can be easily harmonized. In the former trilogy of cases, an evidentiary hearing was appropriate, despite the trial court's failure to warn the defendant on the record of the consequences of failing to file post-verdict motions, because the advice of counsel may have served as an effective substitute for the trial court's omission. If counsel thoroughly warned the defendant of all pertinent consequences, a finding of a voluntary and knowing waiver of post-verdict motion rights could be sustained. By contrast, in Williams, Doman, and Brown, it is readily apparent that *179 any advice given by counsel outside the record could not effectively replace the trial court's neglect to give the mandatory Rule 1123(c) admonitions. In Williams, the trial court instructed the defendant that he could appeal even if he withdrew his post-verdict motions. Regardless of any advice his counsel may have proffered, this affirmatively misleading representation on the part of the trial court, as opposed to mere neglect to warn a defendant pursuant to Rule 1123(c), precluded a finding of a knowing and voluntary waiver.[10] In Doman, a lower court allowed a defendant to withdraw his post-verdict motions in its presence without ascertaining in any way whether the defendant fully understood the consequences of his actions. Even if counsel had elucidated the operation and significance of post-verdict motions to his client before the sentencing hearing, the court's failure to examine Doman on the consequences of his action at the very moment of his decision vitiated any finding of a knowing and voluntary waiver.[11] Finally, in *180 Brown, the trial court failed to advise the defendant that only those contentions specifically raised in post-verdict motions would be entertained on appeal; defendant's counsel then filed boilerplate written post-verdict motions and attempted to press more specific issues orally before the lower court and on appeal. Thus, counsel, acting on behalf of defendant, ran afoul of the very rule of specificity which the trial court had neglected to read. Under these circumstances, it was patently clear that the advice of counsel did not effectively substitute for the trial court's neglect to read Rule 1123(c) warnings: counsel's own actions demonstrated that he did not understand the operation of Rule 1123. A remand for an evidentiary hearing would have been a futile gesture. See also Commonwealth v. Walsh, 248 Pa.Super. 479, 375 A.2d 198 (1977).[12] Based upon our reading of Schroth, Ash I and II, and Tate I and II on the one hand, and Williams, Doman, and Brown on the other, we now articulate the following guidelines for determining when an appellate court, confronted with a record that does not affirmatively demonstrate a knowing and voluntary waiver of post-verdict motions rights, should remand for an evidentiary hearing and when it should remand for the filing of post-verdict motions nunc pro tunc. If the record demonstrates that the trial court failed to warn the defendant of the consequences of failing to file post-verdict motions, but does not rule out the possibility that trial counsel's advice served as an effective replacement, then the appellate court should remand for an evidentiary hearing to determine whether the defendant knowingly and voluntarily decided not to pursue his postverdict motions. If the record demonstrates that the trial *181 court failed to give complete Rule 1123(c) admonitions and that counsel's advice did not or could not efficaciously substitute for this omission, then the appellate court should remand to allow the defendant to file post-verdict motions.[13] Applying these principles to the instant case, we believe that a remand for an evidentiary hearing pursuant to Schroth, Ash I and Tate I is in order. The trial court failed to comply with Rule 1123(c); in particular, the court failed to advise appellant that he had the right to "the assistance of counsel in the filing of [post-verdict] motions and on appeal of any issues raised therein," Rule 1123(c)(1), and that "only the grounds contained in [post-verdict] motions may be raised on appeal." Rule 1123(c)(3). However, the record does not preclude the possibility that one of appellant's three attorneys may have advised appellant of the significance of post-verdict motions and of the consequences which attach to a failure to file these motions. Indeed, it is evident that appellant discussed post-verdict motions with his various attorneys. For example, Appellant's trial counsel, Howard Mummau, filed an affidavit accompanying his client's original post-verdict motions; this affidavit stated that he filed the post-verdict motions at appellant's behest. In his January 24, 1977 petition requesting *182 the appointment of new counsel, appellant charged that his trial attorney had refused to file requested post-verdict motions. Finally, appellant's April 13, 1977 petition for leave to withdraw his post-verdict motions stipulated that his counsel, Penn B. Glazier, fully advised him of his rights; appellant signed this petition. Thus, the record betokens appellant's active participation in the post-verdict motion process. Nevertheless, the present state of the record does not permit a finding that appellant knowingly and voluntarily withdrew his post-verdict motions. While we know that counsel and appellant had discussions concerning post-verdict motions, the record does not disclose the content or extent of these discussions, and we cannot determine whether appellant received specific advice regarding the sweeping impact a withdrawal of his motions would have upon his right to appeal. Under these circumstances, we must remand for an evidentiary hearing pursuant to Schroth, Ash I, and Tate I. Therefore, we vacate the judgments of sentence and remand for a determination of whether appellant received proper warnings concerning the consequential effect of his action on his right to appeal and whether appellant acted voluntarily, knowingly, and intelligently in withdrawing his post-verdict motions. If the hearing court finds that appellant did not make a knowing, intelligent, and voluntary waiver, it should permit appellant an opportunity to file post-verdict motions nunc pro tunc. If the hearing court finds a valid waiver, it should reinstate the judgments of sentence. Following the hearing court's disposition, either side shall be entitled to file a new appeal. Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. JACOBS, President Judge, and PRICE, J., concur in the result. SPAETH, J., dissents and would remand for filing of post-verdict motions nunc pro tunc. Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978). WATKINS, former President Judge, did not participate in the consideration or decision of this case. NOTES [1] The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 3121. [2] The Crimes Code, supra; 18 Pa.C.S. § 3921. [3] Pa.R.Crim.P. 1123(a); 19 P.S. Appendix; requires that written post-verdict motions be filed within seven days after the finding of guilt. [4] The record does not reveal if or when Browne officially entered an appearance and replaced Mammau as appellant's attorney. [5] Appellant has expressly raised this issue for our consideration. At all stages of the following discussion, we will assume that a defendant has argued before our Court that he did not knowingly and voluntarily waive his right to file post-verdict motions. However, by making this assumption, we do not intimate any opinion as to whether our Court may or should engage in a sua sponte review of the validity of a waiver of post-verdict motion rights. [6] Pa.R.Crim.P. 1123 delineates the operation and significance of post-verdict motions. This rule provides, in pertinent part:
"(a) Within seven (7) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued. If the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony. "(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the seven (7)-day period on the record voluntarily and understandingly waive the filing of post-verdict motions. Prior to the acceptance of such waive the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions. "(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal." For recent clarification of the operation of Rule 1123, see Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977) (Majority Opinion by PRICE, J., and Concurring Opinion by HOFFMAN, J.) and Commonwealth v. Erhart, 248 Pa.Super. 481, 375 A.2d 342 (1977) (Concurring Opinions by HOFFMAN, PRICE and SPAETH, JJ.) [7] A defendant could conceivably argue that despite being advised of his post-verdict motion rights by either the trial court or his counsel, his decision not to pursue post-verdict motions was involuntary because of pressures not reflected in the record. We intimate no opinion as to the proper procedures for raising such a contention or as to the standards governing consideration of such a claim. [8] Williams and Doman both involved an appellant's withdrawal of already filed post-verdict motions. These cases make clear that, as with a failure to file any post-verdict motions, " . . . the withdrawal of post-verdict motions must have been made with a full knowledge and understanding of its consequential effect on the appellant's right to appeal." Williams, supra, 459 Pa. at 591, 330 A.2d at 855. [9] Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1977), confirms our analysis in Brown. See also Commonwealth v. Cathey, 248 Pa.Super. 363, 375 A.2d 139 (1977) (Dissenting Opinion by HOFFMAN, J.). In Cathey, the trial court failed to advise the defendant of the significance and operation of Rule 1123(c)(3). Defendant's counsel subsequently filed boilerplate post-verdict motions which raised only the sufficiency of the evidence. On appeal, defendant attempted to argue that introduction of certain evidence violated his constitutional right to be protected against unreasonable searches and seizures. Our Court determined that the lower court substantially complied with Rule 1123(c) and, therefore, that Cathey personally made a knowing and intelligent waiver of his post-verdict motion rights. In a per curiam opinion, the Supreme Court disagreed and remanded for the filing of supplemental post-verdict motions nunc pro tunc. Because the lower court failed to warn Cathey on the record that only those grounds raised in post-verdict motions could be pursued on appeal, the record did not affirmatively demonstrate that Cathey appreciated the consequences of failing to file specific post-verdict motions. The Supreme Court expressly endorsed our decision in Commonwealth v. Brown.
While Cathey secures Brown's position in our constellation of cases, it may implicitly bring into question the viability of our analytical scheme as a whole. The Supreme Court in its per curiam opinion did not cite or discuss any cases approving the remedy of an evidentiary hearing when a trial court fails to comply with Rule 1123(c). See, e.g., Schroth; Ash I and II; Tate I and II. Instead, the Court relied upon two cases, Commonwealth v. Miller, supra, and Commonwealth v. Brown, supra, consistent with our framework, and two cases, Commonwealth v. Simmons, 236 Pa.Super. 466, 344 A.2d 593 (1975) and Commonwealth v. Dimitris, 231 Pa.Super. 469, 331 A.2d 701 (1974), incompatible with our framework. See footnote 13, infra, for a more extended discussion of Simmons and Dimitris. Consequently, Cathey appears to be another example of the very problem besetting our appellate courts in this area of the law: citation and discussion of one line of precedent without unearthing, examining and reconciling the diametrically opposed line of cases. (In this regard, we note that Chief Justice EAGEN and Justice POMEROY dissented from the summary disposition in Cathey because they believed that procedural issue demanded fuller consideration.) We do not believe that the Supreme Court meant to overrule sub silentio an existing and recently confirmed line of precedent approving a remand for an evidentiary hearing in certain circumstances. See Tate I and II. Our opinion today attempts to delineate a principle for harmonizing two lines of appellate cases which have sanctioned divergent remedies when the record does not affirmatively demonstrate that an appellant waived his post-verdict motion rights. We urge the Supreme Court to undertake a similar comprehensive review of appellate case law in this area and to announce definitive principles for deciding cases such as the instant one. When the Supreme Court does undertake this review, we strongly suggest that the Court consider a bright line test capable of easy and time-saving judicial administration which would allow the filing of post-verdict motions nunc pro tunc in all cases in which the trial court failed to observe Rule 1123(c). [10] Compare Commonwealth v. Miller, 469 Pa. 370, 366 A.2d 220 (1976). As in Williams, the lower court in Miller affirmatively led the appellant to believe that a direct appeal could be taken to a higher court without the need for filing post-verdict motions. [11] Compare Rule 1123(b) (not in effect at the time of Doman's conviction). Prior to accepting a waiver of the right to file post-verdict motions within the seven day period after a finding of guilt, the trial court, pursuant to Rule 1123(b), must advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions. This warning insures that at the moment of a decision to waive post-verdict motions, the defendant fully understands the consequences of his waiver. Compare also Commonwealth v. Brooks, 250 Pa.Super. 333, 378 A.2d 963 (1977). In Brooks, appellant's counsel made oral post-verdict motions on the record at the conclusion of trial pursuant to Rule 1123(b). Neither the lower court nor counsel advised appellant on the record of the consequences this action would have on his right to raise other issues on appeal. Appellant did in fact attempt to raise different issues on appeal. Our Court remanded for the filing of post-verdict motions nunc pro tunc. Like Doman, Brooks illustrates a situation in which a court fails to insure the knowing and voluntary quality of a waiver made in its very presence. Doman and Brooks stand in contrast to a situation, such as in Tate, in which a waiver occurs outside the courtroom and without an opportunity for a court's instruction immediately before the decision to waive is made. [12] Compare Commonwealth v. Miller, 232 Pa.Super. 171, 335 A.2d 528 (1975). In Miller, the defendant refused the assistance of the Public Defender at trial. After the return of a guilty verdict, the trial court failed to inform Miller of the warnings required by Rule 1123(c). Miller attempted to appeal without filing any post-verdict motions, and our Court remanded to allow Miller the opportunity to file post-verdict motions nunc pro tunc. In Miller, as in Brown, we knew that counsel could not have given advice which effectively cured the trial court's failure to comply with Rule 1123(c): indeed Miller had no counsel to advise him. [13] Candor compels us to admit that our reconciliation of Pennsylvania cases does not encompass and explain all cases. For example, in Commonwealth v. Dimitris, 231 Pa.Super. 469, 331 A.2d 701 (1974), and Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976), our Court remanded for the filing of post-verdict motions nunc pro tunc because the trial court had not warned the defendant of the consequences of failing to file post-verdict motions. The record in both cases was silent as to whether counsel may have given advice to cure this omission. Commonwealth v. Simmons, 236 Pa.Super. 466, 344 A.2d 593 (1976) also appears to be an anomaly. In Simmons, the court did not explicitly inform the defendant that he could only press those issues on appeal which he presented in post-verdict motions. The court did, however, comply with all other aspects of Rule 1123(c). Our Court, on the authority of Dimitris, remanded for the filing of post-verdict motions nunc pro tunc. While the results reached in Dimitris, Steffish, and Simmons are of dubious precedential value in light of today's opinion, these cases still retain importance for their insistence on the significance of post-verdict motions and the necessity for proper advice as a prerequisite to finding a knowing and voluntary waiver of appellate rights. | 10-30-2013 | [
"255 Pa. Superior Ct. 166 (1978) 386 A.2d 560 COMMONWEALTH of Pennsylvania v. Richard W. RINIER, Jr., Appellant. Superior Court of Pennsylvania. Submitted December 14, 1977. Decided April 28, 1978. *168 Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant. D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. HOFFMAN, Judge: Appellant contends that the record does not demonstrate that he voluntarily and knowingly withdrew his post-verdict motions. As a remedy, appellant requests that we permit him to file post-verdict motions nunc pro tunc.",
"Instead, we remand for an evidentiary hearing to determine whether appellant voluntarily and knowingly withdrew his post-verdict motions. *169 On July 21, 1976, a Lancaster County Court of Common Pleas jury adjudged appellant guilty of rape[1] and theft by unlawful taking. [2] After the jury returned its guilty verdicts, the lower court advised appellant that \"you have the right to file a verbal motion for a new trial, which must be put in writing within seven days. Having been so advised, you will govern yourself accordingly.\" Appellant's trial counsel, Assistant Public Defender Howard Mummau, responded by asking leave of the court to file written motions within seven days; the court granted this request. On July 28, 1976, appellant's counsel filed timely motions requesting either an arrest of judgment or a new trial.",
"[3] These motions alleged that the Commonwealth failed to produce sufficient evidence to sustain the guilty verdicts and that the verdicts were contrary to the evidence, the weight of the evidence, and the law. The motions also provided that appellant reserved the right to file supplemental reasons for a new trial upon transcription of the notes of testimony. Appellant's counsel attached an affidavit in which he affirmed that \"the within Motions are not made for the purpose of delay, but because it is believed that an injustice has been suffered. Further, Richard W. Rinier, defendant, requested that said Motions be made.\" On November 3, 1976, another Assistant Public Defender, Edward F. Browne, Jr.,[4] acting on appellant's behalf, filed supplemental motions for a new trial.",
"These motions alleged that the lower court erred in (1) granting the Commonwealth's Rule 1100(c) petition, (2) permitting appellant's wife to testify, and (3) denying appellant's trial motion for appointment of new counsel. A final motion asserted that *170 after-discovered evidence necessitated a new trial. On November 5, 1976, Attorney Browne filed an application for an evidentiary hearing on appellant's contention that after-discovered exculpatory evidence made a new trial imperative; the Commonwealth consented to this request. On December 7, 1976, the lower court granted this application and scheduled a hearing for January 4, 1977. At the conclusion of this hearing, the court reserved its decision on appellant's contention. On January 24, 1977, appellant filed a handwritten petition which requested the appointment of new counsel.",
"Appellant asserted that continued representation by Attorney Browne would constitute a conflict of interest because appellant wished to raise the ineffective assistance of his trial counsel, a member of the same Public Defender office as Browne. Appellant's petition enumerated several alleged instances of ineffective representation; one allegation accused trial counsel of failure to communicate with appellant after trial and refusal to file certain post-verdict motions on appellant's behalf. On January 28, 1977, Browne filed a petition which cited a possible conflict of interest and therefore requested that the court permit him to withdraw from further representation of appellant. On the same day, the lower court appointed Penn B. Glazier, a private attorney, to represent appellant.",
"On February 25, 1977, appellant's new attorney filed an application for an evidentiary hearing on appellant's contention that his trial counsel rendered ineffective assistance. The Commonwealth's answer acquiesced in appellant's request because \". . . the issue of whether Defendant was afforded effective assistance of counsel at trial is inextricably tied to the validity of the other issues which Defendant has raised in post-trial motions.\" Therefore, the Commonwealth desired that the hearing should be held prior to the disposition of appellant's post-verdict motions.",
"On March 4, 1977, the lower court granted appellant's application and scheduled a hearing for April 14, 1977. *171 On April 13, 1977, appellant filed a petition for leave to withdraw his outstanding post-verdict motions. The petition provided: \"The Defendant, Richard W. Rinier, Jr., having been fully advised of his rights by counsel, Penn B. Glazier, Esquire, does hereby petition your Honorable Court for leave to withdraw the Post Verdict Motions heretofore filed by him.\" Both appellant and his attorney, Penn Glazier, signed the petition. On the same day, the lower court granted the petition without conducting a hearing or examining appellant on his decision.",
"On June 3, 1977, the lower court sentenced appellant to a term of imprisonment of not less than time served nor more than 3½ years on the theft conviction and to a concurrent term of 3 years probation on the rape conviction. This appeal followed; Public Defender Edward F. Browne, Jr. has submitted a brief on appellant's behalf. Appellant contends that because he did not knowingly and voluntarily withdraw his post-verdict motions, he should be allowed to file post-verdict motions nunc pro tunc. [5] Our courts have repeatedly held that a defendant's failure to raise specific issues in post-verdict motions[6] constitutes a *172 forfeiture of his right to have these issues considered on direct appeal. See, e.g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Blair, 460 Pa. 31, 33, n. 1, 331 A.2d 213, 214, n. 1 (1975).",
"However, equally well-established is the proposition that in order for a waiver to be effective, \". . . the record must affirmatively demonstrate that the appellant was aware of his right to file posttrial motions and that he knowingly and intelligently decided not to do so.\" Commonwealth v. Schroth, 458 Pa. 233, 235, 328 A.2d 168, 169 (1974). See also Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977); Commonwealth v. Brown, 248 Pa.Super. 289, 375 A.2d 102 (1977). A review of Pennsylvania case law indicates that our appellate courts have adopted two different remedies when the record on direct appeal does not affirmatively demonstrate that an appellant has been fully informed of the rights and obligations attendant to post-verdict motions: (1) a remand for an evidentiary hearing to determine whether appellant voluntarily and knowingly waived his post-verdict motion rights, or (2) a remand to allow appellant to file post-verdict motions. We will review each line of cases in some detail in an attempt to reconcile this ostensible conflict in the case law. *173 Commonwealth v. Schroth, supra, provides the prototypical example of when an appellate court should order an evidentiary hearing to determine whether an appellant knowingly and voluntarily waived his right to file post-verdict motions. In Schroth, the defendant, convicted of first degree murder, did not file post-verdict motions; instead he directly appealed to the Supreme Court and raised several allegations of error for review.",
"The Supreme Court reviewed the record and determined that the lower court had failed to advise Schroth that only issues raised in post-verdict motions could be raised on appeal. Without this warning, Schroth could have reasonably concluded that \". . . his failure to file post trial motions would not prejudice his rights on appeal, but would only operate to deny him the right to have the trial court consider the errors he alleged.\" Supra, 458 Pa. at 235, 328 A.2d at 169. Because of the record's ambiguity, the Court remanded for an evidentiary hearing to determine whether Schroth had made a knowing and voluntary decision not to file post-verdict motions.",
"In Commonwealth v. Ash, 461 Pa. 670, 337 A.2d 821 (1975) (hereinafter Ash I), our Supreme Court confronted a situation almost identical to that posed in Schroth. Despite a complete failure to file post-verdict motions with the trial court, appellant raised numerous issues on direct appeal. The record did not reveal whether appellant had been informed of his right to file post-verdict motions and of the consequential effects on his right to appeal of a failure to file such motions. The Supreme Court remanded for the type of evidentiary hearing contemplated in Schroth. What distinguishes Ash from Schroth is that after the lower court conducted the evidentiary hearing and concluded that Ash had knowingly and voluntarily waived his right to file post-verdict motions, Ash filed another appeal with our Supreme Court. See Commonwealth v. Ash, 466 Pa. 471, 353 A.2d 450 (1975) (hereinafter Ash II). The Supreme Court found that the record developed at the evidentiary hearing did not support the hearing court's finding of a knowing and voluntary waiver; neither the trial court nor *174 Ash's trial counsel informed Ash of the drastic repercussions that a failure to file post-verdict motions would have on his right to appeal.",
"Consequently, the Court remanded the case to the lower court with instructions to permit Ash to file post-verdict motions nunc pro tunc. Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975) (hereinafter Tate I), tracks the line of analysis employed in Schroth and Ash I. In Tate I, appellant, convicted of murder in the second degree, failed to file any post-verdict motions. On direct appeal, he raised specific issues for the Supreme Court's consideration. The Court perused the record and found no indication that appellant had voluntarily and knowingly waived his right to file post-verdict motions. Refusing to infer a waiver of precious appellate rights from a silent record, the Court remanded for a determination of whether appellant made a valid surrender of his post-verdict motion rights.",
"The lower court held the required hearing and ruled that Tate had made such a waiver. Tate appealed and, in its most recent pronouncement on the standards governing a waiver of post-verdict motion rights, the Supreme Court reversed. See Commonwealth v. Tate, 473 Pa. 478, 375 A.2d 341 (1977) (hereinafter Tate II). The Court stated: \"In order for a waiver to be effective in this context, the accused must be advised that a failure to raise an issue in post-verdict motions precludes raising that issue on appeal. Pa.R.Crim.P. 1123(c)(3).\"",
"Supra, 473 Pa. at 480, 375 A.2d at 342. The record disclosed that the trial court had abdicated its obligation to warn appellant pursuant to Rule 1123(c)(3). Moreover, the transcript of the evidentiary hearing on remand showed only that Tate's counsel had \"discussed\" post-verdict motions with his client; the transcript did not reflect the content of this discussion and hence gave no guarantee that counsel's advice had effectively remedied the trial court's disregard of its duty under Rule 1123(c). Because the Supreme Court could not determine, even after an evidentiary hearing, whether counsel specifically informed Tate of all pertinent ramifications of failing to file post-verdict motions, the Court remanded the case with *175 directions to permit Tate to file post-verdict motions nunc pro tunc.",
"The lessons of Schroth, Ash I and II, and Tate I and II may be succinctly stated: if a trial court fails to advise a defendant on the record of the consequences of failing to file post-verdict motions and if the defendant takes a direct appeal without filing any post-verdict motions, the appellate court should remand for an evidentiary hearing on whether the defendant knowingly and voluntarily waived his right to file post-verdict motions. See Schroth; Ash I; Tate I. At this hearing, defendant's trial counsel may testify that he fully warned his client that failure to file specific post-verdict motions would work a forfeiture of any issues raised on direct appeal, and that his client nevertheless freely decided to forego post-verdict motions.",
"Such testimony, if believed, would effectively cure the trial court's failure to observe the mandates of Rule 1123(c) and would adequately support a finding that the defendant knowingly and voluntarily waived his right to preserve issues for appellate review. [7] See Ash II; Tate II. However, if, despite an evidentiary hearing, the record still shows that neither counsel nor trial court specifically informed the defendant of the warnings required by Rule 1123(c), then the defendant must be afforded an opportunity to file post-verdict motions nunc pro tunc. See Ash II; Tate II. See also Commonwealth v. Williams, 241 Pa.Super. 226, 360 A.2d 735 (1976); Commonwealth v. Swain, 237 Pa.Super.",
"322, 354 A.2d 256 (1975); Commonwealth v. Wardell, 232 Pa.Super. 468, 334 A.2d 746 (1975). Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975), illustrates the line of cases which affords a different remedy to a defendant when the record on direct appeal fails to indicate affirmatively that he knowingly and voluntarily *176 waived his right to file post-verdict motions pursuant to Rule 1123. Williams and related cases sanction, in certain circumstances, a remand for the automatic filing of post-verdict motions nunc pro tunc rather than for an evidentiary hearing. In Williams, the defendant pleaded guilty to aggravated robbery and a general charge of murder; at a degree of guilt hearing, he was found guilty of murder in the first degree. Post-verdict motions were made orally but later withdrawn at the defendant's request.",
"On appeal, Williams raised several issues not considered by the lower court. The Supreme Court reviewed the record and discovered that the trial court had instructed Williams that he could file an appeal even if he withdrew his post-verdict motions. This affirmative misrepresentation precluded a finding that Williams had a full appreciation of the consequences of withdrawing his post-verdict motions. Accordingly, the Supreme Court remanded the case to the trial court for the filing of post-verdict motions. Commonwealth v. Doman, 237 Pa.Super. 415, 352 A.2d 157 (1975), is analagous in reason and result to Williams. In Doman, the defendant, through his counsel, filed post-verdict motions. However, at the sentencing hearing, Doman's counsel suggested that his client would withdraw his postverdict motions if the court would give Doman a sentence concurrent to the one he was then serving on an unrelated conviction. The court accepted this bargain without conducting any examination of Doman's understanding of the consequences of withdrawing his post-verdict motions or even securing Doman's personal consent to the arrangement. On appeal, Doman raised a challenge to the sufficiency of the evidence to sustain his larceny conviction.",
"Because Doman had withdrawn his post-verdict motion raising this issue, we refused to treat it on the merits. However, because the record did not demonstrate that the lower court informed Doman at the sentencing hearing of the consequences of withdrawing his post-verdict motions, we remanded *177 to allow Doman another opportunity to file postverdict motions. [8] Commonwealth v. Brown, 248 Pa.Super. 289, 375 A.2d 102 (1977), presents a very recent example of when a court on direct appeal should remand for the automatic filing of post-verdict motions nunc pro tunc instead of an evidentiary hearing. In Brown, the defendant's counsel failed to file any specific post-verdict motions; he merely filed the boilerplate contentions condemned by our Supreme Court in Commonwealth v. Blair, supra. However, our review of the record revealed the lower court's failure to inform Brown of the necessity of filing specific motions in order to preserve his claims for appellate review. Rule 1123(c)(3). Because the record evidenced that appellant had not been apprised of the requirements of Rule 1123(c), we remanded the case for the filing of post-verdict motions nunc pro tunc.",
"[9] *178 At first blush, the remedy invoked in Schroth, Ash I and Tate I appears inconsistent with that endorsed in Williams, Doman, and Brown. Upon closer inspection, however, these cases can be easily harmonized. In the former trilogy of cases, an evidentiary hearing was appropriate, despite the trial court's failure to warn the defendant on the record of the consequences of failing to file post-verdict motions, because the advice of counsel may have served as an effective substitute for the trial court's omission. If counsel thoroughly warned the defendant of all pertinent consequences, a finding of a voluntary and knowing waiver of post-verdict motion rights could be sustained. By contrast, in Williams, Doman, and Brown, it is readily apparent that *179 any advice given by counsel outside the record could not effectively replace the trial court's neglect to give the mandatory Rule 1123(c) admonitions.",
"In Williams, the trial court instructed the defendant that he could appeal even if he withdrew his post-verdict motions. Regardless of any advice his counsel may have proffered, this affirmatively misleading representation on the part of the trial court, as opposed to mere neglect to warn a defendant pursuant to Rule 1123(c), precluded a finding of a knowing and voluntary waiver. [10] In Doman, a lower court allowed a defendant to withdraw his post-verdict motions in its presence without ascertaining in any way whether the defendant fully understood the consequences of his actions. Even if counsel had elucidated the operation and significance of post-verdict motions to his client before the sentencing hearing, the court's failure to examine Doman on the consequences of his action at the very moment of his decision vitiated any finding of a knowing and voluntary waiver. [11] Finally, in *180 Brown, the trial court failed to advise the defendant that only those contentions specifically raised in post-verdict motions would be entertained on appeal; defendant's counsel then filed boilerplate written post-verdict motions and attempted to press more specific issues orally before the lower court and on appeal.",
"Thus, counsel, acting on behalf of defendant, ran afoul of the very rule of specificity which the trial court had neglected to read. Under these circumstances, it was patently clear that the advice of counsel did not effectively substitute for the trial court's neglect to read Rule 1123(c) warnings: counsel's own actions demonstrated that he did not understand the operation of Rule 1123. A remand for an evidentiary hearing would have been a futile gesture. See also Commonwealth v. Walsh, 248 Pa.Super. 479, 375 A.2d 198 (1977). [12] Based upon our reading of Schroth, Ash I and II, and Tate I and II on the one hand, and Williams, Doman, and Brown on the other, we now articulate the following guidelines for determining when an appellate court, confronted with a record that does not affirmatively demonstrate a knowing and voluntary waiver of post-verdict motions rights, should remand for an evidentiary hearing and when it should remand for the filing of post-verdict motions nunc pro tunc. If the record demonstrates that the trial court failed to warn the defendant of the consequences of failing to file post-verdict motions, but does not rule out the possibility that trial counsel's advice served as an effective replacement, then the appellate court should remand for an evidentiary hearing to determine whether the defendant knowingly and voluntarily decided not to pursue his postverdict motions.",
"If the record demonstrates that the trial *181 court failed to give complete Rule 1123(c) admonitions and that counsel's advice did not or could not efficaciously substitute for this omission, then the appellate court should remand to allow the defendant to file post-verdict motions. [13] Applying these principles to the instant case, we believe that a remand for an evidentiary hearing pursuant to Schroth, Ash I and Tate I is in order. The trial court failed to comply with Rule 1123(c); in particular, the court failed to advise appellant that he had the right to \"the assistance of counsel in the filing of [post-verdict] motions and on appeal of any issues raised therein,\" Rule 1123(c)(1), and that \"only the grounds contained in [post-verdict] motions may be raised on appeal.\"",
"Rule 1123(c)(3). However, the record does not preclude the possibility that one of appellant's three attorneys may have advised appellant of the significance of post-verdict motions and of the consequences which attach to a failure to file these motions. Indeed, it is evident that appellant discussed post-verdict motions with his various attorneys. For example, Appellant's trial counsel, Howard Mummau, filed an affidavit accompanying his client's original post-verdict motions; this affidavit stated that he filed the post-verdict motions at appellant's behest. In his January 24, 1977 petition requesting *182 the appointment of new counsel, appellant charged that his trial attorney had refused to file requested post-verdict motions. Finally, appellant's April 13, 1977 petition for leave to withdraw his post-verdict motions stipulated that his counsel, Penn B. Glazier, fully advised him of his rights; appellant signed this petition. Thus, the record betokens appellant's active participation in the post-verdict motion process. Nevertheless, the present state of the record does not permit a finding that appellant knowingly and voluntarily withdrew his post-verdict motions. While we know that counsel and appellant had discussions concerning post-verdict motions, the record does not disclose the content or extent of these discussions, and we cannot determine whether appellant received specific advice regarding the sweeping impact a withdrawal of his motions would have upon his right to appeal.",
"Under these circumstances, we must remand for an evidentiary hearing pursuant to Schroth, Ash I, and Tate I. Therefore, we vacate the judgments of sentence and remand for a determination of whether appellant received proper warnings concerning the consequential effect of his action on his right to appeal and whether appellant acted voluntarily, knowingly, and intelligently in withdrawing his post-verdict motions. If the hearing court finds that appellant did not make a knowing, intelligent, and voluntary waiver, it should permit appellant an opportunity to file post-verdict motions nunc pro tunc. If the hearing court finds a valid waiver, it should reinstate the judgments of sentence.",
"Following the hearing court's disposition, either side shall be entitled to file a new appeal. Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. JACOBS, President Judge, and PRICE, J., concur in the result. SPAETH, J., dissents and would remand for filing of post-verdict motions nunc pro tunc. Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978). WATKINS, former President Judge, did not participate in the consideration or decision of this case. NOTES [1] The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S.",
"§ 3121. [2] The Crimes Code, supra; 18 Pa.C.S. § 3921. [3] Pa.R.Crim.P. 1123(a); 19 P.S. Appendix; requires that written post-verdict motions be filed within seven days after the finding of guilt. [4] The record does not reveal if or when Browne officially entered an appearance and replaced Mammau as appellant's attorney. [5] Appellant has expressly raised this issue for our consideration. At all stages of the following discussion, we will assume that a defendant has argued before our Court that he did not knowingly and voluntarily waive his right to file post-verdict motions. However, by making this assumption, we do not intimate any opinion as to whether our Court may or should engage in a sua sponte review of the validity of a waiver of post-verdict motion rights. [6] Pa.R.Crim.P. 1123 delineates the operation and significance of post-verdict motions. This rule provides, in pertinent part: \"(a) Within seven (7) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment.",
"Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued. If the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony. \"(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial.",
"The defendant may also within the seven (7)-day period on the record voluntarily and understandingly waive the filing of post-verdict motions. Prior to the acceptance of such waive the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions. \"(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.\" For recent clarification of the operation of Rule 1123, see Commonwealth v. Kinsey, 249 Pa.Super.",
"1, 375 A.2d 727 (1977) (Majority Opinion by PRICE, J., and Concurring Opinion by HOFFMAN, J.) and Commonwealth v. Erhart, 248 Pa.Super. 481, 375 A.2d 342 (1977) (Concurring Opinions by HOFFMAN, PRICE and SPAETH, JJ.) [7] A defendant could conceivably argue that despite being advised of his post-verdict motion rights by either the trial court or his counsel, his decision not to pursue post-verdict motions was involuntary because of pressures not reflected in the record. We intimate no opinion as to the proper procedures for raising such a contention or as to the standards governing consideration of such a claim.",
"[8] Williams and Doman both involved an appellant's withdrawal of already filed post-verdict motions. These cases make clear that, as with a failure to file any post-verdict motions, \" . . . the withdrawal of post-verdict motions must have been made with a full knowledge and understanding of its consequential effect on the appellant's right to appeal.\" Williams, supra, 459 Pa. at 591, 330 A.2d at 855. [9] Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1977), confirms our analysis in Brown. See also Commonwealth v. Cathey, 248 Pa.Super. 363, 375 A.2d 139 (1977) (Dissenting Opinion by HOFFMAN, J.). In Cathey, the trial court failed to advise the defendant of the significance and operation of Rule 1123(c)(3).",
"Defendant's counsel subsequently filed boilerplate post-verdict motions which raised only the sufficiency of the evidence. On appeal, defendant attempted to argue that introduction of certain evidence violated his constitutional right to be protected against unreasonable searches and seizures. Our Court determined that the lower court substantially complied with Rule 1123(c) and, therefore, that Cathey personally made a knowing and intelligent waiver of his post-verdict motion rights. In a per curiam opinion, the Supreme Court disagreed and remanded for the filing of supplemental post-verdict motions nunc pro tunc. Because the lower court failed to warn Cathey on the record that only those grounds raised in post-verdict motions could be pursued on appeal, the record did not affirmatively demonstrate that Cathey appreciated the consequences of failing to file specific post-verdict motions. The Supreme Court expressly endorsed our decision in Commonwealth v. Brown. While Cathey secures Brown's position in our constellation of cases, it may implicitly bring into question the viability of our analytical scheme as a whole.",
"The Supreme Court in its per curiam opinion did not cite or discuss any cases approving the remedy of an evidentiary hearing when a trial court fails to comply with Rule 1123(c). See, e.g., Schroth; Ash I and II; Tate I and II. Instead, the Court relied upon two cases, Commonwealth v. Miller, supra, and Commonwealth v. Brown, supra, consistent with our framework, and two cases, Commonwealth v. Simmons, 236 Pa.Super. 466, 344 A.2d 593 (1975) and Commonwealth v. Dimitris, 231 Pa.Super. 469, 331 A.2d 701 (1974), incompatible with our framework. See footnote 13, infra, for a more extended discussion of Simmons and Dimitris.",
"Consequently, Cathey appears to be another example of the very problem besetting our appellate courts in this area of the law: citation and discussion of one line of precedent without unearthing, examining and reconciling the diametrically opposed line of cases. (In this regard, we note that Chief Justice EAGEN and Justice POMEROY dissented from the summary disposition in Cathey because they believed that procedural issue demanded fuller consideration.) We do not believe that the Supreme Court meant to overrule sub silentio an existing and recently confirmed line of precedent approving a remand for an evidentiary hearing in certain circumstances. See Tate I and II. Our opinion today attempts to delineate a principle for harmonizing two lines of appellate cases which have sanctioned divergent remedies when the record does not affirmatively demonstrate that an appellant waived his post-verdict motion rights. We urge the Supreme Court to undertake a similar comprehensive review of appellate case law in this area and to announce definitive principles for deciding cases such as the instant one.",
"When the Supreme Court does undertake this review, we strongly suggest that the Court consider a bright line test capable of easy and time-saving judicial administration which would allow the filing of post-verdict motions nunc pro tunc in all cases in which the trial court failed to observe Rule 1123(c). [10] Compare Commonwealth v. Miller, 469 Pa. 370, 366 A.2d 220 (1976). As in Williams, the lower court in Miller affirmatively led the appellant to believe that a direct appeal could be taken to a higher court without the need for filing post-verdict motions.",
"[11] Compare Rule 1123(b) (not in effect at the time of Doman's conviction). Prior to accepting a waiver of the right to file post-verdict motions within the seven day period after a finding of guilt, the trial court, pursuant to Rule 1123(b), must advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions. This warning insures that at the moment of a decision to waive post-verdict motions, the defendant fully understands the consequences of his waiver. Compare also Commonwealth v. Brooks, 250 Pa.Super. 333, 378 A.2d 963 (1977). In Brooks, appellant's counsel made oral post-verdict motions on the record at the conclusion of trial pursuant to Rule 1123(b).",
"Neither the lower court nor counsel advised appellant on the record of the consequences this action would have on his right to raise other issues on appeal. Appellant did in fact attempt to raise different issues on appeal. Our Court remanded for the filing of post-verdict motions nunc pro tunc. Like Doman, Brooks illustrates a situation in which a court fails to insure the knowing and voluntary quality of a waiver made in its very presence. Doman and Brooks stand in contrast to a situation, such as in Tate, in which a waiver occurs outside the courtroom and without an opportunity for a court's instruction immediately before the decision to waive is made.",
"[12] Compare Commonwealth v. Miller, 232 Pa.Super. 171, 335 A.2d 528 (1975). In Miller, the defendant refused the assistance of the Public Defender at trial. After the return of a guilty verdict, the trial court failed to inform Miller of the warnings required by Rule 1123(c). Miller attempted to appeal without filing any post-verdict motions, and our Court remanded to allow Miller the opportunity to file post-verdict motions nunc pro tunc. In Miller, as in Brown, we knew that counsel could not have given advice which effectively cured the trial court's failure to comply with Rule 1123(c): indeed Miller had no counsel to advise him. [13] Candor compels us to admit that our reconciliation of Pennsylvania cases does not encompass and explain all cases. For example, in Commonwealth v. Dimitris, 231 Pa.Super.",
"469, 331 A.2d 701 (1974), and Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976), our Court remanded for the filing of post-verdict motions nunc pro tunc because the trial court had not warned the defendant of the consequences of failing to file post-verdict motions. The record in both cases was silent as to whether counsel may have given advice to cure this omission. Commonwealth v. Simmons, 236 Pa.Super. 466, 344 A.2d 593 (1976) also appears to be an anomaly. In Simmons, the court did not explicitly inform the defendant that he could only press those issues on appeal which he presented in post-verdict motions. The court did, however, comply with all other aspects of Rule 1123(c).",
"Our Court, on the authority of Dimitris, remanded for the filing of post-verdict motions nunc pro tunc. While the results reached in Dimitris, Steffish, and Simmons are of dubious precedential value in light of today's opinion, these cases still retain importance for their insistence on the significance of post-verdict motions and the necessity for proper advice as a prerequisite to finding a knowing and voluntary waiver of appellate rights."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1936206/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MEMORANDUM ** Gerard Chang appeals pro se from the district court’s judgment dismissing his action alleging various state and federal causes of action against his former employer and colleagues. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Mpoyo v. Litton Electro-Optical *513Systems, 430 F.3d 985, 987 (9th Cir.2005), and affirm. The district court properly dismissed the action on res judicata grounds because Chang raised, or could have raised, his claims in a prior federal action that involved the same defendants and “transactional nucleus of facts,” and was decided on the merits. Id. at 987-89 (affirming dismissal of action based on the doctrine of res judicata); Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir.2007) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”). Chang’s remaining contentions are unpersuasive. AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 11-04-2022 | [
"MEMORANDUM ** Gerard Chang appeals pro se from the district court’s judgment dismissing his action alleging various state and federal causes of action against his former employer and colleagues. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Mpoyo v. Litton Electro-Optical *513Systems, 430 F.3d 985, 987 (9th Cir.2005), and affirm. The district court properly dismissed the action on res judicata grounds because Chang raised, or could have raised, his claims in a prior federal action that involved the same defendants and “transactional nucleus of facts,” and was decided on the merits. Id. at 987-89 (affirming dismissal of action based on the doctrine of res judicata); Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir.2007) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”). Chang’s remaining contentions are unpersuasive. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8447859/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. 4th Cir. Cer-tiorari denied. | 11-28-2022 | [
"C. A. 4th Cir. Cer-tiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9194853/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47760
STATE OF IDAHO, ) ) Filed: November 23, 2021 Plaintiff-Respondent, ) ) Melanie Gagnepain, Clerk v. ) ) THIS IS AN UNPUBLISHED RACHEL ELIZABETH LUNA, ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY Defendant-Appellant. ) )
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Jonathan Medema, District Judge.
Judgment of conviction for exploitation of a vulnerable adult, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney General, Boise, for respondent. ________________________________________________
HUSKEY, Chief Judge Rachel Elizabeth Luna appeals from her judgment of conviction for exploitation of a vulnerable adult. Luna argues the district court erred by prohibiting evidence of specific instances in which the victim gave gifts to Luna and other women, as well as evidence of specific instances when Luna previously accessed the victim’s bank account with the victim’s permission. Luna also argues the district court abused its discretion by concluding the victim’s history of gift giving was inadmissible character evidence. Finally, Luna argues the district court erred in instructing the jury that an agent acting under a power of attorney may not authorize gifts to themselves unless the power of attorney expressly provides the agent with such authority. She argues that the district court’s instruction created a variance with the charging document. For the reasons set forth below, we affirm the judgment of conviction.
1 I. FACTUAL AND PROCEDURAL BACKGROUND “Skip” Benton Hofferber and Luna became close friends based on his patronage at a bar where Luna worked as a bartender. Over time, Luna and her daughter lived with Hofferber, and Hofferber gave Luna various gifts and money. After Hofferber suffered a stroke in September 2016, he gave Luna power of attorney1 over his bank account (Bank POA). Thereafter, Hofferber also executed a springing power of attorney (Springing POA) in March 2017 that designated Luna as his agent. The Springing POA stated that Luna did not have authority to make a gift or use Hofferber’s property to benefit herself. During the course of the friendship, Hofferber gave Luna a $24,000 Rolex watch, which Luna sold and kept the proceeds. Hofferber and Luna also decided to sell Hofferber’s house, and Hofferber received an offer, which he accepted. Prior to closing, Hofferber suffered a significant medical event. As a result, the doctor authored a letter stating that Hofferber was unable to make decisions and that it was necessary to defer to a power of attorney. The letter triggered the Springing POA. Luna used the Springing POA to execute the necessary documents to close the sale of Hofferber’s home, which netted approximately $90,000. Luna appropriated $60,000 for her own personal use by completing a cash withdrawal from Hofferber’s bank account. She then resigned her power of attorney position. Thereafter, law enforcement received a call alleging that Luna had taken advantage of Hofferber. In response to the call, law enforcement spoke with Shauna Urzua, who at that time was designated as Hofferber’s power of attorney. Urzua explained the circumstances giving rise to Hofferber’s and Luna’s friendship, as well as Urzua’s version of Luna’s appropriation of the proceeds from the sale of the house. Urzua said there were multiple checks made out to cash from Hofferber’s account and that Luna wrote multiple checks from Hofferber’s account to pay her personal expenses. Urzua also told law enforcement about the watch. In a separate interview with law enforcement, Hofferber stated that he and Luna were friends and that after his stroke in 2016, he designated Luna as his power of attorney to assist him with daily and personal issues. Hofferber said he did not receive the $60,000 in proceeds from the
1 It is not entirely clear from the record whether there was one Bank POA (and the date it was executed) or whether there were two. On appeal and in the district court, Luna asserts the Bank POA was executed in October 2016. Defendant’s Exhibit C, the Bank POA, reflects it was executed in January 2017. The discrepancy does not affect the analysis or outcome of the case. 2 sale of his home or the $24,000 from the sale of the watch. Hofferber explained that he had never intended for the proceeds from either sale to go to Luna and that he did not authorize Luna to receive the proceeds. The State charged Luna with two counts of felony exploitation of a vulnerable adult in violation of Idaho Code § 18-1505(3), alleging that on two occasions, Luna exploited Hofferber, a vulnerable adult, by “taking and/or obtaining proceeds and/or money from Mr. Hofferber, where the monetary damage from such exploitation exceed[ed] one thousand dollars.” Count I was alleged to have occurred on April 28, 2017, and stemmed from Luna’s receipt of $24,000 in proceeds from the sale of the watch. Count II was alleged to have occurred on May 8, 2017, and stemmed from the $60,000 in proceeds Luna obtained from the sale of Hofferber’s home. Prior to trial, Luna filed a motion in limine seeking to introduce evidence of prior gifts Hofferber had given to Luna and other women before and after his stroke in 2016. The district court denied the motion as being untimely filed and indicated that it would rule on the evidentiary issues at trial. The district court took up the issue on the first day of trial, and Luna’s counsel argued that evidence of specific instances of Hofferber giving gifts to Luna and other women was relevant to show Hofferber’s intent. The district court held that evidence of specific gifts Hofferber gave to Luna and others was irrelevant and otherwise inadmissible character evidence. Luna also moved to admit evidence of checks she wrote from Hofferber’s bank account prior to the withdrawal of the $60,000 from the account. The district court held that evidence of the specific instances that Luna wrote checks to herself, aside from the $60,000 check from the proceeds of the sale of Hofferber’s home, was irrelevant and, as such, inadmissible. The court explained: [T]he defense can present evidence that Mr. Hofferber was of sound mind and simply gave these sums to Ms. Luna either on the date that the checks were transmitted or on some earlier occasion. If, however, the defense is not that these were gifts, that these were simply legitimate exercises of Ms. Luna’s power granted to her under a power of attorney, then, her powers are stated in the written documents themselves, and the jury can simply read them and decide whether she exercised the power accordingly. In both circumstances, how she exercised those powers on other occasions, or how Mr. Hofferber gave her gifts on other occasions, is in my view, simply not relevant. It doesn’t say anything about whether these were gifts or whether these were appropriate exercises of her powers granted to her in the written power of attorney guidelines.
3 The district court also indicated that Luna could introduce evidence of Hofferber’s character for generosity in the form of opinion or reputation evidence. Luna was the only witness for the defense. She introduced a copy of the Bank POA signed by Luna and Hofferber in January 2017, which authorized Luna to deposit and withdraw funds from Hofferber’s bank account and did not include guidelines regarding gift giving. Luna testified that she received the check for $24,000 from the sale of the watch and deposited it into her bank account. Luna further testified that on the same day the proceeds from the sale of Hofferber’s house were deposited to his bank account, $60,000 of the proceeds were transferred to Luna’s bank account. Luna stated that Hofferber’s bank understood Luna to be acting under the Bank POA and that she did not present the bank with a copy of the Springing POA. Luna did not testify that it was her belief that either the Bank POA or the Springing POA authorized her to make gifts to herself and provided no other evidence that she was authorized to do so. During the jury instructions conference, Luna’s counsel objected to jury instruction 12, which stated: A person (the agent) who has been given a power of attorney by another person (the principal) may give the principal’s money to others if the written power of attorney expressly grants the agent the power to make gifts of the principal’s property. However, the agent may not give the principal’s money or other property to the agent himself unless the written power of attorney expressly authorizes the agent to do so. Luna’s counsel asked the district court where the instruction came from, and the district court explained: It’s the paraphrasing of the Uniform Power of Attorney Act. . . . So it’s partially taken from Idaho Code 15[-]12-217. The legislature has said that the language in a power of attorney granting a general authority with respect to gifts [a]uthorizes the agent to make gifts to other persons up to particular amounts set in the Internal Revenue Code. Idaho Code 15[-]12-201, talks about the authorities that require a specific grant as opposed to a general grant of authority. It includes making gifts, and in (4) of that statute, the law provides that “unless the power of attorney otherwise provides a grant of authority to make a gift, subject to 1512-217.” (2) of 15[-]12-201 provides that “notwithstanding a grant of authority to exercise authority in (1), including the authority under 1(b) to make gifts [u]nless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, may not exercise authority under the power of
4 attorney to create an agent or an individual to whom the agent owes a legal obligation an interest in the principal’s property including by gift.” Luna’s counsel objected “just on the fact that that’s a civil code section, not a criminal” code section. The district court overruled the objection and asked Luna’s counsel whether he had any authority that the law did not apply to criminal cases and if he was arguing that the instruction was an incorrect statement of the law. Luna’s counsel stated, “This instruction effectively creates its own crime. You’re taking civil prohibition and turning that into a crime.” The district court responded: Idaho Code 18-1505 defines abuse of vulnerable adult to include the misuse of the vulnerable adult’s power of attorney, so when the jury has to interpret what misuse is, doesn’t it make sense that they understand the lawful use of power of attorney under the Uniform Power of Attorney Act? The district court again asked Luna’s counsel if he thought the instruction was an accurate statement of the law, and Luna’s counsel said: The only thing I guess, Judge, the however is kind of like the first paragraph and second paragraph are against each other. I know the other one is talking about what the person can expressly can’t do as well. It’s just talking about money to others versus money to self.” The district court said “okay,” and Luna’s counsel stated, “I don’t care if it’s in there, or not.” The jury returned a not-guilty verdict on Count I, related to the sale of the watch, and a guilty verdict on Count II, related to the proceeds from the sale of Hofferber’s home. Luna timely appealed. II. STANDARD OF REVIEW Whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion. State v. Garcia, 166 Idaho 661, 669, 462 P.3d 1125, 1133 (2020). When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). Whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing
5 jury instructions, we ask whether the instructions as a whole, and not individually, fairly, and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993). The existence of an impermissible variance between a charging instrument and the jury instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). Our task in resolving the issue presented is two- fold. First, we must determine whether there is a variance between the information used to charge Luna with exploitation of a vulnerable adult and the instructions presented to the jury. See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). Second, if a variance exists, we must examine whether it rises to the level of prejudicial error requiring reversal of the conviction. Id. A variance between a charging instrument and a jury instruction necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy. State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221. III. ANALYSIS A. The District Court Did Not Err by Excluding Evidence of Other Gifts Luna argues the district court erred by preventing her from introducing evidence of other gifts Hofferber gave Luna prior to his hospitalization in April 2017, as well as evidence of gifts he gave to other women. Luna contends this evidence was relevant because it has a tendency to make it more probable that Luna’s use of Hofferber’s money was not unjust or improper. The State asserts the evidence was inadmissible under various Idaho Rules of Evidence. Evidence that is relevant to a material and disputed issue concerning the crime charged is generally admissible. State v. Garcia, 166 Idaho 661, 670, 462 P.3d 1125, 1134 (2020). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. I.R.E. 401; Garcia, 166 Idaho at 670, 462 P.3d at 1134. Whether a fact is of consequence or material is determined by its relationship to the legal theories presented by the parties. State v. Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). The district court found that evidence of specific gifts Hofferber gave to Luna and other women was not relevant because it did not make it more or less likely that Hofferber gave Luna a
6 gift on any particular occasion. The district court further explained that evidence of Hofferber’s past gift giving was not relevant to whether he intentionally conveyed certain property to Luna. At trial, Luna did not dispute that Hofferber was a vulnerable adult and that she took over $1,000 from Hofferber. Luna was acquitted on Count I, which was premised upon the proceeds from the sale of the watch, thus, any error in excluding the evidence as it related to Count I is harmless. State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App. 2017) (error is not reversible unless it is prejudicial). The only disputed element of Count II was whether it was unjust or improper for Luna to take the $60,000 from the proceeds of the sale of Hofferber’s home. Evidence of Hofferber’s history of generosity towards Luna and other women does not make it more or less likely that it was unjust or improper for Luna to take the $60,000 when she was acting as his agent under the Springing POA. Luna sought to introduce evidence of specific gifts Hofferber had given her and others prior to Hofferber’s incapacitation in April 2017. Actions Hofferber took prior to being incapacitated do not inform whether Luna properly executed her duties as an agent when she transferred $60,000 to herself while Hofferber was incapacitated. The Bank POA did not expressly authorize Luna to make gifts to herself and the Springing POA expressly prohibited Luna from making gifts. As neither document gave Luna the authority to make gifts to herself, evidence of Hofferber’s generosity towards Luna and others prior to Hofferber’s incapacitation did not make it more or less likely that it was unjust or improper for Luna to use either power of attorney to gift herself $60,000. Thus, the district court correctly concluded that evidence of specific gifts Hofferber gave to Luna and other women on prior occasions was not relevant. Even if Hofferber’s history of generous behavior was relevant, the district court did not abuse its discretion by precluding Luna from introducing evidence of specific instances of gift giving and by allowing only reputation evidence of Hofferber’s character for generosity. Idaho Rule of Evidence 404(a) governs the use of character evidence and provides, in relevant part: (1) Prohibited Uses. Evidence of a person’s character or trait of character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: .... (B) a defendant may offer evidence of an alleged victim’s pertinent trait of character, and if the evidence is admitted, the prosecutor may offer evidence to rebut it[.]
7 Idaho Rule of Evidence 405(a) limits the introduction of character evidence: “When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.” Only when a person’s character or character trait is an essential element of a charge, claim, or defense may character be proved by specific instances of the person’s conduct. I.R.E. 405(b). Luna does not argue on appeal that evidence of Hofferber’s generosity was an essential element of a charge, claim, or defense; therefore, any admissible evidence of his character was limited under Rule 405 to reputation and opinion testimony. The district court allowed Luna to present evidence of Hofferber’s character for generosity in the form of opinion or reputation evidence. As evidence of specific acts of generosity was precluded under Rule 405, the district court did not abuse its discretion by limiting evidence of Hofferber’s generosity to reputation and opinion testimony. B. The District Court Did Not Err by Excluding Evidence of Luna’s Additional Use of Hofferber’s Bank Account Luna contends the district court erred by excluding evidence of Luna’s prior use of Hofferber’s bank account. The State asserts this evidence was irrelevant to whether Luna’s conduct was unjust or improper and was therefore inadmissible. Luna sought to introduce records of specific checks she had written from Hofferber’s bank account prior to his incapacitation based on the Bank POA. The district court explained that specific instances of Luna accessing Hofferber’s bank account were irrelevant because access to the account did not indicate that any of the transactions, including the $60,000 Luna transferred to herself, were appropriate exercises of Luna’s authority under the Bank POA. The district court did, however, allow Luna to present evidence that Hofferber generally permitted her to access his bank account, and Luna testified that she regularly did so. The district court did not err by preventing Luna from introducing evidence of specific instances when Luna wrote checks from Hofferber’s bank account. As explained above, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. I.R.E. 401; Garcia, 166 Idaho at 670, 462 P.3d at 1134. Evidence of Luna’s prior use of Hofferber’s bank account to write checks for various expenses does not help resolve whether Luna was authorized to transfer $60,000 from the sale of Hofferber’s home to herself while acting as his
8 agent and, therefore, does not make it more or less probable that Luna acted unjustly or improperly in doing so. Thus, the district court did not err by excluding this evidence. C. The Jury Instruction Did Not Create a Variance Luna argues jury instruction 12 created a variance from the information because the information did not allege that Luna exploited Hofferber by failing to act in accordance with the Uniform Power of Attorney Act. Luna contends, as she did at trial, that the instruction effectively creates its own crime by taking a civil prohibition and turning it into a crime. Luna asserts that the alleged variance was fatal because it deprived her of her constitutional right to due process by depriving her of fair notice of the charges against her. In response, the State argues the instruction did not create a variance, as the instruction matched the information with respect to the means by which Luna was alleged to have violated I.C. § 18-1505. Luna’s counsel objected to instruction 12: “Judge, I would object just on the fact that that’s a civil code section, not a criminal” code section. The district court asked Luna’s counsel: Idaho Code 18-1505 defines abuse of vulnerable adult to include the misuse of the vulnerable adult’s power of attorney, so when the jury has to interpret what misuse is, doesn’t it make sense that they understand the lawful use of power of attorney under the Uniform Power of Attorney Act? Jury Instruction 12 did not create a variance. A variance exists when the jury instructions do not match the allegations in the charging document as to the means by which a defendant is alleged to have committed the charged crime. State v. Bernal, 164 Idaho 190, 194, 427 P.3d 1, 5 (2018). In Count II of the information, the State alleged that in violation of I.C. § 18-1505(3), Luna: on or about the 8th day of May 2017, in the County of Ada, State of Idaho, did exploit Mr. Benton “Skip” Merrill Hofferber, Jr., a vulnerable adult, by taking and/or obtaining proceeds and/or money from Mr. Hofferber, where the monetary damage from such exploitation exceeds one thousand dollars ($1,000.00). Idaho Code § 18-1505(4)(c) defines exploitation as: “an action which may include, but is not limited to, the unjust or improper use of a vulnerable adult’s financial power of attorney, funds, property or resources by another person for profit or advantage.” The district court instructed the jury on the elements of exploitation of a vulnerable adult. This included instructing the jury that, in order to find Luna guilty, it was required to find beyond a reasonable doubt that Luna “exploited’ Hofferber “by taking and/or obtaining proceeds and/or money from” him. The district court also provided the jury with instruction 15, which defined
9 “[e]xploitation” or “exploit” using the exact language of I.C. § 18-1505(4)(c). Jury instruction 12 stated: A person (the agent) who has been given a power of attorney by another person (the principal) may give the principal’s money to others if the written power of attorney expressly grants the agent the power to make gifts of the principal’s property. However, the agent may not give the principal’s money or other property to the agent himself unless the written power of attorney expressly authorizes the agent to do so. As the district court explained, instruction 12 paraphrased I.C. § 15-12-201(2), which provides: Notwithstanding a grant of authority to exercise authority in subsection (1) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal, may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise. Idaho Code § 15-12-201 is part of the Uniform Power of Attorney Act. Luna contends that by paraphrasing I.C. § 15-12-201, the district court lowered the State’s burden of proof by allowing the jury to find Luna exploited Hofferber simply by failing to comply with the Uniform Power of Attorney Act. We disagree. Luna was charged with exploiting a vulnerable adult; exploitation includes the unjust or improper use of a vulnerable adult’s financial power of attorney. Instruction 12 defined the lawful use of a power of attorney under the Uniform Power of Attorney Act. The instruction provided the jury with an explanation of an agent’s authority under a power of attorney when the power of attorney does not explicitly authorize the agent to give gifts to themselves. Even if the jury found that Luna failed to comply with either of the powers of attorney, it still had to find the additional element that such misuse was either improper or unjust. Thus, the jury could not find Luna guilty based only on her lack of compliance with the paraphrased section of the Uniform Power of Attorney Act. Instead, the jury was required to find that Luna exploited Hofferber. This distinction is recognized by Luna, as she argues in her reply brief that “Whether Ms. Luna exceeded her authority under the springing power of attorney is relevant to the charged crime, but it is not determinative. The critical question was whether Ms. Luna’s admitted use of Mr. Hofferber’s funds was unjust or improper.” Luna contends that whether her actions were unjust or improper is dependent on her intent, and that instruction 12 permitted the jury to read intent out of this case. This assertion is misplaced.
10 Idaho Code § 18-1505(4)(c) does not require a finding of intent, and the information did not allege intent. As such, there was no variance between what Luna was charged with and the jury instructions on that charge. However, even if there was a variance, the variance was not fatal because it did not deprive Luna of fair notice of the charges against her. A variance between a charging instrument and a jury instruction necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy. Windsor, 110 Idaho at 417-18, 716 P.2d at 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221. The notice element requires courts to determine whether the record suggests the possibility that the defendant was misled or embarrassed in the preparation or presentation of his or her defense. Windsor, 110 Idaho at 418, 716 P.2d at 1190. Luna argues the variance was fatal because jury instruction 12 required her to defend her actions as proper under the Uniform Power of Attorney Act and because prior to the jury instructions conference, Luna’s counsel was unaware of the Act’s limitations on gifts. Neither the Bank POA nor the Springing POA provided Luna with the authority to make gifts to herself, and Luna presented no evidence that she was authorized to do so. The premise of the State’s case was that Luna exploited Hofferber by unlawfully using the powers of attorney to take Hofferber’s money. That Luna’s counsel was apparently unaware of applicable law in Idaho regarding the limitations of one acting as an agent under a power of attorney does not mean that Luna was misled or embarrassed in the preparation or presentation of her defense. Because Luna had fair notice of the crime she was alleged to have committed and the means by which she committed it, she was not prejudiced in the presentation of her defense; any variance between the charging document and jury instruction 12 was not fatal. IV. CONCLUSION The district court did not err by prohibiting evidence of specific instances in which Hofferber gave gifts to Luna and other women and evidence of specific instances when Luna wrote checks from Hofferber’s bank account. Jury instruction 12 regarding an agent’s gift giving authority under a power of attorney did not create a fatal variance. Therefore, Luna’s judgment of conviction is affirmed. Judge LORELLO and Judge BRAILSFORD CONCUR.
11 | 11-23-2021 | [
"IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 47760 STATE OF IDAHO, ) ) Filed: November 23, 2021 Plaintiff-Respondent, ) ) Melanie Gagnepain, Clerk v. ) ) THIS IS AN UNPUBLISHED RACHEL ELIZABETH LUNA, ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY Defendant-Appellant. ) ) Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon.",
"Jonathan Medema, District Judge. Judgment of conviction for exploitation of a vulnerable adult, affirmed. Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney General, Boise, for respondent. ________________________________________________ HUSKEY, Chief Judge Rachel Elizabeth Luna appeals from her judgment of conviction for exploitation of a vulnerable adult. Luna argues the district court erred by prohibiting evidence of specific instances in which the victim gave gifts to Luna and other women, as well as evidence of specific instances when Luna previously accessed the victim’s bank account with the victim’s permission. Luna also argues the district court abused its discretion by concluding the victim’s history of gift giving was inadmissible character evidence.",
"Finally, Luna argues the district court erred in instructing the jury that an agent acting under a power of attorney may not authorize gifts to themselves unless the power of attorney expressly provides the agent with such authority. She argues that the district court’s instruction created a variance with the charging document. For the reasons set forth below, we affirm the judgment of conviction. 1 I. FACTUAL AND PROCEDURAL BACKGROUND “Skip” Benton Hofferber and Luna became close friends based on his patronage at a bar where Luna worked as a bartender. Over time, Luna and her daughter lived with Hofferber, and Hofferber gave Luna various gifts and money. After Hofferber suffered a stroke in September 2016, he gave Luna power of attorney1 over his bank account (Bank POA).",
"Thereafter, Hofferber also executed a springing power of attorney (Springing POA) in March 2017 that designated Luna as his agent. The Springing POA stated that Luna did not have authority to make a gift or use Hofferber’s property to benefit herself. During the course of the friendship, Hofferber gave Luna a $24,000 Rolex watch, which Luna sold and kept the proceeds. Hofferber and Luna also decided to sell Hofferber’s house, and Hofferber received an offer, which he accepted. Prior to closing, Hofferber suffered a significant medical event. As a result, the doctor authored a letter stating that Hofferber was unable to make decisions and that it was necessary to defer to a power of attorney. The letter triggered the Springing POA. Luna used the Springing POA to execute the necessary documents to close the sale of Hofferber’s home, which netted approximately $90,000.",
"Luna appropriated $60,000 for her own personal use by completing a cash withdrawal from Hofferber’s bank account. She then resigned her power of attorney position. Thereafter, law enforcement received a call alleging that Luna had taken advantage of Hofferber. In response to the call, law enforcement spoke with Shauna Urzua, who at that time was designated as Hofferber’s power of attorney. Urzua explained the circumstances giving rise to Hofferber’s and Luna’s friendship, as well as Urzua’s version of Luna’s appropriation of the proceeds from the sale of the house. Urzua said there were multiple checks made out to cash from Hofferber’s account and that Luna wrote multiple checks from Hofferber’s account to pay her personal expenses.",
"Urzua also told law enforcement about the watch. In a separate interview with law enforcement, Hofferber stated that he and Luna were friends and that after his stroke in 2016, he designated Luna as his power of attorney to assist him with daily and personal issues. Hofferber said he did not receive the $60,000 in proceeds from the 1 It is not entirely clear from the record whether there was one Bank POA (and the date it was executed) or whether there were two. On appeal and in the district court, Luna asserts the Bank POA was executed in October 2016. Defendant’s Exhibit C, the Bank POA, reflects it was executed in January 2017. The discrepancy does not affect the analysis or outcome of the case. 2 sale of his home or the $24,000 from the sale of the watch. Hofferber explained that he had never intended for the proceeds from either sale to go to Luna and that he did not authorize Luna to receive the proceeds.",
"The State charged Luna with two counts of felony exploitation of a vulnerable adult in violation of Idaho Code § 18-1505(3), alleging that on two occasions, Luna exploited Hofferber, a vulnerable adult, by “taking and/or obtaining proceeds and/or money from Mr. Hofferber, where the monetary damage from such exploitation exceed[ed] one thousand dollars.” Count I was alleged to have occurred on April 28, 2017, and stemmed from Luna’s receipt of $24,000 in proceeds from the sale of the watch. Count II was alleged to have occurred on May 8, 2017, and stemmed from the $60,000 in proceeds Luna obtained from the sale of Hofferber’s home.",
"Prior to trial, Luna filed a motion in limine seeking to introduce evidence of prior gifts Hofferber had given to Luna and other women before and after his stroke in 2016. The district court denied the motion as being untimely filed and indicated that it would rule on the evidentiary issues at trial. The district court took up the issue on the first day of trial, and Luna’s counsel argued that evidence of specific instances of Hofferber giving gifts to Luna and other women was relevant to show Hofferber’s intent. The district court held that evidence of specific gifts Hofferber gave to Luna and others was irrelevant and otherwise inadmissible character evidence. Luna also moved to admit evidence of checks she wrote from Hofferber’s bank account prior to the withdrawal of the $60,000 from the account. The district court held that evidence of the specific instances that Luna wrote checks to herself, aside from the $60,000 check from the proceeds of the sale of Hofferber’s home, was irrelevant and, as such, inadmissible. The court explained: [T]he defense can present evidence that Mr. Hofferber was of sound mind and simply gave these sums to Ms. Luna either on the date that the checks were transmitted or on some earlier occasion.",
"If, however, the defense is not that these were gifts, that these were simply legitimate exercises of Ms. Luna’s power granted to her under a power of attorney, then, her powers are stated in the written documents themselves, and the jury can simply read them and decide whether she exercised the power accordingly. In both circumstances, how she exercised those powers on other occasions, or how Mr. Hofferber gave her gifts on other occasions, is in my view, simply not relevant. It doesn’t say anything about whether these were gifts or whether these were appropriate exercises of her powers granted to her in the written power of attorney guidelines.",
"3 The district court also indicated that Luna could introduce evidence of Hofferber’s character for generosity in the form of opinion or reputation evidence. Luna was the only witness for the defense. She introduced a copy of the Bank POA signed by Luna and Hofferber in January 2017, which authorized Luna to deposit and withdraw funds from Hofferber’s bank account and did not include guidelines regarding gift giving. Luna testified that she received the check for $24,000 from the sale of the watch and deposited it into her bank account. Luna further testified that on the same day the proceeds from the sale of Hofferber’s house were deposited to his bank account, $60,000 of the proceeds were transferred to Luna’s bank account. Luna stated that Hofferber’s bank understood Luna to be acting under the Bank POA and that she did not present the bank with a copy of the Springing POA.",
"Luna did not testify that it was her belief that either the Bank POA or the Springing POA authorized her to make gifts to herself and provided no other evidence that she was authorized to do so. During the jury instructions conference, Luna’s counsel objected to jury instruction 12, which stated: A person (the agent) who has been given a power of attorney by another person (the principal) may give the principal’s money to others if the written power of attorney expressly grants the agent the power to make gifts of the principal’s property. However, the agent may not give the principal’s money or other property to the agent himself unless the written power of attorney expressly authorizes the agent to do so. Luna’s counsel asked the district court where the instruction came from, and the district court explained: It’s the paraphrasing of the Uniform Power of Attorney Act. . . . So it’s partially taken from Idaho Code 15[-]12-217. The legislature has said that the language in a power of attorney granting a general authority with respect to gifts [a]uthorizes the agent to make gifts to other persons up to particular amounts set in the Internal Revenue Code.",
"Idaho Code 15[-]12-201, talks about the authorities that require a specific grant as opposed to a general grant of authority. It includes making gifts, and in (4) of that statute, the law provides that “unless the power of attorney otherwise provides a grant of authority to make a gift, subject to 1512-217.” (2) of 15[-]12-201 provides that “notwithstanding a grant of authority to exercise authority in (1), including the authority under 1(b) to make gifts [u]nless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, may not exercise authority under the power of 4 attorney to create an agent or an individual to whom the agent owes a legal obligation an interest in the principal’s property including by gift.” Luna’s counsel objected “just on the fact that that’s a civil code section, not a criminal” code section. The district court overruled the objection and asked Luna’s counsel whether he had any authority that the law did not apply to criminal cases and if he was arguing that the instruction was an incorrect statement of the law. Luna’s counsel stated, “This instruction effectively creates its own crime.",
"You’re taking civil prohibition and turning that into a crime.” The district court responded: Idaho Code 18-1505 defines abuse of vulnerable adult to include the misuse of the vulnerable adult’s power of attorney, so when the jury has to interpret what misuse is, doesn’t it make sense that they understand the lawful use of power of attorney under the Uniform Power of Attorney Act? The district court again asked Luna’s counsel if he thought the instruction was an accurate statement of the law, and Luna’s counsel said: The only thing I guess, Judge, the however is kind of like the first paragraph and second paragraph are against each other. I know the other one is talking about what the person can expressly can’t do as well. It’s just talking about money to others versus money to self.” The district court said “okay,” and Luna’s counsel stated, “I don’t care if it’s in there, or not.” The jury returned a not-guilty verdict on Count I, related to the sale of the watch, and a guilty verdict on Count II, related to the proceeds from the sale of Hofferber’s home.",
"Luna timely appealed. II. STANDARD OF REVIEW Whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion. State v. Garcia, 166 Idaho 661, 669, 462 P.3d 1125, 1133 (2020). When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). Whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009).",
"When reviewing 5 jury instructions, we ask whether the instructions as a whole, and not individually, fairly, and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993). The existence of an impermissible variance between a charging instrument and the jury instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). Our task in resolving the issue presented is two- fold. First, we must determine whether there is a variance between the information used to charge Luna with exploitation of a vulnerable adult and the instructions presented to the jury. See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). Second, if a variance exists, we must examine whether it rises to the level of prejudicial error requiring reversal of the conviction. Id. A variance between a charging instrument and a jury instruction necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy. State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221.",
"III. ANALYSIS A. The District Court Did Not Err by Excluding Evidence of Other Gifts Luna argues the district court erred by preventing her from introducing evidence of other gifts Hofferber gave Luna prior to his hospitalization in April 2017, as well as evidence of gifts he gave to other women. Luna contends this evidence was relevant because it has a tendency to make it more probable that Luna’s use of Hofferber’s money was not unjust or improper. The State asserts the evidence was inadmissible under various Idaho Rules of Evidence. Evidence that is relevant to a material and disputed issue concerning the crime charged is generally admissible. State v. Garcia, 166 Idaho 661, 670, 462 P.3d 1125, 1134 (2020). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. I.R.E. 401; Garcia, 166 Idaho at 670, 462 P.3d at 1134. Whether a fact is of consequence or material is determined by its relationship to the legal theories presented by the parties.",
"State v. Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). The district court found that evidence of specific gifts Hofferber gave to Luna and other women was not relevant because it did not make it more or less likely that Hofferber gave Luna a 6 gift on any particular occasion. The district court further explained that evidence of Hofferber’s past gift giving was not relevant to whether he intentionally conveyed certain property to Luna. At trial, Luna did not dispute that Hofferber was a vulnerable adult and that she took over $1,000 from Hofferber. Luna was acquitted on Count I, which was premised upon the proceeds from the sale of the watch, thus, any error in excluding the evidence as it related to Count I is harmless.",
"State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App. 2017) (error is not reversible unless it is prejudicial). The only disputed element of Count II was whether it was unjust or improper for Luna to take the $60,000 from the proceeds of the sale of Hofferber’s home. Evidence of Hofferber’s history of generosity towards Luna and other women does not make it more or less likely that it was unjust or improper for Luna to take the $60,000 when she was acting as his agent under the Springing POA. Luna sought to introduce evidence of specific gifts Hofferber had given her and others prior to Hofferber’s incapacitation in April 2017.",
"Actions Hofferber took prior to being incapacitated do not inform whether Luna properly executed her duties as an agent when she transferred $60,000 to herself while Hofferber was incapacitated. The Bank POA did not expressly authorize Luna to make gifts to herself and the Springing POA expressly prohibited Luna from making gifts. As neither document gave Luna the authority to make gifts to herself, evidence of Hofferber’s generosity towards Luna and others prior to Hofferber’s incapacitation did not make it more or less likely that it was unjust or improper for Luna to use either power of attorney to gift herself $60,000. Thus, the district court correctly concluded that evidence of specific gifts Hofferber gave to Luna and other women on prior occasions was not relevant. Even if Hofferber’s history of generous behavior was relevant, the district court did not abuse its discretion by precluding Luna from introducing evidence of specific instances of gift giving and by allowing only reputation evidence of Hofferber’s character for generosity. Idaho Rule of Evidence 404(a) governs the use of character evidence and provides, in relevant part: (1) Prohibited Uses.",
"Evidence of a person’s character or trait of character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: .... (B) a defendant may offer evidence of an alleged victim’s pertinent trait of character, and if the evidence is admitted, the prosecutor may offer evidence to rebut it[.] 7 Idaho Rule of Evidence 405(a) limits the introduction of character evidence: “When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.” Only when a person’s character or character trait is an essential element of a charge, claim, or defense may character be proved by specific instances of the person’s conduct. I.R.E.",
"405(b). Luna does not argue on appeal that evidence of Hofferber’s generosity was an essential element of a charge, claim, or defense; therefore, any admissible evidence of his character was limited under Rule 405 to reputation and opinion testimony. The district court allowed Luna to present evidence of Hofferber’s character for generosity in the form of opinion or reputation evidence. As evidence of specific acts of generosity was precluded under Rule 405, the district court did not abuse its discretion by limiting evidence of Hofferber’s generosity to reputation and opinion testimony. B. The District Court Did Not Err by Excluding Evidence of Luna’s Additional Use of Hofferber’s Bank Account Luna contends the district court erred by excluding evidence of Luna’s prior use of Hofferber’s bank account. The State asserts this evidence was irrelevant to whether Luna’s conduct was unjust or improper and was therefore inadmissible.",
"Luna sought to introduce records of specific checks she had written from Hofferber’s bank account prior to his incapacitation based on the Bank POA. The district court explained that specific instances of Luna accessing Hofferber’s bank account were irrelevant because access to the account did not indicate that any of the transactions, including the $60,000 Luna transferred to herself, were appropriate exercises of Luna’s authority under the Bank POA. The district court did, however, allow Luna to present evidence that Hofferber generally permitted her to access his bank account, and Luna testified that she regularly did so. The district court did not err by preventing Luna from introducing evidence of specific instances when Luna wrote checks from Hofferber’s bank account. As explained above, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.",
"I.R.E. 401; Garcia, 166 Idaho at 670, 462 P.3d at 1134. Evidence of Luna’s prior use of Hofferber’s bank account to write checks for various expenses does not help resolve whether Luna was authorized to transfer $60,000 from the sale of Hofferber’s home to herself while acting as his 8 agent and, therefore, does not make it more or less probable that Luna acted unjustly or improperly in doing so. Thus, the district court did not err by excluding this evidence. C. The Jury Instruction Did Not Create a Variance Luna argues jury instruction 12 created a variance from the information because the information did not allege that Luna exploited Hofferber by failing to act in accordance with the Uniform Power of Attorney Act. Luna contends, as she did at trial, that the instruction effectively creates its own crime by taking a civil prohibition and turning it into a crime. Luna asserts that the alleged variance was fatal because it deprived her of her constitutional right to due process by depriving her of fair notice of the charges against her.",
"In response, the State argues the instruction did not create a variance, as the instruction matched the information with respect to the means by which Luna was alleged to have violated I.C. § 18-1505. Luna’s counsel objected to instruction 12: “Judge, I would object just on the fact that that’s a civil code section, not a criminal” code section. The district court asked Luna’s counsel: Idaho Code 18-1505 defines abuse of vulnerable adult to include the misuse of the vulnerable adult’s power of attorney, so when the jury has to interpret what misuse is, doesn’t it make sense that they understand the lawful use of power of attorney under the Uniform Power of Attorney Act?",
"Jury Instruction 12 did not create a variance. A variance exists when the jury instructions do not match the allegations in the charging document as to the means by which a defendant is alleged to have committed the charged crime. State v. Bernal, 164 Idaho 190, 194, 427 P.3d 1, 5 (2018). In Count II of the information, the State alleged that in violation of I.C. § 18-1505(3), Luna: on or about the 8th day of May 2017, in the County of Ada, State of Idaho, did exploit Mr. Benton “Skip” Merrill Hofferber, Jr., a vulnerable adult, by taking and/or obtaining proceeds and/or money from Mr. Hofferber, where the monetary damage from such exploitation exceeds one thousand dollars ($1,000.00). Idaho Code § 18-1505(4)(c) defines exploitation as: “an action which may include, but is not limited to, the unjust or improper use of a vulnerable adult’s financial power of attorney, funds, property or resources by another person for profit or advantage.” The district court instructed the jury on the elements of exploitation of a vulnerable adult. This included instructing the jury that, in order to find Luna guilty, it was required to find beyond a reasonable doubt that Luna “exploited’ Hofferber “by taking and/or obtaining proceeds and/or money from” him.",
"The district court also provided the jury with instruction 15, which defined 9 “[e]xploitation” or “exploit” using the exact language of I.C. § 18-1505(4)(c). Jury instruction 12 stated: A person (the agent) who has been given a power of attorney by another person (the principal) may give the principal’s money to others if the written power of attorney expressly grants the agent the power to make gifts of the principal’s property. However, the agent may not give the principal’s money or other property to the agent himself unless the written power of attorney expressly authorizes the agent to do so. As the district court explained, instruction 12 paraphrased I.C. § 15-12-201(2), which provides: Notwithstanding a grant of authority to exercise authority in subsection (1) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal, may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.",
"Idaho Code § 15-12-201 is part of the Uniform Power of Attorney Act. Luna contends that by paraphrasing I.C. § 15-12-201, the district court lowered the State’s burden of proof by allowing the jury to find Luna exploited Hofferber simply by failing to comply with the Uniform Power of Attorney Act. We disagree. Luna was charged with exploiting a vulnerable adult; exploitation includes the unjust or improper use of a vulnerable adult’s financial power of attorney. Instruction 12 defined the lawful use of a power of attorney under the Uniform Power of Attorney Act. The instruction provided the jury with an explanation of an agent’s authority under a power of attorney when the power of attorney does not explicitly authorize the agent to give gifts to themselves. Even if the jury found that Luna failed to comply with either of the powers of attorney, it still had to find the additional element that such misuse was either improper or unjust. Thus, the jury could not find Luna guilty based only on her lack of compliance with the paraphrased section of the Uniform Power of Attorney Act. Instead, the jury was required to find that Luna exploited Hofferber.",
"This distinction is recognized by Luna, as she argues in her reply brief that “Whether Ms. Luna exceeded her authority under the springing power of attorney is relevant to the charged crime, but it is not determinative. The critical question was whether Ms. Luna’s admitted use of Mr. Hofferber’s funds was unjust or improper.” Luna contends that whether her actions were unjust or improper is dependent on her intent, and that instruction 12 permitted the jury to read intent out of this case.",
"This assertion is misplaced. 10 Idaho Code § 18-1505(4)(c) does not require a finding of intent, and the information did not allege intent. As such, there was no variance between what Luna was charged with and the jury instructions on that charge. However, even if there was a variance, the variance was not fatal because it did not deprive Luna of fair notice of the charges against her. A variance between a charging instrument and a jury instruction necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy. Windsor, 110 Idaho at 417-18, 716 P.2d at 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221.",
"The notice element requires courts to determine whether the record suggests the possibility that the defendant was misled or embarrassed in the preparation or presentation of his or her defense. Windsor, 110 Idaho at 418, 716 P.2d at 1190. Luna argues the variance was fatal because jury instruction 12 required her to defend her actions as proper under the Uniform Power of Attorney Act and because prior to the jury instructions conference, Luna’s counsel was unaware of the Act’s limitations on gifts. Neither the Bank POA nor the Springing POA provided Luna with the authority to make gifts to herself, and Luna presented no evidence that she was authorized to do so. The premise of the State’s case was that Luna exploited Hofferber by unlawfully using the powers of attorney to take Hofferber’s money. That Luna’s counsel was apparently unaware of applicable law in Idaho regarding the limitations of one acting as an agent under a power of attorney does not mean that Luna was misled or embarrassed in the preparation or presentation of her defense. Because Luna had fair notice of the crime she was alleged to have committed and the means by which she committed it, she was not prejudiced in the presentation of her defense; any variance between the charging document and jury instruction 12 was not fatal.",
"IV. CONCLUSION The district court did not err by prohibiting evidence of specific instances in which Hofferber gave gifts to Luna and other women and evidence of specific instances when Luna wrote checks from Hofferber’s bank account. Jury instruction 12 regarding an agent’s gift giving authority under a power of attorney did not create a fatal variance. Therefore, Luna’s judgment of conviction is affirmed. Judge LORELLO and Judge BRAILSFORD CONCUR. 11"
]
| https://www.courtlistener.com/api/rest/v3/opinions/5128917/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
COLLINS, J. (dissenting). Bastardy proceedings are neither wholly civil nor wholly criminal, but have many of the features and incidents of both. State v. Jager, 19 Wis. 251. See State v. Becht, 23 Minn. 1. They have been properly designated as “quasi criminal.” In any event, they are of great importance to the accused, for the result may be imprisonment; and it seems to me that he should at least have some of the rights and privileges of a person charged with a petty criminal offense. Among those rights is that of having the time alleged when the child, if yet unborn, was begotten, that he may properly prepare his defense. Littleton v. Perry, 50 N. H. 29; Beals v. Furbish, 39 Me. 469. I still adhere to an opinion expressed obiter in State v. Ryan, 78 Minn. 218, 80 N. W. 962, that “it is essential to allege a date in the complaint” as that on which the unborn child was begotten. | 09-09-2022 | [
"COLLINS, J. (dissenting). Bastardy proceedings are neither wholly civil nor wholly criminal, but have many of the features and incidents of both. State v. Jager, 19 Wis. 251. See State v. Becht, 23 Minn. 1. They have been properly designated as “quasi criminal.” In any event, they are of great importance to the accused, for the result may be imprisonment; and it seems to me that he should at least have some of the rights and privileges of a person charged with a petty criminal offense. Among those rights is that of having the time alleged when the child, if yet unborn, was begotten, that he may properly prepare his defense. Littleton v. Perry, 50 N. H. 29; Beals v. Furbish, 39 Me.",
"469. I still adhere to an opinion expressed obiter in State v. Ryan, 78 Minn. 218, 80 N. W. 962, that “it is essential to allege a date in the complaint” as that on which the unborn child was begotten."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7971640/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: MI: Brother was drunk/probably high and got caught peeing in a cemetery. The person who saw took video and went to the cops. The grave is a cop's relative. Can he be charged for anything? Question:He's a fuckin moron but my mom is really worried ever since the cops called telling him to come in for an interview. I don't defend him and am just asking for my mom's sake. Answer #1: I live in Michigan and you can end up on sex offenders registry . A close friend is on the registry for urinating in an alley way in the city of Dearborn . A lawyer would be a very good idea at this time . | 10-28-2016 | [
"Title: MI: Brother was drunk/probably high and got caught peeing in a cemetery. The person who saw took video and went to the cops. The grave is a cop's relative. Can he be charged for anything? Question:He's a fuckin moron but my mom is really worried ever since the cops called telling him to come in for an interview. I don't defend him and am just asking for my mom's sake. Answer #1: I live in Michigan and you can end up on sex offenders registry . A close friend is on the registry for urinating in an alley way in the city of Dearborn . A lawyer would be a very good idea at this time ."
]
| https://www.reddit.com/r/legaladvice/comments/59xkdm/mi_brother_was_drunkprobably_high_and_got_caught/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION OF THE COURT Paul G. Feinman, J. This commercial holdover proceeding arises in the context of a larger schism within a church over its relationship with its *499pastor. Here, the petitioner church seeks to remove the respondent pastor from possession of the pastor’s office and other church premises. Respondent has moved to dismiss the petition on the grounds that it fails to state a cause of action, that the court lacks subject matter jurisdiction (CPLR 3211 [a] [7], [2]) and that the petition was not properly served. Although on the original return date of the motion petitioner requested and was granted an adjournment to serve and file opposition papers, it failed to do so. At oral argument on June 17, 2002 petitioner opposed the motion relying on the strength of the petition itself. The verified petition alleges that petitioner, an incorporated church, formerly employed respondent as pastor* and, as incident to his employment, he entered into possession of the pastor’s office and “rest of the Church.” (See notice of motion exhibit 1). By notice dated April 4, 2002, entitled “Notice of Termination,” petitioner “elect [ed] to terminate [respondent’s] license” and required respondent to surrender possession of the pastor’s study and office and the rest of the space, by April 15, 2002 (see notice of motion exhibit 3). The notice is signed by three deacons and the vice-chairman who comprise petitioner’s Board of Deacons and, according to the affidavit of proof of service, was personally served on respondent on April 5, 2002 by Rudolph Bertram Holder, one of the deacons. Respondent did not vacate the premises, and the notice of petition and petition dated April 24, 2002 was served by substituted service on May 13, 2002. On May 14, 2002, copies of the documents were mailed by certified and first class mail to the church office as well as to a second address in the Bronx. In determining a motion pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiíff ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord, Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 [1995]). The test is “whether the proponent of the pleading has a cause of action, not whether he has stated one.” (Leon v Martinez, supra at 88). In order for respondent to prevail, he must convince the court that nothing *500petitioner can reasonably be expected to prove would establish a valid claim (Siegel, NY Prac § 265 [3d ed]). Respondent’s verified answer consists of five affirmative defenses and one counterclaim. The affirmative defenses are that the Board of Deacons lacks authority to issue the notice of termination, subject matter jurisdiction, continued employment, no landlord-tenant relationship, and improper use of a summary proceeding to terminate employment rather than bringing an action in New York Supreme Court. The counterclaim is for malicious prosecution with the intent of ousting respondent from his employment and the subject premises. In his motion to dismiss, respondent alleges this proceeding is retaliatory, following his discovery of “serious irregularities and improprieties” in the church finances (Mann affidavit if 3). He argues he has never been properly dismissed from his post as pastor and rightfully remains in possession of the premises (Mann affidavit if if 7-11). As proof, he includes copies of two of petitioner’s checks, dated May 12, and May 19, 2002, both made out to him in the amount of $300, which he contends show he was still employed more than a month after the April 15, 2002 date he was supposed to relinquish the tenancy (notice of motion exhibit 8). He also includes uncertified copies of some of the pages of the church bylaws which state that “the membership reserves the right to terminate his service as pastor at any time,” and that actions regarding dismissal “shall be by a vote of the Church upon recommendation of the Board of Deacons” (notice of motion exhibit 4; bylaws, art VII, § 1; art I, § 5). The bylaws state that a pastor must have 90 days’ notice of termination “unless such Pastor becomes involved in some moral turpitude as to make his termination in a shorter period necessary,” although he is to be paid for the last 90 days in any event (notice of motion exhibit 7, bylaws, art VII, § 3). Respondent alleges he is unaware of a church meeting and that there has been no vote to dismiss him (notice of motion, Mann affidavit, 10), and that the only notice he received was the 10-day notice of termination referenced above. He also avers he has not been charged by petitioner with moral turpitude (notice of motion, Mann affidavit, 13). Although the affidavits and other exhibits submitted in support of respondent’s motion raise genuine and serious questions of fact as to whether the Reverend Mann has been properly terminated pursuant to the church bylaws, he has not proffered affidavits from church members or other documentation that would conclusively rebut petitioner’s allegations of *501holdover based on termination of employment. Moreover, because this motion was styled as one brought pursuant to CPLR 3211 based on the inadequacy of the pleadings, rather than a summary judgment motion pursuant to CPLR 3212, the petitioner has no burden to lay bare its proofs on this motion. Indeed, petitioner chose not to submit opposition papers in response to defendant’s motion to dismiss and relies on the petition itself. Here, the standard articulated in Leon v Martinez (84 NY2d 83) prevents dismissal of the petition, given that the petitioner’s claims, without regard to the respondent’s allegations and evidence, if true, sufficiently establish a cause of action. Turning to the respondent’s second argument, lack of subject matter jurisdiction, the court begins with the general observation that a summary proceeding in the Commercial Landlord-Tenant Part of the Civil Court encompasses the recovery of possession of real property, removal of tenants, and rendering judgment for rents due (CCA 204). “It is well settled that Civil Court has jurisdiction over landlord-tenant disputes encompassed in summary proceedings and that when it has the power to decide the dispute, it is desirable that it should do so.” (Subkoff v Broadway-13th Assoc., 139 Misc 2d 176, 176 [Sup Ct, NY County 1988], citing Post v 120 E. End Ave. Corp., 62 NY2d 19, 28 [1984].) The issue in a summary proceeding for possession is whether the landlord is entitled to possession, and any legal or equitable defense offered by the tenant to show that the landlord is not entitled to possession must be considered (Cobert Constr. Corp. v Bassett, 109 Misc 2d 119, 121 [App Term, 1st Dept 1981]; RPAPL 743; see also CCA 905 [equitable defenses may be heard in Civil Court]). Equitable defenses are those which, if established, destroy the petitioner’s rights (3 Dolan, Rasch’s Landlord and Tenant — Summary Proceedings § 43.38, at 138 [4th ed]). However, an equitable defense brought in a court lacking general equity power, such as Civil Court, may be used only as a “shield and not as a sword,” meaning that it may be used to defeat a proceeding but not as a basis to obtain affirmative relief (220V Elec. Dealer Supply v Rondat, Inc., 111 Misc 2d 100, 102 [Sup Ct, NY County 1981]). Given the factual allegations before this court, it would appear that petitioner’s claims for affirmative relief, i.e., eviction of the respondent, cannot be established absent a declaratory judgment that the respondent pastor was properly terminated. While the court would have jurisdiction to adjudicate the respondent’s affirmative defense of continued employment to *502the extent it is raised as a “shield,” in this case petitioner’s claims, that is, petitioner’s “sword,” require a declaratory judgment in the Supreme Court definitively establishing respondent’s employment status. That finding by this court, however, does not necessarily mean the remedy is dismissal. Article VI (§ 19 [f]) of the New York State Constitution provides that “[t]he courts for the city of New York established pursuant to section fifteen of this article shall transfer to the supreme court * * * any action or proceeding which has not been transferred to them from any of said courts over which the said courts for the city of New York have no jurisdiction.” Thus, respondent’s remedy is removal, not dismissal. Respondent’s third argument in support of dismissal is that the notice of termination was served upon him by a party to the action. While it is correct that under CPLR 2103 (a), a party to an action may not serve papers, petitioner is a corporate entity, and the fact that respondent was personally served by Deacon Rudolph Bertram Holder, a member of the Board of Deacons, does not vitiate service. Deacon Holder is an agent of the corporation, and may properly serve respondent (see Grid Realty Corp. v Gialousakis, 129 AD2d 768 [2d Dept 1987] [president of corporate plaintiff validly served process on defendant]). Accordingly, it is ordered that the motion to dismiss the petition for failure to state a cause of action, lack of subject matter jurisdiction, and improper service is denied; and it is further ordered that motion to award legal fees, costs and disbursements is denied; and it is further ordered that this proceeding is removed to the Supreme Court, County of New York, pursuant to article VI (§ 19 [f|) of the New York State Constitution.
Respondent became pastor in about November 2001 (notice of motion, Mann affidavit, [} 3). | 02-05-2022 | [
"OPINION OF THE COURT Paul G. Feinman, J. This commercial holdover proceeding arises in the context of a larger schism within a church over its relationship with its *499pastor. Here, the petitioner church seeks to remove the respondent pastor from possession of the pastor’s office and other church premises. Respondent has moved to dismiss the petition on the grounds that it fails to state a cause of action, that the court lacks subject matter jurisdiction (CPLR 3211 [a] [7], [2]) and that the petition was not properly served. Although on the original return date of the motion petitioner requested and was granted an adjournment to serve and file opposition papers, it failed to do so.",
"At oral argument on June 17, 2002 petitioner opposed the motion relying on the strength of the petition itself. The verified petition alleges that petitioner, an incorporated church, formerly employed respondent as pastor* and, as incident to his employment, he entered into possession of the pastor’s office and “rest of the Church.” (See notice of motion exhibit 1). By notice dated April 4, 2002, entitled “Notice of Termination,” petitioner “elect [ed] to terminate [respondent’s] license” and required respondent to surrender possession of the pastor’s study and office and the rest of the space, by April 15, 2002 (see notice of motion exhibit 3). The notice is signed by three deacons and the vice-chairman who comprise petitioner’s Board of Deacons and, according to the affidavit of proof of service, was personally served on respondent on April 5, 2002 by Rudolph Bertram Holder, one of the deacons. Respondent did not vacate the premises, and the notice of petition and petition dated April 24, 2002 was served by substituted service on May 13, 2002.",
"On May 14, 2002, copies of the documents were mailed by certified and first class mail to the church office as well as to a second address in the Bronx. In determining a motion pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiíff ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord, Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318 [1995]). The test is “whether the proponent of the pleading has a cause of action, not whether he has stated one.” (Leon v Martinez, supra at 88). In order for respondent to prevail, he must convince the court that nothing *500petitioner can reasonably be expected to prove would establish a valid claim (Siegel, NY Prac § 265 [3d ed]). Respondent’s verified answer consists of five affirmative defenses and one counterclaim.",
"The affirmative defenses are that the Board of Deacons lacks authority to issue the notice of termination, subject matter jurisdiction, continued employment, no landlord-tenant relationship, and improper use of a summary proceeding to terminate employment rather than bringing an action in New York Supreme Court. The counterclaim is for malicious prosecution with the intent of ousting respondent from his employment and the subject premises. In his motion to dismiss, respondent alleges this proceeding is retaliatory, following his discovery of “serious irregularities and improprieties” in the church finances (Mann affidavit if 3). He argues he has never been properly dismissed from his post as pastor and rightfully remains in possession of the premises (Mann affidavit if if 7-11). As proof, he includes copies of two of petitioner’s checks, dated May 12, and May 19, 2002, both made out to him in the amount of $300, which he contends show he was still employed more than a month after the April 15, 2002 date he was supposed to relinquish the tenancy (notice of motion exhibit 8).",
"He also includes uncertified copies of some of the pages of the church bylaws which state that “the membership reserves the right to terminate his service as pastor at any time,” and that actions regarding dismissal “shall be by a vote of the Church upon recommendation of the Board of Deacons” (notice of motion exhibit 4; bylaws, art VII, § 1; art I, § 5). The bylaws state that a pastor must have 90 days’ notice of termination “unless such Pastor becomes involved in some moral turpitude as to make his termination in a shorter period necessary,” although he is to be paid for the last 90 days in any event (notice of motion exhibit 7, bylaws, art VII, § 3). Respondent alleges he is unaware of a church meeting and that there has been no vote to dismiss him (notice of motion, Mann affidavit, 10), and that the only notice he received was the 10-day notice of termination referenced above. He also avers he has not been charged by petitioner with moral turpitude (notice of motion, Mann affidavit, 13). Although the affidavits and other exhibits submitted in support of respondent’s motion raise genuine and serious questions of fact as to whether the Reverend Mann has been properly terminated pursuant to the church bylaws, he has not proffered affidavits from church members or other documentation that would conclusively rebut petitioner’s allegations of *501holdover based on termination of employment.",
"Moreover, because this motion was styled as one brought pursuant to CPLR 3211 based on the inadequacy of the pleadings, rather than a summary judgment motion pursuant to CPLR 3212, the petitioner has no burden to lay bare its proofs on this motion. Indeed, petitioner chose not to submit opposition papers in response to defendant’s motion to dismiss and relies on the petition itself. Here, the standard articulated in Leon v Martinez (84 NY2d 83) prevents dismissal of the petition, given that the petitioner’s claims, without regard to the respondent’s allegations and evidence, if true, sufficiently establish a cause of action.",
"Turning to the respondent’s second argument, lack of subject matter jurisdiction, the court begins with the general observation that a summary proceeding in the Commercial Landlord-Tenant Part of the Civil Court encompasses the recovery of possession of real property, removal of tenants, and rendering judgment for rents due (CCA 204). “It is well settled that Civil Court has jurisdiction over landlord-tenant disputes encompassed in summary proceedings and that when it has the power to decide the dispute, it is desirable that it should do so.” (Subkoff v Broadway-13th Assoc., 139 Misc 2d 176, 176 [Sup Ct, NY County 1988], citing Post v 120 E. End Ave. Corp., 62 NY2d 19, 28 [1984].) The issue in a summary proceeding for possession is whether the landlord is entitled to possession, and any legal or equitable defense offered by the tenant to show that the landlord is not entitled to possession must be considered (Cobert Constr. Corp. v Bassett, 109 Misc 2d 119, 121 [App Term, 1st Dept 1981]; RPAPL 743; see also CCA 905 [equitable defenses may be heard in Civil Court]). Equitable defenses are those which, if established, destroy the petitioner’s rights (3 Dolan, Rasch’s Landlord and Tenant — Summary Proceedings § 43.38, at 138 [4th ed]).",
"However, an equitable defense brought in a court lacking general equity power, such as Civil Court, may be used only as a “shield and not as a sword,” meaning that it may be used to defeat a proceeding but not as a basis to obtain affirmative relief (220V Elec. Dealer Supply v Rondat, Inc., 111 Misc 2d 100, 102 [Sup Ct, NY County 1981]). Given the factual allegations before this court, it would appear that petitioner’s claims for affirmative relief, i.e., eviction of the respondent, cannot be established absent a declaratory judgment that the respondent pastor was properly terminated. While the court would have jurisdiction to adjudicate the respondent’s affirmative defense of continued employment to *502the extent it is raised as a “shield,” in this case petitioner’s claims, that is, petitioner’s “sword,” require a declaratory judgment in the Supreme Court definitively establishing respondent’s employment status.",
"That finding by this court, however, does not necessarily mean the remedy is dismissal. Article VI (§ 19 [f]) of the New York State Constitution provides that “[t]he courts for the city of New York established pursuant to section fifteen of this article shall transfer to the supreme court * * * any action or proceeding which has not been transferred to them from any of said courts over which the said courts for the city of New York have no jurisdiction.” Thus, respondent’s remedy is removal, not dismissal. Respondent’s third argument in support of dismissal is that the notice of termination was served upon him by a party to the action. While it is correct that under CPLR 2103 (a), a party to an action may not serve papers, petitioner is a corporate entity, and the fact that respondent was personally served by Deacon Rudolph Bertram Holder, a member of the Board of Deacons, does not vitiate service.",
"Deacon Holder is an agent of the corporation, and may properly serve respondent (see Grid Realty Corp. v Gialousakis, 129 AD2d 768 [2d Dept 1987] [president of corporate plaintiff validly served process on defendant]). Accordingly, it is ordered that the motion to dismiss the petition for failure to state a cause of action, lack of subject matter jurisdiction, and improper service is denied; and it is further ordered that motion to award legal fees, costs and disbursements is denied; and it is further ordered that this proceeding is removed to the Supreme Court, County of New York, pursuant to article VI (§ 19 [f|) of the New York State Constitution.",
"Respondent became pastor in about November 2001 (notice of motion, Mann affidavit, [} 3)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6215199/ | 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 May 4, 2022 has been entered.
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 R. McClure (Reg. No. 38,962) on June 13, 2022. The application has been amended as follows: In Claims: Claims 15-20 (Cancelled) (END OF AMENDMENT)
Allowable Subject Matter Claims 1-14 are allowed. The following is an examiner’s statement of reasons for allowance: The Examiner performed an update search; however, none of the prior arts found, taken either alone or in combination, expressly teaches or suggests claimed invention. Therefore, the Examiner allows these claims at least for this reason, and also for the same reasons discussed in Remarks dated May 04, 2022. 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 WAYNE H. CAI whose telephone number is (571)272-7798. The examiner can normally be reached Monday-Friday, 8:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KATHY WANG-HURST can be reached on (571)270-5371. 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.
/Wayne H Cai/Primary Examiner, Art Unit 2644 | 2022-06-18T22:33:49 | [
"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 May 4, 2022 has been entered. 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 R. McClure (Reg. No. 38,962) on June 13, 2022. The application has been amended as follows: In Claims: Claims 15-20 (Cancelled) (END OF AMENDMENT) Allowable Subject Matter Claims 1-14 are allowed. The following is an examiner’s statement of reasons for allowance: The Examiner performed an update search; however, none of the prior arts found, taken either alone or in combination, expressly teaches or suggests claimed invention. Therefore, the Examiner allows these claims at least for this reason, and also for the same reasons discussed in Remarks dated May 04, 2022. 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 WAYNE H. CAI whose telephone number is (571)272-7798. The examiner can normally be reached Monday-Friday, 8:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KATHY WANG-HURST can be reached on (571)270-5371. 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. /Wayne H Cai/Primary Examiner, Art Unit 2644"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-26.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 1 of 6 PageID #: 1
MELANIE LYN OUTENUNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA, I V. Criminal No. (‘r1’) MELANIE LYN OUTEN, TED ALEXANDER VOSS, Violations: DENNIS JAMES MILLER, 18 U.S.C. §2 MICHAEL DEAN SMITH, AND 21 U.S.C. § 841(a)(1) JARED JUDY, 21 U.S.C. § 841(b)(1)(A) 21 U.S.C. § 841(b)(1)(B) Defendants. 21 U.S.C. § 841(b)(1)(C) 21 U.S.C. § 846
INDICTMENT FILED The Grand Jury charges that: JUN 18 2U19 COUNT ONE US. DISTFUCT COuR’r ELKINS WV 26241 (Conspiracy to Possess with Intent to Distribute Fentanyl) st 1 From on or about the day of January, 2019, and concluding on the date of the return of
the indictment, in Grant County, in the Northern District of West Virginia, and elsewhere,
defendants MELANIE LYN OUTEN and DENNIS JAMES MILLER and TED
ALEXANDER VOSS and MICHAEL DEAN SMITH and JARED JUDY, did unlawfully,
knowingly and intentionally combine, conspire, confederate, agree and have a tacit understanding
to violate Title 21, United States Code, Section 841(a)(1). It was a purpose and object of the
conspiracy to possess with the intent to distribute forty (40) grams or more of a mixture and
substance containing a detectable amount of fentanyl, a Schedule II controlled substance, and a
mixture and substance containing a detectable amount of methamphetamine, a Schedule II
controlled substance in violation of Title 21, United States Code, Sections 841 (a)( 1), and
841(b)(1)(B), and 846. Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 2 of 6 PageID #: 2
COUNT TWO
(Aiding and Abetting Possession with Intent to Distribute Fentanyl)
On or about April 10, 2019, in Jefferson County, in the Northern District of West Virginia,
defendants MELANIE LYN OUTEN and TED ALEXANDER VOSS, aided and abetted by
each other, did unlawfully, knowingly, intentionally, and without authority possess with the intent
to distribute forty (40) grams or more of a mixture and substance containing a detectable amount
of fentanyl, a Schedule II controlled substance, in violation of Title 21, United States Code,
Sections 841(a)(1) and 84l(b)(1)(B), and Title 18, United States Code, Section 2. Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 3 of 6 PageID #: 3
COUNT THREE
(Distribution of Methamphetamine)
On or about April 26, 2019, in Grant County, in the Northern District of West Virginia,
defendant DENNIS JAMES MILLER, did unlawfully, knowingly, intentionally, and without
authority distribute a mixture and substance containing a detectable amount of methamphetamine,
a Schedule II controlled substance, in exchange for $225 in United States currency; in violation of
Title 21, United States Code, Sections 841(a)(l) and 841(b)(l)(C). Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 4 of 6 PageID #: 4
t Distrjbu of Hero) (0
about April 26, 20j9, in Grajjt Count in the flj On Or Noflheii District of West Virgj t deffldan DENNIS JAMES MILLER did Unlawu”lly, kflOWiflg i0ntent1 ally, and Without jy
authority distribute a and Substanc COnta jnj g a detectabi unt of he roin, a Schedule
I COn lied Substunce in Vjolatjo of Title 21 . ted States Code, Sectio ns l8 (a)(l) and
l(c). l(bX4 8 Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 5 of 6 PageID #: 5
COUNT FIVE
(Distribution of Heroin)
On or about May 10, 2019, in Grant County, in the Northern District of West Virginia,
defendant DENNIS JAMES MILLER, did unlawfully, knowingly, intentionally, and without
authority distribute a mixture and substance containing a detectable amount of heroin, a Schedule
I controlled substance, in exchange for $100 in United States currency; in violation of Title 21,
United States Code, Sections 841(a)(1) and 841(b)(1)(C). Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 6 of 6 PageID #: 6
COUNT SIX
(Aiding and Abetting Possession with Intent to Distribute Methamphetamine)
On or about May 15, 2019, in Berkeley County, in the Northern District of West Virginia,
defendants DENNIS JAMES MILLER and TED ALEXANDER VOSS and MICHAEL
DEAN SMITH and JANEl) JUDY, aided and abetted by each other, did unlawfully, knowingly,
intentionally, and without authority possess with the intent to distribute a mixture and substance
containing a detectable amount of methamphetamine, a Schedule II controlled substance, in
violation of Title 21, United States Code, Sections 841 (a)( 1) and 841 (b)( I )(C), and Title 18, United
States Code, Section 2.
A true bill,
Is! Grand Jury Foreperson
Is! WILLIAM J. POWELL United States Attorney
Timothy D. Helman Assistant United States Attorney | 2019-06-18 | [
"Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 1 of 6 PageID #: 1 MELANIE LYN OUTENUNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA UNITED STATES OF AMERICA, I V. Criminal No. (‘r1’) MELANIE LYN OUTEN, TED ALEXANDER VOSS, Violations: DENNIS JAMES MILLER, 18 U.S.C. §2 MICHAEL DEAN SMITH, AND 21 U.S.C. § 841(a)(1) JARED JUDY, 21 U.S.C. § 841(b)(1)(A) 21 U.S.C. § 841(b)(1)(B) Defendants. 21 U.S.C. § 841(b)(1)(C) 21 U.S.C. § 846 INDICTMENT FILED The Grand Jury charges that: JUN 18 2U19 COUNT ONE US. DISTFUCT COuR’r ELKINS WV 26241 (Conspiracy to Possess with Intent to Distribute Fentanyl) st 1 From on or about the day of January, 2019, and concluding on the date of the return of the indictment, in Grant County, in the Northern District of West Virginia, and elsewhere, defendants MELANIE LYN OUTEN and DENNIS JAMES MILLER and TED ALEXANDER VOSS and MICHAEL DEAN SMITH and JARED JUDY, did unlawfully, knowingly and intentionally combine, conspire, confederate, agree and have a tacit understanding to violate Title 21, United States Code, Section 841(a)(1). It was a purpose and object of the conspiracy to possess with the intent to distribute forty (40) grams or more of a mixture and substance containing a detectable amount of fentanyl, a Schedule II controlled substance, and a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance in violation of Title 21, United States Code, Sections 841 (a)( 1), and 841(b)(1)(B), and 846.",
"Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 2 of 6 PageID #: 2 COUNT TWO (Aiding and Abetting Possession with Intent to Distribute Fentanyl) On or about April 10, 2019, in Jefferson County, in the Northern District of West Virginia, defendants MELANIE LYN OUTEN and TED ALEXANDER VOSS, aided and abetted by each other, did unlawfully, knowingly, intentionally, and without authority possess with the intent to distribute forty (40) grams or more of a mixture and substance containing a detectable amount of fentanyl, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 84l(b)(1)(B), and Title 18, United States Code, Section 2. Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 3 of 6 PageID #: 3 COUNT THREE (Distribution of Methamphetamine) On or about April 26, 2019, in Grant County, in the Northern District of West Virginia, defendant DENNIS JAMES MILLER, did unlawfully, knowingly, intentionally, and without authority distribute a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in exchange for $225 in United States currency; in violation of Title 21, United States Code, Sections 841(a)(l) and 841(b)(l)(C).",
"Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 4 of 6 PageID #: 4 t Distrjbu of Hero) (0 about April 26, 20j9, in Grajjt Count in the flj On Or Noflheii District of West Virgj t deffldan DENNIS JAMES MILLER did Unlawu”lly, kflOWiflg i0ntent1 ally, and Without jy authority distribute a and Substanc COnta jnj g a detectabi unt of he roin, a Schedule I COn lied Substunce in Vjolatjo of Title 21 . ted States Code, Sectio ns l8 (a)(l) and l(c). l(bX4 8 Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 5 of 6 PageID #: 5 COUNT FIVE (Distribution of Heroin) On or about May 10, 2019, in Grant County, in the Northern District of West Virginia, defendant DENNIS JAMES MILLER, did unlawfully, knowingly, intentionally, and without authority distribute a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, in exchange for $100 in United States currency; in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C). Case 3:19-cr-00040-GMG-RWT Document 1 Filed 06/18/19 Page 6 of 6 PageID #: 6 COUNT SIX (Aiding and Abetting Possession with Intent to Distribute Methamphetamine) On or about May 15, 2019, in Berkeley County, in the Northern District of West Virginia, defendants DENNIS JAMES MILLER and TED ALEXANDER VOSS and MICHAEL DEAN SMITH and JANEl) JUDY, aided and abetted by each other, did unlawfully, knowingly, intentionally, and without authority possess with the intent to distribute a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841 (a)( 1) and 841 (b)( I )(C), and Title 18, United States Code, Section 2.",
"A true bill, Is! Grand Jury Foreperson Is! WILLIAM J. POWELL United States Attorney Timothy D. Helman Assistant United States Attorney"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/96081415/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION This office action is responsive to request for continued examination filed on July 15, 2021 in this application Lei et al., U.S. Patent Application No. 16/560,362 (Filed September 4, 2019) claiming priority to TW107137729 (10/25/2018) (“Lei”). Claims 1 – 12 were pending. Claims 1 and 12 are amended. Claims 1 – 12 are pending.
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 of on July 15, 2021 has been entered.
Response to Arguments With respect to Applicant’s argument on pgs. 9 - 10 of the Applicant’s Remarks (“Remarks”) stating that the prior art fails to teach transmitting the update in an ordered sequence of segments, Examiner respectfully neither agrees nor disagrees, however in the interests of compact prosecution prior art reference Shelton is added which teaches these steps. See infra § Claim Rejections - 35 USC §103, § Claim 1. Shelton teaches that a device software update is transmitted in the order of its file segments by first transmitting the first address where a first Shelton at ¶ 0042 and fig. 3. Therefore, the prior art teaches transmitting the update in an ordered sequence of segments.
Claim Rejections 35 U.S.C. §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 of this title, 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 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 1 – 5 and 7 – 12 are rejected under 35 U.S.C. 103 as being unpatentable over Burger et al., United States Patent Application Publication No. 2016/0380819 (Published December 29, 2016, filed June 26, 2015) (“Burger”), in view of Shelton, United States Patent Application Publication No. 2006/0080654 (Published April 13, 2006, filed September 30, 2005) (“Shelton”) and Seminario et al., United States Patent Application Publication No. 2017/0220404 (Published August 3, 2017, filed February 1, 2017) (“Seminario”).
Claims 1 and 12 With respect to claims 1 and 12 Burger teaches the invention as claimed including a method for remotely updating firmware of a field programmable gate array (FPGA), the FPGA electrically connected to a controller, and including a storage and 5a processor, the storage having a plurality of update-storage areas, the processor electrically connected to the storage and the controller, the controller communicable with a remote device via a communication network, the remote device being used to 10sequentially transmit plural entries of configuration data to the controller, the method comprising steps of: (A) transmitting, by the controller after receiving one of the entries of configuration data transmitted by the remote device… a storing instruction and said 15one of the entries of configuration data to the processor, the entries of configuration data corresponding to the update file, each of the entries of configuration data recording a respective one of file segments into which the update file is divided… and location information 20which indicates a location of a respective one of the update-storage areas; {An FPGA firmware update method transmits an update firmware from a remote device via a network to a network interface on an FPGA device, where the network interface sends the update to the FPGA and the update specifies entries of configuration data and updates the FPGA. Burger at ¶ 0027; id. at ¶¶ 0041, 0048, 0050, 0148 (configuration of FPGA storage areas).} (B) by the processor based on the storing instruction and said one of the entries of configuration data, performing an updating subtask to store the file segment 25recorded in said one of the entries of configuration data in one of the update-storage areas indicated by the location information recorded in said one of the20 entries of configuration data; {The Burger at ¶¶ 0050, 0148 (configuration of FPGA storage areas); id. at claim 6 (detecting an error).} However, Burger does not explicitly teach the limitation: [transferring configuration data] according to an order of a sequence in which an update file is divided into file segments,…in the order of the sequence,…in the order of the sequence. {Shelton does teach this limitation. Shelton teaches that the firmware update method, as taught by Burger may include where a device software update is transmitted in the order of its file segments by first transmitting the first address where a first segment is to be stored, then transmitting the first segment, and then repeating with a following address and a following segment until all the segments have been transferred. Shelton at ¶ 0042 and fig. 3. Burger and Shelton are analogous art because they are from the “same field of endeavor” and are both from the same “problem-solving area.” Specifically, they are both from the field of software installation, and both are trying to solve the problem of how to install software updates. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the use of a firmware update method, as taught in Burger, with transmitting the update in segments, as taught in Shelton. Shelton teaches that transmitting in segments allows for acknowledgement by the receiving device after each segment. Id at 0042. Therefore, one having ordinary skill in the art would have been motivated to combine the use of a firmware update method, as taught in Burger, with transmitting the update in segments, as taught in Shelton, for the purpose using a reliable data transfer method to transfer a firmware update reliably.} However, Burger and Shelton does not explicitly teach the limitation: (C) determining, by the controller, whether the processor has successfully completed the updating subtask; 5(D) by the controller when it is determined that the processor has successfully completed the updating subtask, generating a partial-update-success message, and transmitting the partial-update-success message to the remote device so as to enable the remote device to 10determine whether all of the entries of configuration data corresponding to the update file have been transmitted to the controller and to transmit, when it is determined that not all of the entries of configuration data corresponding to the update file have been 15transmitted to the controller, a next one of the entries of configuration data to the controller {Seminario does teach this limitation. Seminario teaches that the firmware update method, as taught by Burger and Shelton may include validation of the firmware including detection of an installation error, partial installation, or successful installation. Seminario at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶¶ 0016 & 0019 (error message is transmitted); id. at ¶ 0082 (FPGA). Burger, Shelton, and Seminario are analogous art because they are from the “same field of endeavor” and are both from the same “problem-solving area.” Specifically, they are both from the field of software installation, and both are trying to solve the problem of how to install FPGA software. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the use of a method for FPGA firmware installation, as taught in Burger and Shelton, with validating the installation, as taught in Seminario. Seminario teaches that error detection results in not executing the failed installation. Id at Abstract. Therefore, one having ordinary skill in the art would have been motivated to Burger and Shelton, with validating the installation, as taught in Seminario, for the purpose of combining a known FPGA validation method with an FPGA installation procedure.}
Claim 2 With respect to claim 2, Burger, Shelton, and Seminario teach the invention as claimed, including: prior to step (A), further comprising: 20(E) transmitting, by the controller after receiving said one of the entries of configuration data transmitted by the remote device, an erasing instruction and the location information recorded in said one of the entries of configuration data to the processor; and 25(F) by the processor based on the erasing instruction and the location information, performing an erasing subtask to erase all of data stored in the one of the21 update-storage areas indicated by the location information. Application No. 15/628,480Filed June 20, 2017 Page 3of6{Update erases the previous firmware as it is installed. Burger at ¶ 0027; id. at ¶¶ 0041, 0050, 0148 (configuration of FPGA storage areas); id. at claim 6 (detecting an error); id. at ¶ 0038 (FPGA may be erasable).}
Claim 3 With respect to claim 3, Burger, Shelton, and Seminario teach the invention as claimed, including: subsequent to step 5(F), further comprising: (G) determining, by the processor, whether the processor has successfully completed the erasing subtask; (H) by the processor when it is determined that the 10processor has successfully completed the erasing subtask, generating an erase-success message, and storing the erase-success message in the storage; (I) determining, by the controller, whether the storage stores the erase-success message so as to 15determine whether the processor has completed the erasing subtask; and (J) by the controller when it is determined that the storage does not store the erase-success message, generating an update-failure message, and transmitting 20the update-failure message to the remote device, wherein when it is determined by the controller in step (I) that the storage stores the erase-success message, step (A) is to be performed. Page 3of6{Update erases the previous firmware as it is installed and reports a failure in the erasure as a failure of the updating process. Burger at ¶ 0027; id. at ¶¶ 0041, 0050, 0148 (configuration of FPGA storage areas); id. at ¶ 0038 (FPGA may be erasable); id. at claim 6 (detecting an error); id. at ¶ 0159 (failure detection).}
Claim 4 With respect to claim 4, Burger, Shelton, and Seminario teach the invention as claimed, including: the storage storing a plurality of flags each of which corresponds to a respective one of the update-storage areas, and each22 of which has one of a first predetermined flag value indicating that the respective one of the update-storage areas is allowed to be written and a second predetermined flag value indicating that the respective one of the 5update-storage areas is disallowed to be written, each of the flags having the second predetermined flag value by default, the method, prior to step (E), further comprising: (K) updating, by the controller based on the location 10information recorded in said one of the entries of configuration data, one of the flags corresponding to the one of the update-storage areas indicated by the location information to have the first predetermined flag value. Page 3of6{Flags are set to indicate if the update can be applied, the validation status, and if reboot is approved. Seminario at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶ 0016 (error message is transmitted); id. at ¶ 0082 (FPGA).}
Claim 5 With respect to claim 5, Burger, Shelton, and Seminario teach the invention as claimed, including: wherein step (D) includes updating, by the controller when it is determined that the processor has successfully completed the updating subtask, said one of the flags 20corresponding to the one of the update-storage areas indicated by the location information recorded in said one of the entries of configuration data to have the second predetermined flag value. Page 3of6{Flags are set to indicate if the update can be applied, the validation status, and if reboot is approved. Seminario at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶ 0016 (error message is transmitted); id. at ¶ 0082 (FPGA).}
Claim 7 With respect to claim 7, Burger, Shelton, and Seminario teach the invention as claimed, including: the controller 10storing a count value and a threshold value, the method, subsequent to step (C), further comprising: (N) by the controller when it is determined that the processor has not successfully completed the updating subtask, adding one to the count value, and determining 15whether the count value is greater than the threshold value; and (O) proceeding to step (A) when it is determined that the count value is not greater than the threshold value, wherein step (D) includes initializing the count 20value by the controller. Page 3of6{During the reboot phase of updating firmware the firmware may be checked to see if it was not successful (“bad”) a predetermined number of times until it either succeeds or until a threshold count is reached at which point a reinstall is attempted. Seminario at ¶¶ 0372 & 0373.}
Claim 8 With respect to claim 8, Burger, Shelton, and Seminario teach the invention as claimed, including: subsequent to step (N), further comprising: (P) by the controller when it is determined that the 25count value is greater than the threshold value, initializing the count value and transmitting an update-failure message to the remote device. Page 3of6{During the reboot phase of updating firmware the firmware may be checked to see if it was not successful (“bad”) a predetermined number of times until it either succeeds or until a threshold count is reached at which point a reinstall is attempted. Seminario at ¶¶ 0372 & 0373.}
Claim 9 With respect to claim 9, Burger, Shelton, and Seminario teach the invention as claimed, including: subsequent to step (B) and prior to step (C), further comprising: (Q) determining, by the processor, whether the file 5segment recorded in said one of the entries of configuration data has been successfully stored in the one of the update-storage areas indicated by the location information; and (R) by the processor when it is determined that the 10file segment recorded in said one of the entries of configuration data has been successfully stored in the corresponding one of the update-storage areas, generating a store-success message and storing the store-success message in the storage, 15wherein step (C) includes determining, by the controller, whether the storage stores the store-success message so as to determine whether the processor has successfully completed the updating subtask. {Firmware is validated including detection of an installation error, partial installation, or successful installation. Seminario at ¶¶ 0023 & 0196 (track download and successful saving of firmware); id. at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶ 0016 (error message is transmitted); id. at ¶ 0082 (FPGA).}
Claim 10 With respect to claim 10, Burger, Shelton, and Seminario teach the invention as claimed, including: (S) transmitting, by the remote device, a version request that is related to a current version of the firmware being executed by the FPGA to the controller 25after a predetermined time interval has elapsed since the remote device transmits a restarting instruction to the controller; 25 (T) obtaining, by the controller via the FGPA in response to receipt of the version request, a version identifier that is specific to a version of the firmware and that is recorded in the update file which is stored 5in an execution location in the storage of the FPGA; (U) transmitting, by the controller, the version identifier to the remote device; and (V) determining, by the remote device, whether the firmware of the FPGA has been correctly updated based 10on a comparison between the version identifier thus requested and another version identifier that is recorded in the update file which was transmitted by the remote device to the controller. {The version of firmware operating on the FPGA may be monitored by a remote device such as a configuration service 1502 to identify when the current operating version need to be changed. Burger at ¶¶ 00121, 0135, 0137. EN: “The transitional term “comprising”…is inclusive or open-ended and does not exclude additional, run recited elements or method steps” and thus includes where the claimed “version identifier” is an identification of the entire version of firmware running rather than simply a text string or integer that specifies a version number. MPEP at 2111.03 (I).}
Claim 11 With respect to claim 11, Burger, Shelton, and Seminario teach the invention as claimed, including: (W) by the controller after the FPGA has executed the update file, obtaining a version identifier that is specific to a current version of the firmware being executed by the FGPA and that is recorded in the update 20file which is stored in an execution location in the storage of the FPGA, and storing the version identifier; and (X) by the controller when the remote device transmits a version request that is related to the current 25version of the firmware being executed by the FPGA to the controller, transmitting the version identifier to the remote device so as to enable the remote device to26 determine whether the firmware of the FPGA has been correctly updated based on the version identifier. {The version of firmware operating on the FPGA may be monitored by a remote device such as a configuration Burger at ¶¶ 00121, 0135, 0137. EN: “The transitional term “comprising”…is inclusive or open-ended and does not exclude additional, run recited elements or method steps” and thus includes where the claimed “version identifier” is an identification of the entire version of firmware running rather than simply a text string or integer that specifies a version number. MPEP at 2111.03 (I).}
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Burger in view of Shelton, Seminario, and Conrad et al., United States Patent Application Publication No. 2016/0036814 (Published February 4, 2016, filed October 14, 2015) (“Sem Conrad inario”).
Claim 6 With respect to claim 6, Burger, Shelton, and Seminario teach the invention as claimed, however, Burger, Shelton, and Seminario do not explicitly teach the limitation: the controller storing an entry of reference account data, the method, prior to step (A), further comprising: 23 (L) determining, by the controller after receiving an entry of asserted account data from the remote device, whether the entry of asserted account data matches the entry of reference account data; and 5(M) proceeding to step (A) when it is determined that the entry of asserted account data matches the entry of reference account data. {Conrad does teach this limitation. Conrad teaches that the firmware update method, as taught by Burger, Shelton, and Seminario may include where a controller that receives account information, such as a lock that verifies firmware using a received encrypted account profile, may use the account information present on the controller to match with the received account information, such as by the lock decrypting the received account information using a stored key and seeing if the account information matches source account information of which the lock is already aware. Conrad at ¶¶ 0138 & 0139; id. at ¶¶ 0160, 0166, 0168 (transferring update in segments). Burger, Shelton, Seminario, and Conrad are analogous art because they are from the “same field of endeavor” and are both from the same “problem-solving area.” Specifically, they are both from the field of software installation, and both are trying to solve the problem of how to install FPGA software. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the use of a method for FPGA firmware installation, as taught in Burger, Shelton, and Seminario, with validating account information, as taught in Conrad. Seminario teaches that stored account information, such as “a saved CRC value stored in the at least one memory” is used to validate the firmware prior to installation. Id. at ¶ 0023. Therefore, one having ordinary skill in the art would have been motivated to combine the use of a method for FPGA firmware installation, as taught in Burger, Shelton, and Seminario, with validating account information, as taught in Conrad, for the purpose of validating received firmware using account information.}
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to THEODORE E HEBERT whose telephone number is (571)270-1409. The examiner can normally be reached on Monday to Friday 9:00 a.m. to 6:00 p.m.. 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 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.
//T.H./ September 30, 2021 Examiner, Art Unit 2199
/LEWIS A BULLOCK JR/Supervisory Patent Examiner, Art Unit 2199 | 2021-10-06T04:26:24 | [
"DETAILED ACTION This office action is responsive to request for continued examination filed on July 15, 2021 in this application Lei et al., U.S. Patent Application No. 16/560,362 (Filed September 4, 2019) claiming priority to TW107137729 (10/25/2018) (“Lei”). Claims 1 – 12 were pending. Claims 1 and 12 are amended. Claims 1 – 12 are pending. 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 of on July 15, 2021 has been entered. Response to Arguments With respect to Applicant’s argument on pgs. 9 - 10 of the Applicant’s Remarks (“Remarks”) stating that the prior art fails to teach transmitting the update in an ordered sequence of segments, Examiner respectfully neither agrees nor disagrees, however in the interests of compact prosecution prior art reference Shelton is added which teaches these steps. See infra § Claim Rejections - 35 USC §103, § Claim 1. Shelton teaches that a device software update is transmitted in the order of its file segments by first transmitting the first address where a first Shelton at ¶ 0042 and fig. 3. Therefore, the prior art teaches transmitting the update in an ordered sequence of segments. Claim Rejections 35 U.S.C. §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 of this title, 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 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 1 – 5 and 7 – 12 are rejected under 35 U.S.C. 103 as being unpatentable over Burger et al., United States Patent Application Publication No. 2016/0380819 (Published December 29, 2016, filed June 26, 2015) (“Burger”), in view of Shelton, United States Patent Application Publication No. 2006/0080654 (Published April 13, 2006, filed September 30, 2005) (“Shelton”) and Seminario et al., United States Patent Application Publication No. 2017/0220404 (Published August 3, 2017, filed February 1, 2017) (“Seminario”). Claims 1 and 12 With respect to claims 1 and 12 Burger teaches the invention as claimed including a method for remotely updating firmware of a field programmable gate array (FPGA), the FPGA electrically connected to a controller, and including a storage and 5a processor, the storage having a plurality of update-storage areas, the processor electrically connected to the storage and the controller, the controller communicable with a remote device via a communication network, the remote device being used to 10sequentially transmit plural entries of configuration data to the controller, the method comprising steps of: (A) transmitting, by the controller after receiving one of the entries of configuration data transmitted by the remote device… a storing instruction and said 15one of the entries of configuration data to the processor, the entries of configuration data corresponding to the update file, each of the entries of configuration data recording a respective one of file segments into which the update file is divided… and location information 20which indicates a location of a respective one of the update-storage areas; {An FPGA firmware update method transmits an update firmware from a remote device via a network to a network interface on an FPGA device, where the network interface sends the update to the FPGA and the update specifies entries of configuration data and updates the FPGA.",
"Burger at ¶ 0027; id. at ¶¶ 0041, 0048, 0050, 0148 (configuration of FPGA storage areas).} (B) by the processor based on the storing instruction and said one of the entries of configuration data, performing an updating subtask to store the file segment 25recorded in said one of the entries of configuration data in one of the update-storage areas indicated by the location information recorded in said one of the20 entries of configuration data; {The Burger at ¶¶ 0050, 0148 (configuration of FPGA storage areas); id. at claim 6 (detecting an error).} However, Burger does not explicitly teach the limitation: [transferring configuration data] according to an order of a sequence in which an update file is divided into file segments,…in the order of the sequence,…in the order of the sequence. {Shelton does teach this limitation. Shelton teaches that the firmware update method, as taught by Burger may include where a device software update is transmitted in the order of its file segments by first transmitting the first address where a first segment is to be stored, then transmitting the first segment, and then repeating with a following address and a following segment until all the segments have been transferred. Shelton at ¶ 0042 and fig.",
"3. Burger and Shelton are analogous art because they are from the “same field of endeavor” and are both from the same “problem-solving area.” Specifically, they are both from the field of software installation, and both are trying to solve the problem of how to install software updates. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the use of a firmware update method, as taught in Burger, with transmitting the update in segments, as taught in Shelton. Shelton teaches that transmitting in segments allows for acknowledgement by the receiving device after each segment. Id at 0042.",
"Therefore, one having ordinary skill in the art would have been motivated to combine the use of a firmware update method, as taught in Burger, with transmitting the update in segments, as taught in Shelton, for the purpose using a reliable data transfer method to transfer a firmware update reliably.} However, Burger and Shelton does not explicitly teach the limitation: (C) determining, by the controller, whether the processor has successfully completed the updating subtask; 5(D) by the controller when it is determined that the processor has successfully completed the updating subtask, generating a partial-update-success message, and transmitting the partial-update-success message to the remote device so as to enable the remote device to 10determine whether all of the entries of configuration data corresponding to the update file have been transmitted to the controller and to transmit, when it is determined that not all of the entries of configuration data corresponding to the update file have been 15transmitted to the controller, a next one of the entries of configuration data to the controller {Seminario does teach this limitation.",
"Seminario teaches that the firmware update method, as taught by Burger and Shelton may include validation of the firmware including detection of an installation error, partial installation, or successful installation. Seminario at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶¶ 0016 & 0019 (error message is transmitted); id. at ¶ 0082 (FPGA). Burger, Shelton, and Seminario are analogous art because they are from the “same field of endeavor” and are both from the same “problem-solving area.” Specifically, they are both from the field of software installation, and both are trying to solve the problem of how to install FPGA software.",
"It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the use of a method for FPGA firmware installation, as taught in Burger and Shelton, with validating the installation, as taught in Seminario. Seminario teaches that error detection results in not executing the failed installation. Id at Abstract. Therefore, one having ordinary skill in the art would have been motivated to Burger and Shelton, with validating the installation, as taught in Seminario, for the purpose of combining a known FPGA validation method with an FPGA installation procedure.} Claim 2 With respect to claim 2, Burger, Shelton, and Seminario teach the invention as claimed, including: prior to step (A), further comprising: 20(E) transmitting, by the controller after receiving said one of the entries of configuration data transmitted by the remote device, an erasing instruction and the location information recorded in said one of the entries of configuration data to the processor; and 25(F) by the processor based on the erasing instruction and the location information, performing an erasing subtask to erase all of data stored in the one of the21 update-storage areas indicated by the location information.",
"Application No. 15/628,480Filed June 20, 2017 Page 3of6{Update erases the previous firmware as it is installed. Burger at ¶ 0027; id. at ¶¶ 0041, 0050, 0148 (configuration of FPGA storage areas); id. at claim 6 (detecting an error); id. at ¶ 0038 (FPGA may be erasable).} Claim 3 With respect to claim 3, Burger, Shelton, and Seminario teach the invention as claimed, including: subsequent to step 5(F), further comprising: (G) determining, by the processor, whether the processor has successfully completed the erasing subtask; (H) by the processor when it is determined that the 10processor has successfully completed the erasing subtask, generating an erase-success message, and storing the erase-success message in the storage; (I) determining, by the controller, whether the storage stores the erase-success message so as to 15determine whether the processor has completed the erasing subtask; and (J) by the controller when it is determined that the storage does not store the erase-success message, generating an update-failure message, and transmitting 20the update-failure message to the remote device, wherein when it is determined by the controller in step (I) that the storage stores the erase-success message, step (A) is to be performed.",
"Page 3of6{Update erases the previous firmware as it is installed and reports a failure in the erasure as a failure of the updating process. Burger at ¶ 0027; id. at ¶¶ 0041, 0050, 0148 (configuration of FPGA storage areas); id. at ¶ 0038 (FPGA may be erasable); id. at claim 6 (detecting an error); id. at ¶ 0159 (failure detection).} Claim 4 With respect to claim 4, Burger, Shelton, and Seminario teach the invention as claimed, including: the storage storing a plurality of flags each of which corresponds to a respective one of the update-storage areas, and each22 of which has one of a first predetermined flag value indicating that the respective one of the update-storage areas is allowed to be written and a second predetermined flag value indicating that the respective one of the 5update-storage areas is disallowed to be written, each of the flags having the second predetermined flag value by default, the method, prior to step (E), further comprising: (K) updating, by the controller based on the location 10information recorded in said one of the entries of configuration data, one of the flags corresponding to the one of the update-storage areas indicated by the location information to have the first predetermined flag value.",
"Page 3of6{Flags are set to indicate if the update can be applied, the validation status, and if reboot is approved. Seminario at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶ 0016 (error message is transmitted); id. at ¶ 0082 (FPGA).} Claim 5 With respect to claim 5, Burger, Shelton, and Seminario teach the invention as claimed, including: wherein step (D) includes updating, by the controller when it is determined that the processor has successfully completed the updating subtask, said one of the flags 20corresponding to the one of the update-storage areas indicated by the location information recorded in said one of the entries of configuration data to have the second predetermined flag value. Page 3of6{Flags are set to indicate if the update can be applied, the validation status, and if reboot is approved. Seminario at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id.",
"at ¶ 0016 (error message is transmitted); id. at ¶ 0082 (FPGA).} Claim 7 With respect to claim 7, Burger, Shelton, and Seminario teach the invention as claimed, including: the controller 10storing a count value and a threshold value, the method, subsequent to step (C), further comprising: (N) by the controller when it is determined that the processor has not successfully completed the updating subtask, adding one to the count value, and determining 15whether the count value is greater than the threshold value; and (O) proceeding to step (A) when it is determined that the count value is not greater than the threshold value, wherein step (D) includes initializing the count 20value by the controller. Page 3of6{During the reboot phase of updating firmware the firmware may be checked to see if it was not successful (“bad”) a predetermined number of times until it either succeeds or until a threshold count is reached at which point a reinstall is attempted.",
"Seminario at ¶¶ 0372 & 0373.} Claim 8 With respect to claim 8, Burger, Shelton, and Seminario teach the invention as claimed, including: subsequent to step (N), further comprising: (P) by the controller when it is determined that the 25count value is greater than the threshold value, initializing the count value and transmitting an update-failure message to the remote device. Page 3of6{During the reboot phase of updating firmware the firmware may be checked to see if it was not successful (“bad”) a predetermined number of times until it either succeeds or until a threshold count is reached at which point a reinstall is attempted. Seminario at ¶¶ 0372 & 0373.}",
"Claim 9 With respect to claim 9, Burger, Shelton, and Seminario teach the invention as claimed, including: subsequent to step (B) and prior to step (C), further comprising: (Q) determining, by the processor, whether the file 5segment recorded in said one of the entries of configuration data has been successfully stored in the one of the update-storage areas indicated by the location information; and (R) by the processor when it is determined that the 10file segment recorded in said one of the entries of configuration data has been successfully stored in the corresponding one of the update-storage areas, generating a store-success message and storing the store-success message in the storage, 15wherein step (C) includes determining, by the controller, whether the storage stores the store-success message so as to determine whether the processor has successfully completed the updating subtask.",
"{Firmware is validated including detection of an installation error, partial installation, or successful installation. Seminario at ¶¶ 0023 & 0196 (track download and successful saving of firmware); id. at ¶¶ 0014 (validate); id. at ¶¶ 0027, 0028, 0373 (partial installation leading to temporary error or reversion); id. at ¶ 0016 (error message is transmitted); id. at ¶ 0082 (FPGA).} Claim 10 With respect to claim 10, Burger, Shelton, and Seminario teach the invention as claimed, including: (S) transmitting, by the remote device, a version request that is related to a current version of the firmware being executed by the FPGA to the controller 25after a predetermined time interval has elapsed since the remote device transmits a restarting instruction to the controller; 25 (T) obtaining, by the controller via the FGPA in response to receipt of the version request, a version identifier that is specific to a version of the firmware and that is recorded in the update file which is stored 5in an execution location in the storage of the FPGA; (U) transmitting, by the controller, the version identifier to the remote device; and (V) determining, by the remote device, whether the firmware of the FPGA has been correctly updated based 10on a comparison between the version identifier thus requested and another version identifier that is recorded in the update file which was transmitted by the remote device to the controller. {The version of firmware operating on the FPGA may be monitored by a remote device such as a configuration service 1502 to identify when the current operating version need to be changed.",
"Burger at ¶¶ 00121, 0135, 0137. EN: “The transitional term “comprising”…is inclusive or open-ended and does not exclude additional, run recited elements or method steps” and thus includes where the claimed “version identifier” is an identification of the entire version of firmware running rather than simply a text string or integer that specifies a version number. MPEP at 2111.03 (I).} Claim 11 With respect to claim 11, Burger, Shelton, and Seminario teach the invention as claimed, including: (W) by the controller after the FPGA has executed the update file, obtaining a version identifier that is specific to a current version of the firmware being executed by the FGPA and that is recorded in the update 20file which is stored in an execution location in the storage of the FPGA, and storing the version identifier; and (X) by the controller when the remote device transmits a version request that is related to the current 25version of the firmware being executed by the FPGA to the controller, transmitting the version identifier to the remote device so as to enable the remote device to26 determine whether the firmware of the FPGA has been correctly updated based on the version identifier.",
"{The version of firmware operating on the FPGA may be monitored by a remote device such as a configuration Burger at ¶¶ 00121, 0135, 0137. EN: “The transitional term “comprising”…is inclusive or open-ended and does not exclude additional, run recited elements or method steps” and thus includes where the claimed “version identifier” is an identification of the entire version of firmware running rather than simply a text string or integer that specifies a version number. MPEP at 2111.03 (I).} Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Burger in view of Shelton, Seminario, and Conrad et al., United States Patent Application Publication No. 2016/0036814 (Published February 4, 2016, filed October 14, 2015) (“Sem Conrad inario”). Claim 6 With respect to claim 6, Burger, Shelton, and Seminario teach the invention as claimed, however, Burger, Shelton, and Seminario do not explicitly teach the limitation: the controller storing an entry of reference account data, the method, prior to step (A), further comprising: 23 (L) determining, by the controller after receiving an entry of asserted account data from the remote device, whether the entry of asserted account data matches the entry of reference account data; and 5(M) proceeding to step (A) when it is determined that the entry of asserted account data matches the entry of reference account data.",
"{Conrad does teach this limitation. Conrad teaches that the firmware update method, as taught by Burger, Shelton, and Seminario may include where a controller that receives account information, such as a lock that verifies firmware using a received encrypted account profile, may use the account information present on the controller to match with the received account information, such as by the lock decrypting the received account information using a stored key and seeing if the account information matches source account information of which the lock is already aware.",
"Conrad at ¶¶ 0138 & 0139; id. at ¶¶ 0160, 0166, 0168 (transferring update in segments). Burger, Shelton, Seminario, and Conrad are analogous art because they are from the “same field of endeavor” and are both from the same “problem-solving area.” Specifically, they are both from the field of software installation, and both are trying to solve the problem of how to install FPGA software. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the use of a method for FPGA firmware installation, as taught in Burger, Shelton, and Seminario, with validating account information, as taught in Conrad. Seminario teaches that stored account information, such as “a saved CRC value stored in the at least one memory” is used to validate the firmware prior to installation. Id. at ¶ 0023.",
"Therefore, one having ordinary skill in the art would have been motivated to combine the use of a method for FPGA firmware installation, as taught in Burger, Shelton, and Seminario, with validating account information, as taught in Conrad, for the purpose of validating received firmware using account information.} Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to THEODORE E HEBERT whose telephone number is (571)270-1409. The examiner can normally be reached on Monday to Friday 9:00 a.m. to 6:00 p.m.. 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 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. //T.H./ September 30, 2021 Examiner, Art Unit 2199 /LEWIS A BULLOCK JR/Supervisory Patent Examiner, Art Unit 2199"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-10-10.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
This was an action by appellant against the city of Gary, Indiana, to recover damages for the death *Page 676 of appellant's husband on July 21, 1926. Decedent's death resulted from injuries he received when he was struck by an automobile, which, it was alleged, belonged to appellee and was being driven in a negligent manner. There is a mass of pleadings, and to attempt to set them out would serve no useful purpose. Suffice it to say that eventually the case went to trial before a jury on a third amended complaint, to which had been filed five paragraphs of answer. Nine paragraphs of reply were then filed, and all save two were stricken out. At the close of plaintiff's case, the court instructed the jury to return a verdict in behalf of the defendant. This was assigned as one of the reasons in the motion for a new trial. The action of the court in overruling this motion is assigned as error. There were other attempted assignments, which, in view of the result that must be reached, are unnecessary to consider. The appellant had placed one James Sherman on the stand, and, from the direct examination, it appeared that Sherman, the driver of the car that caused decedent's death, was acting under orders of the captain of police and was authorized to operate the car by the police department. This testimony was amplified by proper cross-examination, and also by questions from the court, the court's questions not being objected to in any way. It was conclusively shown by competent evidence that the driver of the car which killed decedent was a police officer engaged in public duty of protecting property, which is a governmental function. Finding no reversible error, this cause is in all things affirmed on authority of City of Lafayette v. Timberlake (1882), 88 Ind. 330, which holds that police officers of a city are not its agents or servants, and, since they are not, it is legally impossible that there be any corporate responsibility for their negligence. This rule is also followed in Hopewell v.State (1899), 22 Ind. App. 489, *Page 677 54 N.E. 127; Summers v. Board, etc. (1885), 103 Ind. 262, 2 N.E. 725, 53 Am. Rep. 512, and cases cited therein. Judgment affirmed. | 07-05-2016 | [
"This was an action by appellant against the city of Gary, Indiana, to recover damages for the death *Page 676 of appellant's husband on July 21, 1926. Decedent's death resulted from injuries he received when he was struck by an automobile, which, it was alleged, belonged to appellee and was being driven in a negligent manner. There is a mass of pleadings, and to attempt to set them out would serve no useful purpose. Suffice it to say that eventually the case went to trial before a jury on a third amended complaint, to which had been filed five paragraphs of answer. Nine paragraphs of reply were then filed, and all save two were stricken out. At the close of plaintiff's case, the court instructed the jury to return a verdict in behalf of the defendant.",
"This was assigned as one of the reasons in the motion for a new trial. The action of the court in overruling this motion is assigned as error. There were other attempted assignments, which, in view of the result that must be reached, are unnecessary to consider. The appellant had placed one James Sherman on the stand, and, from the direct examination, it appeared that Sherman, the driver of the car that caused decedent's death, was acting under orders of the captain of police and was authorized to operate the car by the police department.",
"This testimony was amplified by proper cross-examination, and also by questions from the court, the court's questions not being objected to in any way. It was conclusively shown by competent evidence that the driver of the car which killed decedent was a police officer engaged in public duty of protecting property, which is a governmental function. Finding no reversible error, this cause is in all things affirmed on authority of City of Lafayette v. Timberlake (1882), 88 Ind. 330, which holds that police officers of a city are not its agents or servants, and, since they are not, it is legally impossible that there be any corporate responsibility for their negligence.",
"This rule is also followed in Hopewell v.State (1899), 22 Ind. App. 489, *Page 677 54 N.E. 127; Summers v. Board, etc. (1885), 103 Ind. 262, 2 N.E. 725, 53 Am. Rep. 512, and cases cited therein. Judgment affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3424244/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
DONNA CURLING, ET AL., Plaintiffs, Civil Action No. 1:17-CV-2989-AT v.
BRAD RAFFENSPERGER, ET AL., Defendants.
BRIEF IN SUPPORT OF COALITION PLAINTIFFS’ RULE 59(E) MOTION TO ALTER OR AMEND THE COURT’S OPINION AND ORDER [DOC. 918] REQUIRING PAPER POLLBOOK BACKUPS
October 8, 2020 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 2 of 21
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i
INTRODUCTION .....................................................................................................1
I. Procedural Framework.....................................................................................2
II. The Court Should Amend The Order To Narrow The Information Required To Be Included In The Updated Electors List For Printing ............................ 3
III. The Court Should Amend The Order To Clarify That The Procedure In O.C.G.A. § 21–2–388(2) Is Not Enjoined ....................................................... 5
IV. The Court Should Amend The Order To Specify The Minimum Number Of Emergency Paper Ballots That Are Necessary To Prevent Likely Harm To In-Person Voters ..............................................................................................9
V. The Court Should Amend The Order To Clarify That The Findings And Relief Apply To Elections After November 2020.........................................12
CONCLUSION ........................................................................................................16
i Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 3 of 21
The Coalition Plaintiffs 1 respectfully file this Brief In Support Of Coalition
Plaintiffs’ Rule 59(E) Motion To Alter Or Amend The Court’s Opinion And Order
(Doc. 918) Requiring Paper Pollbook Backups.
INTRODUCTION
Coalition Plaintiffs file this Rule 59 Motion because certain aspects of the
Court’s Opinion and Order (Doc. 918, the “Order”) require minor clarifications in
the form of relatively straightforward but important amendments to the Court’s
Order. The purpose of these clarifications are (1) to ensure that the Order is
narrowly tailored to effectuate the intended relief; (2) to clarify that the Order does
not enjoin operation of O.C.G.A. § 21–2–288(2); (3) to specify the minimum
number of emergency paper ballots that the Secretary should require country
superintendents to have on hand in each polling place on Election Day; and (4) to
clarify that both the Court’s findings of imminent harm to voters and the injunctive
relief granted apply not just to the November 2020 general election, but also to
elections in December 2020, January 2021, and thereafter.
1 “Coalition Plaintiffs” are Coalition for Good Governance (“Coalition”), Laura Digges, William Digges III, Megan Missett, and Ricardo Davis.
1 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 4 of 21
I. Procedural Framework
Rule 59(e) states: “A motion to alter or amend the judgment must be filed no
later than 28 days after the entry of the judgment.” The word “judgment” as used
in the Federal Rules of Civil Procedure is defined in Rule 54(a) and “includes a
decree or any order from which an appeal lies.” Id. Thus, the word “judgment”
encompasses final judgments and appealable interlocutory orders, such as the
Court’s Order here. Alabama v. U.S. Army Corps of Engineers, 424 F.3d 117,
1129–30 (11th Cir. 2005) (preliminary injunction is an appealable order). This
Motion is filed no later than 28 days after the entry of this Court’s September 28,
2020 Opinion and Order, as required by Rule 59(e).
Rule 59(e) is the appropriate procedural mechanism for prevailing parties
like Coalition Plaintiffs to seek alterations to the relief granted, such as making the
relief granted more explicit. See Herzog Contracting Corp. v. McGowen Corp.,
976 F.2d 1062, 1065 (7th Cir. 1992) (Posner, J.) (prevailing plaintiff’s motion to
make relief granted in judgment more explicit was proper motion to alter or amend
the judgment under Rule 59(e), tolling the time for appeal). Rule 59(e) is also the
appropriate vehicle for obtaining major or minor clarifications of the Court’s
ruling. Barry v. Bowen, 825 F.2d 1324, 1328 n.1 (9th Cir. 1987) (“Although the
precise contours of this relief [under Rule 59(e)] have never been authoritatively
2 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 5 of 21
defined, a motion seeking minor alterations in the judgment is properly one under
Rule 59(e).”)
This Motion does not “present new arguments or evidence that should have
been raised earlier, introduce novel legal theories, or repackage familiar argument
to test whether the Court will change its mind.” Perdum v. Wells Fargo Bank, N.A.,
2014 WL 12703276 (July 17, 2014) (citations omitted). Instead, this Motion seeks
only to make the relief granted by the Order itself more likely to be effective in
view of the State Defendants’ evident determination to misconstrue potential
ambiguities in the Order. To eliminate these potential ambiguities and ensure that
the Order is narrowly tailored to effectuate its intended relief, Coalition Plaintiffs
seek amendments to the Order as set out herein. These proposed amendments will
make the injunctive relief granted more explicit, see Herzog, supra, and less
susceptible to misinterpretation, Barry, supra.
II. The Court Should Amend The Order To Narrow The Information Required To Be Included In The Updated Electors List For Printing
The Order requires the Secretary to generate and transmit “an updated
electors list in a format capable of printing by [each] election superintendent that
includes all the information located in the electronic pollbooks.” (Doc. 918, at 64.)
This direction is not unduly burdensome, but may require more printing than is
actually necessary. The new electronic pollbooks that are delivered to each
3 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 6 of 21
precinct now include information on all 7 million voters in Georgia. Workers at
any given polling place only need a small subset of this information to check in the
voters assigned to their polling place. Accordingly, the Secretary should be
ordered instead just to provide an updated electors list capable of printing by the
counties that contains only “the information located in the electronic pollbook that
is necessary to print precinct-level information required in each polling place to
check in voters and issue ballots to eligible voters.” The Order should also clarify
that the Secretary may assume responsibility for the printing and delivery of these
lists for each polling place and, in any event, the Secretary shall be responsible for
the cost of printing and delivery of lists to polling places.
Coalition Plaintiffs’ Motion, therefore, seeks to make the following changes
to the current language on Page 64 of the Order:
Effective immediately, the Secretary of State shall
generate and transmit to each county election
superintendent at the close of absentee in-person early
voting an updated electors list in a format capable of
printing by the election superintendent that includes all of
the information located in the electronic pollbook
necessary for printing precinct-level information
4 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 7 of 21
required in each polling place to check in voters and
issue ballots to eligible voters. [FN 26] Alternatively,
the Secretary may assume responsibility for the
printing and delivery function. In either case, the
Secretary of State shall be responsible for the cost of
printing and delivery. . . . .
(Doc. 918, at 64 (proposed additions shown in bolded underlining, and proposed
deletions shown in bolded strike-outs).)
III. The Court Should Amend The Order To Clarify That The Procedure In O.C.G.A. § 21–2–388(2) Is Not Enjoined
Coalition Plaintiffs also request clarification and modification of Page 65,
first subsection (4), of the Court’s Order, as explained in this Section.
Initially, as the Court held, the purpose of the paper pollbook backup remedy
is to ensure that, when the electronic PollPads are not operational for whatever
reason, the polling place workers will still have the same information available for
checking in voters that would be available if the electronic PollPads were accurate
and operational. Thus, if the electronic PollPads fail or malfunction, the polling
place workers will still have the information necessary to make a determination
that the voter is eligible (as will be the case for the vast majority of voters who
show up to vote in person on Election Day), that the voter has not been sent an
5 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 8 of 21
absentee ballot, and that the voter is therefore entitled to cast an in-person ballot.
The ability to make this determination when the electronic PollPads are not
operational (and they have malfunctioned in each and every election) will save the
counties from experiencing another “complete meltdown” as occurred during the
Primaries. This portion of the Court’s remedy is provided in subsections (1)
through (3) which require no change or clarification.
The first subsection (4) on Page 65 of the Order reflects the Court’s
recognition that, whether or not the electronic PollPads are operational, there will
be a subset of would-be in-person voters who are eligible to vote, but who are
shown by the PollPads, or listed on the paper pollbook backups, as having been
sent an absentee mail ballot. (See Doc. 918, at 57). For these voters, as the Court
rightly recognizes in its current footnote 28, Georgia law (specifically O.C.G.A.
§ 21–2–388(2)) already details the process required to be undertaken to cancel the
absentee ballot. Following current practice, for this small subset of voters in the
updated pollbooks, poll managers simply call the County Elections Office to
confirm voting status.
Unlike the State Defendants, (Doc. 951, at 14, 18–19, 27), the Coalition
Plaintiffs do not read the current language of the first subsection (4) on Page 65 of
6 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 9 of 21
the Order as superseding the provisions of O.C.G.A. § 21–2–388. To the contrary,
the current language expressly cites to this statute in footnote 28.
In addition, the Court’s current language should obviously be read together
with what the Court specifically said earlier in the Order about the need for the
O.C.G.A. § 21–2–388 procedure to be followed whenever an updated paper
pollbook backup could not provide conclusive verification of a voter’s status:
As further justification for opposing relief, Defendants assert that “a paper printout of the updated electors list would not account for every voter’s status, as absentee ballots are continuously being returned” and therefore “an updated electors list could not adjudicate voter eligibility in all situations.” But this assertion acknowledges that an updated list can be used to properly adjudicate voter eligibility for some voters and therefore does not justify denying relief merely because an updated list might not capture every voter. (A poll manager, consistent with current practice, would simply then call the County Elections Office to confirm the voting status for a much smaller, select number of voters.). (Doc. 918, at 57 (emphasis added).)
Despite the foregoing points, the Defendants are evidently determined to
misinterpret the first subsection (4) on Page 65 of the Court’s Order as ordering the
Secretary to require county officials to ignore or violate the provisions of O.C.G.A.
§ 21–2–288, rather than follow those provisions. (See Doc. 951, at 14, 18–19, 27).
Coalition Plaintiffs disagree with Defendants’ strained interpretation of the current
7 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 10 of 21
language, but clarifying or modifying the Order to remove any arguable ambiguity
would eliminate the issue and assist county superintendents with implementation
without having any adverse impact upon the effectiveness of the remedy.
Coalition Plaintiffs’ Motion, therefore, seeks to make the following changes
to the first Subsection (4) of the Court’s Order:
. . . (4) to allow voters who are shown to be eligible
electors on the paper pollbook backups, but who are
shown on the paper pollbook backups updated list as
having requested an absentee mail-in ballot, to have
their absentee ballot canceled [FN 28] and to cast a
regular or emergency ballot that is not to be treated as a
provisional ballot, provided that such voter’s absentee
ballot is cancelled in accordance with O.C.G.A. § 21-
2-288 such voter either surrenders the absentee ballot
to the poll manager of the precinct or in the case of a
voter who has requested but not yet received their
absentee ballot completes an elector’s oath [FN 29]
affirming the voter has not marked or mailed an
8 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 11 of 21
absentee ballot for voting in such primary or election.
....
(Doc. 918, at 65 (proposed additions shown in bolded underlining, and proposed
deletions shown in bolded strike-outs).)
In addition, to correct a typographical duplication in the numbering of the
Court’s fourth and fifth subparagraphs on Page 65 of the Order, the following
changes should be made:
• the current second subparagraph (4) on Page 65 of the Order should be
newly renumbered as subparagraph (5), and
• the current subparagraph (5) on Page 66 of the Order should be newly
renumbered as subparagraph (6). (Amendments proposed to the
substance of this subparagraph (6) are addressed in the next section of
this Brief.)
IV. The Court Should Amend The Order To Specify The Minimum Number Of Emergency Paper Ballots That Are Necessary To Prevent Likely Harm To In-Person Voters
The Court should amend the Order to clarify the minimum number of
emergency paper ballots that polling places should have on hand at the beginning
of operations on Election Day. Currently, the Order requires maintenance of “a
9 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 12 of 21
sufficient stock of emergency paper ballots,” (Doc. 918, at 66), but does not
specify what number of ballots constitutes a “sufficient stock.”
The Brief of Amicus Curiae Common Cause – Georgia (Doc. 931-1), which
is incorporated by reference here, explains how having a sufficient number of
emergency ballots on hand will help prevent voting delays. As the Court rightly
notes in the Order, (Doc. 918, at 66 n.30), the Secretary’s regulations currently
require superintendents to cause polling places to maintain a “sufficient amount” of
emergency ballots to ensure uninterrupted voting, and the regulations define a
“sufficient amount” of ballots to be “at least 10% of the number of registered
voters assigned to a polling place.” Ga. Comp. R. & Regs. 183-1-12-.11(2)(c).
But given evidence of the expected high turnout in upcoming elections,
evidence that shows repeated BMD and electronic pollbook malfunctions, and
evidence of the ongoing unmitigated cybersecurity risks created by the State’s
conduct, a higher number of emergency ballots should be required than the
minimum amount called for in the State’s existing regulation. The Court has
already ordered that a “sufficient stock” of emergency ballots should be
maintained. Clarification of what amount constitutes a “sufficient stock” is
necessary given the likelihood of harm to voters that will occur if enough
emergency ballots are not available on Election Day.
10 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 13 of 21
Coalition Plaintiffs respectfully request that the Order be amended to specify
that a “sufficient stock” means a starting supply of emergency ballots in each
polling place on Election Day that is equal to at least forty percent of the number
of registered voters in that polling place, and to specify that the number of
emergency ballots must thereafter be resupplied such that it is never allowed to
drop below the 10% minimum required by Ga. Comp. R. & Regs. 183-1-12-
.11(2)(c) (10% minimum) and Ga. Comp. R. & Regs 183-1-12-.01 (“The election
superintendent shall also be prepared to resupply polling places with emergency
paper ballots in needed ballot styles in a timely manner while voting is occurring
so that polling places do not run out of emergency paper ballots.”).
Without the foregoing explicit clarification of the Order’s requirements,
there is a risk that the relief ordered by the Court will be less effective because the
State has pre-determined by regulation that a “sufficient amount” of emergency
ballots means a minimum of only 10% of the number of registered voters in a
polling place—a stock level that the evidence shows is likely to be insufficient to
avoid the established likelihood of injury to in-person voters in upcoming
elections. In addition, the Order should clarify that any marginal costs of obtaining
additional emergency ballots as required by the Order is to be borne by the
Secretary of State.
11 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 14 of 21
Coalition Plaintiffs’ Motion, therefore, seeks to make the following changes
to newly renumbered subparagraph (6) (formerly subparagraph (5)) on Page 66 of
the Court’s Order:
. . . and (6) (5) begin polling place operations on
Election Day with at least 40% of the number of
registered voters to a polling place and at all times
thereafter maintain a sufficient stock of emergency paper
ballots in compliance with Ga. Comp. R. & Regs. 183-
1-12-.11(2)(c) and 183-1-12-.01. [FN 30]. The cost of
obtaining the initial stock of emergency paper ballots
above the requirements of Ga. Comp. R. & Regs. 183-
1-12-.11(2)(c) shall be borne by the Secretary of State.
(Doc. 918, at 66 (proposed additions shown in bolded underlining, and proposed
deletions shown in bolded strike-outs).)
V. The Court Should Amend The Order To Clarify That The Findings And Relief Apply To Elections After November 2020
The Court should amend the Order to expressly state that its findings of
imminent harm apply with respect to all upcoming elections, not just the
November 2020 election, and to explicitly award relief not just for the November
2020 election, but also for the elections following after November.
12 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 15 of 21
This should already be clear from the terms of the Order, which expressly
apply “UNTIL FURTHER ORDER OF THIS COURT.” (Doc. 918 at 64
(capitalization by the Court). The State Defendants, however, read the Order as
making changes “on the eve of an election.” (Doc. 951, at 29.) They appear set on
challenging the Order based on Supreme Court cases, such as Purcell v. Gonzalez,
549 U.S. 1 (2006), that Defendants read as cautioning courts not to make changes
to election procedures “too close to the election itself.” (Id.) In other words, it is
apparent that the Defendants have misapprehended the Court’s injunction as
applying only to the upcoming November 2020 election, not to any other elections.
Plaintiffs do not agree with Defendants’ determination that the Order is
limited only to the November 2020 election, but the Defendants can point to some
language in the Order that provides weak support for this view. For example, on
Page 64, the Order notes that Coalition Plaintiffs’ evidence demonstrates
systemwide problems that “resulted in voter disenfranchisement and that is likely
to continue in the upcoming Federal Presidential election.” (emphasis added.)
Because this passage, on its face, omits to address the identical likely injury to
voters that will also occur in the elections following after the November election,
in the absence of relief, the Defendants may attempt to assert in any appeal that the
13 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 16 of 21
Order’s necessary findings of imminent harm render the Order limited just to the
“upcoming Federal Presidential election.”
It is obvious that the Court did not intend to so limit its findings of imminent
harm. For one thing, nothing in the evidence in the record distinguishes the kind of
imminent harm that is likely to occur in November 2020 from the same harm that
will occur in any Upcoming Election, in the absence of the pollbook relief ordered
by the Court. For another thing, the Order itself expressly states its intention to
protect voters’ constitutional rights “on this coming November 3rd general election
day and thereafter.” (Doc. 918, at 67 (emphasis added).)
November 2020 is a critical election, but the pollbook relief granted by the
Order was sought for—and should apply to—all upcoming elections. Additional
elections that are set to follow the November election include elections in
December 2020 (runoffs) and in January 2021. All of these elections are included
within the term “Upcoming BMD Elections,” which defines the scope of elections
for which relief is sought from the constitutional deficiencies of the “Dominion
BMD System” by the Coalition Plaintiff’s operative First Supplemental Complaint.
(Doc. 628, at 32, ¶ 97 (defining ‘Upcoming BMD Elections’); at 67–68, ¶ 222
(Count I); at 70, ¶ 230 (Count II).)
14 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 17 of 21
It is entirely appropriate for the Court to grant relief now for the December
2020 and January 2021 Upcoming BMD Elections, which are just two and three
months away, respectively. Both the December and January elections are
significantly more imminent right now than the November 2020 election was a
year ago, when the Coalition Plaintiffs sought (for a second time) the pollbook
relief that how now been granted by the Order. (Doc. 640-1 (brief), at 8, 32–33;
Doc. 640-2 (proposed order), at 5–6, ¶¶ 9–10.)
The Order should be clarified to state that its relief is being granted not just
for the November 2020 election, but also for the December 2020, January 2021,
and other subsequent elections. If the Defendants intend to challenge the Order on
the grounds that its relief is coming “on the eve of an election,” (Doc. 951, at 29),
and thereby avoid having to prevail on the merits, then their objection, as meritless
as it is, applies—at most—to the next upcoming election. The Court should amend
its Order to state that the findings of imminent harm to voters apply with respect to
all Upcoming BMD Elections, not just the November 2020 presidential election.
Such a finding will support the Court’s already evident intention to award pollbook
relief for all Upcoming BMD Elections.
Coalition Plaintiffs must emphasize that nothing in Purcell or any other
authority precludes this Court from granting this relief for the November 2020
15 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 18 of 21
presidential election. There is no possibility that this Court’s remedy will confuse
voters, and preventing the “complete meltdown” from happening again will only
enhance, not diminish, the orderliness and voters’ confidence in the integrity of the
November election.
CONCLUSION
For the foregoing reasons, the Coalition Plaintiffs’ Rule 59 Motion should
be granted.
Respectfully submitted this 8th day of October, 2020.
/s/ Bruce P. Brown /s/ Robert A. McGuire, III Bruce P. Brown Robert A. McGuire, III Georgia Bar No. 064460 Admitted Pro Hac Vice BRUCE P. BROWN LAW LLC (ECF No. 125) 1123 Zonolite Rd. NE ROBERT MCGUIRE LAW FIRM Suite 6 113 Cherry St. #86685 Atlanta, Georgia 30306 Seattle, Washington 98104-2205 (404) 881-0700 (253) 267-8530 Counsel for Coalition for Good Governance /s/ Cary Ichter Cary Ichter Georgia Bar No. 382515 ICHTER DAVIS LLC 3340 Peachtree Road NE Suite 1530 Atlanta, Georgia 30326 (404) 869-7600
16 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 19 of 21
Counsel for William Digges III, Laura Digges, Ricardo Davis & Megan Missett
17 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 20 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
DONNA CURLING, ET AL., Plaintiffs, Civil Action No. 1:17-CV-2989-AT v.
BRAD RAFFENSPERGER, ET AL., Defendants.
CERTIFICATE OF COMPLIANCE Pursuant to LR 7.1(D), I hereby certify that the foregoing document has been
prepared in accordance with the font type and margin requirements of LR 5.1, using
font type of Times New Roman and a point size of 14.
/s/ Bruce P. Brown Bruce P. Brown
18 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 21 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
DONNA CURLING, ET AL., Plaintiffs, Civil Action No. 1:17-CV-2989-AT v.
BRAD RAFFENSPERGER , ET AL., Defendants.
CERTIFICATE OF SERVICE I hereby certify that on October 8, 2020, a copy of the foregoing was
electronically filed with the Clerk of Court using the CM/ECF system, which will
automatically send notification of such filing to all attorneys of record.
/s/ Bruce P. Brown Bruce P. Brown
19 | 2020-10-08 | [
"Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 1 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DONNA CURLING, ET AL., Plaintiffs, Civil Action No. 1:17-CV-2989-AT v. BRAD RAFFENSPERGER, ET AL., Defendants. BRIEF IN SUPPORT OF COALITION PLAINTIFFS’ RULE 59(E) MOTION TO ALTER OR AMEND THE COURT’S OPINION AND ORDER [DOC. 918] REQUIRING PAPER POLLBOOK BACKUPS October 8, 2020 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 2 of 21 TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................i INTRODUCTION .....................................................................................................1 I. Procedural Framework.....................................................................................2 II. The Court Should Amend The Order To Narrow The Information Required To Be Included In The Updated Electors List For Printing ............................ 3 III. The Court Should Amend The Order To Clarify That The Procedure In O.C.G.A.",
"§ 21–2–388(2) Is Not Enjoined ....................................................... 5 IV. The Court Should Amend The Order To Specify The Minimum Number Of Emergency Paper Ballots That Are Necessary To Prevent Likely Harm To In-Person Voters ..............................................................................................9 V. The Court Should Amend The Order To Clarify That The Findings And Relief Apply To Elections After November 2020.........................................12 CONCLUSION ........................................................................................................16 i Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 3 of 21 The Coalition Plaintiffs 1 respectfully file this Brief In Support Of Coalition Plaintiffs’ Rule 59(E) Motion To Alter Or Amend The Court’s Opinion And Order (Doc. 918) Requiring Paper Pollbook Backups.",
"INTRODUCTION Coalition Plaintiffs file this Rule 59 Motion because certain aspects of the Court’s Opinion and Order (Doc. 918, the “Order”) require minor clarifications in the form of relatively straightforward but important amendments to the Court’s Order. The purpose of these clarifications are (1) to ensure that the Order is narrowly tailored to effectuate the intended relief; (2) to clarify that the Order does not enjoin operation of O.C.G.A. § 21–2–288(2); (3) to specify the minimum number of emergency paper ballots that the Secretary should require country superintendents to have on hand in each polling place on Election Day; and (4) to clarify that both the Court’s findings of imminent harm to voters and the injunctive relief granted apply not just to the November 2020 general election, but also to elections in December 2020, January 2021, and thereafter. 1 “Coalition Plaintiffs” are Coalition for Good Governance (“Coalition”), Laura Digges, William Digges III, Megan Missett, and Ricardo Davis. 1 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 4 of 21 I. Procedural Framework Rule 59(e) states: “A motion to alter or amend the judgment must be filed no later than 28 days after the entry of the judgment.” The word “judgment” as used in the Federal Rules of Civil Procedure is defined in Rule 54(a) and “includes a decree or any order from which an appeal lies.” Id. Thus, the word “judgment” encompasses final judgments and appealable interlocutory orders, such as the Court’s Order here.",
"Alabama v. U.S. Army Corps of Engineers, 424 F.3d 117, 1129–30 (11th Cir. 2005) (preliminary injunction is an appealable order). This Motion is filed no later than 28 days after the entry of this Court’s September 28, 2020 Opinion and Order, as required by Rule 59(e). Rule 59(e) is the appropriate procedural mechanism for prevailing parties like Coalition Plaintiffs to seek alterations to the relief granted, such as making the relief granted more explicit. See Herzog Contracting Corp. v. McGowen Corp., 976 F.2d 1062, 1065 (7th Cir. 1992) (Posner, J.) (prevailing plaintiff’s motion to make relief granted in judgment more explicit was proper motion to alter or amend the judgment under Rule 59(e), tolling the time for appeal).",
"Rule 59(e) is also the appropriate vehicle for obtaining major or minor clarifications of the Court’s ruling. Barry v. Bowen, 825 F.2d 1324, 1328 n.1 (9th Cir. 1987) (“Although the precise contours of this relief [under Rule 59(e)] have never been authoritatively 2 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 5 of 21 defined, a motion seeking minor alterations in the judgment is properly one under Rule 59(e).”) This Motion does not “present new arguments or evidence that should have been raised earlier, introduce novel legal theories, or repackage familiar argument to test whether the Court will change its mind.” Perdum v. Wells Fargo Bank, N.A., 2014 WL 12703276 (July 17, 2014) (citations omitted).",
"Instead, this Motion seeks only to make the relief granted by the Order itself more likely to be effective in view of the State Defendants’ evident determination to misconstrue potential ambiguities in the Order. To eliminate these potential ambiguities and ensure that the Order is narrowly tailored to effectuate its intended relief, Coalition Plaintiffs seek amendments to the Order as set out herein. These proposed amendments will make the injunctive relief granted more explicit, see Herzog, supra, and less susceptible to misinterpretation, Barry, supra.",
"II. The Court Should Amend The Order To Narrow The Information Required To Be Included In The Updated Electors List For Printing The Order requires the Secretary to generate and transmit “an updated electors list in a format capable of printing by [each] election superintendent that includes all the information located in the electronic pollbooks.” (Doc. 918, at 64.) This direction is not unduly burdensome, but may require more printing than is actually necessary. The new electronic pollbooks that are delivered to each 3 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 6 of 21 precinct now include information on all 7 million voters in Georgia. Workers at any given polling place only need a small subset of this information to check in the voters assigned to their polling place.",
"Accordingly, the Secretary should be ordered instead just to provide an updated electors list capable of printing by the counties that contains only “the information located in the electronic pollbook that is necessary to print precinct-level information required in each polling place to check in voters and issue ballots to eligible voters.” The Order should also clarify that the Secretary may assume responsibility for the printing and delivery of these lists for each polling place and, in any event, the Secretary shall be responsible for the cost of printing and delivery of lists to polling places. Coalition Plaintiffs’ Motion, therefore, seeks to make the following changes to the current language on Page 64 of the Order: Effective immediately, the Secretary of State shall generate and transmit to each county election superintendent at the close of absentee in-person early voting an updated electors list in a format capable of printing by the election superintendent that includes all of the information located in the electronic pollbook necessary for printing precinct-level information 4 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 7 of 21 required in each polling place to check in voters and issue ballots to eligible voters.",
"[FN 26] Alternatively, the Secretary may assume responsibility for the printing and delivery function. In either case, the Secretary of State shall be responsible for the cost of printing and delivery. . . . . (Doc. 918, at 64 (proposed additions shown in bolded underlining, and proposed deletions shown in bolded strike-outs).) III. The Court Should Amend The Order To Clarify That The Procedure In O.C.G.A. § 21–2–388(2) Is Not Enjoined Coalition Plaintiffs also request clarification and modification of Page 65, first subsection (4), of the Court’s Order, as explained in this Section. Initially, as the Court held, the purpose of the paper pollbook backup remedy is to ensure that, when the electronic PollPads are not operational for whatever reason, the polling place workers will still have the same information available for checking in voters that would be available if the electronic PollPads were accurate and operational. Thus, if the electronic PollPads fail or malfunction, the polling place workers will still have the information necessary to make a determination that the voter is eligible (as will be the case for the vast majority of voters who show up to vote in person on Election Day), that the voter has not been sent an 5 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 8 of 21 absentee ballot, and that the voter is therefore entitled to cast an in-person ballot.",
"The ability to make this determination when the electronic PollPads are not operational (and they have malfunctioned in each and every election) will save the counties from experiencing another “complete meltdown” as occurred during the Primaries. This portion of the Court’s remedy is provided in subsections (1) through (3) which require no change or clarification. The first subsection (4) on Page 65 of the Order reflects the Court’s recognition that, whether or not the electronic PollPads are operational, there will be a subset of would-be in-person voters who are eligible to vote, but who are shown by the PollPads, or listed on the paper pollbook backups, as having been sent an absentee mail ballot. (See Doc.",
"918, at 57). For these voters, as the Court rightly recognizes in its current footnote 28, Georgia law (specifically O.C.G.A. § 21–2–388(2)) already details the process required to be undertaken to cancel the absentee ballot. Following current practice, for this small subset of voters in the updated pollbooks, poll managers simply call the County Elections Office to confirm voting status. Unlike the State Defendants, (Doc. 951, at 14, 18–19, 27), the Coalition Plaintiffs do not read the current language of the first subsection (4) on Page 65 of 6 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 9 of 21 the Order as superseding the provisions of O.C.G.A. § 21–2–388. To the contrary, the current language expressly cites to this statute in footnote 28. In addition, the Court’s current language should obviously be read together with what the Court specifically said earlier in the Order about the need for the O.C.G.A.",
"§ 21–2–388 procedure to be followed whenever an updated paper pollbook backup could not provide conclusive verification of a voter’s status: As further justification for opposing relief, Defendants assert that “a paper printout of the updated electors list would not account for every voter’s status, as absentee ballots are continuously being returned” and therefore “an updated electors list could not adjudicate voter eligibility in all situations.” But this assertion acknowledges that an updated list can be used to properly adjudicate voter eligibility for some voters and therefore does not justify denying relief merely because an updated list might not capture every voter. (A poll manager, consistent with current practice, would simply then call the County Elections Office to confirm the voting status for a much smaller, select number of voters.). (Doc. 918, at 57 (emphasis added).)",
"Despite the foregoing points, the Defendants are evidently determined to misinterpret the first subsection (4) on Page 65 of the Court’s Order as ordering the Secretary to require county officials to ignore or violate the provisions of O.C.G.A. § 21–2–288, rather than follow those provisions. (See Doc. 951, at 14, 18–19, 27). Coalition Plaintiffs disagree with Defendants’ strained interpretation of the current 7 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 10 of 21 language, but clarifying or modifying the Order to remove any arguable ambiguity would eliminate the issue and assist county superintendents with implementation without having any adverse impact upon the effectiveness of the remedy. Coalition Plaintiffs’ Motion, therefore, seeks to make the following changes to the first Subsection (4) of the Court’s Order: . . . (4) to allow voters who are shown to be eligible electors on the paper pollbook backups, but who are shown on the paper pollbook backups updated list as having requested an absentee mail-in ballot, to have their absentee ballot canceled [FN 28] and to cast a regular or emergency ballot that is not to be treated as a provisional ballot, provided that such voter’s absentee ballot is cancelled in accordance with O.C.G.A.",
"§ 21- 2-288 such voter either surrenders the absentee ballot to the poll manager of the precinct or in the case of a voter who has requested but not yet received their absentee ballot completes an elector’s oath [FN 29] affirming the voter has not marked or mailed an 8 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 11 of 21 absentee ballot for voting in such primary or election. .... (Doc. 918, at 65 (proposed additions shown in bolded underlining, and proposed deletions shown in bolded strike-outs).) In addition, to correct a typographical duplication in the numbering of the Court’s fourth and fifth subparagraphs on Page 65 of the Order, the following changes should be made: • the current second subparagraph (4) on Page 65 of the Order should be newly renumbered as subparagraph (5), and • the current subparagraph (5) on Page 66 of the Order should be newly renumbered as subparagraph (6). (Amendments proposed to the substance of this subparagraph (6) are addressed in the next section of this Brief.)",
"IV. The Court Should Amend The Order To Specify The Minimum Number Of Emergency Paper Ballots That Are Necessary To Prevent Likely Harm To In-Person Voters The Court should amend the Order to clarify the minimum number of emergency paper ballots that polling places should have on hand at the beginning of operations on Election Day. Currently, the Order requires maintenance of “a 9 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 12 of 21 sufficient stock of emergency paper ballots,” (Doc. 918, at 66), but does not specify what number of ballots constitutes a “sufficient stock.” The Brief of Amicus Curiae Common Cause – Georgia (Doc. 931-1), which is incorporated by reference here, explains how having a sufficient number of emergency ballots on hand will help prevent voting delays.",
"As the Court rightly notes in the Order, (Doc. 918, at 66 n.30), the Secretary’s regulations currently require superintendents to cause polling places to maintain a “sufficient amount” of emergency ballots to ensure uninterrupted voting, and the regulations define a “sufficient amount” of ballots to be “at least 10% of the number of registered voters assigned to a polling place.” Ga. Comp. R. & Regs. 183-1-12-.11(2)(c). But given evidence of the expected high turnout in upcoming elections, evidence that shows repeated BMD and electronic pollbook malfunctions, and evidence of the ongoing unmitigated cybersecurity risks created by the State’s conduct, a higher number of emergency ballots should be required than the minimum amount called for in the State’s existing regulation.",
"The Court has already ordered that a “sufficient stock” of emergency ballots should be maintained. Clarification of what amount constitutes a “sufficient stock” is necessary given the likelihood of harm to voters that will occur if enough emergency ballots are not available on Election Day. 10 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 13 of 21 Coalition Plaintiffs respectfully request that the Order be amended to specify that a “sufficient stock” means a starting supply of emergency ballots in each polling place on Election Day that is equal to at least forty percent of the number of registered voters in that polling place, and to specify that the number of emergency ballots must thereafter be resupplied such that it is never allowed to drop below the 10% minimum required by Ga. Comp. R. & Regs. 183-1-12- .11(2)(c) (10% minimum) and Ga. Comp. R. & Regs 183-1-12-.01 (“The election superintendent shall also be prepared to resupply polling places with emergency paper ballots in needed ballot styles in a timely manner while voting is occurring so that polling places do not run out of emergency paper ballots.”).",
"Without the foregoing explicit clarification of the Order’s requirements, there is a risk that the relief ordered by the Court will be less effective because the State has pre-determined by regulation that a “sufficient amount” of emergency ballots means a minimum of only 10% of the number of registered voters in a polling place—a stock level that the evidence shows is likely to be insufficient to avoid the established likelihood of injury to in-person voters in upcoming elections.",
"In addition, the Order should clarify that any marginal costs of obtaining additional emergency ballots as required by the Order is to be borne by the Secretary of State. 11 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 14 of 21 Coalition Plaintiffs’ Motion, therefore, seeks to make the following changes to newly renumbered subparagraph (6) (formerly subparagraph (5)) on Page 66 of the Court’s Order: . . . and (6) (5) begin polling place operations on Election Day with at least 40% of the number of registered voters to a polling place and at all times thereafter maintain a sufficient stock of emergency paper ballots in compliance with Ga. Comp. R. & Regs. 183- 1-12-.11(2)(c) and 183-1-12-.01.",
"[FN 30]. The cost of obtaining the initial stock of emergency paper ballots above the requirements of Ga. Comp. R. & Regs. 183- 1-12-.11(2)(c) shall be borne by the Secretary of State. (Doc. 918, at 66 (proposed additions shown in bolded underlining, and proposed deletions shown in bolded strike-outs).) V. The Court Should Amend The Order To Clarify That The Findings And Relief Apply To Elections After November 2020 The Court should amend the Order to expressly state that its findings of imminent harm apply with respect to all upcoming elections, not just the November 2020 election, and to explicitly award relief not just for the November 2020 election, but also for the elections following after November. 12 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 15 of 21 This should already be clear from the terms of the Order, which expressly apply “UNTIL FURTHER ORDER OF THIS COURT.” (Doc. 918 at 64 (capitalization by the Court). The State Defendants, however, read the Order as making changes “on the eve of an election.” (Doc.",
"951, at 29.) They appear set on challenging the Order based on Supreme Court cases, such as Purcell v. Gonzalez, 549 U.S. 1 (2006), that Defendants read as cautioning courts not to make changes to election procedures “too close to the election itself.” (Id.) In other words, it is apparent that the Defendants have misapprehended the Court’s injunction as applying only to the upcoming November 2020 election, not to any other elections. Plaintiffs do not agree with Defendants’ determination that the Order is limited only to the November 2020 election, but the Defendants can point to some language in the Order that provides weak support for this view. For example, on Page 64, the Order notes that Coalition Plaintiffs’ evidence demonstrates systemwide problems that “resulted in voter disenfranchisement and that is likely to continue in the upcoming Federal Presidential election.” (emphasis added.)",
"Because this passage, on its face, omits to address the identical likely injury to voters that will also occur in the elections following after the November election, in the absence of relief, the Defendants may attempt to assert in any appeal that the 13 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 16 of 21 Order’s necessary findings of imminent harm render the Order limited just to the “upcoming Federal Presidential election.” It is obvious that the Court did not intend to so limit its findings of imminent harm. For one thing, nothing in the evidence in the record distinguishes the kind of imminent harm that is likely to occur in November 2020 from the same harm that will occur in any Upcoming Election, in the absence of the pollbook relief ordered by the Court. For another thing, the Order itself expressly states its intention to protect voters’ constitutional rights “on this coming November 3rd general election day and thereafter.” (Doc. 918, at 67 (emphasis added).) November 2020 is a critical election, but the pollbook relief granted by the Order was sought for—and should apply to—all upcoming elections.",
"Additional elections that are set to follow the November election include elections in December 2020 (runoffs) and in January 2021. All of these elections are included within the term “Upcoming BMD Elections,” which defines the scope of elections for which relief is sought from the constitutional deficiencies of the “Dominion BMD System” by the Coalition Plaintiff’s operative First Supplemental Complaint. (Doc. 628, at 32, ¶ 97 (defining ‘Upcoming BMD Elections’); at 67–68, ¶ 222 (Count I); at 70, ¶ 230 (Count II).) 14 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 17 of 21 It is entirely appropriate for the Court to grant relief now for the December 2020 and January 2021 Upcoming BMD Elections, which are just two and three months away, respectively. Both the December and January elections are significantly more imminent right now than the November 2020 election was a year ago, when the Coalition Plaintiffs sought (for a second time) the pollbook relief that how now been granted by the Order. (Doc.",
"640-1 (brief), at 8, 32–33; Doc. 640-2 (proposed order), at 5–6, ¶¶ 9–10.) The Order should be clarified to state that its relief is being granted not just for the November 2020 election, but also for the December 2020, January 2021, and other subsequent elections. If the Defendants intend to challenge the Order on the grounds that its relief is coming “on the eve of an election,” (Doc. 951, at 29), and thereby avoid having to prevail on the merits, then their objection, as meritless as it is, applies—at most—to the next upcoming election. The Court should amend its Order to state that the findings of imminent harm to voters apply with respect to all Upcoming BMD Elections, not just the November 2020 presidential election. Such a finding will support the Court’s already evident intention to award pollbook relief for all Upcoming BMD Elections. Coalition Plaintiffs must emphasize that nothing in Purcell or any other authority precludes this Court from granting this relief for the November 2020 15 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 18 of 21 presidential election.",
"There is no possibility that this Court’s remedy will confuse voters, and preventing the “complete meltdown” from happening again will only enhance, not diminish, the orderliness and voters’ confidence in the integrity of the November election. CONCLUSION For the foregoing reasons, the Coalition Plaintiffs’ Rule 59 Motion should be granted. Respectfully submitted this 8th day of October, 2020. /s/ Bruce P. Brown /s/ Robert A. McGuire, III Bruce P. Brown Robert A. McGuire, III Georgia Bar No. 064460 Admitted Pro Hac Vice BRUCE P. BROWN LAW LLC (ECF No. 125) 1123 Zonolite Rd. NE ROBERT MCGUIRE LAW FIRM Suite 6 113 Cherry St. #86685 Atlanta, Georgia 30306 Seattle, Washington 98104-2205 (404) 881-0700 (253) 267-8530 Counsel for Coalition for Good Governance /s/ Cary Ichter Cary Ichter Georgia Bar No. 382515 ICHTER DAVIS LLC 3340 Peachtree Road NE Suite 1530 Atlanta, Georgia 30326 (404) 869-7600 16 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 19 of 21 Counsel for William Digges III, Laura Digges, Ricardo Davis & Megan Missett 17 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 20 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DONNA CURLING, ET AL., Plaintiffs, Civil Action No.",
"1:17-CV-2989-AT v. BRAD RAFFENSPERGER, ET AL., Defendants. CERTIFICATE OF COMPLIANCE Pursuant to LR 7.1(D), I hereby certify that the foregoing document has been prepared in accordance with the font type and margin requirements of LR 5.1, using font type of Times New Roman and a point size of 14. /s/ Bruce P. Brown Bruce P. Brown 18 Case 1:17-cv-02989-AT Document 956-1 Filed 10/08/20 Page 21 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DONNA CURLING, ET AL., Plaintiffs, Civil Action No. 1:17-CV-2989-AT v. BRAD RAFFENSPERGER , ET AL., Defendants. CERTIFICATE OF SERVICE I hereby certify that on October 8, 2020, a copy of the foregoing was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically send notification of such filing to all attorneys of record. /s/ Bruce P. Brown Bruce P. Brown 19"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/148239580/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
BOYER, Chief Judge. Plaintiff, appellee here, filed its complaint, alleging that its 1974 ad valorem real property tax assessment was excessive. After plaintiff’s motion for default judgment was entered by the Circuit Court Clerk, defendants, appellants here, filed a sworn motion to vacate default. The trial court entered final judgment in favor of plaintiff, thereby denying defendants’ motion to vacate default and further ordering the Volusia County Board of Tax Adjustment to reconvene and reassess the valuation of plaintiff’s property. Defendants have appealed, arguing that their motion to vacate default should have been granted, that the final judgment was improperly entered in the absence of supporting evidence, and that, in any event, the trial court was without subject matter jurisdiction to render final judgment. The principles relative to entry of defaults and vacation thereof are recited in this Court’s opinion in Metcalf v. Langston, Fla.App.1st, 1974, 296 So.2d 81, cert. dism., Sup.Ct.Fla., 302 So.2d 414, and no useful purpose will be served by recitation here. Suffice to say that our examination of the record convinces us that the learned trial judge did not abuse his discretion in denying appellants’ motion to vacate the default entered against them. (See North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla. 1962, 143 So.2d 849, 852) We also find that the trial court had subject matter jurisdiction. (See Maccabee Investments, Inc. v. Markham, Fla.App.4th, 1975, 311 So.2d 718). Finally, we hold that under the peculiar facts of this particular case there was no error in ordering a de novo hearing before the Board of Tax Adjustment, since it is that body which is responsible for hearing petitions relating to assessments. (See F.S. 194.032) We do not here consider the merits of appellee’s case. We only hold that the final judgment here appealed should be, and is AFFIRMED. McCORD and MILLS, JJ., concur. | 07-29-2022 | [
"BOYER, Chief Judge. Plaintiff, appellee here, filed its complaint, alleging that its 1974 ad valorem real property tax assessment was excessive. After plaintiff’s motion for default judgment was entered by the Circuit Court Clerk, defendants, appellants here, filed a sworn motion to vacate default. The trial court entered final judgment in favor of plaintiff, thereby denying defendants’ motion to vacate default and further ordering the Volusia County Board of Tax Adjustment to reconvene and reassess the valuation of plaintiff’s property. Defendants have appealed, arguing that their motion to vacate default should have been granted, that the final judgment was improperly entered in the absence of supporting evidence, and that, in any event, the trial court was without subject matter jurisdiction to render final judgment. The principles relative to entry of defaults and vacation thereof are recited in this Court’s opinion in Metcalf v. Langston, Fla.App.1st, 1974, 296 So.2d 81, cert. dism., Sup.Ct.Fla., 302 So.2d 414, and no useful purpose will be served by recitation here. Suffice to say that our examination of the record convinces us that the learned trial judge did not abuse his discretion in denying appellants’ motion to vacate the default entered against them. (See North Shore Hospital, Inc. v. Barber, Sup.Ct.Fla.",
"1962, 143 So.2d 849, 852) We also find that the trial court had subject matter jurisdiction. (See Maccabee Investments, Inc. v. Markham, Fla.App.4th, 1975, 311 So.2d 718). Finally, we hold that under the peculiar facts of this particular case there was no error in ordering a de novo hearing before the Board of Tax Adjustment, since it is that body which is responsible for hearing petitions relating to assessments. (See F.S. 194.032) We do not here consider the merits of appellee’s case. We only hold that the final judgment here appealed should be, and is AFFIRMED. McCORD and MILLS, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7479307/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
27 A.3d 950 (2011) 208 N.J. 336 FINANCIAL FREEDOM SENIOR FUNDING CORPORATION v. FISCHER. Nos. C-32 September Term 2011, 068062 Supreme Court of New Jersey. September 9, 2011. Petition for Certification Denied. | 10-30-2013 | [
"27 A.3d 950 (2011) 208 N.J. 336 FINANCIAL FREEDOM SENIOR FUNDING CORPORATION v. FISCHER. Nos. C-32 September Term 2011, 068062 Supreme Court of New Jersey. September 9, 2011. Petition for Certification Denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2323154/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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 The claims 1-20 are pending and are considered in this Office Action.
In view of the Appeal Brief filed on 11/10/2020, PROSECUTION IS HEREBY REOPENED regarding claims 1-20 set forth below. To avoid abandonment of the application, appellant must exercise one of the following two options: (1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or, (2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid. A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
/UMAR CHEEMA/ Supervisory Patent Examiner, Art Unit 2454
Response to Amendment This communication is in response to the Amendment filed on 04/10/2020. Claims 1-20 are pending. Claims 1 and 11 has been amended.
Response to Arguments A. Rejection of Claims 1-2 and 4-20 Under 35 U. S. C. 103
Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-8 and 11-18 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Chen et al. (hereinafter referred to as Chen) (U. S. Pub. No. 2007/0101009 A1). As to claim 1, Chen teaches a method for maintaining feature settings across user systems (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”), the method comprising: in a first user system of a first user having a first feature set, using first settings of features in the first feature set (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; and ¶ [0046], “Some examples of client preferences include user settings such as alert preferences, window dimensions, contact list”. Here, the user is regarded as the first user. And the first user having a first feature set, first settings, such as, the alert preferences, contact list, etc.), exchanging first communications, comprising user communications of a first user, for a communication session between the first user system and one or more other user systems of one or more other users (See at least ¶ [0010], “sending messages to and receiving messages from other users. Instant messaging server clients can exchange text messages, audio, data and other types of multimedia files”. Here, the other users of Chen are the claimed one or more other user systems of one or more other users.); determining a current state of the first settings before a second user system of the first user having a second feature set joins the communication session (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; ¶ [0012], “A determination that the user is logged on to another, original device is made. Applicable instant messaging user preferences from the original device are copied and applied to the current device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); configuring second setting of the second feature set that correspond to the first settings in accordance with the current state (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); in the second user system, exchanging second communications, comprising the user communications of the first user, for the communication session using the second settings of the second feature set (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).
As to claim 2, Chen teaches the method of claim 1. Chen further teaches wherein receiving first user input from the first user indicating that the communication session should be extended to the second user system (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); and transferring the communication session from the first user system to the second user system in response to the first user input (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).
As to claim 3, Chen teaches the method of claim 1. Chen further teaches wherein determining the current state (See at least ABSTRACT, “A user’s identification is authorized when the user logs on a current device. A determination that the user is logged on to another device is made”) and configuring the second settings in response to the first user input (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions or in sending messages to and receiving messages from other users”).
As to claim 4, Chen teaches the method of claim 1, Chen further teaches wherein configuring the second settings comprises: when one or more of the second settings do not have a corresponding setting in the first settings, configuring the one or more of the second settings in accordance with one or more default settings (See at least ¶ [0034], “data processing system 200 may be a personal digital assistant (PDA), which is configured with flash memory to provide non-volatile memory for storing operating system files and/or user-generated data”. Here the default settings are uploaded to the memory system of the device).
As to claim 5, Chen teaches the method of claim 1. Chen further teaches wherein presenting the first user with an option to configure the second settings in accordance with the current state of the first See at least ¶ [0049], “If the user does want to transfer the open chat window to the new device, the operation duplicates open chat window in the new device”; and ¶ [0050], “Duplicating the open chat window includes, but is not limited to, copying the window dimensions, contact chatting with, text history within the window… if available, from the original device to the new device”. Here not limited to, means, there is option to configure the second settings, such as window dimensions, contact info, etc. in accordance with the current state of the first settings).
As to claim 6, Chen teaches the method of claim 5. Chen further teaches wherein receiving first input from the first user indicating selection of the option; and configuring the second settings in response to the first user input (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”).
As to claim 7, Chen teaches the method of claim 5. Chen further teaches wherein presenting the first user with an option to modify the current state of the first settings before configuring the second settings (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”).
As to claim 8, Chen teaches the method of claim 7. Chen further teaches wherein receiving first user input from the first user indicating one or more modifications to the current state of the first settings (See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, prompting the user directly means receiving first user input.); further configuring the second settings in accordance with the one or more See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, through a user setting means configuring the second settings).
As to claim 11, Chen teaches a communication control system for maintaining feature settings across user systems, the communication control system comprising: one or more computer readable storage media; a processing system operatively coupled with the one or more computer readable storage media; and program instructions stored on that one or more computer readable storage media that, when read and executed by the processing system, direct the processing system (See at least ¶ [0065],”the invention can take the form of a computer program product accessible from a computer-usable or computer-readable medium providing program code for use by or in connection with a computer or any instruction execution system”) to: facilitate an exchange of first communications, comprising user communications of a first user, by a first user system of the first user having a first feature set (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; and ¶ [0046], “Some examples of client preferences include user settings such as alert preferences, window dimensions, contact list”. Here, the user is regarded as the first user. In addition, the first user having a first feature set, first settings, such as, the alert preferences, contact list, etc.) for a communication session between the first user system and one or more other user systems of one or more other users using first settings of features in the first feature set (See at least ¶ [0010], “sending messages to and receiving messages from other users. Instant messaging server clients can exchange text messages, audio, data and other types of multimedia files”. Here, the other users of Chen are the claimed one or more other user systems of one or more other users.); determine a current state of the first settings before a second user system of the first user having a second feature set joins the communication session (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; ¶ [0012], “A determination that the user is logged on to another, original device is made. Applicable instant messaging user preferences from the original device are copied and applied to the current device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); configure second setting of the second feature set that correspond to the first settings in accordance with the current state (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); facilitate an exchange of second communications, comprising the user communications of the first user, by the second user system for the communication session using the second settings of the second feature set (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).
As to claim 12, Chen teaches the communication control system of claim 11. Chen further teaches wherein the program instructions further direct the processing system to: receive a notification from the first system indicating that the communication session should be extended to the second user system, wherein the notification is transferred in response to first user input from the first user (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); and transferring the communication session from the first user system to the second user system in response to the first user input (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).
As to claim 13, Chen teaches the communication control system of claim 12. Chen further teaches wherein the program instructions further direct the processing system to: determine the current state (See at least ABSTRACT, “A user’s identification is authorized when the user logs on a current device. A determination that the user is logged on to another device is made”) and configuring the second settings in response to the notification (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions or in sending messages to and receiving messages from other users”).
As to claim 14, Chen teaches the communication control system of claim 12. Chen further teaches wherein the program instructions that direct the processing system to configure the second settings comprise program instructions that direct the processing system to: when one or more of the second settings do not have a corresponding setting in the first settings, configure the one or more of the second settings in accordance with one or more default settings (See at least ¶ [0034], “data processing system 200 may be a personal digital assistant (PDA), which is configured with flash memory to provide non-volatile memory for storing operating system files and/or user-generated data”. Here the default settings are uploaded to the memory system of the device).
As to claim 15, Chen teaches the communication control system of claim 11. Chen further teaches wherein the program instructions further direct the processing system to: provide the first user system with an option to configure the second settings in accordance with the current state of the first settings, wherein the first user system presents the first user with the option (See at least ¶ [0049], “If the user does want to transfer the open chat window to the new device, the operation duplicates open chat window in the new device”; and ¶ [0050], “Duplicating the open chat window includes, but is not limited to, copying the window dimensions, contact chatting with, text history within the window… if available, from the original device to the new device”. Here not limited to, means, there is option to configure the second settings, such as window dimensions, contact info, etc. in accordance with the current state of the first settings).
As to claim 16, Chen teaches the communication control system of claim 15. Chen further teaches wherein the program instructions further direct the processing system to: receive a notification from the first user system indicating selection of the option by the first user, wherein the notification is transferred in response to first user input from the first user; and configure the second settings in response to the notification (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”).
As to claim 17, Chen teaches the communication control system of claim 11. Chen further teaches wherein the program instructions further direct the processing system to: provide the first user system with an option to modify the current state of the first settings before configuring the second settings, wherein the first user system presents the first user with the option (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”).
As to claim 18, Chen teaches the communication control system of claim 17. Chen further teaches wherein the program instructions further direct the processing system to: receive a notification from the first user system that first user input from the first user has been received indicating one or more modifications to the current state of the first settings (See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, prompting the user directly means receiving first user input.); further configure the second settings in accordance with the one or more modifications (See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, through a user setting means configuring the second settings).
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 9-10 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Chen in view of Yin et al. (hereinafter referred to as Yin) (U. S. Patent No. 9247204 B1). As to claim 9, Chen teaches the method of claim 1. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that audio captured by In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an audio mute setting within the first settings indicates that audio captured by the first user system is muted in the communication session (See at least ABSTRACT, “The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”); and configuring the second setting comprises configuring an audio mute setting within the second settings to mute audio captured by the second user system in the communication session (See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting. One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT).
As to claim 10, Chen teaches the method of claim 1. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that video captured by the first user system is muted in the communication session; and configuring the second setting comprises configuring an video mute setting within the second settings to mute video captured by the second user system in the communication session. In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an video mute setting within the first settings indicates that video captured by the first user system is muted See at least ABSTRACT, “a device executes one or more video communication processes that receive audio streams and video streams from plurality of computing devices…The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”); and configuring the second setting comprises configuring an video mute setting within the second settings to mute video captured by the second user system in the communication session (See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”)). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting. One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT).
As to claim 19, Chen teaches the communication control system of claim 11. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that audio captured by the first user system is muted in the communication session; and the program instructions that direct the processing system to configure an audio mute setting within the second settings to mute audio captured by the second user system in the communication session. In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an audio mute setting within the first settings indicates that audio captured by the first user system is muted in the communication session (See at least ABSTRACT, “The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”); and the program instructions that direct the processing system to configure an audio mute setting within the second settings to mute audio captured by the second user system in the communication session (See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting. One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT).
As to claim 20, Chen teaches the communication control system of claim 11. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that video captured by the first user system is muted in the communication session; and the program instructions that direct the processing system to configure the second setting comprise program instructions that direct the processing system to configure a video mute setting within the second settings to mute video captured by the second user system in the communication session. In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an video mute setting within the first settings indicates that video captured by the first user system is muted in the communication session (See at least ABSTRACT, “a device executes one or more video communication processes that receive audio streams and video streams from plurality of computing devices…The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”); and the program instructions that direct the processing system to configure the second setting comprise program See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”)). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting. One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT).
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN FAN whose telephone number is (571) 272-3345. The examiner can normally be reached on Monday-Friday, 9am-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, Umar Cheema can be reached on (571)270-3037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
John Fan /J.F/Examiner, Art Unit 2454 03/12/2021
/Brian Whipple/Primary Examiner, Art Unit 2454 3/18/2021 | 2021-03-27T06:35:01 | [
"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 The claims 1-20 are pending and are considered in this Office Action. In view of the Appeal Brief filed on 11/10/2020, PROSECUTION IS HEREBY REOPENED regarding claims 1-20 set forth below. To avoid abandonment of the application, appellant must exercise one of the following two options: (1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or, (2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid. A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below: /UMAR CHEEMA/ Supervisory Patent Examiner, Art Unit 2454 Response to Amendment This communication is in response to the Amendment filed on 04/10/2020.",
"Claims 1-20 are pending. Claims 1 and 11 has been amended. Response to Arguments A. Rejection of Claims 1-2 and 4-20 Under 35 U. S. C. 103 Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.",
"Claims 1-8 and 11-18 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Chen et al. (hereinafter referred to as Chen) (U. S. Pub. No. 2007/0101009 A1). As to claim 1, Chen teaches a method for maintaining feature settings across user systems (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”), the method comprising: in a first user system of a first user having a first feature set, using first settings of features in the first feature set (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password.",
"The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; and ¶ [0046], “Some examples of client preferences include user settings such as alert preferences, window dimensions, contact list”. Here, the user is regarded as the first user. And the first user having a first feature set, first settings, such as, the alert preferences, contact list, etc. ), exchanging first communications, comprising user communications of a first user, for a communication session between the first user system and one or more other user systems of one or more other users (See at least ¶ [0010], “sending messages to and receiving messages from other users.",
"Instant messaging server clients can exchange text messages, audio, data and other types of multimedia files”. Here, the other users of Chen are the claimed one or more other user systems of one or more other users. ); determining a current state of the first settings before a second user system of the first user having a second feature set joins the communication session (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; ¶ [0012], “A determination that the user is logged on to another, original device is made.",
"Applicable instant messaging user preferences from the original device are copied and applied to the current device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); configuring second setting of the second feature set that correspond to the first settings in accordance with the current state (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); in the second user system, exchanging second communications, comprising the user communications of the first user, for the communication session using the second settings of the second feature set (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).",
"As to claim 2, Chen teaches the method of claim 1. Chen further teaches wherein receiving first user input from the first user indicating that the communication session should be extended to the second user system (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); and transferring the communication session from the first user system to the second user system in response to the first user input (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).",
"As to claim 3, Chen teaches the method of claim 1. Chen further teaches wherein determining the current state (See at least ABSTRACT, “A user’s identification is authorized when the user logs on a current device. A determination that the user is logged on to another device is made”) and configuring the second settings in response to the first user input (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions or in sending messages to and receiving messages from other users”).",
"As to claim 4, Chen teaches the method of claim 1, Chen further teaches wherein configuring the second settings comprises: when one or more of the second settings do not have a corresponding setting in the first settings, configuring the one or more of the second settings in accordance with one or more default settings (See at least ¶ [0034], “data processing system 200 may be a personal digital assistant (PDA), which is configured with flash memory to provide non-volatile memory for storing operating system files and/or user-generated data”. Here the default settings are uploaded to the memory system of the device). As to claim 5, Chen teaches the method of claim 1.",
"Chen further teaches wherein presenting the first user with an option to configure the second settings in accordance with the current state of the first See at least ¶ [0049], “If the user does want to transfer the open chat window to the new device, the operation duplicates open chat window in the new device”; and ¶ [0050], “Duplicating the open chat window includes, but is not limited to, copying the window dimensions, contact chatting with, text history within the window… if available, from the original device to the new device”. Here not limited to, means, there is option to configure the second settings, such as window dimensions, contact info, etc. in accordance with the current state of the first settings). As to claim 6, Chen teaches the method of claim 5. Chen further teaches wherein receiving first input from the first user indicating selection of the option; and configuring the second settings in response to the first user input (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”).",
"As to claim 7, Chen teaches the method of claim 5. Chen further teaches wherein presenting the first user with an option to modify the current state of the first settings before configuring the second settings (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”). As to claim 8, Chen teaches the method of claim 7. Chen further teaches wherein receiving first user input from the first user indicating one or more modifications to the current state of the first settings (See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, prompting the user directly means receiving first user input.",
"); further configuring the second settings in accordance with the one or more See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, through a user setting means configuring the second settings). As to claim 11, Chen teaches a communication control system for maintaining feature settings across user systems, the communication control system comprising: one or more computer readable storage media; a processing system operatively coupled with the one or more computer readable storage media; and program instructions stored on that one or more computer readable storage media that, when read and executed by the processing system, direct the processing system (See at least ¶ [0065],”the invention can take the form of a computer program product accessible from a computer-usable or computer-readable medium providing program code for use by or in connection with a computer or any instruction execution system”) to: facilitate an exchange of first communications, comprising user communications of a first user, by a first user system of the first user having a first feature set (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; and ¶ [0046], “Some examples of client preferences include user settings such as alert preferences, window dimensions, contact list”.",
"Here, the user is regarded as the first user. In addition, the first user having a first feature set, first settings, such as, the alert preferences, contact list, etc.) for a communication session between the first user system and one or more other user systems of one or more other users using first settings of features in the first feature set (See at least ¶ [0010], “sending messages to and receiving messages from other users. Instant messaging server clients can exchange text messages, audio, data and other types of multimedia files”. Here, the other users of Chen are the claimed one or more other user systems of one or more other users.",
"); determine a current state of the first settings before a second user system of the first user having a second feature set joins the communication session (See at least ¶ [0010], “when a user accesses an instant messaging application, the user inputs the user’s personal information together with a user identification and a password. The user is then enabled to designate a user name with will be used to identify the user in subsequent chat sessions”; ¶ [0012], “A determination that the user is logged on to another, original device is made. Applicable instant messaging user preferences from the original device are copied and applied to the current device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); configure second setting of the second feature set that correspond to the first settings in accordance with the current state (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); facilitate an exchange of second communications, comprising the user communications of the first user, by the second user system for the communication session using the second settings of the second feature set (See at least Fig.5 and ¶ [0044], “The operation copies and applies applicable user instant messaging client preferences from the original device to the new device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”).",
"As to claim 12, Chen teaches the communication control system of claim 11. Chen further teaches wherein the program instructions further direct the processing system to: receive a notification from the first system indicating that the communication session should be extended to the second user system, wherein the notification is transferred in response to first user input from the first user (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”); and transferring the communication session from the first user system to the second user system in response to the first user input (See at least ¶ [0040], “A user may own and use instant messaging on more than one device…a user initiates a session on another device”; and ¶ [0048], “the determination of whether the user wants to transfer the open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instant messaging menu options”). As to claim 13, Chen teaches the communication control system of claim 12.",
"Chen further teaches wherein the program instructions further direct the processing system to: determine the current state (See at least ABSTRACT, “A user’s identification is authorized when the user logs on a current device. A determination that the user is logged on to another device is made”) and configuring the second settings in response to the notification (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions or in sending messages to and receiving messages from other users”).",
"As to claim 14, Chen teaches the communication control system of claim 12. Chen further teaches wherein the program instructions that direct the processing system to configure the second settings comprise program instructions that direct the processing system to: when one or more of the second settings do not have a corresponding setting in the first settings, configure the one or more of the second settings in accordance with one or more default settings (See at least ¶ [0034], “data processing system 200 may be a personal digital assistant (PDA), which is configured with flash memory to provide non-volatile memory for storing operating system files and/or user-generated data”. Here the default settings are uploaded to the memory system of the device). As to claim 15, Chen teaches the communication control system of claim 11. Chen further teaches wherein the program instructions further direct the processing system to: provide the first user system with an option to configure the second settings in accordance with the current state of the first settings, wherein the first user system presents the first user with the option (See at least ¶ [0049], “If the user does want to transfer the open chat window to the new device, the operation duplicates open chat window in the new device”; and ¶ [0050], “Duplicating the open chat window includes, but is not limited to, copying the window dimensions, contact chatting with, text history within the window… if available, from the original device to the new device”. Here not limited to, means, there is option to configure the second settings, such as window dimensions, contact info, etc. in accordance with the current state of the first settings).",
"As to claim 16, Chen teaches the communication control system of claim 15. Chen further teaches wherein the program instructions further direct the processing system to: receive a notification from the first user system indicating selection of the option by the first user, wherein the notification is transferred in response to first user input from the first user; and configure the second settings in response to the notification (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password. The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”). As to claim 17, Chen teaches the communication control system of claim 11. Chen further teaches wherein the program instructions further direct the processing system to: provide the first user system with an option to modify the current state of the first settings before configuring the second settings, wherein the first user system presents the first user with the option (See at least ABSTRACT, “Applicable instance message user preferences from the original device are copied and applied to the current device”; and ¶ [0010], “When a user access an instant messaging application, the user inputs the user’s personal information together with a user identification (ID) and a password.",
"The user is then enabled to designate a user name which will be used to identify the user in subsequent chat sessions”). As to claim 18, Chen teaches the communication control system of claim 17. Chen further teaches wherein the program instructions further direct the processing system to: receive a notification from the first user system that first user input from the first user has been received indicating one or more modifications to the current state of the first settings (See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”. Here, prompting the user directly means receiving first user input. ); further configure the second settings in accordance with the one or more modifications (See at least ¶ [0048], “Depending upon the particular implementation, the determination of whether the user wants to transfer that open chat window to the new device may be achieved either by prompting the user directly or through a user setting, as part of the user preferences, in the main instance messaging menu options”.",
"Here, through a user setting means configuring the second settings). Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 9-10 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Chen in view of Yin et al. (hereinafter referred to as Yin) (U. S. Patent No. 9247204 B1). As to claim 9, Chen teaches the method of claim 1. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that audio captured by In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an audio mute setting within the first settings indicates that audio captured by the first user system is muted in the communication session (See at least ABSTRACT, “The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”); and configuring the second setting comprises configuring an audio mute setting within the second settings to mute audio captured by the second user system in the communication session (See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”).",
"Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting. One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT). As to claim 10, Chen teaches the method of claim 1. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that video captured by the first user system is muted in the communication session; and configuring the second setting comprises configuring an video mute setting within the second settings to mute video captured by the second user system in the communication session.",
"In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an video mute setting within the first settings indicates that video captured by the first user system is muted See at least ABSTRACT, “a device executes one or more video communication processes that receive audio streams and video streams from plurality of computing devices…The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”); and configuring the second setting comprises configuring an video mute setting within the second settings to mute video captured by the second user system in the communication session (See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”)). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting.",
"One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT). As to claim 19, Chen teaches the communication control system of claim 11. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that audio captured by the first user system is muted in the communication session; and the program instructions that direct the processing system to configure an audio mute setting within the second settings to mute audio captured by the second user system in the communication session.",
"In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an audio mute setting within the first settings indicates that audio captured by the first user system is muted in the communication session (See at least ABSTRACT, “The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”); and the program instructions that direct the processing system to configure an audio mute setting within the second settings to mute audio captured by the second user system in the communication session (See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting.",
"One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT). As to claim 20, Chen teaches the communication control system of claim 11. However, Chen fails to expressly teach wherein: a current state of an audio mute setting within the first settings indicates that video captured by the first user system is muted in the communication session; and the program instructions that direct the processing system to configure the second setting comprise program instructions that direct the processing system to configure a video mute setting within the second settings to mute video captured by the second user system in the communication session.",
"In analogous teaching, Yin exemplifies this wherein Yin teaches wherein: a current state of an video mute setting within the first settings indicates that video captured by the first user system is muted in the communication session (See at least ABSTRACT, “a device executes one or more video communication processes that receive audio streams and video streams from plurality of computing devices…The device distributes a second group of the audio streams in the video communication session, while muting the first group of audio streams in the video communication session”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”); and the program instructions that direct the processing system to configure the second setting comprise program See at least Col. 16, lines 19-22, “Smart mute module 44 may receive and use information from user roles data store 50 in addition to properties of audio streams 46A-F in evaluating whether to mute any of audio streams”; and Fig. 3, “smart mute module, VIDEO STREAMS 48 A-F”)). Thus, giving the teaching of Yin, it would have been obvious to one of the ordinary skills person in the art before the effective filing date of the claimed invention to combine the teaching of Yin, automatic mute control for video conferencing, into Chen, method and system for automatic/dynamic instant messaging location switch, for method and system of communication devices audio or video muting. One of the ordinary skills in the art would have been motivated because it would have been advantageous to have the method and system to execute video communication session process that receives audio streams and video streams from a plurality of computing devices participating in a video communication session (See Yin: ABSTRACT).",
"Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN FAN whose telephone number is (571) 272-3345. The examiner can normally be reached on Monday-Friday, 9am-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, Umar Cheema can be reached on (571)270-3037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. John Fan /J.F/Examiner, Art Unit 2454 03/12/2021 /Brian Whipple/Primary Examiner, Art Unit 2454 3/18/2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
690 N.W.2d 59 (2004) Doug HOLLIDAY, Janet Holliday and Wendel Holliday, Appellants, v. RAIN AND HAIL L.L.C., Rain and Hail Insurance Services, Inc., and Cigna Property and Casualty Insurance Company, Appellees. No. 02-0512. Supreme Court of Iowa. December 17, 2004. *60 Andrew B. Howie and Michael P. Mallaney of Hudson, Mallaney & Shindler, P.C., Des Moines, for appellants. Frank W. Pechacek, Jr., and Bruce B. Green of Willson & Pechacek, P.L.C., Council Bluffs, for appellees. LAVORATO, Chief Justice. Insureds under multiple peril crop insurance policies appeal from adverse ruling by the jury regarding a breach of contract claim against its insurers and from an adverse ruling by the district court on their motion to amend the pleadings. The insurers cross-appeal from the district court's entry of judgment in favor of the insureds on the insurers' counterclaim. We affirm on the appeal and reverse on the cross-appeal. We remand with directions.
I. Background Facts. The jury could find the following facts. In 1998 Doug Holliday, Janet Holliday, and Wendel Holliday (hereinafter collectively referred to as the Hollidays) farmed a number of acres in several southern Iowa counties in which they raised corn and soybeans. Rain and Hail L.L.C. (Rain and Hail) is the managing general agent for CIGNA Property and Casualty Insurance Company (CIGNA). (Hereinafter we refer to Rain and Hail and CIGNA collectively as Rain and Hail unless otherwise indicated.) Rain and Hail issues and services federal crop insurance policies under the authority of the Federal Crop Insurance Act through federally reinsured "Multiple Peril Crop Insurance" policies. The policies were issued pursuant to a standard reinsurance agreement with the Federal Crop Insurance Corporation (FCIC). The FCIC is the governmental *61 agency charged with implementing the federal crop insurance program, see 7 U.S.C.A. § 1503 (West 1999), in which the Hollidays were participating. Under this federal program, the FCIC pays Rain and Hail for servicing crop insurance policies issued to American farmers and subsidizes a portion of each farmer's premium. The FCIC also pays a portion of each farmer's loss. The policies guarantee that participating farmers will earn a specific amount of revenue on their insured farms by guaranteeing farmers will obtain certain yields, that is, production on their insured farms. The yield guarantees are based either on average county yields or the participating farmer's actual yield history. If a farmer relies on actual yields, the farmer must maintain and certify the farmer's past yields. The farmer certifies the actual yields on "production reports." Insurers use these certified yields on the production reports to determine the amount of each farmer's coverage for the upcoming crop year. To the extent certified yields are inaccurate, the coverage is misstated. In addition to production reports in which a participating farmer certifies the farmer's past yields, such farmer must also certify planting dates in "acreage reports." Similar to past yields, planting dates also affect the amount of insurance coverage. To obtain full coverage, a participating farmer must plant crops by the "final plant date." If a participating farmer does not plant by the final plant date, insurance coverage is reduced one percent for each day following the final plant date. Except for certain exceptions not applicable here, after twenty-five days there is no coverage. During the 1998 planting season, the Hollidays had yet to harvest their 1997 crops. Some of those crops remained unharvested into the summer and fall of 1998. Crops on four of the Hollidays' farms in Wayne County that were planted in 1997 were never harvested in 1997. Nor did the Hollidays plant crops on those farms in 1998. Notwithstanding these facts, in March 1998 the Hollidays certified 1997 yields on two of these farms although they did not harvest crops on those farms and made no appraisals of their yields. In June 1998, the Hollidays submitted acreage reports in which they certified their 1998 planting dates. In these reports, the Hollidays certified that they had planted crops on the Wayne County farms when in fact they had not done so. In addition, testimony from eyewitnesses disputed the planting dates certified by the Hollidays on eight other farms. The FCIC asked Rain and Hail to investigate the Hollidays' 1997 and 1998 activities. At about the same time, the federal government audited the Hollidays' prior crop year policies and concluded: (1) the Hollidays' actions were fraudulent, (2) they had received indemnities to which they were not entitled in prior years, and (3) their approved yields were overstated. In October 1998, Rain and Hail notified the Hollidays of the discrepancies between the Hollidays' certified plant dates and the eyewitnesses' accounts. That prompted the Hollidays to submit thirty-one "corrected planting dates" to Rain and Hail. Even then, the corrected planting dates were inconsistent with the eyewitnesses' accounts. Moreover, the corrected planting dates did not match time cards kept by the Hollidays' employees. The Hollidays were never able to produce records to support their claim of a potential yield loss they reported to Rain and Hail for the 1998 crop year. Nor did the Hollidays' notice of loss identify the *62 specific farms on which it suspected a yield loss. Eventually, Rain and Hail voided the Hollidays' 1998 policies covering the 1998 crop year in accordance with paragraph twenty-seven of the insurance policies, a provision that allows the insurer to void the policies when the insured "intentionally conceal[s] or misrepresent[s] any material fact relating to [the policies]." Rain and Hail incurred expenses in excess of $80,000 in investigating the Hollidays' activities and voiding their policies.
II. Proceedings. In February 2000, the Hollidays sued Rain and Hail for breach of contract and bad faith in connection with Rain and Hail's action in voiding the 1998 policies. The Hollidays also sought a declaratory ruling that the 1998 policies were in full force and effect. Rain and Hail's answer raised several affirmative defenses, one of which was that the policies were void because of the Hollidays' alleged "intentional concealment and/or misrepresentation of one or more material facts as prohibited by the terms of [the Hollidays'] policies." Rain and Hail also counterclaimed, requesting (1) premium underpayments and indemnity overpayments for the 1995 and 1996 crop years and (2) twenty percent of the premium for the 1998 crop year pursuant to the policies to offset Rain and Hail's costs in servicing them. Thereafter, pursuant to leave of court, the Hollidays amended their petition, adding a claim for (1) breach of contract for loss and indemnity payments under the 1999 policies, (2) conversion of the 1999 indemnity payments, and (3) duress. Later, the district court entered a scheduling order setting trial for February 5, 2002 and closing pleadings as of December 5, 2001. The court also granted Rain and Hail's motion for summary judgment on the Hollidays' claim for duress. Several weeks before trial, the Hollidays dismissed their breach of contract claim for indemnity payments under the 1999 policies. A short time later, Rain and Hail filed a motion in limine. In that motion, Rain and Hail maintained that the Hollidays and Rain and Hail had admitted that the 1999 policies were with CIGNA. For that reason, Rain and Hail contended, the Hollidays should not therefore be permitted to introduce evidence on their conversion claim that Agri-General Insurance Company (Agri-General) actually issued the 1999 policies rather than CIGNA. On the day before trial, the Hollidays moved to amend the petition. The Hollidays alleged that they had erred in previously alleging that the 1999 policies were with CIGNA rather than with Agri-General and that they learned of the mistake through discovery. Rain and Hail resisted, and the district court denied the Hollidays' request to amend. The case proceeded to trial before a jury. The district court sustained Rain and Hail's motion for directed verdict on the Hollidays' conversion claim. The Hollidays objected to the district court's instruction on Rain and Hail's burden of proof concerning the misrepresentation issue. The Hollidays argued that the court should instruct the jury that Rain and Hail's burden of proof on this issue should be by a preponderance of clear, satisfactory, and convincing evidence rather than by a preponderance of evidence. The court overruled the objection. The court then submitted the Hollidays' original breach of contract claim and their bad-faith claim, with the following special interrogatory: Question: Did the plaintiffs, or someone assisting them, intentionally misrepresent material facts relating to the *63 plaintiffs' 1998 Multi-Peril Crop Insurance policies? Answer "yes" or "no". Answer: ____ [If your answer is "no", proceed to Verdict Form 1. If your answer is "yes", do not answer any questions on Verdict Form 1 or Verdict Form 2.] The jury answered the interrogatory in the affirmative, and thereafter the district court entered judgment in favor of Rain and Hail on the breach of contract, bad faith, and declaratory judgment claims. As to Rain and Hail's counterclaim for underpayment of premiums and overpayment of indemnity payments, Rain and Hail voluntarily dismissed their claims for the 1995 and 1996 crop years during trial, leaving only a counterclaim for twenty percent of the premium on the 1998 policies. Because the parties agreed that this latter claim presented only a question of law for the court, the district court did not submit the counterclaim to the jury. Ruling against Rain and Hail on this issue, the court dismissed the counterclaim. The Hollidays appealed and Rain and Hail cross-appealed.
III. Issues. The Hollidays raise two issues on appeal. The first issue is whether the jury instructions incorrectly stated the law by referring to Rain and Hail's burden of proof on its affirmative defense of misrepresentation as a preponderance of the evidence rather than a preponderance of clear, convincing, and satisfactory evidence. The second issue the Hollidays raise is whether the district court erred by not granting their motion for leave to amend petition filed the day before trial. The issue Rain and Hail raises on the cross-appeal is whether the district court erred by dismissing its counterclaim.
IV. Scope of Review. We review claims of errors in instructing the jury for correction of errors at law. Greenwood v. Mitchell, 621 N.W.2d 200, 204 (Iowa 2001). We review a ruling on a motion for leave to amend a petition for abuse of discretion. Bailiff v. Adams County Conference Bd., 650 N.W.2d 621, 626 (Iowa 2002). As mentioned, the parties agreed that whether the counterclaim should be dismissed was a question of law for the court. So our review is for correction of errors at law. Iowa R.App. P. 6.4.
V. Burden of Proof Instruction. The district court's instruction on Rain and Hail's affirmative defense stated in relevant part: The defendants voided the plaintiffs' 1998 Multi-Peril Crop Insurance policies.... In connection with those insurance policies, you must determine whether the defendants have proved each one of the following: 1. That the plaintiffs, or anyone assisting them, misrepresented facts; and 2. That the misrepresentations were intentionally made; and 3. That the misrepresentations were material. If the defendants have proved each of the above, you will answer the Special Interrogatory "Yes". If the defendants have failed to prove each of the above, you will answer the Special Interrogatory "No". (Emphasis added.) In another instruction, the district court instructed the jury that "[w]henever a party must prove something, they must do so by the preponderance of the evidence." The instruction defines a preponderance *64 of evidence as evidence "that is more convincing than opposing evidence" and states that "[t]o prove something by the preponderance of the evidence is to prove that it is more likely true than not true." Taking these two instructions together, the jury could find for Rain and Hail on its affirmative defense if it found Rain and Hail proved its defense by a preponderance of the evidence. The Hollidays contend the court should have instructed the jury that Rain and Hail had to prove its affirmative defense by a preponderance of clear, satisfactory, and convincing evidence rather than by a preponderance of evidence. And the district court's failure to so instruct the jury was a material misstatement of the law and for that reason was prejudicial, warranting reversal. For reasons that follow, we disagree. Our law is clear that all the elements of common-law fraud must be established by a preponderance of evidence that is clear, satisfactory, and convincing. Lockard v. Carson, 287 N.W.2d 871, 874 (Iowa 1980). The reason for this heavier burden is to give deference to the presumption of fair dealing. Id. "`[C]lear and satisfactory' refers to the character or nature of the evidence, whereas `preponderance' of the evidence is a quantitative measure." Id. What Rain and Hail had to prove here was not common-law fraud for damages. Rather it had to prove a contractual defense, pursuant to paragraph twenty-seven of the policy, to void the policies based simply on intentional concealment or misrepresentation of any material fact relating to the policies. Thus, all that Rain and Hail had to prove was either one of two elements: intentional concealment or misrepresentation; there was no language indicating that Rain and Hail had to prove all the elements of common-law fraud. See Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 400 (Iowa 2001) (listing elements necessary to establish common-law fraud claim: "(1) defendant made a representation to the plaintiff, (2) the representation was false, (3) the representation was material, (4) the defendant knew the representation was false, (5) the defendant intended to deceive the plaintiff, (6) the plaintiff acted in reliance on the truth of the representation and was justified in relying on the representation, (7) the representation was a proximate cause of plaintiff's damages, and (8) the amount of damages"). In its ruling on the Hollidays' motion for new trial, the district court addressed the issue squarely and in accord with our reasoning here: The plaintiffs urge that the Court erred in instructing the jury regarding the burden of proof required of the defendants in their affirmative defense. The plaintiffs are correct that the burden of proof in a cause of action for damages sustained as a result of fraud is proof by a preponderance of the clear and convincing evidence. However, there was no claim for damages for fraud submitted to the jury in this case. In this case, the cause of action was for breach of contract. The burden of proof on the plaintiffs was to prove a breach of contract by a preponderance of evidence. Part of the proof required of the plaintiffs was the existence of a contract of insurance, insuring against the plaintiffs' losses. The defendants raised the affirmative defense that, pursuant to the terms of the contract, there was no policy and no coverage for the plaintiffs' losses. The same burden of proof fell upon the defendants in their affirmative defense. The defendants were required to prove, by a preponderance of the evidence, that pursuant to its *65 terms, there was no policy in effect and hence no coverage. In this case, the defendants, to prove their affirmative defense, were required to prove that the plaintiffs intentionally misrepresented material facts. The insurance policies provided that they were void if those facts were proved. The fact that the policy language included some, but not all, of the elements of a cause of action for fraud, did not however, require the defendants to prove their entitlement to a judgment for damages for fraud in order to prove their defense. The district court did not err in instructing the jury on Rain and Hail's burden of proof regarding its affirmative defense.
VI. Motion to Amend. In their original amended petition, the Hollidays asserted a claim for conversion against Rain and Hail because it had set off monies allegedly due the Hollidays under the 1999 policies against monies for premium underpayments and indemnity overpayments that Rain and Hail claimed to be due to it under the 1995 and 1996 policies. In asserting the conversion claim, the Hollidays alleged that for the 1999 crop year, they had policies with CIGNA when in fact the policies were with Agri-General. Rain and Hail's answer admitted the policies were with CIGNA. The day before trial, the Hollidays moved to amend their petition to correct the factual error. The district court denied the Hollidays' motion. The Hollidays contend the district court abused its discretion in denying their motion. We conclude, for two reasons, that the district court did not abuse its discretion in denying the motion. First, as the district court found, the amendment would inject a new issue into the case whether Rain and Hail had a right of setoff against funds due under another insurer's policy. This issue was not raised in the original pleadings and allowing the amendment would unduly prejudice Rain and Hail. See Atl. Veneer Corp. v. Sears, 232 N.W.2d 499, 503 (Iowa 1975) (stating "an amendment is not permissible which will substantially change the issue"). Moreover, in addition to adding a new issue, the amendment would require in our opinion the addition of another party Agri-General. Second, as the district court found, the motion was untimely. The pretrial order closed pleadings as of December 5, 2001. The district court found that the information the Hollidays needed to correct the factual error was available to them as early as November 2001, but they waited until the day before trial to file their motion to amend. See Bennett v. City of Redfield, 446 N.W.2d 467, 474-75 (Iowa 1989) (finding district court did not abuse its discretion in denying as untimely motion to amend petition that "would have substantially changed the issues of the suit"; motion to amend was filed sixteen months after suit was commenced, twenty days before trial date, and after amendment deadlines established in court's scheduling order).
VII. The Counterclaim. As mentioned, Rain and Hail sought twenty percent of the premium for the voided 1998 policy. The parties agreed the counterclaim presented a legal question for the court. The court found that the liquidated damage provision in paragraph twenty-seven of the policies was discretionary, and for that reason Rain and Hail had to make an election and demand for payment before it had any right of action for the liquidated damages. Because Rain and Hail made no such election and demand before filing its counterclaim, the court concluded Rain and Hail had no cause of action for the damages at the time *66 it filed the counterclaim. The court therefore entered judgment in favor of the Hollidays on the counterclaim. Rain and Hail contends the court erred in reaching its conclusion, and we agree. Paragraph twenty-seven of the policies provides in relevant part: (b) Even though the policy is void, you may still be required to pay 20 percent of the premium due under the policy to offset costs incurred by us in the service of this policy. If previously paid, the balance of the premium will be returned. (Emphasis added.) As the district court found, this provision is discretionary because of the use of the word "may" in connection with the insured's liability for the liquidated damages. See 17A C.J.S. Contracts § 323, at 347-48 (1999) (stating that when construing contracts, "the word `may' ordinarily is regarded in a permissive, rather than in a mandatory, sense"). However, there is no language in this provision requiring Rain and Hail to first make an election and demand before filing suit. In the absence of such language, we think the general rule is that no such election and demand is necessary before filing suit. Coffin v. Younker, 196 Iowa 1021, 1026, 195 N.W. 591, 593 (1923); Wyatt v. Bailey, 1 Morris 522, 523 (Iowa 1845); 25 C.J.S. Damages § 229, at 630 (2002). Filing suit, as was done here, constitutes the demand. Coffin, 196 Iowa at 1026, 195 N.W. at 593; Wyatt, 1 Morris at 523.
VIII. Disposition. Because we find that the district court correctly instructed the jury on the burden of proof regarding Rain and Hail's affirmative defense and did not abuse its discretion in denying the Hollidays' motion to amend, we affirm on these issues. However, because the district court erred in entering judgment in favor of the Hollidays on the counterclaim, we reverse the judgment and remand to allow the district court to decide the issue on the record before it in conformity with the conclusions we have reached. APPEAL AFFIRMED; REVERSED AND CASE REMANDED WITH DIRECTIONS ON CROSS-APPEAL. | 10-30-2013 | [
"690 N.W.2d 59 (2004) Doug HOLLIDAY, Janet Holliday and Wendel Holliday, Appellants, v. RAIN AND HAIL L.L.C., Rain and Hail Insurance Services, Inc., and Cigna Property and Casualty Insurance Company, Appellees. No. 02-0512. Supreme Court of Iowa. December 17, 2004. *60 Andrew B. Howie and Michael P. Mallaney of Hudson, Mallaney & Shindler, P.C., Des Moines, for appellants. Frank W. Pechacek, Jr., and Bruce B. Green of Willson & Pechacek, P.L.C., Council Bluffs, for appellees. LAVORATO, Chief Justice. Insureds under multiple peril crop insurance policies appeal from adverse ruling by the jury regarding a breach of contract claim against its insurers and from an adverse ruling by the district court on their motion to amend the pleadings.",
"The insurers cross-appeal from the district court's entry of judgment in favor of the insureds on the insurers' counterclaim. We affirm on the appeal and reverse on the cross-appeal. We remand with directions. I. Background Facts. The jury could find the following facts. In 1998 Doug Holliday, Janet Holliday, and Wendel Holliday (hereinafter collectively referred to as the Hollidays) farmed a number of acres in several southern Iowa counties in which they raised corn and soybeans. Rain and Hail L.L.C.",
"(Rain and Hail) is the managing general agent for CIGNA Property and Casualty Insurance Company (CIGNA). (Hereinafter we refer to Rain and Hail and CIGNA collectively as Rain and Hail unless otherwise indicated.) Rain and Hail issues and services federal crop insurance policies under the authority of the Federal Crop Insurance Act through federally reinsured \"Multiple Peril Crop Insurance\" policies. The policies were issued pursuant to a standard reinsurance agreement with the Federal Crop Insurance Corporation (FCIC). The FCIC is the governmental *61 agency charged with implementing the federal crop insurance program, see 7 U.S.C.A. § 1503 (West 1999), in which the Hollidays were participating. Under this federal program, the FCIC pays Rain and Hail for servicing crop insurance policies issued to American farmers and subsidizes a portion of each farmer's premium.",
"The FCIC also pays a portion of each farmer's loss. The policies guarantee that participating farmers will earn a specific amount of revenue on their insured farms by guaranteeing farmers will obtain certain yields, that is, production on their insured farms. The yield guarantees are based either on average county yields or the participating farmer's actual yield history. If a farmer relies on actual yields, the farmer must maintain and certify the farmer's past yields. The farmer certifies the actual yields on \"production reports.\" Insurers use these certified yields on the production reports to determine the amount of each farmer's coverage for the upcoming crop year. To the extent certified yields are inaccurate, the coverage is misstated. In addition to production reports in which a participating farmer certifies the farmer's past yields, such farmer must also certify planting dates in \"acreage reports.\" Similar to past yields, planting dates also affect the amount of insurance coverage. To obtain full coverage, a participating farmer must plant crops by the \"final plant date.\" If a participating farmer does not plant by the final plant date, insurance coverage is reduced one percent for each day following the final plant date.",
"Except for certain exceptions not applicable here, after twenty-five days there is no coverage. During the 1998 planting season, the Hollidays had yet to harvest their 1997 crops. Some of those crops remained unharvested into the summer and fall of 1998. Crops on four of the Hollidays' farms in Wayne County that were planted in 1997 were never harvested in 1997. Nor did the Hollidays plant crops on those farms in 1998. Notwithstanding these facts, in March 1998 the Hollidays certified 1997 yields on two of these farms although they did not harvest crops on those farms and made no appraisals of their yields. In June 1998, the Hollidays submitted acreage reports in which they certified their 1998 planting dates. In these reports, the Hollidays certified that they had planted crops on the Wayne County farms when in fact they had not done so. In addition, testimony from eyewitnesses disputed the planting dates certified by the Hollidays on eight other farms. The FCIC asked Rain and Hail to investigate the Hollidays' 1997 and 1998 activities. At about the same time, the federal government audited the Hollidays' prior crop year policies and concluded: (1) the Hollidays' actions were fraudulent, (2) they had received indemnities to which they were not entitled in prior years, and (3) their approved yields were overstated.",
"In October 1998, Rain and Hail notified the Hollidays of the discrepancies between the Hollidays' certified plant dates and the eyewitnesses' accounts. That prompted the Hollidays to submit thirty-one \"corrected planting dates\" to Rain and Hail. Even then, the corrected planting dates were inconsistent with the eyewitnesses' accounts. Moreover, the corrected planting dates did not match time cards kept by the Hollidays' employees. The Hollidays were never able to produce records to support their claim of a potential yield loss they reported to Rain and Hail for the 1998 crop year. Nor did the Hollidays' notice of loss identify the *62 specific farms on which it suspected a yield loss. Eventually, Rain and Hail voided the Hollidays' 1998 policies covering the 1998 crop year in accordance with paragraph twenty-seven of the insurance policies, a provision that allows the insurer to void the policies when the insured \"intentionally conceal[s] or misrepresent[s] any material fact relating to [the policies].\" Rain and Hail incurred expenses in excess of $80,000 in investigating the Hollidays' activities and voiding their policies.",
"II. Proceedings. In February 2000, the Hollidays sued Rain and Hail for breach of contract and bad faith in connection with Rain and Hail's action in voiding the 1998 policies. The Hollidays also sought a declaratory ruling that the 1998 policies were in full force and effect. Rain and Hail's answer raised several affirmative defenses, one of which was that the policies were void because of the Hollidays' alleged \"intentional concealment and/or misrepresentation of one or more material facts as prohibited by the terms of [the Hollidays'] policies.\" Rain and Hail also counterclaimed, requesting (1) premium underpayments and indemnity overpayments for the 1995 and 1996 crop years and (2) twenty percent of the premium for the 1998 crop year pursuant to the policies to offset Rain and Hail's costs in servicing them. Thereafter, pursuant to leave of court, the Hollidays amended their petition, adding a claim for (1) breach of contract for loss and indemnity payments under the 1999 policies, (2) conversion of the 1999 indemnity payments, and (3) duress.",
"Later, the district court entered a scheduling order setting trial for February 5, 2002 and closing pleadings as of December 5, 2001. The court also granted Rain and Hail's motion for summary judgment on the Hollidays' claim for duress. Several weeks before trial, the Hollidays dismissed their breach of contract claim for indemnity payments under the 1999 policies. A short time later, Rain and Hail filed a motion in limine. In that motion, Rain and Hail maintained that the Hollidays and Rain and Hail had admitted that the 1999 policies were with CIGNA. For that reason, Rain and Hail contended, the Hollidays should not therefore be permitted to introduce evidence on their conversion claim that Agri-General Insurance Company (Agri-General) actually issued the 1999 policies rather than CIGNA. On the day before trial, the Hollidays moved to amend the petition. The Hollidays alleged that they had erred in previously alleging that the 1999 policies were with CIGNA rather than with Agri-General and that they learned of the mistake through discovery.",
"Rain and Hail resisted, and the district court denied the Hollidays' request to amend. The case proceeded to trial before a jury. The district court sustained Rain and Hail's motion for directed verdict on the Hollidays' conversion claim. The Hollidays objected to the district court's instruction on Rain and Hail's burden of proof concerning the misrepresentation issue. The Hollidays argued that the court should instruct the jury that Rain and Hail's burden of proof on this issue should be by a preponderance of clear, satisfactory, and convincing evidence rather than by a preponderance of evidence. The court overruled the objection. The court then submitted the Hollidays' original breach of contract claim and their bad-faith claim, with the following special interrogatory: Question: Did the plaintiffs, or someone assisting them, intentionally misrepresent material facts relating to the *63 plaintiffs' 1998 Multi-Peril Crop Insurance policies?",
"Answer \"yes\" or \"no\". Answer: ____ [If your answer is \"no\", proceed to Verdict Form 1. If your answer is \"yes\", do not answer any questions on Verdict Form 1 or Verdict Form 2.] The jury answered the interrogatory in the affirmative, and thereafter the district court entered judgment in favor of Rain and Hail on the breach of contract, bad faith, and declaratory judgment claims. As to Rain and Hail's counterclaim for underpayment of premiums and overpayment of indemnity payments, Rain and Hail voluntarily dismissed their claims for the 1995 and 1996 crop years during trial, leaving only a counterclaim for twenty percent of the premium on the 1998 policies. Because the parties agreed that this latter claim presented only a question of law for the court, the district court did not submit the counterclaim to the jury. Ruling against Rain and Hail on this issue, the court dismissed the counterclaim.",
"The Hollidays appealed and Rain and Hail cross-appealed. III. Issues. The Hollidays raise two issues on appeal. The first issue is whether the jury instructions incorrectly stated the law by referring to Rain and Hail's burden of proof on its affirmative defense of misrepresentation as a preponderance of the evidence rather than a preponderance of clear, convincing, and satisfactory evidence. The second issue the Hollidays raise is whether the district court erred by not granting their motion for leave to amend petition filed the day before trial. The issue Rain and Hail raises on the cross-appeal is whether the district court erred by dismissing its counterclaim. IV.",
"Scope of Review. We review claims of errors in instructing the jury for correction of errors at law. Greenwood v. Mitchell, 621 N.W.2d 200, 204 (Iowa 2001). We review a ruling on a motion for leave to amend a petition for abuse of discretion. Bailiff v. Adams County Conference Bd., 650 N.W.2d 621, 626 (Iowa 2002). As mentioned, the parties agreed that whether the counterclaim should be dismissed was a question of law for the court. So our review is for correction of errors at law. Iowa R.App. P. 6.4. V. Burden of Proof Instruction. The district court's instruction on Rain and Hail's affirmative defense stated in relevant part: The defendants voided the plaintiffs' 1998 Multi-Peril Crop Insurance policies....",
"In connection with those insurance policies, you must determine whether the defendants have proved each one of the following: 1. That the plaintiffs, or anyone assisting them, misrepresented facts; and 2. That the misrepresentations were intentionally made; and 3. That the misrepresentations were material. If the defendants have proved each of the above, you will answer the Special Interrogatory \"Yes\". If the defendants have failed to prove each of the above, you will answer the Special Interrogatory \"No\". (Emphasis added.) In another instruction, the district court instructed the jury that \"[w]henever a party must prove something, they must do so by the preponderance of the evidence.\" The instruction defines a preponderance *64 of evidence as evidence \"that is more convincing than opposing evidence\" and states that \"[t]o prove something by the preponderance of the evidence is to prove that it is more likely true than not true.\" Taking these two instructions together, the jury could find for Rain and Hail on its affirmative defense if it found Rain and Hail proved its defense by a preponderance of the evidence. The Hollidays contend the court should have instructed the jury that Rain and Hail had to prove its affirmative defense by a preponderance of clear, satisfactory, and convincing evidence rather than by a preponderance of evidence.",
"And the district court's failure to so instruct the jury was a material misstatement of the law and for that reason was prejudicial, warranting reversal. For reasons that follow, we disagree. Our law is clear that all the elements of common-law fraud must be established by a preponderance of evidence that is clear, satisfactory, and convincing. Lockard v. Carson, 287 N.W.2d 871, 874 (Iowa 1980). The reason for this heavier burden is to give deference to the presumption of fair dealing. Id. \"`[C]lear and satisfactory' refers to the character or nature of the evidence, whereas `preponderance' of the evidence is a quantitative measure.\" Id. What Rain and Hail had to prove here was not common-law fraud for damages. Rather it had to prove a contractual defense, pursuant to paragraph twenty-seven of the policy, to void the policies based simply on intentional concealment or misrepresentation of any material fact relating to the policies. Thus, all that Rain and Hail had to prove was either one of two elements: intentional concealment or misrepresentation; there was no language indicating that Rain and Hail had to prove all the elements of common-law fraud. See Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 400 (Iowa 2001) (listing elements necessary to establish common-law fraud claim: \"(1) defendant made a representation to the plaintiff, (2) the representation was false, (3) the representation was material, (4) the defendant knew the representation was false, (5) the defendant intended to deceive the plaintiff, (6) the plaintiff acted in reliance on the truth of the representation and was justified in relying on the representation, (7) the representation was a proximate cause of plaintiff's damages, and (8) the amount of damages\").",
"In its ruling on the Hollidays' motion for new trial, the district court addressed the issue squarely and in accord with our reasoning here: The plaintiffs urge that the Court erred in instructing the jury regarding the burden of proof required of the defendants in their affirmative defense. The plaintiffs are correct that the burden of proof in a cause of action for damages sustained as a result of fraud is proof by a preponderance of the clear and convincing evidence.",
"However, there was no claim for damages for fraud submitted to the jury in this case. In this case, the cause of action was for breach of contract. The burden of proof on the plaintiffs was to prove a breach of contract by a preponderance of evidence. Part of the proof required of the plaintiffs was the existence of a contract of insurance, insuring against the plaintiffs' losses. The defendants raised the affirmative defense that, pursuant to the terms of the contract, there was no policy and no coverage for the plaintiffs' losses. The same burden of proof fell upon the defendants in their affirmative defense. The defendants were required to prove, by a preponderance of the evidence, that pursuant to its *65 terms, there was no policy in effect and hence no coverage.",
"In this case, the defendants, to prove their affirmative defense, were required to prove that the plaintiffs intentionally misrepresented material facts. The insurance policies provided that they were void if those facts were proved. The fact that the policy language included some, but not all, of the elements of a cause of action for fraud, did not however, require the defendants to prove their entitlement to a judgment for damages for fraud in order to prove their defense. The district court did not err in instructing the jury on Rain and Hail's burden of proof regarding its affirmative defense. VI. Motion to Amend. In their original amended petition, the Hollidays asserted a claim for conversion against Rain and Hail because it had set off monies allegedly due the Hollidays under the 1999 policies against monies for premium underpayments and indemnity overpayments that Rain and Hail claimed to be due to it under the 1995 and 1996 policies. In asserting the conversion claim, the Hollidays alleged that for the 1999 crop year, they had policies with CIGNA when in fact the policies were with Agri-General.",
"Rain and Hail's answer admitted the policies were with CIGNA. The day before trial, the Hollidays moved to amend their petition to correct the factual error. The district court denied the Hollidays' motion. The Hollidays contend the district court abused its discretion in denying their motion. We conclude, for two reasons, that the district court did not abuse its discretion in denying the motion. First, as the district court found, the amendment would inject a new issue into the case whether Rain and Hail had a right of setoff against funds due under another insurer's policy. This issue was not raised in the original pleadings and allowing the amendment would unduly prejudice Rain and Hail. See Atl. Veneer Corp. v. Sears, 232 N.W.2d 499, 503 (Iowa 1975) (stating \"an amendment is not permissible which will substantially change the issue\").",
"Moreover, in addition to adding a new issue, the amendment would require in our opinion the addition of another party Agri-General. Second, as the district court found, the motion was untimely. The pretrial order closed pleadings as of December 5, 2001. The district court found that the information the Hollidays needed to correct the factual error was available to them as early as November 2001, but they waited until the day before trial to file their motion to amend. See Bennett v. City of Redfield, 446 N.W.2d 467, 474-75 (Iowa 1989) (finding district court did not abuse its discretion in denying as untimely motion to amend petition that \"would have substantially changed the issues of the suit\"; motion to amend was filed sixteen months after suit was commenced, twenty days before trial date, and after amendment deadlines established in court's scheduling order). VII.",
"The Counterclaim. As mentioned, Rain and Hail sought twenty percent of the premium for the voided 1998 policy. The parties agreed the counterclaim presented a legal question for the court. The court found that the liquidated damage provision in paragraph twenty-seven of the policies was discretionary, and for that reason Rain and Hail had to make an election and demand for payment before it had any right of action for the liquidated damages. Because Rain and Hail made no such election and demand before filing its counterclaim, the court concluded Rain and Hail had no cause of action for the damages at the time *66 it filed the counterclaim.",
"The court therefore entered judgment in favor of the Hollidays on the counterclaim. Rain and Hail contends the court erred in reaching its conclusion, and we agree. Paragraph twenty-seven of the policies provides in relevant part: (b) Even though the policy is void, you may still be required to pay 20 percent of the premium due under the policy to offset costs incurred by us in the service of this policy. If previously paid, the balance of the premium will be returned. (Emphasis added.) As the district court found, this provision is discretionary because of the use of the word \"may\" in connection with the insured's liability for the liquidated damages. See 17A C.J.S. Contracts § 323, at 347-48 (1999) (stating that when construing contracts, \"the word `may' ordinarily is regarded in a permissive, rather than in a mandatory, sense\"). However, there is no language in this provision requiring Rain and Hail to first make an election and demand before filing suit.",
"In the absence of such language, we think the general rule is that no such election and demand is necessary before filing suit. Coffin v. Younker, 196 Iowa 1021, 1026, 195 N.W. 591, 593 (1923); Wyatt v. Bailey, 1 Morris 522, 523 (Iowa 1845); 25 C.J.S. Damages § 229, at 630 (2002). Filing suit, as was done here, constitutes the demand. Coffin, 196 Iowa at 1026, 195 N.W. at 593; Wyatt, 1 Morris at 523. VIII. Disposition. Because we find that the district court correctly instructed the jury on the burden of proof regarding Rain and Hail's affirmative defense and did not abuse its discretion in denying the Hollidays' motion to amend, we affirm on these issues. However, because the district court erred in entering judgment in favor of the Hollidays on the counterclaim, we reverse the judgment and remand to allow the district court to decide the issue on the record before it in conformity with the conclusions we have reached.",
"APPEAL AFFIRMED; REVERSED AND CASE REMANDED WITH DIRECTIONS ON CROSS-APPEAL."
]
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252 N.J. Super. 170 (1991) 599 A.2d 573 IN THE MATTER OF THE COMMITMENT OF A.A. Superior Court of New Jersey, Appellate Division. Argued October 23, 1991. Decided November 27, 1991. *172 Before Judges DREIER, GRUCCIO and BROCHIN. Lorraine M. Gormley, Assistant Deputy Public Advocate, argued the cause for appellant (Wilfredo Caraballo, Public Advocate, attorney; Lorraine M. Gormley, of counsel and on the brief). Louis A. Veronica argued the cause for respondent (Veronica, Meloni & Vecchio, attorneys; Louis A. Veronica, on the brief). The opinion of the court was delivered by BROCHIN, J.A.D. Appellant, A.A., was ordered temporarily committed to the Camden County Psychiatric Hospital on February 20, 1991. Following a commitment hearing on March 8, 1991, an order was entered continuing his involuntary commitment for 60 days. Before the 60 days had elapsed, he was administratively released on April 15, 1991.[1] He appeals from the order of commitment. Appellant contends that his involuntary commitment was illegal because the State failed to establish the requisite grounds for his commitment by clear and convincing evidence. He also claims that he was not legally subject to involuntary commitment because he was seeking admission to a hospital for psychiatric care on a voluntary basis. Appellant suffers from a mental illness which has been managed by the administration of lithium. At 3:00 a.m. on February 17, 1991, his wife took him to the mental health crisis center at John F. Kennedy Memorial Hospital in Cherry Hill, New Jersey. Kennedy Memorial Hospital is a "short term *173 facility"; i.e., "an inpatient, community based mental health treatment facility which provides acute care and assessment services to a mentally ill person whose mental illness causes the person to be dangerous to self or dangerous to others or property." N.J.S.A. 30:4-27.8 and -27.2(bb). In accordance with N.J.S.A. 30:4-27.5[2], appellant was interviewed by "screeners." They recorded that his mood was volatile, he was feeling "very paranoid," he was experiencing auditory and visual hallucinations, hallucinatory voices were commanding him to hurt himself and other members of his family, and he had been threatening his wife and daughter with knives. The screeners also noted that three weeks earlier appellant had spent five days at the hospital, that during the previous five months he had been hospitalized there and in another local hospital on five occasions, and that, in total, he had been hospitalized ten times at Kennedy Memorial Hospital and on numerous additional occasions at Ancora Psychiatric Hospital in Hammonton, New Jersey. The February 20, 1991, order for temporary commitment was based on these screening documents, and there was sufficient justification for committing appellant to Camden County Psychiatric Hospital pending a hearing. The symptoms which they *174 recorded established the precondition for the order, that there was probable cause to believe that he was "dangerous to self" and "dangerous to others" within the meaning of N.J.S.A. 30:4-27.2h and 30:4-27.2i. See N.J.S.A. 30:4-27.9b; In re S.L., 94 N.J. 128, 138-139, 462 A.2d 1252 (1983); State v. Krol, 68 N.J. 236, 259, 344 A.2d 289 (1975). A psychiatrist testified at the commitment hearing on March 8, 1991. On direct examination his only pertinent testimony was the following: Q. Doctor, is the present mental condition of [appellant] such that if he were to be discharged at this time, would he be a danger to himself, to others or to property? A. He would, yes. Q. And in what way does he present a danger? A. [Appellant] continues to be labile, irritable, easily frustrated. He also has a long history of not having taken his medications and numerous hospitalizations in the last several years. The psychiatrist's report stated that appellant had no history of physical assaults and that he was not threatening or assaultive in the hospital, "but he continues to be irritable, easily angered, and upset if discharge from the hospital is refused.... At this time, he is not sufficiently recovered and remains dangerous to others and to himself." On cross-examination, the psychiatrist testified that he knew of no assaultive behavior by appellant, that appellant was cooperative, and that he would not be dangerous to himself. However, appellant and his wife were caring for six children in their home, from 2 to 22 years old. Three of the children were their own and three were children of a niece who had died several months earlier. The doctor expressed the opinion that appellant might be dangerous to the younger children, but when pressed he explained that he meant that appellant, who customarily cared for the children while his wife was working, would not be able to supervise them adequately because he had some conflicts with the older children who might otherwise have been expected to help him with the younger. *175 Appellant testified that he went voluntarily to Kennedy Memorial Hospital and asked to be admitted. He denied that he had ever been assaultive. He had been "taking care of the kids, cooking and cleaning around the house a lot" because his wife was working at night, and his "nerves got bad." From past experience, he concluded that the level of lithium in his blood had fallen too low. (Hospital tests confirmed his supposition.) He anticipated a short stay like those he had experienced many times previously in order to adjust the dosage of medication he was receiving. Instead, he said, "They just shipped me here" to Camden County Psychiatric Hospital. Appellant's wife testified that since her niece died approximately six months earlier, he had been to the hospital at least five times. "Sometimes," she explained, "they won't keep him there because they're tired. They're tired of him coming ... every other week." "I tried to get help for him but he don't want help. He just wants to go in and out of hospitals instead of getting long-term help where he can become stable." She went on to note that he would cry all the time, his head hurt him, he didn't feel well, he was abusive in his speech, he threatened to keep the proceeds of his social security checks rather than turn them over to her for the use of the household, he would do "ridiculous things" like getting up at 3:00 a.m. to cook dinner for the family and then throwing the food in the garbage before anyone could eat it, and he would fail to take his medication. Appellant's wife denied that her husband was violent in any way. However, she described the harm he was causing as follows: [T]his way he's killing us. He's hurting my children, not physically, but mentally. My kids cry every time he goes to the hospital. I have a daughter, eighteen, she loves him. My daughter, twenty-two, she helps me with my business. I have a son, eight. Every time he's in and out of these hospitals it hurts my children. And then I have three more babies. My niece got killed. She left me with three more babies, a one-year-old, a two-year-old and a three-year-old. I'm trying to do the best I can. My children help me. But he doesn't want them to help. He doesn't want people to help me.... He tries to, you know, like keep *176 people away that are helping me. Instead he just causes more aggravation. He needs help and he doesn't want to get long-term help and he needs it. At the close of the hearing, the judge ruled that appellant was "suffering from psychiatric disability and that he does present a danger to others in that his actions present themselves in such a manner as to create a serious bodily harm, though it may not be a physical bodily harm, to others." A hospital screening service is authorized to refer a person to court for involuntary commitment to a short-term care facility, psychiatric facility or special psychiatric hospital. N.J.S.A. 30:4-27.9 If the court "finds that there is probable cause to believe that the person is in need of involuntary commitment," it shall issue an order for temporary commitment pending final hearing. (Emphasis added.) N.J.S.A. 30:4-27.10e. Appellant contends that the order for his temporary commitment was illegal because the screening documents on which it was based did not show that he was a person "in need of involuntary commitment." N.J.S.A. 30:4-27.2m defines that phrase to mean an adult who is mentally ill, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to be admitted to a facility voluntarily for care, and who needs care at a short-term care, psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the person's mental health care needs. [Emphasis added.] He argues that since he presented himself for voluntary admission to the Kennedy Memorial Hospital, he was not "unwilling to be admitted to a facility voluntarily for care," and he was therefore ineligible for involuntary commitment. Because the screening documents contain ample evidence that appellant was "dangerous to others" when he was admitted, he does not challenge the legality of his temporary commitment on any ground except his willingness to be admitted voluntarily. We disagree with appellant's contention that he could not be temporarily committed involuntarily because he had presented himself at Kennedy Memorial Hospital for voluntary admission. The pertinent statutes recognize that there are *177 various types of psychiatric facilities and that not all types are equally suitable for all patients. See N.J.S.A. 30:4-27.5b ("If a person has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing the person in a short-term facility.") A screening service is required to provide an "assessment" of a "person believed to be in need of commitment to a short-term care, psychiatric facility or special psychiatric hospital" in order to "determine what mental health services are appropriate for the person and where those services may be most appropriately provided." N.J.S.A. 30:4-27.5a. The screening staff are the persons who are authorized to "determine the appropriate facility in which the person shall be placed taking into account the person's prior history of hospitalization and treatment." N.J.S.A. 30:4-27.5b. In the light of this statutory scheme, if a person who is dangerous to himself or to others because of mental illness is unwilling to be admitted voluntarily to a facility which qualified screeners determine is appropriate for his care wherever else he may be willing to go he is "in need of involuntary commitment" within the meaning of N.J.S.A. 30:4-27.2m. In the present case, the screening documents reflect the screeners' conclusion that appellant was unwilling to submit to the long term treatment which the physicians thought was necessary. Because of facts which they stated in the documents, they reasonably concluded that appellant's past history and present condition required his hospitalization and treatment elsewhere than at a short-term facility. Those facts and conclusion established probable cause for the commitment court's finding that, despite appellant's willingness to enter a short-term facility voluntarily, he was "unwilling to be admitted to a [suitable] facility voluntarily for care" and because of the other facts stated in the screening documents, he was "in need of *178 involuntary commitment" within the meaning of N.J.S.A. 30:4-27.2m.[3] The commitment court recognized that one of the other statutory prerequisites to finding a person "in need of involuntary commitment" was a finding that the person was "dangerous to self or dangerous to others or property." N.J.S.A. 30:4-27.2m; R. 4:74-7f; In re S.L., 94 N.J. 128, 137, 462 A.2d 1252 (1983) (The state may not commit those persons who are mentally ill but not dangerous, citing O'Connor v. Donaldson, 422 U.S. 563, 575-76, 95 S.Ct. 2486, 2493-94, 45 L.Ed.2d 396, 406-07 (1975).)[4] "Dangerous to others or to property," N.J.S.A. 30:4-27.2i, means that by reason of mental illness there is a substantial likelihood that the person will inflict serious bodily harm upon another person or cause serious property damage within the reasonably foreseeable future. The commitment court implicitly found that the evidence presented at the hearing did not clearly and convincingly show a substantial likelihood that appellant would cause physical harm to another person.[5] We agree with that implicit finding. But the judge construed "serious bodily harm" to include psychological harm, and he found that sufficient proof had been presented to establish the likelihood that, if discharged prematurely, *179 appellant would cause serious psychological harm to his wife and children. Appellant argues against the court's reading of the statute and, alternatively, contends that the evidence presented at his commitment hearing did not prove by clear and convincing evidence that there was a substantial likelihood of his causing even psychological harm. We are unwilling to rule out the possibility that in a proper case the proponent of involuntary commitment may be able to prove clearly and convincingly that the continuing hospitalization of the prospective patient is necessary to avoid the substantial likelihood of psychological harm to others so severe as to inflict "serious bodily harm upon another person" within the meaning of N.J.S.A. 30:4-27.2i. However, in most cases, proof of so serious a threat of psychological harm to others would require testimony by a psychiatrist, psychologist, or other professionally qualified witness. No expert testimony was offered in the present case to prove that appellant's discharge would threaten others with serious psychological harm. All of the evidence that appellant was causing psychological harm to others came from appellant's wife. She testified, in effect, that her husband's mental illness imposed a psychological burden on his family. Undoubtedly, his need for frequent hospitalization, his complaints, hollering, abusive speech, and erratic behavior for example, cooking a family dinner at 3:00 a.m. and discarding it before it could be eaten made appellant extremely difficult to live with. But that evidence was insufficient to justify the commitment court's finding that there was a substantial likelihood that within the reasonably foreseeable future appellant's conduct would cause harm so severe as to constitute "serious bodily harm upon another person." See N.J.S.A. 30:4-27.2i. The temporary commitment order of February 20, 1991 is therefore affirmed and the commitment order of March 8, 1991 is vacated. NOTES [1] Appellant's release from confinement has not mooted the controversy. An involuntary committee's property is subject to a lien for the cost of his hospital care. N.J.S.A. 30:4-80.1 However, the committee is entitled to a credit for any period of illegal commitment. In re Z.O., 197 N.J. Super. 330, 336, 484 A.2d 1287 (App.Div. 1984), certif. denied, 101 N.J. 223, 501 A.2d 903 (1985); In re R.B., 158 N.J. Super. 542, 386 A.2d 893 (App.Div. 1978). [2] N.J.S.A. 30:4-27.5:
a. A screening service shall serve as the facility in the public mental health care treatment system wherein a person believed to be in need of commitment to a short-term care [facility], psychiatric facility or special psychiatric hospital undergoes an assessment to determine what mental health services are appropriate for the person and where those services may be most appropriately provided. ........ b.... . Upon completion of the screening certificate, screening service staff shall determine the appropriate facility in which the person shall be placed taking into account the person's prior history of hospitalization and treatment. If a person has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing the person in a short-term facility. [3] In re M.D., 251 N.J. Super. 19, 596 A.2d 766 (Ch.Div. 1991) (slip op.) holds that a patient who requested admission to Trenton Psychiatric Hospital as a voluntary patient could not be involuntarily committed. Since the patient in that case requested voluntary admission to the same facility to which the State sought to commit him involuntarily, the decision is consistent with our holding in the present case. [4] But see In re M.M., 109 N.J. 60, 61, 532 A.2d 1123 (1987) (recognizing that a new statute, L. 1987, c. 116, now N.J.S.A. 30:4-27.2h, which became effective November 7, 1988, provided new standards regarding danger to self.) [5] We emphasize that the screening certificates upon which the appellant's temporary commitment was based contained substantial evidence that he was dangerous to others. No similar evidence was introduced at the commitment hearing. Perhaps the screening documents were inaccurate. Perhaps the psychiatrist who testified was of the opinion that the threats attributed to appellant in those documents were no longer pertinent. Perhaps the presentation was simply inadequate. We do not know. | 10-30-2013 | [
"252 N.J. Super. 170 (1991) 599 A.2d 573 IN THE MATTER OF THE COMMITMENT OF A.A. Superior Court of New Jersey, Appellate Division. Argued October 23, 1991. Decided November 27, 1991. *172 Before Judges DREIER, GRUCCIO and BROCHIN. Lorraine M. Gormley, Assistant Deputy Public Advocate, argued the cause for appellant (Wilfredo Caraballo, Public Advocate, attorney; Lorraine M. Gormley, of counsel and on the brief). Louis A. Veronica argued the cause for respondent (Veronica, Meloni & Vecchio, attorneys; Louis A. Veronica, on the brief). The opinion of the court was delivered by BROCHIN, J.A.D.",
"Appellant, A.A., was ordered temporarily committed to the Camden County Psychiatric Hospital on February 20, 1991. Following a commitment hearing on March 8, 1991, an order was entered continuing his involuntary commitment for 60 days. Before the 60 days had elapsed, he was administratively released on April 15, 1991. [1] He appeals from the order of commitment. Appellant contends that his involuntary commitment was illegal because the State failed to establish the requisite grounds for his commitment by clear and convincing evidence. He also claims that he was not legally subject to involuntary commitment because he was seeking admission to a hospital for psychiatric care on a voluntary basis. Appellant suffers from a mental illness which has been managed by the administration of lithium. At 3:00 a.m. on February 17, 1991, his wife took him to the mental health crisis center at John F. Kennedy Memorial Hospital in Cherry Hill, New Jersey.",
"Kennedy Memorial Hospital is a \"short term *173 facility\"; i.e., \"an inpatient, community based mental health treatment facility which provides acute care and assessment services to a mentally ill person whose mental illness causes the person to be dangerous to self or dangerous to others or property.\" N.J.S.A. 30:4-27.8 and -27.2(bb). In accordance with N.J.S.A. 30:4-27.5[2], appellant was interviewed by \"screeners.\" They recorded that his mood was volatile, he was feeling \"very paranoid,\" he was experiencing auditory and visual hallucinations, hallucinatory voices were commanding him to hurt himself and other members of his family, and he had been threatening his wife and daughter with knives. The screeners also noted that three weeks earlier appellant had spent five days at the hospital, that during the previous five months he had been hospitalized there and in another local hospital on five occasions, and that, in total, he had been hospitalized ten times at Kennedy Memorial Hospital and on numerous additional occasions at Ancora Psychiatric Hospital in Hammonton, New Jersey. The February 20, 1991, order for temporary commitment was based on these screening documents, and there was sufficient justification for committing appellant to Camden County Psychiatric Hospital pending a hearing.",
"The symptoms which they *174 recorded established the precondition for the order, that there was probable cause to believe that he was \"dangerous to self\" and \"dangerous to others\" within the meaning of N.J.S.A. 30:4-27.2h and 30:4-27.2i. See N.J.S.A. 30:4-27.9b; In re S.L., 94 N.J. 128, 138-139, 462 A.2d 1252 (1983); State v. Krol, 68 N.J. 236, 259, 344 A.2d 289 (1975). A psychiatrist testified at the commitment hearing on March 8, 1991. On direct examination his only pertinent testimony was the following: Q. Doctor, is the present mental condition of [appellant] such that if he were to be discharged at this time, would he be a danger to himself, to others or to property? A. He would, yes.",
"Q. And in what way does he present a danger? A. [Appellant] continues to be labile, irritable, easily frustrated. He also has a long history of not having taken his medications and numerous hospitalizations in the last several years. The psychiatrist's report stated that appellant had no history of physical assaults and that he was not threatening or assaultive in the hospital, \"but he continues to be irritable, easily angered, and upset if discharge from the hospital is refused.... At this time, he is not sufficiently recovered and remains dangerous to others and to himself.\" On cross-examination, the psychiatrist testified that he knew of no assaultive behavior by appellant, that appellant was cooperative, and that he would not be dangerous to himself. However, appellant and his wife were caring for six children in their home, from 2 to 22 years old. Three of the children were their own and three were children of a niece who had died several months earlier.",
"The doctor expressed the opinion that appellant might be dangerous to the younger children, but when pressed he explained that he meant that appellant, who customarily cared for the children while his wife was working, would not be able to supervise them adequately because he had some conflicts with the older children who might otherwise have been expected to help him with the younger. *175 Appellant testified that he went voluntarily to Kennedy Memorial Hospital and asked to be admitted. He denied that he had ever been assaultive. He had been \"taking care of the kids, cooking and cleaning around the house a lot\" because his wife was working at night, and his \"nerves got bad.\"",
"From past experience, he concluded that the level of lithium in his blood had fallen too low. (Hospital tests confirmed his supposition.) He anticipated a short stay like those he had experienced many times previously in order to adjust the dosage of medication he was receiving. Instead, he said, \"They just shipped me here\" to Camden County Psychiatric Hospital. Appellant's wife testified that since her niece died approximately six months earlier, he had been to the hospital at least five times. \"Sometimes,\" she explained, \"they won't keep him there because they're tired. They're tired of him coming ... every other week.\"",
"\"I tried to get help for him but he don't want help. He just wants to go in and out of hospitals instead of getting long-term help where he can become stable.\" She went on to note that he would cry all the time, his head hurt him, he didn't feel well, he was abusive in his speech, he threatened to keep the proceeds of his social security checks rather than turn them over to her for the use of the household, he would do \"ridiculous things\" like getting up at 3:00 a.m. to cook dinner for the family and then throwing the food in the garbage before anyone could eat it, and he would fail to take his medication. Appellant's wife denied that her husband was violent in any way. However, she described the harm he was causing as follows: [T]his way he's killing us. He's hurting my children, not physically, but mentally. My kids cry every time he goes to the hospital.",
"I have a daughter, eighteen, she loves him. My daughter, twenty-two, she helps me with my business. I have a son, eight. Every time he's in and out of these hospitals it hurts my children. And then I have three more babies. My niece got killed. She left me with three more babies, a one-year-old, a two-year-old and a three-year-old. I'm trying to do the best I can. My children help me. But he doesn't want them to help. He doesn't want people to help me.... He tries to, you know, like keep *176 people away that are helping me. Instead he just causes more aggravation. He needs help and he doesn't want to get long-term help and he needs it. At the close of the hearing, the judge ruled that appellant was \"suffering from psychiatric disability and that he does present a danger to others in that his actions present themselves in such a manner as to create a serious bodily harm, though it may not be a physical bodily harm, to others.\"",
"A hospital screening service is authorized to refer a person to court for involuntary commitment to a short-term care facility, psychiatric facility or special psychiatric hospital. N.J.S.A. 30:4-27.9 If the court \"finds that there is probable cause to believe that the person is in need of involuntary commitment,\" it shall issue an order for temporary commitment pending final hearing. (Emphasis added.) N.J.S.A. 30:4-27.10e. Appellant contends that the order for his temporary commitment was illegal because the screening documents on which it was based did not show that he was a person \"in need of involuntary commitment.\"",
"N.J.S.A. 30:4-27.2m defines that phrase to mean an adult who is mentally ill, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to be admitted to a facility voluntarily for care, and who needs care at a short-term care, psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the person's mental health care needs. [Emphasis added.] He argues that since he presented himself for voluntary admission to the Kennedy Memorial Hospital, he was not \"unwilling to be admitted to a facility voluntarily for care,\" and he was therefore ineligible for involuntary commitment. Because the screening documents contain ample evidence that appellant was \"dangerous to others\" when he was admitted, he does not challenge the legality of his temporary commitment on any ground except his willingness to be admitted voluntarily. We disagree with appellant's contention that he could not be temporarily committed involuntarily because he had presented himself at Kennedy Memorial Hospital for voluntary admission. The pertinent statutes recognize that there are *177 various types of psychiatric facilities and that not all types are equally suitable for all patients.",
"See N.J.S.A. 30:4-27.5b (\"If a person has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing the person in a short-term facility.\") A screening service is required to provide an \"assessment\" of a \"person believed to be in need of commitment to a short-term care, psychiatric facility or special psychiatric hospital\" in order to \"determine what mental health services are appropriate for the person and where those services may be most appropriately provided.\" N.J.S.A. 30:4-27.5a. The screening staff are the persons who are authorized to \"determine the appropriate facility in which the person shall be placed taking into account the person's prior history of hospitalization and treatment.\" N.J.S.A. 30:4-27.5b.",
"In the light of this statutory scheme, if a person who is dangerous to himself or to others because of mental illness is unwilling to be admitted voluntarily to a facility which qualified screeners determine is appropriate for his care wherever else he may be willing to go he is \"in need of involuntary commitment\" within the meaning of N.J.S.A. 30:4-27.2m. In the present case, the screening documents reflect the screeners' conclusion that appellant was unwilling to submit to the long term treatment which the physicians thought was necessary. Because of facts which they stated in the documents, they reasonably concluded that appellant's past history and present condition required his hospitalization and treatment elsewhere than at a short-term facility. Those facts and conclusion established probable cause for the commitment court's finding that, despite appellant's willingness to enter a short-term facility voluntarily, he was \"unwilling to be admitted to a [suitable] facility voluntarily for care\" and because of the other facts stated in the screening documents, he was \"in need of *178 involuntary commitment\" within the meaning of N.J.S.A. 30:4-27.2m. [3] The commitment court recognized that one of the other statutory prerequisites to finding a person \"in need of involuntary commitment\" was a finding that the person was \"dangerous to self or dangerous to others or property.\"",
"N.J.S.A. 30:4-27.2m; R. 4:74-7f; In re S.L., 94 N.J. 128, 137, 462 A.2d 1252 (1983) (The state may not commit those persons who are mentally ill but not dangerous, citing O'Connor v. Donaldson, 422 U.S. 563, 575-76, 95 S.Ct. 2486, 2493-94, 45 L.Ed.2d 396, 406-07 (1975). )[4] \"Dangerous to others or to property,\" N.J.S.A. 30:4-27.2i, means that by reason of mental illness there is a substantial likelihood that the person will inflict serious bodily harm upon another person or cause serious property damage within the reasonably foreseeable future. The commitment court implicitly found that the evidence presented at the hearing did not clearly and convincingly show a substantial likelihood that appellant would cause physical harm to another person. [5] We agree with that implicit finding.",
"But the judge construed \"serious bodily harm\" to include psychological harm, and he found that sufficient proof had been presented to establish the likelihood that, if discharged prematurely, *179 appellant would cause serious psychological harm to his wife and children. Appellant argues against the court's reading of the statute and, alternatively, contends that the evidence presented at his commitment hearing did not prove by clear and convincing evidence that there was a substantial likelihood of his causing even psychological harm. We are unwilling to rule out the possibility that in a proper case the proponent of involuntary commitment may be able to prove clearly and convincingly that the continuing hospitalization of the prospective patient is necessary to avoid the substantial likelihood of psychological harm to others so severe as to inflict \"serious bodily harm upon another person\" within the meaning of N.J.S.A.",
"30:4-27.2i. However, in most cases, proof of so serious a threat of psychological harm to others would require testimony by a psychiatrist, psychologist, or other professionally qualified witness. No expert testimony was offered in the present case to prove that appellant's discharge would threaten others with serious psychological harm. All of the evidence that appellant was causing psychological harm to others came from appellant's wife. She testified, in effect, that her husband's mental illness imposed a psychological burden on his family. Undoubtedly, his need for frequent hospitalization, his complaints, hollering, abusive speech, and erratic behavior for example, cooking a family dinner at 3:00 a.m. and discarding it before it could be eaten made appellant extremely difficult to live with. But that evidence was insufficient to justify the commitment court's finding that there was a substantial likelihood that within the reasonably foreseeable future appellant's conduct would cause harm so severe as to constitute \"serious bodily harm upon another person.\"",
"See N.J.S.A. 30:4-27.2i. The temporary commitment order of February 20, 1991 is therefore affirmed and the commitment order of March 8, 1991 is vacated. NOTES [1] Appellant's release from confinement has not mooted the controversy. An involuntary committee's property is subject to a lien for the cost of his hospital care. N.J.S.A. 30:4-80.1 However, the committee is entitled to a credit for any period of illegal commitment. In re Z.O., 197 N.J. Super. 330, 336, 484 A.2d 1287 (App.Div. 1984), certif. denied, 101 N.J. 223, 501 A.2d 903 (1985); In re R.B., 158 N.J. Super. 542, 386 A.2d 893 (App.Div. 1978). [2] N.J.S.A.",
"30:4-27.5: a. A screening service shall serve as the facility in the public mental health care treatment system wherein a person believed to be in need of commitment to a short-term care [facility], psychiatric facility or special psychiatric hospital undergoes an assessment to determine what mental health services are appropriate for the person and where those services may be most appropriately provided. ........ b.... . Upon completion of the screening certificate, screening service staff shall determine the appropriate facility in which the person shall be placed taking into account the person's prior history of hospitalization and treatment. If a person has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing the person in a short-term facility. [3] In re M.D., 251 N.J. Super. 19, 596 A.2d 766 (Ch.Div. 1991) (slip op.)",
"holds that a patient who requested admission to Trenton Psychiatric Hospital as a voluntary patient could not be involuntarily committed. Since the patient in that case requested voluntary admission to the same facility to which the State sought to commit him involuntarily, the decision is consistent with our holding in the present case. [4] But see In re M.M., 109 N.J. 60, 61, 532 A.2d 1123 (1987) (recognizing that a new statute, L. 1987, c. 116, now N.J.S.A.",
"30:4-27.2h, which became effective November 7, 1988, provided new standards regarding danger to self.) [5] We emphasize that the screening certificates upon which the appellant's temporary commitment was based contained substantial evidence that he was dangerous to others. No similar evidence was introduced at the commitment hearing. Perhaps the screening documents were inaccurate. Perhaps the psychiatrist who testified was of the opinion that the threats attributed to appellant in those documents were no longer pertinent.",
"Perhaps the presentation was simply inadequate. We do not know."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2314847/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-00881-RP Document 1-5 Filed 08/24/20 Page 1 of 62
NOTICE OF ORDER
On June 26, 2020, in another action, the Honorable Jesse M. Furman of the United States District Court for the Southern District of New York entered an Opinion and Order directing that Mr. Liebowitz and LLF file a copy of that Opinion and Order in all currently pending cases. A copy of Judge Furman’s order is attached hereto.
Mr. Liebowitz and LLF strongly contest Judge Furman’s factual findings and legal conclusions, and have appealed the Opinion and Order to the United States Court of Appeals for the Second Circuit.
Dated: August 24, 2020 Valley Stream, New York Respectfully Submitted,
LIEBOWITZ LAW FIRM, PLLC,
/s/Richard Liebowitz Richard Liebowitz Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 21 of of 62 61
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------- X : ARTHUR USHERSON, : : Plaintiff, : 19-CV-6368 (JMF) : -v- : OPINION AND ORDER : BANDSHELL ARTIST MANAGEMENT, : : Defendant. : : ---------------------------------------------------------------------- X
JESSE M. FURMAN, United States District Judge:
Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this
District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at
last count, about 1,280; he has filed approximately the same number in other districts. In that
same period, he has earned another dubious distinction: He has become one of the most
frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District.
Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz’s
misconduct, which includes repeated violations of court orders and outright dishonesty,
sometimes under oath. He has been called “a copyright troll,” McDermott v. Monday Monday,
LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26,
2018); “a clear and present danger to the fair and efficient administration of justice,” Mondragon
v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May
11, 2020); a “legal lamprey[],” Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR),
2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an “example of the worst kind of
1 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 32 of of 62 61
lawyering,” id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered to
complete ethics courses, fined, and even referred to the Grievance Committee. And but for his
penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing
his misconduct — set forth in an Appendix here — would undoubtedly be longer.
One might think that a lawyer with this record would tread carefully, particularly before a
judge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC, No. 19-CV-447
(JMF), 2019 WL 3000808, at *4 (S.D.N.Y. July 10, 2019). But — as this case makes clear —
not Mr. Liebowitz. In November of last year, Mr. Liebowitz appeared, in the company of a
criminal defense lawyer, before another judge on this Court after being held in contempt for
repeatedly lying, including under oath, about the date his own grandfather had died to justify his
failure to attend a court conference. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956
(CS), ECF No. 62 (S.D.N.Y. Nov. 13, 2019) (“Berger Tr.”). The very next day, he appeared
before the undersigned and — despite an explicit warning to be “very, very, very careful about
the representations” he made in court — lied about his compliance with a court Order that had
required an in-person mediation. See ECF No. 50 (“Initial Conf. Tr.”), at 7. Making matters
worse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during an
evidentiary hearing. On top of that, he violated at least six court Orders. And to cap it off,
defense counsel discovered only after incurring the expenses of litigating the case that the
Complaint Mr. Liebowitz prepared and filed contained a false allegation — namely, that the
photograph at issue in this case had previously been registered with the Copyright Office — that
would have required dismissal of the lawsuit at its inception.
In the view of the undersigned, this misconduct, when viewed in light of Mr. Liebowitz’s
2 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 43 of of 62 61
deplorable record, confirms a conclusion that others have reached: that “steps should be taken
promptly . . . to suspend his ability to file new cases,” at least until “he has demonstrated” that he
can comply “with court rules and rules of professional conduct.” Mondragon, 2020 WL
2395641, at *1. But that is a question for another body — the Grievance Committee of this
Court — and for another day. The question for today is what sanctions, if any, this Court should
impose on Mr. Liebowitz for his misconduct in this case. For the reasons stated below, the Court
concludes that sanctions are amply justified, indeed all but required, and orders a mix of
substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Court
also refers Mr. Liebowitz to the Court’s Grievance Committee to evaluate whether he should be
allowed to continue practicing law in this District.
BACKGROUND
A. Mr. Liebowitz’s Initial Violations of the Court’s Orders
Mr. Liebowitz, as counsel for Arthur Usherson, filed the Complaint in this case on July
10, 2019, alleging that Bandshell Artist Management (“Bandshell”) had infringed on Mr.
Usherson’s copyright for a photograph of musician Leon Redbone (the “Photograph”). ECF No.
1, at ¶ 1. Paragraph 9 of the Complaint alleges that, prior to suit being filed, “[t]he Photograph
was registered with the United States Copyright Office and was given Copyright Registration
Number VAu 1-080-046” (the “046 Registration”). Id. ¶ 9.
Shortly after the Complaint was filed, the Court issued two Orders: one scheduling an
initial pretrial conference for October 10, 2019, and one referring the case to the Court-annexed
Mediation Program for early mediation. ECF Nos. 5-6. More specifically, the mediation Order
required the parties to conduct a mediation in accordance with the Mediation Program’s
3 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 54 of of 62 61
procedures “at least two weeks prior to the Initial Pretrial Conference” — that is, by September
26, 2019. ECF No. 6. In addition, to “facilitate prompt mediation,” Plaintiff was ordered to file
proof of service of the summons and Complaint “no more than three days after service has been
effected,” and to produce limited discovery relating to the licensing of the Photograph “by the
earlier of 14 days after service of process or three business days in advance of any mediation
session.” Id.
Mr. Liebowitz failed to comply with these mandates. First, although the summons and
Complaint were served on Bandshell on September 5, 2019, Mr. Liebowitz did not file proof of
that service until September 21, 2019. ECF No. 7. Second, he failed to produce the required
discovery by September 19, 2019, fourteen days after service was made. When defense counsel
followed up about the missing discovery, Mr. Liebowitz responded on September 20, 2019: “My
client is still looking but as of now doesn’t look like any licensing for this photo.” ECF No. 16,
at 12. Finally, Mr. Liebowitz failed to participate in mediation by September 26, 2019, two
weeks before the initial pretrial conference originally scheduled for October 10, 2019. Instead,
more than a week after the deadline passed, Mr. Liebowitz filed a letter in which he suggested
that the mediation had not taken place because of a failure on the part of the Mediation Office to
assign a mediator. See ECF No. 12. In the same letter, Mr. Liebowitz requested leave to hold a
telephonic mediation on October 8, 2019, or an extension of the mediation deadline and
adjournment of the initial pretrial conference. Id.
In an Order dated October 7, 2019, the Court admonished Mr. Liebowitz for unfairly
trying to place blame on the Mediation Office for his own failure to meet the mediation deadline.
See ECF No. 13. The Court nevertheless concluded that “early mediation in the normal course
4 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 65 of of 62 61
(i.e., in person) makes sense.” Id. Accordingly, the Court adjourned the initial pretrial
conference to November 14, 2019, and ordered, in no uncertain terms, that “[t]he parties shall
conduct the in-person mediation no later than October 31, 2019.” Id. In an email exchange later
that day, Bandshell’s counsel, Brad Newberg, asked Mr. Liebowitz “if any of October 11, 16, 28
or 31 work for the [sic] both of you and Mr. Usherson.” ECF No. 16, at 27. Mr. Liebowitz
responded that “October 31st at 12pm works.” Id. The mediator (the “Mediator”) — a member
of this Court’s mediation panel, but recruited by Mr. Liebowitz himself to mediate this particular
case — approved the date and scheduled the mediation. ECF No. 39, at 2.1
On October 31, 2019, however, neither Mr. Liebowitz nor Mr. Usherson showed up at
the mediation. Instead, Mr. Liebowitz sent two associates — James Freeman and Rebecca
Liebowitz (Mr. Liebowitz’s sister). ECF No. 23, at 2. Neither had entered an appearance in this
case. In fact, Mr. Liebowitz did not even tell Mr. Freeman about “the existence of this matter”
until “about 8:00 p.m. on October 30, 2019,” the night before the mediation. Id. at 1. Ms.
Liebowitz, moreover, was a “newly admitted” lawyer who was attending only “to ‘shadow’ Mr.
Freeman and learn from the process.” ECF No. 24, at 1. Mr. Freeman and Ms. Liebowitz spoke
briefly with Mr. Newberg and Bandshell’s principal, who did attend in person, but no settlement
was reached. The Mediator later attributed the failure to reach an agreement in part to “the lack
of personal appearance[s]” by Mr. Liebowitz and Mr. Usherson. ECF No. 39, at 2.
B. Bandshell’s Motion for Sanctions
On November 6, 2019, approximately one week before the initial pretrial conference,
1 It is unusual — and arguably improper — for counsel on one side to recruit a mediator; in the normal course, to help ensure the mediator’s neutrality, the Mediation Office assigns the mediator. But Bandshell consented to Mr. Liebowitz’s selection of the Mediator in this case, and the Mediation Office raised no objection to the selection. 5 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 76 of of 62 61
Bandshell moved for sanctions against Mr. Liebowitz and Mr. Usherson. ECF No. 14.
Bandshell argued that Mr. Liebowitz and Mr. Usherson had violated the Court’s Orders
regarding the mediation, pre-mediation discovery, and proof of service. ECF No. 15. Bandshell
sought monetary sanctions “jointly against Plaintiff and its counsel,” including costs and
attorney’s fees, as well as dismissal of the case. Id. at 13. In response, Mr. Liebowitz asserted
— repeatedly — that he and Mr. Usherson had received approval in advance from the Mediator
not to appear at the mediation in person. Mr. Liebowitz made this claim first in a joint letter
filed shortly before the initial pretrial conference. See ECF No. 18-1. In that letter, Mr.
Liebowitz claimed that the Mediator had “indicated that Plaintiff was permitted to appear
telephonically under Rule 9F of the mediation program.” Id. at 2. Notably, in the same section
of the letter, Bandshell responded that “virtually everything in Plaintiff’s statement is false, and
Defendant’s counsel has warned Plaintiff against filing a false statement regarding the scheduled
mediation with the Court.” Id.
Mr. Liebowitz doubled down in his next submission: his initial “response” to the
sanctions motion, which took the form of a three-page letter (in violation of Local Rule 7.1,
which requires that, with limited exceptions inapplicable here, opposition to a motion must be in
the form of a memorandum of law). See ECF No. 19. To the extent relevant here, Mr.
Liebowitz asserted in that letter that “[n]othing in the Court order or mediation rules states that
lead counsel needs to attend the mediation.” Id. at 1. Rule 9(c) of the Mediation Program’s
Procedures, however, provides explicitly that “[e]ach represented party must be accompanied at
mediation by the lawyer who will be primarily responsible for handling the trial of the matter.”
Rule 9(c), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) (“Mediation Rules”),
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available at https://www.nysd.uscourts.gov/sites/default/files/2019-12/Mediation%20Program
%20Procedures.final_.2018.pdf. More significantly for present purposes, Mr. Liebowitz
represented that Mr. Usherson had “obtained permission from the assigned mediator . . . to
appear at the scheduled mediation by telephone provided that counsel was present in person.”
ECF No. 19, at 2 (citing Rule 9(f) of the Mediation Rules, which allows “a party” who resides
“more than 100 miles from the Courthouse” to participate in a mediation by telephone with the
advance approval of the mediator). He further claimed that he had “told [the Mediator] that an
associate of Liebowitz Law Firm with knowledge of the facts of the case would appear in-
person, and [the Mediator] consented.” Id.
C. The Initial Pretrial Conference
On November 14, 2019, the Court held the initial pretrial conference. Mr. Liebowitz
appeared on behalf of Mr. Usherson as “the attorney who will serve as principal trial counsel.”
See ECF No. 5, at 1. Presumably in light of the pending sanctions motion, Mr. Freeman
appeared, but only on behalf of Mr. Liebowitz and the Liebowitz Law Firm, PLLC. See Minute
Entry (Nov. 14, 2019); see also ECF No. 66, Transcript of Jan. 8, 2020 Hearing (“Hearing Tr.”),
at 18. Notably, the conference took place one day after Mr. Liebowitz had been dressed down by
the Honorable Cathy Seibel for falsely — and repeatedly — representing to her, in some cases
under oath, that he had failed to appear at a conference due to the death of his grandfather.
Those lies and Mr. Liebowitz’s repeated refusal to provide documentation regarding his
grandfather’s death in violation of court orders had led Judge Seibel to hold Mr. Liebowitz in
contempt; to fine him (initially $100 per day and later $500 per day of noncompliance); and to
order him to appear on pain of “arrest by the United States Marshals Service.” Berger v.
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Imagina Consulting, Inc., No. 18-CV-8956 (CS), 2019 WL 6695047, at *3 (S.D.N.Y. Nov. 1,
2019). At the November 13th conference (to which Mr. Liebowitz was accompanied by a
criminal defense lawyer), Judge Seibel chastised Mr. Liebowitz in no uncertain terms for his
“multiple lies.” Berger Tr. 19-20, 25. Even then, he sought to minimize his misconduct, calling
it an “honest mistake” — for which Judge Seibel took him to task. Id. at 31-32 (“[T]his clearly
was not an honest mistake; and even if it were at first, it very quickly became . . . a concerted
campaign of deception.”). Judge Seibel advised that she “question[ed] Mr. Liebowitz’s fitness to
practice,” not just because of his initial “dishonesty” about the date of his grandfather’s death,
but because of his subsequent “failure to own up to the dishonesty and the doubling and
quintupling and octupling down on the dishonesty.” Id. at 14. She rejected Mr. Liebowitz’s
counsel’s request to vacate her contempt orders and referred the matter to the Court’s Grievance
Committee. Id. at 27.
The very next day, appearing at the initial pretrial conference in this case, Mr. Liebowitz
claimed that he had sought permission from the Mediator for Mr. Usherson, who lives in
Georgia, to appear telephonically at the October 31, 2019 mediation and that the Mediator had
“said yes.” Initial Conf. Tr. 6-7. Aware of the proceedings before Judge Seibel, the Court then
stopped Mr. Liebowitz and warned him: “I want to caution you that you’re already in a lot of hot
water in this Court, and I think you know that. In that regard, I would be very, very, very careful
about the representations you make to me. If you prefer to let Mr. Freeman do the speaking, that
is one thing, although they are still representations on your behalf.” Id. at 7. The Court then
asked when Mr. Liebowitz had advised the Mediator that Mr. Usherson was not going to appear
in person at the mediation, and the following colloquy occurred:
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Mr. Liebowitz: I don’t know the exact date, but it was before the mediation, and he said yes.
The Court: [By] what means did you do that?
Mr. Liebowitz: It was telephone.
The Court: And you personally advised him?
Mr. Liebowitz: I personally.
The Court: And he said that was okay?
Mr. Liebowitz: He said that was okay.
Id. at 7. The Court also heard from Mr. Freeman, who stated that he had “learned about the
existence of the case at approximately 8:00 o’clock pm on October 30th, so it was the night
before the mediation.” Id. at 9. Mr. Freeman represented that he “had no knowledge one way or
the other as to what clearances were made in terms of telephonic appearances.” Id.
Separate and apart from the issues surrounding the mediation, Mr. Newberg raised a
question at the initial pretrial conference about whether the Photograph had actually been
registered before the lawsuit was filed, as Paragraph 9 of the Complaint alleged. That was a
matter of significance because Section 411(a) of the Copyright Act provides (with certain
exceptions not relevant here) that “no civil action” for copyright infringement “shall be instituted
until . . . registration of the copyright claim has been made.” 17 U.S.C. § 411(a). In light of this
requirement and a 2019 Supreme Court decision, this Court had held a few months before this
case was filed that a suit filed pre-registration is fatally flawed and cannot be cured by “post-
registration amendment” of the complaint, and thus must be dismissed. See Malibu Media, LLC
v. Doe, No. 18-CV-10956 (JMF), 2019 WL 1454317, at *1 (S.D.N.Y. Apr. 2, 2019). Mr.
Newberg advised that, the day before the initial conference, he had “discovered that after this
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case was filed, Mr. Usherson filed a copyright registration, which . . . seems to be on these
photographs, so now it is unclear whether the registration in the complaint actually does cover
the photograph or if it is the new copyright registration.” Initial Conf. Tr. 17. Recognizing that
the case would have to be dismissed if the Photograph had not been registered before the
Complaint was filed, Mr. Newberg requested “discovery purely on those aspects early.” Id. Mr.
Liebowitz responded: “I don’t know what defense counsel means about other registrations or
other photographs. I will have to see what my office did, but this is the correct registration.” Id.
at 17-18. Mr. Liebowitz argued against limited discovery or early summary judgment on the
registration issue, stating that “the appropriate thing to do at this stage is to just set discovery, set
the dates, and let the parties engage and hopefully during that process the parties could
eventually get to a settlement number.” Id. at 18, 22.
D. Mr. Liebowitz Repeats His Mediation Claim — Again and Again
Following the initial pretrial conference, the Court ordered Mr. Liebowitz to file a formal
opposition to the motion for sanctions and directed both sides to address “whether the court
should hold an evidentiary hearing and, if so, what witnesses should be called and how it should
be conducted.” ECF No. 20, at 6. Mr. Liebowitz filed a formal opposition, but — disregarding
the Court’s Order — he failed to address the evidentiary hearing. See ECF No. 21. Instead, he
doubled down again (quadrupled down, perhaps) on his claim that Mr. Usherson had “obtained
permission from the assigned mediator . . . to appear at the scheduled mediation by telephone
provided that counsel was present in person” and that the Mediator had “consented to” Mr.
Liebowitz’s associate appearing instead of Mr. Liebowitz. Id. at 2-3. In support of his
opposition, Mr. Liebowitz submitted a declaration, in which he stated “under penalty of perjury”
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that “I sought and received approval from . . . the assigned mediator for Mr. Usherson to attend
the mediation via telephone and for my associate James Freeman to appear who had full
knowledge of the case. I obtained [the Mediator’s] consent via telephone.” ECF No. 22, at 3.
Mr. Freeman and Ms. Liebowitz also submitted declarations in connection with the
opposition. ECF Nos. 23-24. Mr. Freeman confirmed that he did not learn of the “existence of
this matter” until “about 8:00 p.m. on October 30, 2019.” ECF No. 23, at 1. Mr. Freeman
further explained that Mr. Liebowitz had “notified [him] of the time/place of the mediation, sent
[him] copies of the complaint and the most recent settlement agreement draft, informed [him] of
the price agreed to and the outstanding non-monetary terms concerning right of publicity,” and
“indicated that the case was likely to settle that evening but that if it didn’t, [he] should be
prepared to attend the mediation in person.” Id. at 1-2. Notably, Mr. Freeman did not say that
Mr. Liebowitz had ever mentioned getting approval from the Mediator for Mr. Liebowitz and
Mr. Usherson not to be present. Nor did Ms. Liebowitz in her declaration. See ECF No. 24.
In connection with Bandshell’s reply, Mr. Newberg submitted another declaration. ECF
Nos. 35-36. Mr. Newberg took issue with Mr. Liebowitz’s claims that he had secured advance
approval from the Mediator for Mr. Usherson not to appear in person at the mediation and Mr.
Freeman to attend on Mr. Liebowitz’s behalf, citing emails showing that, “even as late as
October 30” — the night before the mediation — the Mediator and Mr. Newberg “were under
the impression that Mr. Liebowitz (as lead and only admitted counsel) and Mr. Usherson would
be at the mediation in person.” ECF No. 36, ¶ 9. Mr. Newberg noted that, because he was
“concerned at what appeared to be false statements being made to the Court by Mr. Liebowitz,”
he called the Mediator on November 19, 2019. Id. ¶ 21. According to Mr. Newberg, the
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Mediator said that there had been “other mediations where he allowed Mr. Liebowitz’s client to
appear by phone, but he stated clearly and pointedly . . . that this was not one of them.” Id. ¶ 23
(emphasis in original). The Mediator allegedly also said that, on “the night of October 30,” Mr.
Liebowitz had “called and informed him (without asking for approval) that Mr. Liebowitz was
out of town and that Mr. Liebowitz’s associate would be at the mediation instead.” Id. ¶ 24. In
that call, “no mention was made of Mr. Usherson at all.” Id. ¶ 25. The Mediator “only found out
that Mr. Usherson would not be at the mediation” at the mediation itself. Id.
Prompted by these submissions, the Court issued a Memorandum Opinion and Order
directing the Mediator to file a declaration “detailing any and all communications with Liebowitz
regarding Liebowitz’s personal attendance at the mediation and Plaintiff’s participation by
telephone in the mediation.” Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2019
WL 6702069, at *3 (S.D.N.Y. Dec. 9, 2019). More specifically, the Court instructed the
Mediator to “specify whether (and if so, when and how) he gave Liebowitz permission (1) not to
appear personally at the mediation (and to send an associate instead); and (2) for Plaintiff not to
appear at the mediation in person and to appear by telephone instead.” Id. The next day, the
Mediator submitted a declaration, which stated that, on October 30, 2019, he had “talked to Mr.
Liebowitz and was informed that the mediation was on. He did not inform me that he would not
personally appear but through an associate. But I have mediated a few prior mediations
involving Mr. Liebowitz where on at least one occasion that office appeared by an associate
without incident.” ECF No. 39, at 2. The Mediator further stated: “At no time was I informed
that the plaintiff would not personally appear but would be available by telephone. I should say
that in a few prior mediations his client appeared by telephone without incident. On this
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occasion no discussion was had by me as to client appearance.” Id.
On December 16, 2019, Mr. Liebowitz filed a letter stating that he “contests certain
statements proffered by the Mediator in his declaration.” ECF No. 41, at 1. Once again, Mr.
Liebowitz asserted that he had “notified the Mediator that Mr. Usherson would be appearing
telephonically and that such request was granted.” Id. at 3. But the December 16th letter also
proffered a new line of defense: that the Mediator in this case had a “custom and practice” of
granting Mr. Liebowitz’s clients permission to appear telephonically at mediations. Id. at 1-2.
Mr. Liebowitz cited five prior cases in which the Mediator had allegedly granted his clients
permission to appear telephonically; in one of these five cases, he maintained, the Mediator also
granted Mr. Liebowitz permission to send an associate on his behalf. Id. at 2. Mr. Liebowitz
insisted: “This . . . corroborates Mr. Liebowitz’s testimony and establishes a ‘pattern or practice’
of conduct showing that Mr. Liebowitz harbored a good faith belief that the requisite permissions
were granted by the Mediator in this case.” Id. at 2.
E. The Voluntary Dismissal and the Evidentiary Hearing
In light of the factual disputes surrounding whether and when Mr. Liebowitz had
obtained permission from the Mediator to send an associate in his place and to have Mr.
Usherson participate by telephone, the Court determined that an evidentiary hearing was
necessary. See ECF No. 42. On December 17, 2019, the Court issued an Order scheduling the
hearing and directing Mr. Liebowitz, Mr. Newberg, and the Mediator to appear for testimony.
Id. Just two days later, Mr. Liebowitz filed a stipulation of voluntary dismissal signed by both
parties, providing that the case “should be dismissed with prejudice with each side to bear its
own costs and attorney’s fees.” ECF No. 45. In a letter filed the same day, Mr. Newberg noted
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that Bandshell had stipulated to Mr. Usherson’s “withdr[awal of] the . . . case with prejudice,”
but pointedly noted that he and his client “would not have so stipulated” had his firm “not been
representing [Bandshell] pro bono.” ECF No. 46. The Court so-ordered the voluntary dismissal
but retained jurisdiction “to adjudicate Defendant’s pending motion for sanctions and any other
sanctions-related matters” and affirmed that the hearing would proceed as planned. ECF Nos.
47-48. The Court noted that dismissal did not moot the motion for sanctions — citing as support
for that proposition a prior opinion in which the Court had imposed sanctions on Mr. Liebowitz
despite a voluntary dismissal. ECF No. 47 (citing Rice, 2019 WL 3000808, at *4).
On January 8, 2020, the Court held the evidentiary hearing, with Mr. Liebowitz, Mr.
Newberg, and the Mediator appearing as witnesses. The Court treated the witnesses’ prior
declarations as their direct testimony. This meant that Mr. Freeman, appearing on Mr.
Liebowitz’s behalf, had to make an application to expand the record to include Mr. Liebowitz’s
testimony on the “custom and practice” argument raised for the first time in the December 16th
letter, as Mr. Liebowitz’s declaration (submitted on November 18, 2019) made no mention of it
— underscoring the argument’s belated nature. Hearing Tr. 4-6. Mr. Freeman argued that if the
Mediator did grant Mr. Liebowitz permission for his clients to appear telephonically on five prior
occasions, “it could well be that the mediator simply forgot that he did so in this case . . . .
Perhaps it didn’t register in his consciousness.” Id. at 4-5. The Court granted the application,
and Mr. Liebowitz recounted that, in five prior cases, the Mediator had orally granted him
permission to have his clients appear telephonically at the mediation; in one of those cases, he
claimed, he “obtain[ed] permission for [his] associate to appear in [his] stead” as well. Hearing
Tr. 7-11. On cross-examination, Mr. Liebowitz repeatedly adverted to the alleged “custom and
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practice” of the Mediator to allow parties to appear telephonically. See id. at 21, 31, 45, 46, 73,
75. But Mr. Liebowitz was also compelled to admit that, in one of those very cases, he himself
had objected to the other party appearing telephonically on the ground that the rules of the
Mediation Office required parties to appear in person. Id. at 11-16; see Sadowski v. Seeking
Alpha Inc., 18-CV-9193 (VM), ECF No. 21 (S.D.N.Y. May 1, 2019) (describing an email from
Mr. Liebowitz to opposing counsel stating that the “rules of the mediation office requires [sic]
parties to attend in person” (internal quotation marks omitted)).
On the subject of his communications with the Mediator in this case, Mr. Liebowitz
claimed that, at about 7:30 to 8:00 p.m. on October 30, 2019, the night before the mediation, he
had called the Mediator from Los Angeles, California, and asked for permission for Mr.
Usherson to appear by telephone from Georgia and for Mr. Freeman to appear as counsel.
Hearing Tr. 21-22, 27, 45. Mr. Liebowitz testified that the Mediator had approved both requests.
Id. at 21-22. Mr. Liebowitz acknowledged that he had made no record of the call and, indeed,
that there was “[n]othing in writing” at all reflecting that the call had occurred. Id. at 42. When
asked how he suddenly remembered that the telephone call had occurred on October 30th, when
he could not remember the relevant date when asked at the November 14, 2019 initial pretrial
conference (only two weeks after the events in question), Mr. Liebowitz responded that certain
emails had jogged his memory — namely, emails that had been attached to Mr. Newberg’s initial
declaration in support of the sanctions motion. Id. at 47-50. But Mr. Newberg’s initial
declaration had been filed before the November 14th conference, and Mr. Liebowitz had actually
responded to it in writing. (When pressed on that point, Mr. Liebowitz testified: “I often forget
things.” Id. at 50-52.)
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More troubling, Mr. Liebowitz’s account is not supported by the email trail. At 6:34 p.m.
on October 30, 2019, Mr. Newberg emailed a proposed settlement agreement to the Mediator,
and stated that unless Mr. Usherson “sign[ed] the agreement” that night, “we will see Mr.
Liebowitz and Mr. Usherson tomorrow . . . at the mediation.” ECF No. 36 at 24. At 8:15 p.m.,
the Mediator replied: “Talked to Richard and he has been tied up. He will review tonight and get
back to us in the morning. Hopefully we can settle this before need [sic] to go to in person
mediation.” ECF No. 16, at 32. Mr. Newberg responded: “I’m headed to the train station well
before 6:00 am. And to be candid, I would have assumed Mr[.] Usherson either flew to NY
tonight or is likewise on a very early plane.” Id. The Mediator said simply, “I understand.” Id.
(email sent at 10:03 p.m.). In addition, at 4:12 a.m. on October 31, 2019, Mr. Liebowitz sent Mr.
Newberg an email stating: “Attached please find revisions to the agreement which can be
discussed at the mediation.” Hearing Tr. 67; see ECF No. 16, at 33. Mr. Liebowitz did not
mention that he and Mr. Usherson did not plan to attend, let alone that they had the Mediator’s
permission not to attend. Hearing Tr. 67. At no point, in fact, did Mr. Liebowitz notify opposing
counsel that he and Mr. Usherson would not be attending.
During Mr. Liebowitz’s testimony at the hearing, the Court asked him what he would
have done had the Mediator denied his alleged requests on the night of October 30th. Hearing
Tr. 28. Mr. Liebowitz claimed that he and Mr. Usherson would have attended the mediation the
next day in person. Id. at 28-32. But on the night of October 30th, Mr. Liebowitz was in Los
Angeles hosting a “networking event” for photographers, and Mr. Usherson was at home in
Georgia. Id. at 30. Mr. Liebowitz never booked any flights or checked when the last flight to
New York from either location was. Id. at 28, 32, 46, 63. Nevertheless, he claimed that he had
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been prepared to book flights and fly overnight. Id. When pressed about whether he had
communicated this alleged plan to Mr. Usherson, Mr. Liebowitz equivocated: “Well, if he — if
he — if he didn’t have to appear in person, then — then I would have just called him that day
and know that he’s always around.” Id. at 40-41. It is clear, therefore, that Mr. Liebowitz did
not advise Mr. Usherson that he might need to jump on a plane at a moment’s notice and appear
in New York. It follows that Mr. Liebowitz had no way of knowing whether Mr. Usherson could
have complied if asked to do so.
Notably, Mr. Liebowitz’s testimony was in tension, if not direct conflict, with the
representations of his own associate, Mr. Freeman. For example, Mr. Liebowitz claimed that he
had told Mr. Freeman on October 30th that the Mediator had approved Mr. Liebowitz’s requests.
Hearing Tr. 34-35, 38. But at the initial pretrial conference, Mr. Freeman advised the Court that
he had not known what “clearances” were given. Initial Conf. Tr. 9. When confronted with this
discrepancy, Mr. Liebowitz responded: “[P]eople forget things.” Hearing Tr. 38. Mr. Liebowitz
also claimed that he had spoken with Mr. Freeman about the case on “numerous occasions”
before October 30th. Id. at 32. But, as noted, Mr. Freeman repeatedly confirmed that he did not
even know about the “existence” of the case before October 30th — a representation that he had
reiterated in his sworn declaration, ECF No. 23, at 1, which Mr. Liebowitz himself had filed and
even cited in Mr. Usherson’s opposition brief. See ECF No. 21, at 4, 6. (Despite that, Mr.
Liebowitz claimed that he had not read Mr. Freeman’s declaration before filing the brief.
Hearing Tr. 42-44.)
Finally, to the extent relevant here, Mr. Liebowitz also took the position that he was
never required to attend the mediation, as it was Mr. Freeman who was “the lawyer who will be
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primarily responsible for handling the trial of this matter.” Hearing Tr. 19; see Mediation Rule
9(c) (requiring that “[e]ach represented party must be accompanied at mediation by the lawyer
who will be primarily responsible for handling the trial of the matter”). But Mr. Liebowitz
acknowledged that Mr. Freeman had not even entered an appearance in this case and that he had
never advised the Mediator or Mr. Newberg that Mr. Freeman was principal trial counsel.
Hearing Tr. 17-18, 29. Moreover, he was forced to admit that the Court’s Order scheduling the
initial pretrial conference had required “principal trial counsel” to attend “all pretrial
conferences” and that he — not Mr. Freeman — had appeared on Mr. Usherson’s behalf at the
initial pretrial conference. Hearing Tr. 17-20. Similarly, Mr. Liebowitz claimed that Mr.
Usherson was also never required to attend the mediation because, in Mr. Liebowitz’s view, the
Court’s Order requiring “in-person” mediation referred only to the attorneys, “[n]ot parties.” Id.
at 59-60. When asked why, then, he had bothered to confirm that he and Mr. Usherson could be
in New York on October 31st, and later asked the Mediator to excuse his and Mr. Usherson’s
attendance, Mr. Liebowitz responded that he “wanted to double — double — you know, just
cover myself.” Id. at 35-36, 62.
Mr. Newberg and the Mediator then testified. Mr. Newberg recalled the Mediator saying
at the mediation that he had been “notified” that Mr. Liebowitz would not be coming and would
be sending an associate instead. Hearing Tr. 87. He testified that he was not “100 percent
sure[]” whether the Mediator said “I did not grant permission.” Hearing Tr. 87. But Mr.
Newberg did recall the Mediator saying that Mr. Usherson was “expected . . . to be there.” Id. at
85. Finally, the Mediator testified that he could not recall whether Mr. Liebowitz had mentioned
that Mr. Freeman would be appearing instead of Mr. Liebowitz. Id. at 99-100. The Mediator
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acknowledged that, at some point prior to the mediation, he had realized that Mr. Liebowitz was
in Los Angeles and likely would not be attending the mediation in person. Id. at 97-98. The
Mediator was clear, however, that he did not give permission for Mr. Usherson to appear by
phone. Id. at 107-08. The Mediator spoke with Mr. Liebowitz several times on October 30,
2019, the last of which was right before the Mediator emailed Mr. Newberg at 8:15 p.m. Id. at
96, 102. The Mediator stated that, during these conversations, Mr. Liebowitz never even
mentioned the possibility of Mr. Usherson’s appearing by telephone. Id. at 100 (“Mr.
Usherson[] . . . was just not part of the conversation.”), 117. The first time the Mediator learned
that Mr. Usherson would not be coming was “[w]hen the mediation started.” Id. at 103, 105.
F. Bandshell Discovers That the Photograph Was Registered After This Case Was Filed
At the close of the hearing, the Court heard brief oral argument. Among other things, Mr.
Newberg clarified that, in light of stipulation of voluntary dismissal stating that “each side” was
“to bear its own costs and attorney’s fees,” ECF No. 45, neither he nor Bandshell was seeking to
recover attorney’s fees or costs. Hearing Tr. 130. Mr. Newberg explained that if fees and costs
were used as a measure of the sanctions to be imposed, Mr. Liebowitz should be directed to pay
the Court or “some sort of legal aid pro bono fund.” Id.
Mr. Newberg then returned to the question of whether the Photograph had been registered
before Mr. Liebowitz filed the Complaint as required by Section 411(a) of the Copyright Act.
Mr. Newberg revealed that he had just received the Copyright Office’s deposit files for the 046
Registration and confirmed that the Photograph was not in fact registered under that number.
Hearing Tr. 127. In response, Mr. Freeman admitted that it is the regular practice of the
Liebowitz Law Firm to file copyright infringement cases without verifying that the works in
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question are properly registered, because of the “additional expense.” Id. at 139. Mr. Freeman
stated that “[t]he client will say to us, ‘This photograph is on deposit with this registration.’ And
we take them for their word.” Id. at 141. Mr. Freeman stated that, in this case, Mr. Usherson
had “represented to us that he” had registered the Photograph. Id. at 140. Mr. Freeman further
stated that, prior to filing the Complaint, the firm had checked on the Copyright Office’s website
“that Mr. Usherson was the copyright claimant in that particular case.” Id.
In light of these revelations, the Court ordered both sides to file letter-briefs addressing
the issue and ordered Mr. Newberg to serve a copy of the deposit files on Plaintiff. ECF No. 52.
In his letter, Mr. Liebowitz admitted that “Paragraph 9 of the Complaint” was “inaccurate”
because the Photograph was not, in fact, registered “as part of the 046 Registration.” ECF No.
57, at 1. Mr. Liebowitz disclosed that his firm had registered the Photograph under registration
number VAu 1-373-272 (the “272 Registration”), but not until August 22, 2019 — more than a
month after the Complaint in this case was filed. Id. Mr. Liebowitz attributed the false
statement in the Complaint to “clerical error,” noted that “administrative mistakes or clerical
errors do happen in the copyright registration process,” and insisted that, but for dismissal of the
case, Mr. Usherson could have cured the problem by amending the Complaint. Id. at 1, 3. In
Bandshell’s response, Mr. Newberg reminded the Court that, at the initial pretrial conference,
Mr. Liebowitz had denied any knowledge of “other registrations or other photographs.” ECF
No. 58, at 3. Mr. Newberg argued that Mr. Liebowitz’s new explanation thus “defie[d] belief.”
Id. at 1. Mr. Newberg also pointed out that Mr. Liebowitz had incorrectly asserted that “the
failure to obtain a registration prior to filing suit provides grounds to amend the complaint,” ECF
No. 57, at 1, citing this Court’s decision in Malibu Media holding that premature filing
20 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 22 21 of of 62 61
necessitates dismissal. ECF No. 58, at 2.
Upon review of these submissions, the Court ordered Mr. Liebowitz, Mr. Freeman, and
Mr. Usherson himself to submit declarations addressing the registration of the Photograph and
the alleged “administrative mistake.” ECF No. 59. In his declaration, Mr. Freeman admitted
that the Photograph was registered by the Liebowitz Law Firm after the Complaint was filed but
claimed that he had “no personal knowledge of this administrative mistake until after the January
8, 2020 hearing.” ECF No. 64, at 6. Mr. Freeman explained his representations at the close of
the January 8th hearing by saying (not altogether convincingly) that he had been speaking based
on his “general knowledge of [the Liebowitz Law Firm’s] custom and practices.” Id. at 4-5
(emphasis in original). Mr. Usherson averred that he had “identifi[ed] the 046 Registration”
when he “authorized Mr. Liebowitz to file a copyright infringement action.” ECF No. 62, at 4.
But Mr. Usherson also stated that, before the Complaint was filed, he had provided to the
Liebowitz Law Firm a CD-ROM containing all of the photographs in the 046 Registration. Id. at
3. The Photograph was not among them. Then, “[s]ometime after” the lawsuit was filed, Mr.
Usherson provided the firm with a CD-ROM containing thirty additional photographs, including
the Photograph, which the firm registered in the 272 Registration. Id. at 4.
Finally, Mr. Liebowitz admitted that he had conducted no investigation into whether the
Photograph was properly registered before filing the Complaint, even though he and his firm
“had the ability as of June 2019 to double-check whether the Photograph was part of [the]
images that were included on a CD-Rom that Mr. Usherson had previously sent.” ECF No. 63,
at 3. Instead, Mr. Liebowitz relied solely on an entry in the firm’s internal case-tracking system,
which noted that the Photograph was “associated with the 046 Registration.” Id. at 2-3. This
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entry was made by “a member of [the firm’s] administrative staff, Zachary Cuff.” Id. Mr.
Liebowitz also stated that he had no role in filing the 272 Registration, which was performed by
his firm’s “internal staff at the request of Mr. Cuff.” Id. at 4. Mr. Liebowitz claimed that he did
not realize the Photograph was not properly registered — which he described as a “technical
pleading deficiency” — until “subsequent to the January 8, 2020 hearing.” Id. at 4-5.
LEGAL STANDARDS
“Sanctions may be authorized by any of a number of rules or statutory provisions, or may
be permissible on the basis of the court’s inherent powers.” Sakon v. Andreo, 119 F.3d 109, 113
(2d Cir. 1997). Three forms of sanctions are particularly relevant here. First, Rule 16(f) of the
Federal Rules of Civil Procedure authorizes sanctions for, among other things, the “fail[ure] to
obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C); see, e.g., Rice, 2019 WL
3000808, at *3 (imposing sanctions on Mr. Liebowitz for violations of Rule 16(f)). “In deciding
whether a sanction is merited [under Rule 16(f)], the court need not find that the party acted in
bad faith.” Huebner v. Midland Credit Mgmt., Inc., 897 F.3d 42, 53 (2d Cir. 2018) (internal
quotation marks omitted). Instead, the Court need only find that there is clear and convincing
evidence that counsel disregarded a clear and unambiguous scheduling or other pretrial order.
See id. (“The fact that a pretrial order was violated is sufficient to allow some sanction.” (internal
quotation marks omitted)).
Second, “district courts have the inherent power” to sanction a party “for bad faith
conduct violating the court’s orders even if procedural rules exist which sanction the same
conduct.” S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010)
(internal quotation marks omitted); see also Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991)
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(“[N]either is a federal court forbidden to sanction bad-faith conduct by means of the inherent
power simply because that conduct could also be sanctioned under the statute or the Rules.”);
Rice, 2019 WL 3000808, at *3-4 (imposing sanctions on Mr. Liebowitz pursuant to the Court’s
inherent authority). A court may impose sanctions under its inherent authority if “it finds, by
clear and convincing evidence, that the party or attorney knowingly submitted a materially false
or misleading pleading, or knowingly failed to correct false statements, as part of a deliberate
and unconscionable scheme to interfere with the Court’s ability to adjudicate the case fairly.”
Braun ex rel. Advanced Battery Techs., Inc. v. Zhiguo Fu, No. 11-CV-4383 (CM) (DF), 2015
WL 4389893, at *17 (S.D.N.Y. July 10, 2015); see also Wolters Kluwer Fin. Servs., Inc. v.
Scivantage, 564 F.3d 110, 114 (2d Cir. 2009) (conditioning sanctions based on a court’s inherent
authority on “clear evidence that the conduct at issue is (1) entirely without color and (2)
motivated by improper purposes”). Under this “inherent power a court may assess attorney’s
fees as a sanction.” Chambers, 501 U.S. at 45. To warrant an award of attorney’s fees, the
Court must find that the wrongdoer acted in bad faith or that he willfully disobeyed the Court’s
orders. See id. at 50.
Finally, under 28 U.S.C. § 1927, a district court may award attorney’s fees against an
attorney who “multiplies the proceedings in any case unreasonably and vexatiously.” The
standard for sanctions under Section 1927 is effectively the same as the inherent-authority
standard: A court must find that “(1) the challenged claim was without a colorable basis and
(2) the claim was brought in bad faith.” Enmon v. Prospect Capital Corp., 675 F.3d 138, 143
(2d Cir. 2012) (internal quotation marks omitted); see United States v. Int’l Bhd. of Teamsters,
948 F.2d 1338, 1345 (2d Cir. 1991) (“Bad faith is the touchstone of an award under [Section
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1927].”). Indeed, as the Second Circuit has explained, “[i]n practice, the only meaningful
difference between an award made under § 1927 and one made pursuant to the court’s inherent
power is . . . that awards under § 1927 are made only against attorneys . . . while an award made
under the court’s inherent power may be made against an attorney, a party, or both.” Enmon,
675 F.3d at 144 (internal quotation marks omitted). To impose sanctions under Section 1927, a
court must make factual findings with a “high degree of specificity,” Dow Chem. Pac. Ltd. v.
Rascator Mar. S.A., 782 F.2d 329, 344 (2d Cir. 1986) (internal quotation marks omitted), but it
may infer bad faith when counsel’s “actions are so completely without merit as to require the
conclusion that they must have been undertaken for some improper purpose,” Schlaifer Nance &
Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999) (internal quotation marks omitted).2
Sanctions on any of these grounds may be imposed by the Court sua sponte. See Fed. R.
Civ. P. 16(f)(1) (noting that the Court may impose sanctions “[o]n motion or on its own”);
Chambers, 501 U.S. at 43-44 (inherent authority); Gallop v. Cheney, 642 F.3d 364, 370 (2d Cir.
2011) (Section 1927). Thus, the Court may sanction misconduct that occurred during this case
without regard for what Bandshell argued in its sanctions motion and notwithstanding the fact
2 Rule 11 of the Federal Rules of Civil Procedure is arguably another source of authority for sanctions in this case. See, e.g., S.E.C. v. Smith, 710 F.3d 87, 97 (2d Cir. 2013) (“Under Rule 11(c)(3) . . . sanctions are appropriate when an individual has made a false statement to the court and has done so in bad faith.”). Under Rule 11, however, “[t]he court must not impose a monetary sanction . . . on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.” Fed. R. Civ. P. 11(c)(5)(B). That limitation arguably does not apply here, as the voluntary dismissal was filed and so-ordered after Bandshell had filed a motion for sanctions and the Court had scheduled an evidentiary hearing to determine if Mr. Liebowitz’s representations to the Court were truthful. But the Court need not decide whether Rule 11 would be a valid basis for sanctions because Rule 11(c)(5)(B)’s limitation does not apply to the Court’s authority to impose sanctions under its inherent authority, Section 1927, or Rule 16(f), see Rice, 2019 WL 3000808, at *5, and those bases suffice. 24 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 26 25 of of 62 61
that the parties entered a stipulation of dismissal in which Bandshell agreed to bear its own fees
and costs. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395-96 (1990); Steeger v. JMS
Cleaning Servs., LLC, No. 17-CV-8013 (DLC), 2018 WL 1363497, at *3 (S.D.N.Y. Mar. 15,
2018). Further, the Court may impose sanctions pursuant to Rule 16, its inherent authority, and
Section 1927 on the lawyer engaging in misconduct, the lawyer’s firm, or both. See, e.g., Rice,
2019 WL 3000808, at *2; see also Enmon, 675 F.3d at 148 (affirming sanctions imposed
pursuant to Section 1927 and the district court’s inherent authority on both an attorney and his
firm where the attorney “was a founding, named partner of a firm that . . . had ten or fifteen
lawyers during the relevant time period” and “[t]hroughout the litigation, [the attorney’s] actions
were indistinguishable from those of [the firm]”). Pursuant to its inherent authority, the Court
may also impose sanctions on a party. See, e.g., Enmon, 675 F.3d at 144-45. Ultimately, the
decision whether to impose sanctions is left to the Court’s discretion. See, e.g., Macolor v.
Libiran, No. 14-CV-4555 (JMF), 2015 WL 337561, at *2 (S.D.N.Y. Jan. 23, 2015).
DISCUSSION
Applying the foregoing standards here, the Court concludes that a range of substantial
monetary and non-monetary sanctions against Mr. Liebowitz and his firm, including referral of
Mr. Liebowitz to the Grievance Committee, are amply justified. Sanctions are appropriate for
(1) Mr. Liebowitz’s repeated violations of the Court’s Orders; (2) Mr. Liebowitz’s repeated lies
to the Court, including under oath, about whether the Mediator granted Mr. Usherson permission
to participate in the mediation by telephone; and (3) the false allegation in the Complaint
regarding registration of the Photograph and the failure to reasonably investigate the issue, both
prior to filing suit and when put on notice about the issue during the litigation.
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The Court will address each basis for sanctions in turn.
A. Mr. Liebowitz’s Repeated Violations of the Court’s Orders
The Court starts with the lowest hanging fruit: Mr. Liebowitz’s repeated violations of the
Court’s Orders. Indeed, it is essentially undisputed, and for good reason, that Mr. Liebowitz
violated at least six of the Court’s Orders:
1. On July 15, 2019, the Court ordered Mr. Usherson to “file proof of service no more than three days after service has been effected.” ECF No. 6. Bandshell was served on September 5, 2019, but Mr. Liebowitz did not file proof of service until September 21, 2019, thirteen days after the Court’s deadline. ECF No. 7.
2. On July 15, 2019, the Court also ordered Mr. Usherson to produce limited discovery to Bandshell “by the earlier of 14 days after service of process or three business days in advance of any mediation session.” ECF No. 6. Mr. Liebowitz failed to produce these materials (or to notify Mr. Newberg that none of the required discovery existed) by the September 19, 2019 deadline. Only when Mr. Newberg prodded him on September 20, 2019, did Mr. Liebowitz respond: “My client is still looking but as of now doesn’t look like any licensing for this photo.” ECF No. 16, at 12.
3. On July 15, 2019, the Court scheduled an initial pretrial conference and ordered that “all pretrial conferences must be attended by the attorney who will serve as principal trial counsel.” ECF No. 5, at 1. In addition, the Mediation Program’s rules (which were incorporated by reference into the Court’s Order at ECF No. 6), required that “the lawyer who will be primarily responsible for handling the trial of the matter” attend the mediation. Mediation Rule 9(c). Mr. Liebowitz attended the initial conference but did not attend the mediation on October 31, 2019. At the evidentiary hearing, Mr. Liebowitz was evasive about whether he or Mr. Freeman was trial counsel (even though Mr. Freeman never even entered a notice of appearance), but either way Mr. Liebowtiz violated an Order of the Court: If he was principal trial counsel, he violated the Court’s Order by failing to appear at the mediation; if he was not principal trial counsel, then he violated the Court’s Order by appearing at the initial conference.
4. On July 15, 2019, the Court ordered that Mr. Liebowitz and Mr. Usherson participate in mediation “no later than two weeks before the initial pretrial conference,” initially scheduled for October 10, 2019. ECF No. 5, at 1 (emphasis in original). Neither did, and Mr. Liebowitz did not request an extension of the mediation deadline at least forty-eight hours in advance, as required by the Court’s Individual Rules. Instead, on October 4, 2019, Mr. Liebowitz filed a letter attempting (at best, disingenuously) to pin blame onto the Mediation Office for the missed deadline and requesting permission to conduct the mediation by telephone. See ECF No. 12.
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5. On October 7, 2019, the Court extended the deadline to mediate, and ordered that “[t]he parties shall conduct the in-person mediation no later than October 31, 2019.” ECF No. 13. Further, as discussed below, the Mediation Office’s procedures required that Mr. Usherson appear at the mediation in person. Mr. Liebowitz agreed that he and Mr. Usherson would participate in a mediation session on October 31, 2019, ECF No. 16, at 27, but neither showed up. As discussed below, Mr. Liebowitz gave no notice to opposing counsel, the Mediator, or the Court that Mr. Usherson would not be attending in person.
6. On November 15, 2019, the Court ordered both parties to address in their sanctions briefing “whether the Court should hold an evidentiary hearing and, if so, what witnesses should be called and how it should be conducted.” ECF No. 20, at 6. Mr. Liebowitz failed to address those issues in his brief. ECF No. 21.
This litany of violations, standing alone, justifies sanctions under Rule 16(f). See, e.g., Polaris
Images Corp. v. CBS Interactive, Inc., No. 19-CV-3670 (VEC), 2019 WL 5067167, at *2-3
(S.D.N.Y. Oct. 9, 2019) (sanctioning Mr. Liebowitz for failing to timely file proof of service and
produce pre-mediation discovery, and rejecting Mr. Liebowitz’s claim of “administrative
oversight” because “the undersigned is unconvinced that they are indeed good faith oversights”).
The Court need not make a finding of bad faith to justify sanctions under Rule 16(f), but
there is no doubt that Mr. Liebowitz’s violations of these court Orders were willful. First, the
Orders “were explicit and,” with one possible exception, “there is no suggestion that [Mr.
Liebowitz] misread or misunderstood them.” Petrisch v. JP Morgan Chase, 789 F. Supp. 2d
437, 455 (S.D.N.Y. 2011). The one possible exception is the failure of Mr. Liebowitz and Mr.
Usherson to attend the mediation; as to those violations, Mr. Liebowitz proffers several
explanations, but as discussed below, Mr. Liebowitz’s shifting explanations are patently
incredible — evidence of bad faith in itself. Second, there is no “good-faith explanation” for Mr.
Liebowitz’s failure to comply, particularly in light of the findings set forth below. See S. New
England Tel. Co., 624 F.3d at 148. And finally, Mr. Liebowitz’s “failure to comply was ‘not
isolated but rather [part of] a pattern’ of non-compliance in this case dating to” even before “the 27 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 29 28 of of 62 61
very first conference.” Yu v. Diguojiaoyu, Inc., No. 18-CV-7303 (JMF), 2019 WL 6174204, at
*5 (S.D.N.Y. Nov. 20, 2019) (quoting S. New England Tel., 624 F.3d at 148).
In fact, Mr. Liebowitz’s violations are part of an even longer pattern of violations in
scores of cases. Despite many judicial warnings, Mr. Liebowitz has engaged in similar
misconduct for years, every time making the same excuses for his behavior. See, e.g., Chevrestt
v. Barstool Sports, Inc., No. 20-CV-1949 (VEC), 2020 WL 2301210, at *2 (S.D.N.Y. May 8,
2020) (sanctioning Mr. Liebowitz under Rule 16(f) and finding that his attempt to plead
“administrative oversight” was “disingenuous, distasteful, unpersuasive, and likely perjurious”);
Polaris Images Corp., 2019 WL 5067167, at *3 (imposing sanctions under Rule 16(f) and noting
that “given the frequency with which Mr. Liebowitz commits ‘administrative errors,’ the
undersigned is unconvinced that they are indeed good faith oversights”); Steeger, 2018 WL
1363497, at *2-3) (imposing monetary sanctions and a requirement that Mr. Liebowitz complete
“four CLE credit hours in ethics and professionalism” in an effort to address Mr. Liebowitz’s
“pattern of omissions and misrepresentations”). Indeed, he has been found to have acted in bad
faith several times this year, alone. See, e.g., Ward, 2020 WL 2219070, at *3 (imposing $20,000
in sanctions under the Court’s inherent authority and noting that “Liebowitz’s conduct in this
case has been irresponsible, unreasonable, and detrimental to the fair administration of justice”);
Wisser v. Vox Media, Inc., No. 19-CV-1445 (LGS), 2020 WL 1547381, at *6 (S.D.N.Y. Apr. 1,
2020) (finding bad faith and imposing sanctions for, among other things, affixing his client’s
signature to interrogatory responses without authorization and without the client having even
read the responses); Rock v. Enfants Riches Deprimes, LLC, No. 17-CV-2618 (ALC), 2020 WL
468904, at *4, *7 (S.D.N.Y. Jan. 29, 2020) (granting attorney’s fees against Mr. Liebowitz’s
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client totaling over $100,000, $10,000 of which Mr. Liebowitz and his firm were responsible for
as sanctions, and finding that Mr. Liebowitz’s “conduct — of failing to investigate the
evidentiary basis for a Complaint, of stonewalling discovery, of misleading the Court, and of
making meritless arguments — undoubtedly demonstrates bad faith”). As one court, after
surveying the ever-growing body of cases sanctioning Mr. Liebowitz, put it: Mr. Liebowitz’s and
his firm’s “inability to follow specific orders . . . is part of a pattern . . . . He and his firm are
demonstrably incapable of complying with the rules of the many courts where Mr. Liebowitz is
filing hundreds of lawsuits.” Mondragon, 2020 WL 2395641, at *13; see id. at *3 (finding that
Mr. Liebowitz “has demonstrated, both in this case and in many other copyright cases in this and
other districts, a disregard for basic federal courtroom rules, procedures, and practices”).
B. Mr. Liebowitz’s Lies to the Court
That said, Mr. Liebowitz’s repeated and willful violations of the Court’s Orders pale in
comparison to his more serious misconduct in this case: his lies, including his lies under oath.
Mr. Liebowitz repeatedly represented to the Court that he had received permission before the
October 31, 2019 mediation for Mr. Usherson to appear by telephone at the mediation. He made
these claims in open court (despite a warning from the Court to be “very, very, very careful”
about his representations in light of the contempt finding by Judge Seibel, see Initial Conf. Tr.
7); in multiple filings with the Court, including at least one declaration sworn under penalty of
perjury; and in his testimony, also under oath, at the evidentiary hearing. In fact, to this day, Mr.
Liebowitz maintains that “such permissions were in fact granted” by the Mediator. ECF No. 54,
at 3. But based on a careful review of the record, including an evaluation of the witnesses’
demeanor at the January 8, 2020 hearing, the Court finds by clear and convincing evidence that
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these representations were false and made in bad faith. See S.E.C. v. Smith, 798 F. Supp. 2d 412,
424 (N.D.N.Y. 2011) (“[T]here must exist clear and convincing evidence that an individual’s
conduct was not merely negligent but was undertaken with subjective bad faith.”).3
First and most obviously, Mr. Liebowitz’s claims are contradicted by the Mediator, who
testified unequivocally at the hearing that Mr. Liebowitz never mentioned the possibility that Mr.
Usherson would not attend the mediation in person. Hearing Tr. 100-01. The Court finds this
testimony credible, based not only its observations of the Mediator’s demeanor at the hearing
and his lack of any stake in this matter, but also on the fact that it is corroborated by Mr.
Newberg’s testimony and documentary evidence. Most notably, the Mediator’s email exchange
with Mr. Newberg shortly after the Mediator’s final phone call with Mr. Liebowitz on October
30th makes plain that the Mediator had no clue that Mr. Usherson (and Mr. Liebowitz, for that
matter) would not be attending the mediation in person the next day. ECF No. 16, at 32. For
instance, at 6:34 p.m. on October 30, 2019, Mr. Newberg stated in an email his expectation that
“we will see Mr. Liebowitz and Mr. Usherson tomorrow . . . at the mediation,” ECF No. 36, at
24, and the Mediator replied, “Talked to Richard and he has been tied up. He will review tonight
and get back to us in the morning. Hopefully we can settle this before need to go to in person
3 The Court is inclined to believe — and if the applicable standard were a preponderance of the evidence would find — that Mr. Liebowitz also lied about getting advance permission from the Mediator for Mr. Freeman to appear in his stead. But the record is admittedly more muddled on that front. For instance, Mr. Newberg stated in his second declaration that the Mediator had indicated that Mr. Liebowitz had informed the Mediator “that Mr. Liebowitz was out of town and that Mr. Liebowitz’s associate would be at the mediation instead.” ECF No. 36, at 4. Further, at the hearing, the Mediator testified that he could not remember whether Mr. Liebowitz had said “anything one way or another about whether he would be appearing at the mediation on the 31st.” Hearing Tr. 99. The Mediator indicated that he somehow “became aware” that Mr. Liebowitz was in Los Angeles and could not recall whether Mr. Liebowitz “may have told me.” Hearing Tr. 98. As a result, the Court is not prepared to find by clear-and- convincing evidence that Mr. Liebowitz’s representations on that score were made in bad faith. 30 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 32 31 of of 62 61
mediation,” ECF No. 16, at 32. Later that night, Mr. Newberg reiterated his expectation of an in-
person mediation, stating, “I would have assumed Mr. Usherson either flew to NY tonight or is
likewise on a very early plane.” Id. In response, the Mediator said simply: “I understand.” Id.
At no point in these emails did the Mediator reveal any awareness that either Mr. Usheron or Mr.
Liebowitz would not be attending in person the next day — much less that he had given them
both permission not to attend that very night, as Mr. Liebowitz claims.
That would be enough to conclude that Mr. Liebowitz lied under oath. Additionally,
however, the Court finds, based in part on its assessment of his demeanor at the hearing and in
part on the content of the testimony, that Mr. Liebowitz’s testimony, on its own terms, was
unworthy of belief. To start, several portions of Mr. Liebowitz’s testimony were patently
incredible. Two examples will suffice. First, it defies credibility to claim, as Mr. Liebowitz did,
that, with him in Los Angeles for a networking event and Mr. Usherson at home in Georgia, he
waited until approximately 8:00 p.m. on the night before the mediation (which was already
scheduled to take place on the last date permitted by the Court — after the Court had
admonished Mr. Liebowitz for failing to mediate by its first deadline) to ask the Mediator for
permission to send an associate on his behalf and to allow Mr. Usherson to participate by
telephone. When pressed, Mr. Liebowitz claimed that he would have flown to New York that
night and arranged for Mr. Usherson to do the same had the Mediator not granted permission.
But putting aside the inherent incredibility of that claim, by Mr. Liebowitz’s own admission, he
had not booked or even researched flights, and there is no evidence that he ever told Mr.
Usherson about the potential need to travel on short notice. Put simply, Mr. Liebowitz’s story
defies belief.
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A second example: On November 14, 2019, only two weeks after the relevant events had
occurred, Mr. Liebowitz was unable to recall when he had allegedly obtained permission from
the Mediator for Mr. Usherson to appear by telephone. Initial Conf. Tr. 7 (“I don’t know the
exact date, but it was before the mediation.”). Yet almost two months later, he was suddenly
able to remember that the Mediator had granted him permission by telephone between 7:30 and
8:00 p.m. on October 30th. Hearing Tr. 22. When confronted with the discrepancy, Mr.
Liebowitz claimed that his memory had been refreshed by the documents attached to Mr.
Newberg’s initial declaration. Id. at 50-51. But that declaration was filed before the November
14th initial pretrial conference, and Mr. Liebowitz had even responded to it before the
conference. See ECF No. 19.
Next, Mr. Liebowitz’s testimony was also incredible because, in contrast to the
Mediator’s and Mr. Newberg’s testimony, there is absolutely no evidence to corroborate it. He
made no reference to the Mediator granting permission for Mr. Usherson to appear by telephone
in any email; in fact, he made no record of it at all. Hearing Tr. 39-40 (“No, no record. I just
had a phone call with the Mediator and spoke with Mr. Freeman. And that’s — that’s what
happened.”). Nor do his own associates — Mr. Freeman and his sister, Ms. Liebowitz — back
up his account. Their declarations say nothing about the Mediator granting consent. See ECF
No. 23, ¶¶ 4-5; ECF No. 24. And orally, Mr. Freeman explicitly contradicted Mr. Liebowitz’s
testimony on the point. While Mr. Liebowitz testified at the hearing that he told Mr. Freeman on
October 30th that the Mediator had approved his requests, Mr. Freeman reported at the
November 14th initial pretrial conference — again, only two weeks after the relevant events —
that he had “no knowledge one way or the other as to what clearances were made in terms of
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telephonic appearances.” Initial Conf. Tr. 9. Nor was that the only inconsistency between Mr.
Liebowitz’s testimony and the representations of his own employee. Mr. Liebowitz testified
under oath that he had discussed the case with Mr. Freeman on “numerous occasions” on and
before October 30th. Hearing Tr. 32. But Mr. Freeman consistently maintained — at the
November 14th initial pretrial conference, in his own sworn declaration, and at the conclusion of
the hearing — that he did not even know the case existed until the evening of October 30th.
Initial Conf. Tr. 9; ECF No. 23, ¶ 4; Hearing Tr. 138.
Third, Mr. Liebowitz’s testimony is internally inconsistent, a function of his explanations
shifting to suit the moment. Again, two examples will suffice. First, Mr. Liebowitz’s initial
story was unambiguous: He asked for, and received, the Mediator’s consent for Mr. Usherson to
appear telephonically. At various times, Mr. Liebowitz acknowledged that the Mediation Rules
required the presence of a party, unless the mediator granted consent for a telephonic appearance.
ECF No. 19, at 1; Initial Conf. Tr. 6-7. But later, perhaps to hedge his bets, Mr. Liebowitz took a
different tack: that neither the Court’s Orders nor the Mediation Rules actually required Mr.
Usherson to appear in person in the first place. ECF No. 21, at 3-4; ECF No. 22, ¶¶ 7-9, 12;
Hearing Tr. 59-60; see also id. at 135-36. It strains credulity to conclude that Mr. Liebowitz
actually believed that assertion, and not only because it was made so belatedly. For one thing, it
is demonstrably false, as the Mediation Rules explicitly state that “[e]ach party must attend
mediation,” unless, if certain requirements are met, the mediator grants consent to participate by
telephone. Mediation Rules 9(a), (f); see also ECF No. 13 (denying Mr. Liebowitz’s application
to conduct the mediation by telephone and mandating an “in-person mediation”).4 For another, it
4 Read in context, the Mediation Office procedures make plain that the term “party” does not refer to counsel and refers here to Mr. Usherson. Further, there is no doubt that Mr. 33 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 35 34 of of 62 61
is belied by Mr. Liebowitz’s own objection in another case to the telephonic appearance of an
opposing party located in Israel, on the ground that “the rules of the mediation office requires
[sic]” parties to appear in person. Sadowski, No. 18-CV-9193, ECF No. 21; see Hearing Tr. 11-
16. And finally, it makes no sense in light of Mr. Liebowitz’s first and principal story: that he
explicitly asked for, and received, the Mediator’s consent for Mr. Usherson to appear
telephonically. After all, if he believed in good faith that Mr. Usherson did not have to appear in
person at all, why ask for permission to appear telephonically the night before the mediation and
risk the possibility that, with Mr. Usherson in Georgia, the Mediator might say no? The answer
is that, contrary to his testimony, he never asked — and he knew full well that Mr. Usherson was
required to appear in person. He just thought he could get away with it, either because the
Mediator would ratify the decision or because he thought the case would settle and no one would
care.
The second example of Mr. Liebowitz’s shifting and internally inconsistent explanations
is his “custom and practice” defense: that the Mediator, who had mediated five of his other cases,
had a “custom and practice” of allowing his clients to appear by telephone. Conspicuously, Mr.
Liebowitz did not even mention this defense in his first submissions and arguments to the Court
— that is, in the two letters he filed between Bandshell’s sanctions motion and the initial pretrial
conference; at the initial pretrial conference; or in his formal opposition to the sanctions motion
and his supporting declaration filed thereafter. The “custom and practice” defense appeared for
the first time in Mr. Liebowitz’s December 16th letter — a belatedness underscored by the fact
Liebowitz was bound by the Mediation Rules. The Court’s initial mediation order provided that Local Rule 83.9 “shall govern,” ECF No. 6, and Local Rule 83.9 provides, in relevant part, that the mediation program “shall be governed by” the Mediation Rules. 34 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 36 35 of of 62 61
that Mr. Freeman had to make an application at the outset of the hearing to expand the scope of
Mr. Liebowitz’s direct testimony to include it. Yet by the hearing’s end, it was arguably Mr.
Liebowitz’s principal defense; indeed, he and Mr. Freeman uttered the words “custom and
practice” or variations thereof at least fourteen times during the hearing. Once again, however,
the defense is an odd fit given Mr. Liebowitz’s initial and principal story: that he requested and
obtained the Mediator’s explicit consent. The defense might have been compelling if Mr.
Liebowitz’s claim was that he had assumed the Mediator’s consent. But the Mediator’s alleged
custom and practice do not shed any light on whether, as Mr. Liebowitz actually claimed, he
affirmatively consented. Moreover, once again, if Mr. Liebowitz assumed from his past dealings
with the Mediator that he already had the Mediator’s permission for Mr. Usherson to appear
telephonically, why ask for permission the night before and risk being told that he had to appear?
The answer, once again, is that Mr. Liebowitz did not do what he claimed he did. The “custom
and practice” defense is nothing more than an after-the-fact justification, conjured up by Mr.
Liebowitz when it became apparent that the Court was not inclined to buy into his initial story.
In short, the Court easily finds by clear and convincing evidence that Mr. Liebowitz lied
— repeatedly and under oath — by claiming that he sought and obtained the Mediator’s consent
for Mr. Usherson to participate in the mediation by telephone. Disturbingly, that misconduct is
also part of a broader pattern. See Steeger, 2018 WL 1363497, at *2 (noting that Mr. Liebowitz
has been “plagued” by a “pattern of omissions and misrepresentations”); see also Sands v. Bauer
Media Grp. USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 6324866, at *2 n.1 (S.D.N.Y. Nov.
26, 2019) (“Nor is this the only occasion on which Mr. Liebowitz has made an untrue statement
to a judge of this Court.”); Berger Tr. 14 (“Mr. Liebowitz has woven himself a very tangled web
35 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 37 36 of of 62 61
of lies.”); id. (“[T]he whole issue why I question Mr. Liebowitz’s fitness to practice is the
dishonesty and the failure to own up to the dishonesty and the doubling and quintupling and
octupling down on the dishonesty.”); Pereira v. 3072541 Can. Inc., No. 17-CV-6945 (RA), 2018
WL 5999636, at *3 (S.D.N.Y. Nov. 15, 2018) (“The Court finds particularly concerning Mr.
Liebowitz’s . . . propensity to take unreasonable positions and omit crucial facts — or even to
make outright misrepresentations — in an apparent attempt to increase costs and to extort
unwarranted settlements.”).5 In fact, Mr. Liebowitz’s conduct in this case is strikingly similar to
his conduct in Judge Seibel’s case, Berger. In both cases, Mr. Liebowitz’s travails began with a
comparatively minor infraction: there, his absence at a pretrial conference, and here, his client’s
absence from mediation. In both cases, rather than admit the truth and accept the consequences,
Mr. Liebowitz concocted a story: there, that his grandfather’s death prevented him from
appearing at the conference, and here, that the Mediator had granted consent. In both cases, he
dug his hole deeper by repeating his lies over and over, including under oath. See Berger Tr. 24-
27 (“[Mr. Liebowitz] knew he was lying; and he then chose to repeat that lie six, eight, ten
times.”). In both cases, he tried — without success — to make his problems go away by
5 Regrettably, there is reason to believe that Mr. Liebowitz’s pattern of lying continued unabated even after this Court’s January evidentiary hearing. On May 7, 2020, in a hearing before Magistrate Judge N. Reid Neureiter in the District of Colorado, Mr. Liebowitz testified under oath that he did not know “whether Judge Seibel had referred the contempt finding against him to a disciplinary body.” Mondragon, 2020 WL 2395641, at *10. But Mr. Liebowitz was present in court on November 13, 2019, when Judge Seibel explicitly stated that she had “made a referral to the grievance committee” of this Court and was “not going to withdraw it.” Berger Tr. 27; see also id. at 26 (“[T]his order of contempt, unfortunately, is going to follow Mr. Liebowitz wherever he goes in the future where he is asked, ‘Have you ever been held in contempt?’ because I am not going to vacate it.”). Moreover, as of May 11, 2020, Mr. Liebowitz had not taken the remedial steps — a continuing legal education course in small law firm management and mentorship by a lawyer experienced in copyright law — that he had promised Judge Seibel he would take. See Mondragon, 2020 WL 2395641, at *11. 36 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 38 37 of of 62 61
voluntarily dismissing the case before sanctions were imposed. And in both cases, he ultimately
sought to excuse his misconduct by invoking his relative youth and inexperience, his hefty
caseload, and poor case management practices. Berger Tr. 13; Hearing Tr. 81-82.
Mr. Liebowitz (through Mr. Freeman) wisely concedes that lying to the Court, repeatedly
and under oath, is “grounds for sanctions” against him. Hearing Tr. 132; see, e.g., Macolor,
2015 WL 1267337, at *4 (“Whatever the appropriate definition [of ‘bad faith’], making a false
statement with the intent to mislead the Court certainly meets that definition.”); Roberts v.
Bennaceur, 658 F. App’x 611, 615 (2d Cir. 2016) (summary order) (affirming discovery
sanctions and noting numerous “misrepresentations” and “inadequate explanations” that
demonstrated “bad faith throughout these proceedings”); see also Enmon, 675 F.3d at 146
(affirming sanctions based on “ample evidence” of “persistent misrepresentations” made in bad
faith). And, as discussed, there is ample evidence in this case that that is precisely what Mr.
Liebowitz did. Moreover, while Mr. Liebowitz’s failures to obey court orders can arguably be
explained (though not justified) by his relative inexperience, heavy caseload, and inadequate case
management practices, the same cannot be said for his dishonesty. See Berger Tr. 14 (“I am not
really super sympathetic to the notion that . . . somebody is young and inexperienced and
therefore unaware that it’s wrong to lie. We all learn that as children.”); see also Mondragon,
2020 WL 2395641, at *8 (“While many of Mr. Liebowitz’s failings seem to originate with his
massive caseload and corresponding inability to follow the rules and schedules of the numerous
different courts where he has cases pending, those failings also extend to what appears to be a
problem with truth-telling.” (emphasis added)). The simple fact is that Mr. Liebowitz has a
problem: He does not feel constrained by the truth and, when cornered, has no compunction
37 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 39 38 of of 62 61
about lying, even under oath. It follows that sanctions should be, and are, imposed.
C. Mr. Liebowitz’s False Allegation that the Photograph Was Registered Prior to the Suit and His Failure to Reasonably Investigate the Issue
Finally, the evidence clearly and convincingly shows that Mr. Liebowitz brought — and
maintained — this case in bad faith by willfully disregarding the fact that the case was fatally
flawed from its inception. As noted, under Section 411(a) of the Copyright Act, an infringement
action may not be filed “until . . . registration of the copyright claim has been made.” 17 U.S.C.
§ 411(a); see Rudkowski v. MIC Network, Inc., No. 17-CV-3647 (DAB), 2018 WL 1801307, at
*3 (S.D.N.Y. Mar. 23, 2018) (warning Mr. Liebowitz that “possession of a registration certificate
is a condition precedent to filing a copyright claim”). Paragraph 9 of the Complaint in this case
did allege that the Photograph was registered as part of the 046 Registration. But in the face of
irrefutable evidence to the contrary, Mr. Liebowitz now concedes — as he must — that that
allegation was false and that the Photograph was not registered until August 22, 2019, almost a
month and a half after the lawsuit was filed. Mr. Liebowitz has two responses to this
extraordinary revelation. First, he seeks to trivialize it by calling it a “technical pleading
deficiency” and suggesting that, but for the voluntary dismissal, he could have cured the problem
by amending the Complaint. ECF No. 63, ¶ 18; ECF No. 57, at 1-3. Second, throwing his own
client and a member of his administrative staff under the proverbial bus, he claims that he did not
know about the untimely registration. ECF No. 63, ¶¶ 4-9. Neither response is persuasive.
First, as a matter of law, Mr. Liebowitz is wrong in suggesting that he could have cured
the Section 411(a) violation through amendment. Mr. Liebowitz cites as support for that
suggestion a twenty-eight-year-old decision from this District. See ECF No. 57, at 2 (citing
Atkins v. Publ’ns Int’l, Ltd., No. 91-CV-7427 (KMW), 1992 WL 309581 (S.D.N.Y. 1992)). But
38 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 40 39 of of 62 61
that case predates Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, in which the
Supreme Court held that a “‘registration . . . has been made’ within the meaning of 17 U.S.C.
§ 411(a) not when an application for registration is filed, but when the Register has registered a
copyright after examining a properly filed application.” 139 S. Ct. 881, 892 (2019). In the wake
of that decision, this Court and others held that where a plaintiff “improperly filed suit before a
copyright was registered,” the suit “must be dismissed notwithstanding a plaintiff’s post-
registration amendment.” Malibu Media, 2019 WL 1454317, at *1; accord Pickett v. Migos
Touring, Inc., 420 F. Supp. 3d 197, 205 (S.D.N.Y. 2019); Xclusive-Lee, Inc. v. Hadid, No. 19-
CV-520 (PKC) (CLP), 2019 WL 3281013, at *4 (E.D.N.Y. July 18, 2019). Thus, Mr. Liebowitz
is just plain wrong in suggesting that the error was no big deal. Had the error been disclosed
while the lawsuit was pending, Bandshell would have been entitled to dismissal.
Notably, there is a strong argument that Mr. Liebowitz’s suggestion that he could have
cured the defect through amendment is itself made in bad faith. First, it is hard to believe that he
would be unaware of the recent law on that issue. His practice is devoted to copyright
infringement cases; in little more than four years, he has filed approximately 2,500 such cases
and, at the time of the mediation in this case, his firm had more than 400 such cases pending in
federal court. See Hearing Tr. 80-81; Sadowski v. Ziff Davis, LLC, No. 20-CV-2244 (DLC),
2020 WL 3397714, at *4 (S.D.N.Y. June 19, 2020). But assuming for the sake of argument that
Mr. Liebowitz does not keep up on developments in copyright law (which would be inexcusable,
but is nevertheless all too plausible), he was explicitly put on notice of the fact that an untimely
registration is not curable at the initial pretrial conference in this case, when Mr. Newberg first
raised the issue and noted that dismissal would be required if the Photograph was registered after
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the Complaint was filed, citing Fourth Estate and this Court’s holding in Malibu Media that a
premature filing “is a non-curable error.” Initial Conf. Tr. 17. Making matters even worse, Mr.
Liebowitz persisted in pressing the point even after Mr. Newberg, in his post-hearing letter,
explicitly noted that the suggestion was “incorrect,” citing Malibu Media and other precedent.
Compare ECF No. 58, at 2, with ECF No. 63, ¶¶ 18-19. These facts support an inference of bad
faith. See Gollomp v. Spitzer, 568 F.3d 355, 369 (2d Cir. 2009) (affirming a finding of bad faith
where plaintiff’s counsel had filed claims “that were clearly barred by the Eleventh
Amendment,” which “several courts had already instructed plaintiff’s counsel”); In re Gushlak,
No. 11-MC-218 (NGG), 2012 WL 2564523, at *3, *7-8, *10 (E.D.N.Y. July 2, 2012)
(concluding that an attorney acted unreasonably and in bad faith where he made “utterly
frivolous” legal arguments whose futility would have been revealed by “basic legal research or a
moment’s thought,” and then persisted in making the arguments even after they were refuted).
Mr. Liebowitz’s efforts to distance himself from responsibility for the untimely
registration and the false allegation in the Complaint, and his attempt to pin blame on either his
client or an administrative assistant at his firm, are similarly unavailing. For one thing, the
evidence clearly and convincingly shows that Mr. Liebowitz did know about the untimely
registration, at least as of August 22, 2019, when his firm registered the Photograph under the
272 Registration, if not earlier. Indeed, as Mr. Freeman explained at the January 8th hearing, the
firm increasingly files copyright registration applications itself “[s]o we know for sure it’s on
deposit.” Hearing Tr. 139-140. And that is what happened here: Sometime after July 10, 2019,
when the Complaint in this case was filed, Mr. Usherson sent the firm a CD-ROM containing all
of the photographs that he had not yet registered — including the Photograph — and Mr.
40 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 42 41 of of 62 61
Liebowitz’s firm proceeded to register them. ECF No. 62, at 4. The firm thus had knowledge
that the Photograph had not been registered prior to the filing of the Complaint. And it is hard to
believe that Mr. Liebowitz, as “lead counsel for Plaintiff” and the “founding member of
Liebowitz Law Firm,” ECF No. 63, at 1, was unaware of the fact himself. It is far more
plausible — indeed likely — that, upon receiving the Photograph from Mr. Usherson, Mr.
Liebowitz realized that it had not yet been registered and sought to quietly take care of the
problem, hoping that Bandshell and the Court would be none the wiser and he would escape
dismissal.
In any event, even if Mr. Liebowitz did not personally know that the Photograph had not
been registered when this case was filed, he certainly should have known — and his lack of
knowledge is attributable to an inexcusable failure to conduct a reasonable investigation before
and during the case. “An attorney ‘is entitled to rely on his or her client’s statements as to
factual claims when those statements are objectively reasonable.’ However, the attorney must
still engage in ‘an inquiry reasonable under the circumstances.’” Chien v. Skystar Bio Pharm.
Co., 256 F.R.D. 67, 75 (D. Conn. 2009) (Kravitz, J.), aff’d, 378 F. App’x 109 (2d Cir. 2010)
(quoting Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329 (2d Cir.1995), and Fed. R. Civ. P.
11(b)); see also Rabin v. Dow Jones & Co., Inc., 665 F. App’x 21, 23-24 (2d Cir. 2016)
(summary order) (affirming a finding of bad faith where counsel admitted that two allegations in
his complaint were “overstatement[s]” and that he “failed to conduct a good-faith investigation
into that evidence or to adjust the pleadings” and “sought to suppress the truth by withholding
relevant evidence,” until he was finally “confronted with evidence of dishonesty in his
deposition,” at which point he “dubiously claimed a bad memory”). Mr. Liebowitz engaged in
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no investigation at all despite the fact that he “had the ability . . . to double-check whether the
Photograph was part of the images that were included” in the 046 Registration using the CD-
ROM that Mr. Usherson had sent the firm. ECF No. 63, at 3. It is no answer to say, as Mr.
Liebowitz does, that he relied on his administrative assistant; Mr. Liebowitz is the lawyer who
signed the Complaint containing the affirmatively false allegation. Making matters worse, Mr.
Liebowitz and his firm received a second CD-ROM, which would have revealed that the
Photograph was not among those registered as part of the 046 Registration, and the firm then
registered the Photograph itself. And to top it off, at the initial pretrial conference in November
2019, Mr. Newberg specifically addressed the 272 Registration and raised doubts about whether
the Photograph had been timely registered — putting Mr. Liebowitz on notice of what turns out
to have been a fatal defect in the Complaint. Initial Conf. Tr. 17. Under these circumstances, it
was Mr. Liebowitz’s obligation to investigate whether the Photograph was properly registered.6
Nevertheless, Mr. Liebowitz and his firm conducted no investigation until after the
January 8, 2020 hearing and, even then, did so only because the Court ordered them to file a
letter addressing the issue and, when that did not clear things up, declarations. See ECF No. 64,
at 3, 5-6; ECF No. 63, at 4. In fact, Mr. Liebowitz actively stonewalled Mr. Newberg’s request
6 Mr. Liebowitz also argues that it was not his responsibility to confirm that the Photograph was properly registered because “the burden to retrieve a certified deposit copy from the U.S. Copyright Office rests upon the alleged infringer.” ECF No. 57, at 3. The cases he cites in support of that proposition, however, are inapposite because they involved challenges by defendants to the validity of an alleged registration. See, e.g., Goodman v. Univ. Beauty Prods., Inc., No. 17-CV-1716 (KBF), 2018 WL 1274855, at *5 (S.D.N.Y. Mar. 9, 2018) (concluding that the defendants “failed to proffer any evidence” in support of their argument at summary judgment “that the registration is deficient”). The argument also misses the point: Mr. Liebowitz personally signed and filed the Complaint, which contained what he now admits was a false allegation. It was his obligation to conduct a reasonable investigation to confirm the accuracy of the affirmative allegations to which he chose to sign his name, particularly after Mr. Newberg alerted him to the allegation’s falsity at the initial pretrial conference. 42 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 44 43 of of 62 61
for discovery on the issue at the initial pretrial conference, stating: “I don’t know what defense
counsel means about other registrations or other photographs. I will have to see what my office
did, but this is the correct registration.” Initial Conf. Tr. 17-18. It is hard to avoid the conclusion
that Mr. Liebowitz hoped to settle the case before the truth came to light. In fact, Mr. Freeman
himself conceded that the firm’s “custom and practice” had been to file suits without checking if
the works in question are actually registered to avoid “an additional expense,” at least until they
“believe that [they]’re going to proceed with the case to summary judgment.” Hearing Tr. 139.
Clearly hoping to settle the case before reaching that stage, Mr. Liebowitz argued to the Court at
the initial pretrial conference that “the appropriate thing to do at this stage is to just set discovery,
set the dates, and let the parties engage and hopefully during that process the parties could
eventually get to a settlement number.” Initial Conf. Tr. 18.
Once again, this misconduct is not unique to this case, but fits a broader pattern. In
another recent case, for example, Mr. Liebowitz filed suit alleging copyright infringement of a
photograph of musician Lou Reed, even though the alleged registration explicitly excluded
“previously published works” like the photograph. Rock, 2020 WL 468904, at *1. Mr.
Liebowitz nevertheless pressed the suit. When confronted about the registration issue, he
“produced no evidence that the Photograph was registered” and “actively stonewalled discovery
requests” for information about the alleged registration. Id. at *1, *3. Mr. Liebowitz also defied
Judge Carter’s order to obtain and produce any relevant deposit files from the Copyright Office.
Id. at *3. “After it became apparent that the Photograph was not registered,” Mr. Liebowitz
attempted to argue that the registration had “mistakenly” excluded the Photograph, without any
evidentiary support. Id. at *4. Judge Carter rejected the argument and concluded that “[t]his
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conduct — of failing to investigate the evidentiary basis for a Complaint, of stonewalling
discovery, of misleading the Court, and of making meritless arguments — undoubtedly
demonstrates bad faith.” Id. He therefore sanctioned Mr. Liebowitz and his firm $10,000. See
id. at *7.
As in Rock, the conduct of Mr. Liebowitz and his firm in this case “undoubtedly
demonstrates bad faith.” Rock, 2020 WL 468904, at *4. As a result of that bad faith, Mr.
Newberg and Bandshell had to bear the expense of defending a case that was fatally flawed from
its inception. And, as in Rock, when the truth came to light, Mr. Liebowitz feebly blamed the
false allegation in the Complaint on “clerical” or “administrative error.” ECF No. 57, at 3; ECF
No. 63, at 4. Mr. Liebowitz and his firm cannot escape responsibility so easily. Their willful
disregard of the registration requirement is part of their broader strategy to use the burdens of
litigation to extract settlements, even in frivolous or unmeritorious suits. See Otto v. Hearst
Comm’ns, Inc., No. 17-CV-4712 (GHW), 2020 WL 377479, at *3 & n.1 (S.D.N.Y. Jan. 23,
2020) (noting that “Otto and [Mr. Liebowitz, his counsel,] consistently and undeniably asserted
inflated values for Otto’s copyright” using “figures [that] were wholly unsupported by the
evidentiary record”). And by filing the lawsuit without conducting any investigation into the
truth or falsity of Paragraph 9 of the Complaint, and by maintaining the lawsuit and failing to
conduct any investigation even after being put on notice about a potential registration problem,
Mr. Liebowitz and his firm “multiplie[d] the proceedings . . . unreasonably and vexatiously.” 28
U.S.C. § 1927. It follows that sanctions are warranted on this basis, as well.
D. The Nature and Amount of the Appropriate Sanctions
So what sanctions should the Court impose? In deciding what sanctions to impose, the
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Court may consider the following factors, among others: “(i) whether the misconduct was the
product of intentional bad faith; (ii) whether and to what extent the misconduct prejudiced the
injured party; (iii) whether there is a pattern of misbehavior rather than an isolated instance;
(iv) whether and when the misconduct was corrected; and (v) whether further misconduct is
likely to occur in the future.” Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 394
(S.D.N.Y. 2010) (discussing the Court’s inherent authority to investigate and sanction frauds on
the Court). Sanctions should be “no more severe than reasonably necessary to deter repetition”
of the misconduct “or comparable conduct by similarly situated persons.” Macolor, 2015 WL
1267337, at *5 (internal quotation marks omitted).
If specific deterrence — that is, deterring Mr. Liebowitz from repeating his misconduct
— were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment)
would suffice. After all, his first lie in this case occurred only one day after he was dressed
down by Judge Seibel for repeatedly lying about his grandfather’s death, and despite a warning
from the Court to be “very, very, very careful” about what he said. Initial Conf. Tr. 7. And
thereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies over
and over, including under oath. (In fact, he arguably expanded upon his lies, concocting, after
the fact, his “custom and practice” excuse.) Even more troubling, as the discussion above makes
clear, Mr. Liebowitz’s misconduct in this case is part of a larger pattern that has led judges on
this court — and, as his practice has expanded to other districts, judges on other courts — to
chastise him, impose sanctions on him, and require his clients to post bonds to cover future
adverse awards of attorney’s fees and costs resulting from his misbehavior. The list of such
cases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order.
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And even that list is likely not exhaustive. For one thing, there may well be orders imposing
sanctions or requiring a bond that are not easily searchable on Westlaw or Lexis. For another, as
this case, the case before Judge Seibel, and this Court’s prior decision imposing sanctions in Rice
make clear, Mr. Liebowitz frequently drops his cases when the going gets tough and sanctions
are on the horizon. See Berger Tr. 25 (“[W]hen [Mr. Liebowitz] gets into hot water, he just
decides to kick the can down the road as long as he can: Try to drop the case, hope the judge will
go away.”); see, e.g., Ramales v. Alexander Wang Inc., No. 20-CV-0926 (DLC), ECF No. 32,
¶¶ 9-11 (S.D.N.Y. June 2, 2020) (opposing counsel’s declaration in support of a sanctions
motion stating that counsel had repeatedly requested licensing history from Mr. Liebowitz, who
first claimed he could not retrieve it “without a subpoena,” and then admitted that there was “no
licensing history and that his client was wrong,” at which point he settled the case and avoided
adjudication of the sanctions motion). Undoubtedly there are cases in which that tactic
succeeded and Mr. Liebowitz was never held to account. Thus, there may be no sanction short
of disbarment that would stop Mr. Liebowitz from further misconduct.
But because disbarment is an issue for the Grievance Committee, this Court is left with
the task of crafting a sanction that could conceivably deter Mr. Liebowitz from repeating his
misconduct again. Moreover, another purpose of sanctions is general deterrence — that is,
deterrence of “comparable conduct by similarly situated persons.” Macolor, 2015 WL 1267337,
at *5 (internal quotation marks omitted). In view of both considerations, it is plain that
substantial sanctions — a mix of monetary and non-monetary sanctions — are well justified. As
discussed above, much of Mr. Liebowitz’s misconduct was the product of intentional bad faith.
In addition, Bandshell and Mr. Newberg (who handled the case pro bono) incurred considerable
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expenses as a result of Mr. Liebowitz’s misconduct, having to defend against a lawsuit that was
flawed from its inception, having to appear at a mediation that was doomed from the start, and
having to litigate the issue of sanctions. Moreover, there is, to put it mildly, a long and
ignominious history of misbehavior by Mr. Liebowitz, and an enormous risk that he will
continue his pattern of misbehavior. And finally, Mr. Liebowitz never corrected his misconduct,
but rather repeated his lies under oath and, in the case of the false allegation regarding the
copyright registration, proffered unconvincing excuses. See Passlogix, 708 F. Supp. 2d at 394.
In light of that record, and the fact that prior efforts to deter him — including hefty fines, see,
e.g., Ward, 2020 WL 2219070, at *4 ($20,000), and sizeable awards of attorney’s fees and costs,
see, e.g., Craig, 2019 WL 2992043, at *4, *7 ($98,532.62) — were insufficient, substantial
sanctions are plainly warranted.
Additionally, the Court concludes that the same sanctions should be imposed on Mr.
Liebowitz and on his firm.7 Without question, an attorney’s actions may be attributed to his firm
for purposes of sanctions where the firm is small; the attorney is its founding partner and leader;
and, throughout the litigation, the attorney’s actions were indistinguishable from those of the
firm. See Enmon, 675 F.3d at 148; see also, e.g., Rock, 2020 WL 468904, at *4 (imposing
7 The Court declines to sanction Mr. Usherson himself, as “the sins of the lawyer” are not automatically “visited on the client,” and the evidence in the record does not clearly and convincingly demonstrate any bad-faith misconduct by Mr. Usherson. See, e.g., Ransmeier v. Mariani, 718 F.3d 64, 71 (2d Cir. 2013). If anything, Mr. Usherson was ill served by Mr. Liebowitz — who likely agreed to voluntary dismissal of Mr. Usherson’s claims in an effort to protect his own hide. If so, Mr. Usherson may in fact have a legal malpractice claim against Mr. Liebowitz. See Mondragon, 2020 WL 2395641, at *10 (characterizing Mr. Liebowitz’s testimony at the evidentiary hearing in this case, based on a review of the transcript, as “a damning self-indictment by a lawyer who has perfected a recipe for the regular commission of legal malpractice”); see also id. at *12 (finding that “Mr. Liebowitz regularly is committing legal malpractice”); id. at 13 (“Mr. Liebowitz . . . represents a clear and present danger . . . to the interests of his own clients.”). 47 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 49 48 of of 62 61
sanctions on Mr. Liebowitz and his firm jointly and severally); Craig v. UMG Recordings, Inc.,
No. 16-CV-5439 (JPO), 2019 WL 2992043, at *10 (S.D.N.Y. July 9, 2019) (same). That is
plainly the case here. Mr. Liebowitz admits that he is the “founding member of Liebowitz Law
Firm, PLLC,” ECF No. 63, ¶ 2; the firm is small, consisting of mostly staff and only a handful of
lawyers other than Mr. Liebowitz, including Mr. Freeman and Mr. Liebowitz’s sister; and
throughout this litigation, Mr. Liebowitz’s actions have been indistinguishable from those of his
firm, as evidenced by the fact that Mr. Freeman appeared at the November 14, 2019 initial
conference on behalf of both Mr. Liebowitz and the firm in connection with the sanctions
motion. What is more, in an effort to minimize his personal responsibility, Mr. Liebowitz
himself has repeatedly tried to place blame for some of his misconduct on his firm, as he did
most clearly with the false allegation in Paragraph 9 of the Complaint. See ECF No. 63, ¶¶ 4-
9. Accordingly, his actions may be attributed to the firm, and the sanctions that follow are
imposed jointly and severally on them both.
The Court begins with monetary sanctions. A“well-accepted” measure of sanctions for
“bad faith conduct that unnecessarily prolongs a proceeding and multiplies the expense incurred
by an adversary” is the opposing counsel’s attorney’s fees and costs. Homkow v. Musika
Records, Inc., No. 04-CV-3587 (KMW) (THK), 2009 WL 721732, at *25 (S.D.N.Y. Mar. 18,
2009); see also 28 U.S.C. § 1927 (expressly requiring that the offending party “satisfy personally
the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”).
Significantly, that is true even though the principal goal of sanctions is not to remedy harm to the
opposing side, but to deter repetition of the misconduct or comparable conduct by others. Thus,
courts have pegged sanctions to attorney’s fees and costs even where the opposing counsel did
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not actually receive fees. See, e.g., Dallas v. Goldberg, No. 95-CV-9076 (LTS) (RLE), 2003
WL 22872325, at *1 (S.D.N.Y. Dec. 5, 2003) (requiring the defendants to pay, as sanctions
under Rule 16 and the court’s inherent authority, “reasonable attorneys’ fees and expenses
incurred” even though the plaintiff’s lawyer had handled the case “on a pro bono basis at the
request of the Court”); see also Nat’l Lawyers Guild v. Att’y Gen., 94 F.R.D. 616, 618 (S.D.N.Y.
1982) (“[C]ourts have rejected the contention, in situations analogous to Rule 37 sanctions, that
plaintiffs represented on a pro bono basis are not entitled to attorneys’ fees, or should receive a
reduced amount.” (citations omitted)); cf. Centennial Archaeology, Inc. v. AECOM, Inc., 688
F.3d 673, 680 (10th Cir. 2012) (“The purpose of Rule 37 attorney-fee sanctions would be
thwarted if a party could escape the sanction whenever opposing counsel’s compensation is
unaffected by the abuse.”). But see Goldman v. Barrett, No. 15-CV-9223 (PGG), 2019 WL
4572725, at *7 n.9 (S.D.N.Y. Sept. 20, 2019) (expressing skepticism that “pro bono counsel is
entitled to be compensated at market rates in connection with a sanctions award” (internal
quotation marks and alterations omitted)).
Thus, the Court concludes that the reasonable attorney’s fees and costs Bandshell would
have incurred in connection with the mediation and the sanctions motion are an appropriate
measure of sanctions here. That is true even though Bandshell’s counsel handled the case pro
bono. And it is true even though Bandshell and Mr. Newberg disclaimed fees and costs when
agreeing to dismissal of the case and, thus, do not seek to recover the fees and costs for
themselves. Here, as set forth in an accounting submitted by Bandshell at the Court’s request,
fees would have come to $84,435 and costs did come to $1,423.99, for a total of $85,858.99.
ECF 56, at 2. The fees are based on Mr. Newberg’s hourly rate of $855 and his associate’s
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hourly rate of $420. See id.
When evaluating attorney’s fees, a court must determine whether the proposed fees are
“reasonable,” based on “a reasonable hourly rate and the reasonable number of hours required by
the case.” Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011). Given Mr.
Newberg’s experience, credentials, and position as a partner at McGuireWoods, and taking into
account “all of the case-specific variables . . . relevant to the reasonableness of attorney’s fees,”
Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009) (emphasis omitted), including
the fact that Mr. Newberg handled the case pro bono, the Court finds that his hourly rate is
reasonable. See, e.g., Rock, 2020 WL 468904, at *5. His associate’s rate, however, exceeds the
reasonable rate for an attorney with less than one year’s experience. See Tiffany & Co. v. Costco
Wholesale Corp., No. 13-CV-1041 (LTS) (DCF), 2019 WL 120765, at *10 (S.D.N.Y. Jan. 7,
2019) (finding that rates of “$315-$585 per hour for an associate (depending on experience)” are
reasonable). Thus, the Court reduces the associate’s hourly rate to $315 — a reduction of $105
per hour for 22.3 hours of work, for a total reduction of $2,341.50. The Court concludes that the
hours both attorneys worked and their costs were reasonable. That yields a total of $83,517.49 in
fees and costs attributable to the mediation and the sanctions motion. Thus, the Court orders Mr.
Liebowitz and his firm, jointly and severally, to pay to the Court $83,517.49 for misrepresenting
that the Mediator gave permission for Mr. Usherson not to attend the mediation in person and for
his multiple other violations of the Court’s Orders.
In addition, the Court orders Mr. Liebowitz and his firm, jointly and severally, to pay to
the Court $20,000 for falsely alleging that the Photograph was registered, not conducting a
reasonable investigation prior to filing the lawsuit and after being put on notice of the
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registration issue, and maintaining the suit thereafter. This type of misconduct is a self-avowed
“custom and practice” of the Liebowitz Law Firm, Hearing Tr. 139, and has undoubtedly
affected other cases, see, e.g., Rock, 2020 WL 468904, at *2 (“Plaintiff and his counsel knew, or
should have known, that the Photograph was not registered.”). Taking into consideration all of
the relevant factors, including Mr. Liebowitz’s stonewalling of any investigation into the
registration issue once it was raised by opposing counsel, the Court concludes that sanctions of
$20,000 are no greater than necessary to provide adequate deterrence, to Mr. Liebowitz, to his
firm. and to others similarly situated. See, e.g., Ward, 2020 WL 2219070, at *3-4 (imposing
$20,000 in sanctions for filing a lawsuit in bad faith and proceeding even after being notified that
venue was improper).
The Court imposes these sanctions, as well as the non-monetary sanctions discussed
below, pursuant to Rule 16, Section 1927, and the Court’s inherent authority. The Court finds
that, in total, these sanctions are “no more severe than reasonably necessary to deter repetition”
of the misconduct “or comparable conduct by similarly situated persons.” Macolor, 2015 WL
1267337, at *5 (internal quotation marks omitted); cf. Craig, No. 16-CV-5439, ECF No. 110
(sanctioning Mr. Liebowitz and his firm in the amount of $98,532.62 in attorney’s fees and
costs); Rock, 2020 WL 468904, at *4, *7 (granting attorney’s fees against Mr. Liebowitz’s client
totaling over $100,000, of which Mr. Liebowitz and his firm were responsible for $10,000). In
fact, if anything, the scope of Mr. Liebowitz’s misconduct, his overall record, and the fact that
the case was fatally flawed from its inception would have supported a larger monetary sanction.
In addition, the Court concludes that two types of non-monetary sanctions are warranted
to deter future misconduct. First, Mr. Liebowitz shall be required to serve a copy of this Opinion
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and Order on Mr. Usherson and every other current client of the Liebowitz Law Firm and to file
it on the docket of any pending case brought by Mr. Liebowitz or any attorney working for his
firm, as well as on the docket of any new case brought within one year from the date of the
Opinion and Order by Mr. Liebowitz or any attorney working for his firm. See In re Richard P.
Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 2-3 (N.D. Cal. June 12, 2020) (finding that
Mr. Liebowitz “has falsely held himself out as a member of this Court’s bar on multiple
occasions,” creating “good grounds for doubting that Liebowitz should be permitted to practice
in this District even on a pro hac vice basis,” and thus requiring Mr. Liebowitz to “submit a copy
of this Order in every open case in this District in which he has been admitted pro hac vice,” as
well as “with every future pro hac vice application he may file in this District between June 13,
2020, and June 13, 2021”); Gallop, 667 F.3d at 230 (requiring sanctioned counsel “for a period
of one year from the date of entry of this order, to provide notice of the sanctions imposed upon
him in this case . . . to any federal court in this Circuit before which he appears or seeks to
appear”). In addition, in any action that is filed within one year of the date of this Opinion and
Order by Mr. Liebowitz or any attorney working for the Liebowitz Law Firm that involves
allegations of copyright infringement, the complaint must include as an attached exhibit a copy
of the deposit files maintained by the U.S. Copyright Office reflecting the registration of the
relevant copyrighted work or works at issue. Cf. Gertskis v. N.Y. Dep’t of Health & Mental
Hygiene, No. 13-CV-2024 (JMF), 2014 WL 2933149, at *7 (S.D.N.Y. June 27, 2014) (requiring
that any future action be filed as an application for leave to file with a copy of the order imposing
sanctions for frivolous litigation); In re Martin-Trigona, 592 F. Supp. 1566, 1573 (D. Conn.
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1984) (Cabranes, J.) (entering a permanent injunction placing limits on new lawsuits in response
to a history of vexatious and harassing litigation).
Finally, the Court will send a copy of this Opinion and Order to the Chair of the Court’s
Grievance Committee to take whatever action the Committee deems appropriate. See Berger Tr.
27 (finding “this series of events serious enough to warrant . . . consideration” by the Grievance
Committee); Mondragon, 2020 WL 2395641, at *1, *14 (concluding that “steps should be taken
promptly by appropriate disciplinary authorities to suspend [Mr. Liebowitz’s] ability to file new
cases unless and until he has demonstrated he has appropriate systems in place to assure regular
compliance with court rules and rules of professional conduct”); cf. Konangataa v. Am. Broad.
Cos., No. 16-CV-7382 (LAK), No. 16-CV-7383 (LAK), No. 16-CV-7472 (LAK), 2017 WL
2684067, at *3 (S.D.N.Y. June 21, 2017) (noting that “defendants may pursue any claims of
professional misconduct on the part of plaintiff’s attorney [Mr. Liebowitz] before appropriate
disciplinary bodies”).
CONCLUSION
The Supreme Court has observed that “[m]embership in the bar is a privilege burdened
with conditions. An attorney is received into that ancient fellowship for something more than
private gain. He becomes an officer of the court, and, like the court itself, an instrument or
agency to advance the ends of justice.” In re Snyder, 472 U.S. 634, 644 (1985) (internal
quotation marks and alterations omitted). Further, “[a]s an officer of the court, a member of the
bar enjoys singular powers that others do not possess.” Id. at 644. In exchange for “[t]he license
granted by the court,” members of the bar must “conduct themselves in a manner compatible
with the role of courts in the administration of justice.” Id. at 645.
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In this case and others, Mr. Liebowitz and his firm have fallen far short of that standard
and failed to “conduct themselves in a manner compatible with the role of courts in the
administration of justice.” Id. at 645. Accordingly, and for the reasons stated above, the Court
concludes that sanctions must be imposed on Mr. Liebowitz and his firm, as follows:
(1) Within seven days of the date of this Opinion and Order, Mr. Liebowitz and his firm shall pay to the Clerk of Court sanctions totaling $103,517.49;
(2) By the same date, Mr. Liebowitz shall serve a copy of this Opinion and Order by overnight courier on Mr. Usherson and file proof of such service on ECF;
(3) Within thirty days of the date of this Opinion and Order, Mr. Liebowitz and his firm shall serve a copy of this Opinion and Order, either by email or by overnight courier, on every one of the firm’s current clients and Mr. Liebowitz shall file a declaration attesting to such service on ECF;
(4) By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of any currently pending case that was brought by Mr. Liebowitz or his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF;
(5) In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of the case within two days of filing the complaint or otherwise initiating the case; and
(6) In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm that involves allegations or claims of copyright infringement, the complaint shall include as an attached exhibit a copy of the deposit files maintained by the U.S. Copyright Office reflecting prior registration of the relevant copyrighted work or works at issue.
In addition, as noted above, the Court will send a copy of this Opinion and Order to the Chair of
the Court’s Grievance Committee to take whatever action the Committee deems appropriate.
The Clerk of Court is directed to terminate ECF No. 14.
SO ORDERED.
Dated: June 26, 2020 __________________________________ New York, New York JESSE M. FURMAN United States District Judge
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APPENDIX 1. Sadowski v. Ziff Davis, LLC, No. 20-CV-2244 (DLC), 2020 WL 3397714, at *4 (S.D.N.Y. June 19, 2020) (citing the fact that “Liebowitz regularly fails to comply with court orders . . . [and] has been repeatedly sanctioned” as a factor weighing in favor of requiring a bond to cover fees and costs, and noting that “[w]hile one can always hope that Liebowitz will comply with court orders in this case and conform his behavior to the standards of his chosen profession, it is difficult to be sanguine on this score given his track record”).
2. In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June 12, 2020) (finding that Mr. Liebowitz “has falsely held himself out as a member of this Court’s bar on multiple occasions,” even though he “never has been a member”; noting that his “unprofessional and blameworthy conduct” is “consistent with the extensive public record of discipline he has amassed in courts across the United States”; and concluding that there are “good grounds for doubting that Liebowitz should be permitted to practice in this District even on a pro hac vice basis”).
3. Ramales v. Alexander Wang Inc., No. 20-CV-0926 (DLC), ECF No. 32, ¶¶ 9-11 (S.D.N.Y. June 12, 2020) (declaration in support of a sanctions motion stating that opposing counsel repeatedly requested licensing history from Mr. Liebowitz, who first claimed he could not retrieve it “without a subpoena,” and then admitted that there was “no licensing history and that his client was wrong,” at which point he filed a notice of settlement at ECF No. 39 and avoided adjudication of the sanctions motion).
4. Geerds v. San Francisco Bay View Inc., No. 19-CV-6465 (JST), ECF No. 29 (N.D. Cal. June 10, 2020) (denying Mr. Liebowitz’s motion for admission pro hac vice in a case he filed in the Northern District on October 8, 2019, one day after he was disbarred in In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019)).
5. Polaris Images Corp. v. ENTtech Media Grp., LLC, No. 19-CV-8208 (KPF), 2020 U.S. Dist. LEXIS 97851, at *3 (S.D.N.Y. June 3, 2020) (finding that the Court could not award attorney’s fees under 17 U.S.C. § 505 against Mr. Liebowitz’s client because Mr. Liebowitz had filed a notice of voluntary dismissal before the Court ruled on the defendant’s motion to dismiss, and noting that “[t]he Court sympathizes with ENTtech’s frustration with Plaintiffs’ conduct, and is only too aware of the notoriety that Plaintiffs’ counsel, Richard Liebowitz, has obtained in this District”).
6. Alvarado v. Mother Jones, LLC, No. 19-CV-6417 (JST), ECF No. 25, at 2-4 (N.D. Cal. May 14, 2020) (denying Mr. Liebowitz’s motion to appear pro hac vice after finding that Mr. Liebowitz continues to “regularly” file and litigate cases in the Northern District of California following his order of disbarment in In re Richard P. Liebowitz).
7. Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1,
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*14 (D. Colo. May 11, 2020) (concluding that “Mr. Liebowitz’s continued practice of law represents a clear and present danger to the fair and efficient administration of justice, and steps should be taken promptly by appropriate disciplinary authorities to suspend his ability to file new cases unless and until he has demonstrated he has appropriate systems in place to assure regular compliance with court rules and rules of professional conduct,” and requiring that Mr. Liebowitz associate with a Colorado-based attorney with at least five years of experience, who must co-sign any filings in the case, and that Mr. Liebowitz file a copy of the sanctions order in all other cases he has filed in the District of Colorado or files in the following sixth months).
8. Chevrestt v. Barstool Sports, Inc., No. 20-CV-1949 (VEC), 2020 WL 2301210, at *2 & n.4 (S.D.N.Y. May 8, 2020) (sanctioning Mr. Liebowitz under Rule 16, and finding that his attempt to plead “administrative oversight” was “disingenuous, distasteful, unpersuasive, and likely perjurious,” noting that he filed twenty-five new cases during the time he allegedly was prevented from complying with the Court’s order to timely file proof of service).
9. Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *3 (S.D. Ill. May 7, 2020) (concluding that Mr. Liebowitz “likely filed this action as a bad faith, frivolous effort to harass [the defendant]”; imposing $20,000 in sanctions under the Court’s inherent authority; and noting that “Liebowitz’s conduct in this case has been irresponsible, unreasonable, and detrimental to the fair administration of justice, harming both [the defendant], the Court, and even his own client, who has lost his opportunity to advance what appears to have been a meritorious claim”).
10. Wisser v. Vox Media, Inc., No. 19-CV-1445 (LGS), 2020 WL 1547381, at *3, *6 (S.D.N.Y. Apr. 1, 2020) (imposing sanctions for various discovery violations, including affixing his client’s signature to interrogatory responses without authorization and without the client having even read the responses; and finding that “[c]lear evidence shows that Mr. Liebowitz’s and his firm’s actions . . . were so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose” (internal quotation marks omitted)).
11. Masi v. Mythical Entm’t, No. 19-CV-438 (FL), 2020 WL 1490704, at *1-2 (E.D.N.C. Mar. 24, 2020) (dismissing the case without prejudice for failure to comply with court orders because of Mr. Liebowitz’s refusal to cure a “litany” of filing deficiencies, which “mirrored numerous deficiencies in other cases before this court involving attorney Liebowitz,” in violation of the Court’s repeated warnings and orders).
12. Dermansky v. Tel. Media, LLC, No. 19-CV-1149 (PKC) (PK), 2020 U.S. Dist. LEXIS 44475, at *22 n.7, 24 (E.D.N.Y. Mar. 13, 2020) (citing Mr. Liebowitz’s “misleading conduct,” such as “cherry picking the few cases that support his maximum statutory damages request while ignoring the more numerous cases litigated by the same attorney awarding far less,” in past cases and the current case, and warning him that he may be subject to Rule 11 sanctions if he continues to engage in such conduct (internal quotation
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marks omitted)).
13. Rock v. Enfants Riches Deprimes, LLC, No. 17-CV-2618 (ALC), 2020 WL 468904, at *4, *7 (S.D.N.Y. Jan. 29, 2020) (granting attorney’s fees against Mr. Liebowitz’s client totaling over $100,000, $10,000 of which Mr. Liebowitz and his firm were responsible for as sanctions, and finding that Mr. Liebowitz’s “conduct — of failing to investigate the evidentiary basis for a Complaint, of stonewalling discovery, of misleading the Court, and of making meritless arguments — undoubtedly demonstrates bad faith”).
14. Otto v. Hearst Comm’ns, Inc., No. 17-CV-4712, 2020 WL 377479, at *3-4 (S.D.N.Y. Jan. 23, 2020) (denying Mr. Liebowitz’s motion for attorney’s fees because he and his client Otto “consistently and undeniably asserted inflated values for Otto’s copyright” that were “wholly unsupported by the evidentiary record”; and noting that “[t]he protection of copyright is an important value, but there is little benefit to the copyright law in rewarding Otto for prolonging litigation in pursuit of an unjustifiably inflated claim”).
15. Karavani v. Nooklyn, Inc., No. 19-CV-1588 (ENV) (RER), 2019 U.S. Dist. LEXIS 224199, at n.2 (E.D.N.Y. Dec. 13, 2019) (affirming the magistrate judge’s decision to require Mr. Liebowitz’s client to post a bond because “[t]he bond order was well founded . . . and was heavily buttressed [by] multiple recent cases where plaintiff’s attorney has been ordered to post a bond and been previously sanctioned for misconduct in similar circumstances”).
16. Sands v. Bauer Media Grp. USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 6324866, at *1-3 (S.D.N.Y. Nov. 26, 2019) (dismissing an action with prejudice because of Mr. Liebowitz’s client’s failure to post a bond to cover costs and attorney’s fees awarded to the opposing party because of Mr. Liebowitz’s “discovery abuse” and “failure . . . to comply with discovery obligations,” and noting that “[i]n his zeal to deny that he files suits to extort settlements,” Mr. Liebowitz stated falsely under penalty of perjury that his client did not make a settlement demand in this case, even though he plainly did at both the initial conference and in an email “from Mr. Liebowitz . . . in which Mr. Liebowitz himself proposed settling for $25,000”).
17. Berger v. Imagina Consulting, Inc., No. 18-CV-8956 (CS), 2019 WL 6695047, at *4 (S.D.N.Y. Nov. 1, 2019) (holding Mr. Liebowitz in contempt of Court, imposing sanctions of $500 per day he failed to comply with the Court’s orders, and ordering Mr. Liebowitz to appear and show cause on pain of “arrest by the United States Marshals Service” in connection with Mr. Liebowitz’s misrepresentation about the date on which his grandfather passed away, which he made in order to justify missing a discovery conference, and his refusal to provide documentation reflecting the actual date of passing — misconduct which would later be referred to the Southern District’s Grievance Committee).
18. Polaris Images Corp. v. CBS Interactive, Inc., No. 19-CV-3670 (VEC), 2019 WL
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5067167, at *3 (S.D.N.Y. Oct. 9, 2019) (imposing sanctions under Rule 16; concluding that “given the frequency with which Mr. Liebowitz commits ‘administrative errors,’ the undersigned is unconvinced that they are indeed good faith oversights”; and noting “Mr. Liebowitz’s continual disregard for this Court’s orders in multiple other cases”).
19. In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019) (ordering Mr. Liebowitz removed from the membership roll of the bar of the Court after he filed a case without being an active member of the state bar and submitted an explanation that was “not responsive and does not say anything at all about his membership in the State Bar of California”; and directing him to “disclose these [order to show cause] proceedings to any judge in this district before whom Liebowitz has a pending pro hac vice application”).
20. Craine v. Stylish Curves LLC, No. 19-CV-3995 (BMC), Text-Only Order (E.D.N.Y. Sept. 3, 2019) (sanctioning Mr. Liebowitz for failing to appear at an initial status conference or request an entry of default, as ordered by the Court; noting that Mr. Liebowitz “made no effort to even contact this Court” until more than a week after the deadline passed; and, after rescheduling the status conference, directing Mr. Liebowitz to “attend this conference personally, not send some other lawyer”).
21. Mango v. Democracy Now! Prods., No. 18-CV-10588 (DLC), 2019 U.S. Dist. LEXIS 123550, at *15 (S.D.N.Y. July 24, 2019) (concluding that “[t]he history of Liebowitz’s failure to comply with court orders counsels in favor of the imposition of an additional bond” on his client).
22. Rice v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *4-5 (S.D.N.Y. July 10, 2019) (imposing $8,745.50 in sanctions under Rule 16 and the Court’s inherent authority, and finding that Mr. Liebowitz’s “disobedience of the Court’s Orders — both the Orders requiring mediation and Liebowitz’s appearance on May 2 — was willful”).
23. Craig v. UMG Recordings, Inc., No. 16-CV-5439 (JPO), 2019 WL 2992043, at *4, *7 (S.D.N.Y. July 9, 2019) (holding Mr. Liebowitz and his firm jointly and severally liable for an attorney’s fees and costs award of $98,532.62, and “reaffirm[ing] [the Court’s] inference that Liebowitz acted in bad faith” in filing a frivolous motion).
24. Stelzer v. Lead Stories LLC, No. 19-CV-0473 (PAB) (KMT), 2019 WL 5095689, at *4 (D. Colo. July 3, 2019) (granting dismissal with prejudice as a sanction for repeated failures to comply with deadlines and court orders, including a failure to attend a scheduled conference, and noting that “Plaintiff’s counsel has previously been sanctioned in another district for similar behavior, which clearly has had no deterrent effect”).
25. Rice v. Musee Lingerie, LLC, No. 18-CV-9130 (AJN), 2019 U.S. Dist. LEXIS 111487, at *6 (S.D.N.Y. July 3, 2019) (noting that “Plaintiff’s attorney, Mr. Liebowitz, has previously been sanctioned by courts in this District for failure to comply with court orders and for filing misleading documents with the courts,” and ordering the imposition iv Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 60 59 of of 62 61
of a bond on his client because “Defendant here has a justified concern that Plaintiff, through his counsel, will evade court orders, or not proceed with this litigation prudently”).
26. Stridiron v. Cmty. Broads., LLC, No. 19-CV-108 (MAD) (ATB), 2019 U.S. Dist. LEXIS 103805, at *10-11 (N.D.N.Y. June 21, 2019) (noting that “like in the present matter, Mr. Liebowitz has regularly been found to have failed to comply with court orders,” and “courts in the Southern and Eastern Districts of New York have now begun to regularly require plaintiffs represented by Mr. Liebowitz to file bonds before proceeding further with his lawsuits, after a number of them were dismissed as frivolous from the bench or voluntarily dismissed by the plaintiff when it was made clear that the suits were subject to dismissal”).
27. Lee v. W Architecture & Landscape Architecture, LLC, No. 18-CV-5820 (PKC) (CLP), 2019 U.S. Dist. LEXIS 89335, at *12-13 (E.D.N.Y. May 28, 2019) (relying on “counsel’s history of violating court orders,” both “in this case” and in “other cases,” to impose a bond on Mr. Liebowitz’s client, and noting that “plaintiff has failed to timely file motion papers and failed to move this case forward”).
28. Dvir v. Dancing Astronaut, Inc., No. 18-CV-9416 (VEC), ECF No. 31, at 1, 6 (S.D.N.Y. May 22, 2019) (imposing sanctions under Rule 16 because “Mr. Liebowitz failed to comply with this Court’s order — communicated to him in-person, face-to-face, by the undersigned,” to be suspended for eighteen months in the “hopes” of deterring “Mr. Liebowitz’s future noncompliance with [the Court’s] orders”).
29. Otto v. Hearst Comm’ns, Inc., No. 17-CV-4712 (GHW) (JLC), 2019 WL 1034116, at *12 (S.D.N.Y. Feb. 21, 2019) (concluding that sanctions were not warranted “on the current record” for Mr. Liebowitz’s alleged misrepresentations during settlement negotiations, although it was “a close call,” and noting that “[t]his is hardly the first time that Liebowitz and his firm have had their reputation called into question, and the Court can only hope it will be the last”).
30. Pereira v. 3072541 Canada Inc., No. 17-CV-6945 (RA), 2018 WL 5999636, at *3 (S.D.N.Y. Nov. 15, 2018) (finding that “Mr. Liebowitz failed to follow this Court’s orders and rules in at least three ways,” although ultimately declining to impose monetary sanctions, and expressing concern over “Mr. Liebowitz’s repeated failures to follow the orders and rules of this Court and others within the district, as well as his propensity to take unreasonable positions and to omit crucial facts — or even to make outright misrepresentations — in an apparent attempt to increase costs and to extort unwarranted settlements”).
31. McDermott v. Monday Monday, LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018) (denying Mr. Liebowitz’s request for the Court to redact the term “copyright troll” from an opinion that described him as such because “[a]s evidenced by the astonishing volume of filings coupled with an astonishing rate of voluntary dismissals and quick settlements, it is undisputable that Mr. Liebowitz is v Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 61 60 of of 62 61
a copyright troll”).
32. Ferdman v. CBS Interactive Inc., 342 F. Supp. 3d 515, 529-30 (S.D.N.Y. 2018) (imposing discovery sanctions because “Plaintiff [represented by Mr. Liebowitz] has offered no explanation for his failure to produce copyright application-related materials during discovery,” and therefore denying Plaintiff’s motion for summary judgment because “there is a genuine issue of material fact as to whether the photographs that are the subject of Plaintiff’s infringement claim are included in the copyright registration”).
33. Seidman v. GAX Prods., LLC, No. 18-CV-2048 (RA) (BCM), ECF No. 23, at 3 (S.D.N.Y. Sept. 6, 2018) (sanctioning Mr. Liebowitz for serving unsigned interrogatory responses, “even after this Court expressly reminded [his client] of that obligation” in an order, and making arguments defending his actions that were “meritless as a matter of law”).
34. Leibowitz v. Galore Media Inc., No. 18-CV-2626 (RA) (HBP), ECF No. 18, at 6 (S.D.N.Y. July 11, 2018) (ordering Mr. Liebowitz’s client to post a bond in part because “defendant has a justified concern that plaintiff’s counsel, Richard P. Liebowitz, will evade court orders or voluntarily dismiss the action in an attempt to make plaintiff’s assets unreachable in the event costs are awarded to defendant”).
35. Romanowicz v. Alister & Paine, Inc., No. 17-CV-8937 (PAE) (KHP), ECF No. 24 (S.D.N.Y. June 22, 2018) (imposing monetary sanctions on Mr. Liebowitz after he “failed to attend the [inquest] hearing as ordered and failed to request an adjournment,” in addition to other violations of the Court’s orders).
36. Terry v. Masterpiece Adver. Design, No. 17-CV-8240 (NRB), 2018 U.S. Dist. LEXIS 104467, at *4-5 (S.D.N.Y. June 21, 2018) (rejecting Mr. Liebowitz’s argument that the Court should award $20,000 in damages without conducting any inquest as having “no basis in law” and being “constructed from whole cloth,” as previously ruled in the same case before Mr. Liebowitz “repeat[ed] [it] as part of this second motion”).
37. Steeger v. JMS Cleaning Servs., LLC, No. 17-CV-8013 (DLC), 2018 WL 1363497, at *2- 3 (S.D.N.Y. Mar. 15, 2018) (imposing monetary sanctions and a requirement that Mr. Liebowitz complete “four CLE credit hours in ethics and professionalism” in an effort to address Mr. Liebowitz’s “pattern of omissions and misrepresentations,” and noting that even Mr. Liebowitz’s motion for reconsideration of the sanctions order “continues the pattern”).
38. Reynolds v. Hearst Comm’ns, Inc., No. 17-CV-6720 (DLC), 2018 U.S. Dist. LEXIS 35453, at *12 (S.D.N.Y. Mar. 5, 2018) (“Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign [to which the plaintiff had voluntarily given the photograph at issue, and which then passed the
vi Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 62 61 of of 62 61
photograph along to the defendant], as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.”).
39. Janik v. SMG Media, Inc., No. 16-CV-7308 (JGK) (AJP), 2018 WL 345111, at *16 (S.D.N.Y. Jan. 10, 2018) (concluding that “the Liebowitz Law Firm made a total hash of discovery, requiring multiple court conferences,” and “there was a failure of counsel to adequately communicate and coordinate with the plaintiffs, let alone with opposing counsel and the Court,” and warning that “the Liebowitz Law Firm needs to consider its reputation with the Court and, frankly, clean up its act”).
40. Konangataa v. American Broad. Cos., Inc., No. 16-CV-7382 (LAK), No. 16-CV-7383 (LAK), No. 16-CV-7472 (LAK), 2017 WL 2684067, at *2-3 (S.D.N.Y. June 21, 2017) (granting attorney’s fees to Mr. Liebowitz’s adversary because “no reasonable lawyer with any familiarity with the law of copyright could have thought that [the use of work at issue] . . . was anything but fair,” and noting that “defendants may pursue any claims of professional misconduct on the part of plaintiff’s attorney before appropriate disciplinary bodies”).
vii | 2020-08-24 | [
"Case 1:20-cv-00881-RP Document 1-5 Filed 08/24/20 Page 1 of 62 NOTICE OF ORDER On June 26, 2020, in another action, the Honorable Jesse M. Furman of the United States District Court for the Southern District of New York entered an Opinion and Order directing that Mr. Liebowitz and LLF file a copy of that Opinion and Order in all currently pending cases. A copy of Judge Furman’s order is attached hereto. Mr. Liebowitz and LLF strongly contest Judge Furman’s factual findings and legal conclusions, and have appealed the Opinion and Order to the United States Court of Appeals for the Second Circuit. Dated: August 24, 2020 Valley Stream, New York Respectfully Submitted, LIEBOWITZ LAW FIRM, PLLC, /s/Richard Liebowitz Richard Liebowitz Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 21 of of 62 61 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------- X : ARTHUR USHERSON, : : Plaintiff, : 19-CV-6368 (JMF) : -v- : OPINION AND ORDER : BANDSHELL ARTIST MANAGEMENT, : : Defendant. : : ---------------------------------------------------------------------- X JESSE M. FURMAN, United States District Judge: Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017.",
"Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts. In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz’s misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath. He has been called “a copyright troll,” McDermott v. Monday Monday, LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist.",
"LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018); “a clear and present danger to the fair and efficient administration of justice,” Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May 11, 2020); a “legal lamprey[],” Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an “example of the worst kind of 1 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 32 of of 62 61 lawyering,” id.",
"at *3. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct — set forth in an Appendix here — would undoubtedly be longer. One might think that a lawyer with this record would tread carefully, particularly before a judge who had recently sanctioned him.",
"See Rice v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *4 (S.D.N.Y. July 10, 2019). But — as this case makes clear — not Mr. Liebowitz. In November of last year, Mr. Liebowitz appeared, in the company of a criminal defense lawyer, before another judge on this Court after being held in contempt for repeatedly lying, including under oath, about the date his own grandfather had died to justify his failure to attend a court conference. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956 (CS), ECF No. 62 (S.D.N.Y. Nov. 13, 2019) (“Berger Tr.”). The very next day, he appeared before the undersigned and — despite an explicit warning to be “very, very, very careful about the representations” he made in court — lied about his compliance with a court Order that had required an in-person mediation.",
"See ECF No. 50 (“Initial Conf. Tr.”), at 7. Making matters worse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during an evidentiary hearing. On top of that, he violated at least six court Orders. And to cap it off, defense counsel discovered only after incurring the expenses of litigating the case that the Complaint Mr. Liebowitz prepared and filed contained a false allegation — namely, that the photograph at issue in this case had previously been registered with the Copyright Office — that would have required dismissal of the lawsuit at its inception.",
"In the view of the undersigned, this misconduct, when viewed in light of Mr. Liebowitz’s 2 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 43 of of 62 61 deplorable record, confirms a conclusion that others have reached: that “steps should be taken promptly . . . to suspend his ability to file new cases,” at least until “he has demonstrated” that he can comply “with court rules and rules of professional conduct.” Mondragon, 2020 WL 2395641, at *1. But that is a question for another body — the Grievance Committee of this Court — and for another day.",
"The question for today is what sanctions, if any, this Court should impose on Mr. Liebowitz for his misconduct in this case. For the reasons stated below, the Court concludes that sanctions are amply justified, indeed all but required, and orders a mix of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Court also refers Mr. Liebowitz to the Court’s Grievance Committee to evaluate whether he should be allowed to continue practicing law in this District. BACKGROUND A. Mr. Liebowitz’s Initial Violations of the Court’s Orders Mr. Liebowitz, as counsel for Arthur Usherson, filed the Complaint in this case on July 10, 2019, alleging that Bandshell Artist Management (“Bandshell”) had infringed on Mr. Usherson’s copyright for a photograph of musician Leon Redbone (the “Photograph”).",
"ECF No. 1, at ¶ 1. Paragraph 9 of the Complaint alleges that, prior to suit being filed, “[t]he Photograph was registered with the United States Copyright Office and was given Copyright Registration Number VAu 1-080-046” (the “046 Registration”). Id. ¶ 9. Shortly after the Complaint was filed, the Court issued two Orders: one scheduling an initial pretrial conference for October 10, 2019, and one referring the case to the Court-annexed Mediation Program for early mediation. ECF Nos. 5-6.",
"More specifically, the mediation Order required the parties to conduct a mediation in accordance with the Mediation Program’s 3 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 54 of of 62 61 procedures “at least two weeks prior to the Initial Pretrial Conference” — that is, by September 26, 2019. ECF No. 6. In addition, to “facilitate prompt mediation,” Plaintiff was ordered to file proof of service of the summons and Complaint “no more than three days after service has been effected,” and to produce limited discovery relating to the licensing of the Photograph “by the earlier of 14 days after service of process or three business days in advance of any mediation session.” Id. Mr. Liebowitz failed to comply with these mandates. First, although the summons and Complaint were served on Bandshell on September 5, 2019, Mr. Liebowitz did not file proof of that service until September 21, 2019.",
"ECF No. 7. Second, he failed to produce the required discovery by September 19, 2019, fourteen days after service was made. When defense counsel followed up about the missing discovery, Mr. Liebowitz responded on September 20, 2019: “My client is still looking but as of now doesn’t look like any licensing for this photo.” ECF No. 16, at 12. Finally, Mr. Liebowitz failed to participate in mediation by September 26, 2019, two weeks before the initial pretrial conference originally scheduled for October 10, 2019. Instead, more than a week after the deadline passed, Mr. Liebowitz filed a letter in which he suggested that the mediation had not taken place because of a failure on the part of the Mediation Office to assign a mediator. See ECF No.",
"12. In the same letter, Mr. Liebowitz requested leave to hold a telephonic mediation on October 8, 2019, or an extension of the mediation deadline and adjournment of the initial pretrial conference. Id. In an Order dated October 7, 2019, the Court admonished Mr. Liebowitz for unfairly trying to place blame on the Mediation Office for his own failure to meet the mediation deadline. See ECF No. 13. The Court nevertheless concluded that “early mediation in the normal course 4 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 65 of of 62 61 (i.e., in person) makes sense.” Id. Accordingly, the Court adjourned the initial pretrial conference to November 14, 2019, and ordered, in no uncertain terms, that “[t]he parties shall conduct the in-person mediation no later than October 31, 2019.” Id. In an email exchange later that day, Bandshell’s counsel, Brad Newberg, asked Mr. Liebowitz “if any of October 11, 16, 28 or 31 work for the [sic] both of you and Mr. Usherson.” ECF No.",
"16, at 27. Mr. Liebowitz responded that “October 31st at 12pm works.” Id. The mediator (the “Mediator”) — a member of this Court’s mediation panel, but recruited by Mr. Liebowitz himself to mediate this particular case — approved the date and scheduled the mediation. ECF No. 39, at 2.1 On October 31, 2019, however, neither Mr. Liebowitz nor Mr. Usherson showed up at the mediation. Instead, Mr. Liebowitz sent two associates — James Freeman and Rebecca Liebowitz (Mr. Liebowitz’s sister). ECF No. 23, at 2. Neither had entered an appearance in this case. In fact, Mr. Liebowitz did not even tell Mr. Freeman about “the existence of this matter” until “about 8:00 p.m. on October 30, 2019,” the night before the mediation. Id. at 1. Ms. Liebowitz, moreover, was a “newly admitted” lawyer who was attending only “to ‘shadow’ Mr. Freeman and learn from the process.” ECF No. 24, at 1.",
"Mr. Freeman and Ms. Liebowitz spoke briefly with Mr. Newberg and Bandshell’s principal, who did attend in person, but no settlement was reached. The Mediator later attributed the failure to reach an agreement in part to “the lack of personal appearance[s]” by Mr. Liebowitz and Mr. Usherson. ECF No. 39, at 2. B. Bandshell’s Motion for Sanctions On November 6, 2019, approximately one week before the initial pretrial conference, 1 It is unusual — and arguably improper — for counsel on one side to recruit a mediator; in the normal course, to help ensure the mediator’s neutrality, the Mediation Office assigns the mediator.",
"But Bandshell consented to Mr. Liebowitz’s selection of the Mediator in this case, and the Mediation Office raised no objection to the selection. 5 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 76 of of 62 61 Bandshell moved for sanctions against Mr. Liebowitz and Mr. Usherson. ECF No. 14. Bandshell argued that Mr. Liebowitz and Mr. Usherson had violated the Court’s Orders regarding the mediation, pre-mediation discovery, and proof of service. ECF No. 15. Bandshell sought monetary sanctions “jointly against Plaintiff and its counsel,” including costs and attorney’s fees, as well as dismissal of the case. Id. at 13. In response, Mr. Liebowitz asserted — repeatedly — that he and Mr. Usherson had received approval in advance from the Mediator not to appear at the mediation in person. Mr. Liebowitz made this claim first in a joint letter filed shortly before the initial pretrial conference. See ECF No. 18-1. In that letter, Mr. Liebowitz claimed that the Mediator had “indicated that Plaintiff was permitted to appear telephonically under Rule 9F of the mediation program.” Id.",
"at 2. Notably, in the same section of the letter, Bandshell responded that “virtually everything in Plaintiff’s statement is false, and Defendant’s counsel has warned Plaintiff against filing a false statement regarding the scheduled mediation with the Court.” Id. Mr. Liebowitz doubled down in his next submission: his initial “response” to the sanctions motion, which took the form of a three-page letter (in violation of Local Rule 7.1, which requires that, with limited exceptions inapplicable here, opposition to a motion must be in the form of a memorandum of law). See ECF No. 19. To the extent relevant here, Mr. Liebowitz asserted in that letter that “[n]othing in the Court order or mediation rules states that lead counsel needs to attend the mediation.” Id. at 1. Rule 9(c) of the Mediation Program’s Procedures, however, provides explicitly that “[e]ach represented party must be accompanied at mediation by the lawyer who will be primarily responsible for handling the trial of the matter.” Rule 9(c), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) (“Mediation Rules”), 6 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 87 of of 62 61 available at https://www.nysd.uscourts.gov/sites/default/files/2019-12/Mediation%20Program %20Procedures.final_.2018.pdf. More significantly for present purposes, Mr. Liebowitz represented that Mr. Usherson had “obtained permission from the assigned mediator .",
". . to appear at the scheduled mediation by telephone provided that counsel was present in person.” ECF No. 19, at 2 (citing Rule 9(f) of the Mediation Rules, which allows “a party” who resides “more than 100 miles from the Courthouse” to participate in a mediation by telephone with the advance approval of the mediator). He further claimed that he had “told [the Mediator] that an associate of Liebowitz Law Firm with knowledge of the facts of the case would appear in- person, and [the Mediator] consented.” Id. C. The Initial Pretrial Conference On November 14, 2019, the Court held the initial pretrial conference. Mr. Liebowitz appeared on behalf of Mr. Usherson as “the attorney who will serve as principal trial counsel.” See ECF No. 5, at 1. Presumably in light of the pending sanctions motion, Mr. Freeman appeared, but only on behalf of Mr. Liebowitz and the Liebowitz Law Firm, PLLC. See Minute Entry (Nov. 14, 2019); see also ECF No. 66, Transcript of Jan. 8, 2020 Hearing (“Hearing Tr.”), at 18. Notably, the conference took place one day after Mr. Liebowitz had been dressed down by the Honorable Cathy Seibel for falsely — and repeatedly — representing to her, in some cases under oath, that he had failed to appear at a conference due to the death of his grandfather.",
"Those lies and Mr. Liebowitz’s repeated refusal to provide documentation regarding his grandfather’s death in violation of court orders had led Judge Seibel to hold Mr. Liebowitz in contempt; to fine him (initially $100 per day and later $500 per day of noncompliance); and to order him to appear on pain of “arrest by the United States Marshals Service.” Berger v. 7 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 98 of of 62 61 Imagina Consulting, Inc., No. 18-CV-8956 (CS), 2019 WL 6695047, at *3 (S.D.N.Y. Nov. 1, 2019). At the November 13th conference (to which Mr. Liebowitz was accompanied by a criminal defense lawyer), Judge Seibel chastised Mr. Liebowitz in no uncertain terms for his “multiple lies.” Berger Tr. 19-20, 25. Even then, he sought to minimize his misconduct, calling it an “honest mistake” — for which Judge Seibel took him to task. Id.",
"at 31-32 (“[T]his clearly was not an honest mistake; and even if it were at first, it very quickly became . . . a concerted campaign of deception.”). Judge Seibel advised that she “question[ed] Mr. Liebowitz’s fitness to practice,” not just because of his initial “dishonesty” about the date of his grandfather’s death, but because of his subsequent “failure to own up to the dishonesty and the doubling and quintupling and octupling down on the dishonesty.” Id. at 14. She rejected Mr. Liebowitz’s counsel’s request to vacate her contempt orders and referred the matter to the Court’s Grievance Committee. Id. at 27.",
"The very next day, appearing at the initial pretrial conference in this case, Mr. Liebowitz claimed that he had sought permission from the Mediator for Mr. Usherson, who lives in Georgia, to appear telephonically at the October 31, 2019 mediation and that the Mediator had “said yes.” Initial Conf. Tr. 6-7. Aware of the proceedings before Judge Seibel, the Court then stopped Mr. Liebowitz and warned him: “I want to caution you that you’re already in a lot of hot water in this Court, and I think you know that. In that regard, I would be very, very, very careful about the representations you make to me. If you prefer to let Mr. Freeman do the speaking, that is one thing, although they are still representations on your behalf.” Id. at 7. The Court then asked when Mr. Liebowitz had advised the Mediator that Mr. Usherson was not going to appear in person at the mediation, and the following colloquy occurred: 8 Case Case 1:20-cv-00881-RP 1:19-cv-06368-JMF Document Document1-5 68 Filed Filed08/24/20 06/26/20 Page Page10 of 61 9 of 62 Mr. Liebowitz: I don’t know the exact date, but it was before the mediation, and he said yes.",
"The Court: [By] what means did you do that? Mr. Liebowitz: It was telephone. The Court: And you personally advised him? Mr. Liebowitz: I personally. The Court: And he said that was okay? Mr. Liebowitz: He said that was okay. Id. at 7. The Court also heard from Mr. Freeman, who stated that he had “learned about the existence of the case at approximately 8:00 o’clock pm on October 30th, so it was the night before the mediation.” Id. at 9. Mr. Freeman represented that he “had no knowledge one way or the other as to what clearances were made in terms of telephonic appearances.” Id. Separate and apart from the issues surrounding the mediation, Mr. Newberg raised a question at the initial pretrial conference about whether the Photograph had actually been registered before the lawsuit was filed, as Paragraph 9 of the Complaint alleged. That was a matter of significance because Section 411(a) of the Copyright Act provides (with certain exceptions not relevant here) that “no civil action” for copyright infringement “shall be instituted until . . .",
"registration of the copyright claim has been made.” 17 U.S.C. § 411(a). In light of this requirement and a 2019 Supreme Court decision, this Court had held a few months before this case was filed that a suit filed pre-registration is fatally flawed and cannot be cured by “post- registration amendment” of the complaint, and thus must be dismissed. See Malibu Media, LLC v. Doe, No. 18-CV-10956 (JMF), 2019 WL 1454317, at *1 (S.D.N.Y. Apr. 2, 2019). Mr. Newberg advised that, the day before the initial conference, he had “discovered that after this 9 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 11 10 of of 62 61 case was filed, Mr. Usherson filed a copyright registration, which .",
". . seems to be on these photographs, so now it is unclear whether the registration in the complaint actually does cover the photograph or if it is the new copyright registration.” Initial Conf. Tr. 17. Recognizing that the case would have to be dismissed if the Photograph had not been registered before the Complaint was filed, Mr. Newberg requested “discovery purely on those aspects early.” Id. Mr. Liebowitz responded: “I don’t know what defense counsel means about other registrations or other photographs. I will have to see what my office did, but this is the correct registration.” Id. at 17-18. Mr. Liebowitz argued against limited discovery or early summary judgment on the registration issue, stating that “the appropriate thing to do at this stage is to just set discovery, set the dates, and let the parties engage and hopefully during that process the parties could eventually get to a settlement number.” Id. at 18, 22. D. Mr. Liebowitz Repeats His Mediation Claim — Again and Again Following the initial pretrial conference, the Court ordered Mr. Liebowitz to file a formal opposition to the motion for sanctions and directed both sides to address “whether the court should hold an evidentiary hearing and, if so, what witnesses should be called and how it should be conducted.” ECF No.",
"20, at 6. Mr. Liebowitz filed a formal opposition, but — disregarding the Court’s Order — he failed to address the evidentiary hearing. See ECF No. 21. Instead, he doubled down again (quadrupled down, perhaps) on his claim that Mr. Usherson had “obtained permission from the assigned mediator . . . to appear at the scheduled mediation by telephone provided that counsel was present in person” and that the Mediator had “consented to” Mr. Liebowitz’s associate appearing instead of Mr. Liebowitz. Id. at 2-3.",
"In support of his opposition, Mr. Liebowitz submitted a declaration, in which he stated “under penalty of perjury” 10 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 12 11 of of 62 61 that “I sought and received approval from . . . the assigned mediator for Mr. Usherson to attend the mediation via telephone and for my associate James Freeman to appear who had full knowledge of the case. I obtained [the Mediator’s] consent via telephone.” ECF No.",
"22, at 3. Mr. Freeman and Ms. Liebowitz also submitted declarations in connection with the opposition. ECF Nos. 23-24. Mr. Freeman confirmed that he did not learn of the “existence of this matter” until “about 8:00 p.m. on October 30, 2019.” ECF No. 23, at 1. Mr. Freeman further explained that Mr. Liebowitz had “notified [him] of the time/place of the mediation, sent [him] copies of the complaint and the most recent settlement agreement draft, informed [him] of the price agreed to and the outstanding non-monetary terms concerning right of publicity,” and “indicated that the case was likely to settle that evening but that if it didn’t, [he] should be prepared to attend the mediation in person.” Id. at 1-2. Notably, Mr. Freeman did not say that Mr. Liebowitz had ever mentioned getting approval from the Mediator for Mr. Liebowitz and Mr. Usherson not to be present. Nor did Ms. Liebowitz in her declaration.",
"See ECF No. 24. In connection with Bandshell’s reply, Mr. Newberg submitted another declaration. ECF Nos. 35-36. Mr. Newberg took issue with Mr. Liebowitz’s claims that he had secured advance approval from the Mediator for Mr. Usherson not to appear in person at the mediation and Mr. Freeman to attend on Mr. Liebowitz’s behalf, citing emails showing that, “even as late as October 30” — the night before the mediation — the Mediator and Mr. Newberg “were under the impression that Mr. Liebowitz (as lead and only admitted counsel) and Mr. Usherson would be at the mediation in person.” ECF No. 36, ¶ 9. Mr. Newberg noted that, because he was “concerned at what appeared to be false statements being made to the Court by Mr. Liebowitz,” he called the Mediator on November 19, 2019. Id. ¶ 21. According to Mr. Newberg, the 11 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 13 12 of of 62 61 Mediator said that there had been “other mediations where he allowed Mr. Liebowitz’s client to appear by phone, but he stated clearly and pointedly .",
". . that this was not one of them.” Id. ¶ 23 (emphasis in original). The Mediator allegedly also said that, on “the night of October 30,” Mr. Liebowitz had “called and informed him (without asking for approval) that Mr. Liebowitz was out of town and that Mr. Liebowitz’s associate would be at the mediation instead.” Id. ¶ 24. In that call, “no mention was made of Mr. Usherson at all.” Id. ¶ 25. The Mediator “only found out that Mr. Usherson would not be at the mediation” at the mediation itself. Id.",
"Prompted by these submissions, the Court issued a Memorandum Opinion and Order directing the Mediator to file a declaration “detailing any and all communications with Liebowitz regarding Liebowitz’s personal attendance at the mediation and Plaintiff’s participation by telephone in the mediation.” Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2019 WL 6702069, at *3 (S.D.N.Y. Dec. 9, 2019). More specifically, the Court instructed the Mediator to “specify whether (and if so, when and how) he gave Liebowitz permission (1) not to appear personally at the mediation (and to send an associate instead); and (2) for Plaintiff not to appear at the mediation in person and to appear by telephone instead.” Id. The next day, the Mediator submitted a declaration, which stated that, on October 30, 2019, he had “talked to Mr. Liebowitz and was informed that the mediation was on. He did not inform me that he would not personally appear but through an associate. But I have mediated a few prior mediations involving Mr. Liebowitz where on at least one occasion that office appeared by an associate without incident.” ECF No.",
"39, at 2. The Mediator further stated: “At no time was I informed that the plaintiff would not personally appear but would be available by telephone. I should say that in a few prior mediations his client appeared by telephone without incident. On this 12 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 14 13 of of 62 61 occasion no discussion was had by me as to client appearance.” Id. On December 16, 2019, Mr. Liebowitz filed a letter stating that he “contests certain statements proffered by the Mediator in his declaration.” ECF No. 41, at 1. Once again, Mr. Liebowitz asserted that he had “notified the Mediator that Mr. Usherson would be appearing telephonically and that such request was granted.” Id. at 3.",
"But the December 16th letter also proffered a new line of defense: that the Mediator in this case had a “custom and practice” of granting Mr. Liebowitz’s clients permission to appear telephonically at mediations. Id. at 1-2. Mr. Liebowitz cited five prior cases in which the Mediator had allegedly granted his clients permission to appear telephonically; in one of these five cases, he maintained, the Mediator also granted Mr. Liebowitz permission to send an associate on his behalf. Id. at 2. Mr. Liebowitz insisted: “This . . . corroborates Mr. Liebowitz’s testimony and establishes a ‘pattern or practice’ of conduct showing that Mr. Liebowitz harbored a good faith belief that the requisite permissions were granted by the Mediator in this case.” Id.",
"at 2. E. The Voluntary Dismissal and the Evidentiary Hearing In light of the factual disputes surrounding whether and when Mr. Liebowitz had obtained permission from the Mediator to send an associate in his place and to have Mr. Usherson participate by telephone, the Court determined that an evidentiary hearing was necessary. See ECF No. 42. On December 17, 2019, the Court issued an Order scheduling the hearing and directing Mr. Liebowitz, Mr. Newberg, and the Mediator to appear for testimony.",
"Id. Just two days later, Mr. Liebowitz filed a stipulation of voluntary dismissal signed by both parties, providing that the case “should be dismissed with prejudice with each side to bear its own costs and attorney’s fees.” ECF No. 45. In a letter filed the same day, Mr. Newberg noted 13 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 15 14 of of 62 61 that Bandshell had stipulated to Mr. Usherson’s “withdr[awal of] the . . . case with prejudice,” but pointedly noted that he and his client “would not have so stipulated” had his firm “not been representing [Bandshell] pro bono.” ECF No. 46.",
"The Court so-ordered the voluntary dismissal but retained jurisdiction “to adjudicate Defendant’s pending motion for sanctions and any other sanctions-related matters” and affirmed that the hearing would proceed as planned. ECF Nos. 47-48. The Court noted that dismissal did not moot the motion for sanctions — citing as support for that proposition a prior opinion in which the Court had imposed sanctions on Mr. Liebowitz despite a voluntary dismissal. ECF No. 47 (citing Rice, 2019 WL 3000808, at *4). On January 8, 2020, the Court held the evidentiary hearing, with Mr. Liebowitz, Mr. Newberg, and the Mediator appearing as witnesses. The Court treated the witnesses’ prior declarations as their direct testimony. This meant that Mr. Freeman, appearing on Mr. Liebowitz’s behalf, had to make an application to expand the record to include Mr. Liebowitz’s testimony on the “custom and practice” argument raised for the first time in the December 16th letter, as Mr. Liebowitz’s declaration (submitted on November 18, 2019) made no mention of it — underscoring the argument’s belated nature. Hearing Tr.",
"4-6. Mr. Freeman argued that if the Mediator did grant Mr. Liebowitz permission for his clients to appear telephonically on five prior occasions, “it could well be that the mediator simply forgot that he did so in this case . . . . Perhaps it didn’t register in his consciousness.” Id. at 4-5. The Court granted the application, and Mr. Liebowitz recounted that, in five prior cases, the Mediator had orally granted him permission to have his clients appear telephonically at the mediation; in one of those cases, he claimed, he “obtain[ed] permission for [his] associate to appear in [his] stead” as well. Hearing Tr. 7-11. On cross-examination, Mr. Liebowitz repeatedly adverted to the alleged “custom and 14 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 16 15 of of 62 61 practice” of the Mediator to allow parties to appear telephonically. See id. at 21, 31, 45, 46, 73, 75. But Mr. Liebowitz was also compelled to admit that, in one of those very cases, he himself had objected to the other party appearing telephonically on the ground that the rules of the Mediation Office required parties to appear in person.",
"Id. at 11-16; see Sadowski v. Seeking Alpha Inc., 18-CV-9193 (VM), ECF No. 21 (S.D.N.Y. May 1, 2019) (describing an email from Mr. Liebowitz to opposing counsel stating that the “rules of the mediation office requires [sic] parties to attend in person” (internal quotation marks omitted)). On the subject of his communications with the Mediator in this case, Mr. Liebowitz claimed that, at about 7:30 to 8:00 p.m. on October 30, 2019, the night before the mediation, he had called the Mediator from Los Angeles, California, and asked for permission for Mr. Usherson to appear by telephone from Georgia and for Mr. Freeman to appear as counsel. Hearing Tr.",
"21-22, 27, 45. Mr. Liebowitz testified that the Mediator had approved both requests. Id. at 21-22. Mr. Liebowitz acknowledged that he had made no record of the call and, indeed, that there was “[n]othing in writing” at all reflecting that the call had occurred. Id. at 42. When asked how he suddenly remembered that the telephone call had occurred on October 30th, when he could not remember the relevant date when asked at the November 14, 2019 initial pretrial conference (only two weeks after the events in question), Mr. Liebowitz responded that certain emails had jogged his memory — namely, emails that had been attached to Mr. Newberg’s initial declaration in support of the sanctions motion. Id. at 47-50. But Mr. Newberg’s initial declaration had been filed before the November 14th conference, and Mr. Liebowitz had actually responded to it in writing. (When pressed on that point, Mr. Liebowitz testified: “I often forget things.” Id.",
"at 50-52.) 15 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 17 16 of of 62 61 More troubling, Mr. Liebowitz’s account is not supported by the email trail. At 6:34 p.m. on October 30, 2019, Mr. Newberg emailed a proposed settlement agreement to the Mediator, and stated that unless Mr. Usherson “sign[ed] the agreement” that night, “we will see Mr. Liebowitz and Mr. Usherson tomorrow . . . at the mediation.” ECF No. 36 at 24. At 8:15 p.m., the Mediator replied: “Talked to Richard and he has been tied up. He will review tonight and get back to us in the morning.",
"Hopefully we can settle this before need [sic] to go to in person mediation.” ECF No. 16, at 32. Mr. Newberg responded: “I’m headed to the train station well before 6:00 am. And to be candid, I would have assumed Mr[.] Usherson either flew to NY tonight or is likewise on a very early plane.” Id. The Mediator said simply, “I understand.” Id. (email sent at 10:03 p.m.). In addition, at 4:12 a.m. on October 31, 2019, Mr. Liebowitz sent Mr. Newberg an email stating: “Attached please find revisions to the agreement which can be discussed at the mediation.” Hearing Tr. 67; see ECF No.",
"16, at 33. Mr. Liebowitz did not mention that he and Mr. Usherson did not plan to attend, let alone that they had the Mediator’s permission not to attend. Hearing Tr. 67. At no point, in fact, did Mr. Liebowitz notify opposing counsel that he and Mr. Usherson would not be attending. During Mr. Liebowitz’s testimony at the hearing, the Court asked him what he would have done had the Mediator denied his alleged requests on the night of October 30th.",
"Hearing Tr. 28. Mr. Liebowitz claimed that he and Mr. Usherson would have attended the mediation the next day in person. Id. at 28-32. But on the night of October 30th, Mr. Liebowitz was in Los Angeles hosting a “networking event” for photographers, and Mr. Usherson was at home in Georgia. Id. at 30. Mr. Liebowitz never booked any flights or checked when the last flight to New York from either location was. Id. at 28, 32, 46, 63. Nevertheless, he claimed that he had 16 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 18 17 of of 62 61 been prepared to book flights and fly overnight. Id.",
"When pressed about whether he had communicated this alleged plan to Mr. Usherson, Mr. Liebowitz equivocated: “Well, if he — if he — if he didn’t have to appear in person, then — then I would have just called him that day and know that he’s always around.” Id. at 40-41. It is clear, therefore, that Mr. Liebowitz did not advise Mr. Usherson that he might need to jump on a plane at a moment’s notice and appear in New York. It follows that Mr. Liebowitz had no way of knowing whether Mr. Usherson could have complied if asked to do so. Notably, Mr. Liebowitz’s testimony was in tension, if not direct conflict, with the representations of his own associate, Mr. Freeman. For example, Mr. Liebowitz claimed that he had told Mr. Freeman on October 30th that the Mediator had approved Mr. Liebowitz’s requests. Hearing Tr.",
"34-35, 38. But at the initial pretrial conference, Mr. Freeman advised the Court that he had not known what “clearances” were given. Initial Conf. Tr. 9. When confronted with this discrepancy, Mr. Liebowitz responded: “[P]eople forget things.” Hearing Tr. 38. Mr. Liebowitz also claimed that he had spoken with Mr. Freeman about the case on “numerous occasions” before October 30th. Id. at 32. But, as noted, Mr. Freeman repeatedly confirmed that he did not even know about the “existence” of the case before October 30th — a representation that he had reiterated in his sworn declaration, ECF No.",
"23, at 1, which Mr. Liebowitz himself had filed and even cited in Mr. Usherson’s opposition brief. See ECF No. 21, at 4, 6. (Despite that, Mr. Liebowitz claimed that he had not read Mr. Freeman’s declaration before filing the brief. Hearing Tr. 42-44.) Finally, to the extent relevant here, Mr. Liebowitz also took the position that he was never required to attend the mediation, as it was Mr. Freeman who was “the lawyer who will be 17 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 19 18 of of 62 61 primarily responsible for handling the trial of this matter.” Hearing Tr.",
"19; see Mediation Rule 9(c) (requiring that “[e]ach represented party must be accompanied at mediation by the lawyer who will be primarily responsible for handling the trial of the matter”). But Mr. Liebowitz acknowledged that Mr. Freeman had not even entered an appearance in this case and that he had never advised the Mediator or Mr. Newberg that Mr. Freeman was principal trial counsel. Hearing Tr. 17-18, 29. Moreover, he was forced to admit that the Court’s Order scheduling the initial pretrial conference had required “principal trial counsel” to attend “all pretrial conferences” and that he — not Mr. Freeman — had appeared on Mr. Usherson’s behalf at the initial pretrial conference. Hearing Tr. 17-20. Similarly, Mr. Liebowitz claimed that Mr. Usherson was also never required to attend the mediation because, in Mr. Liebowitz’s view, the Court’s Order requiring “in-person” mediation referred only to the attorneys, “[n]ot parties.” Id. at 59-60.",
"When asked why, then, he had bothered to confirm that he and Mr. Usherson could be in New York on October 31st, and later asked the Mediator to excuse his and Mr. Usherson’s attendance, Mr. Liebowitz responded that he “wanted to double — double — you know, just cover myself.” Id. at 35-36, 62. Mr. Newberg and the Mediator then testified. Mr. Newberg recalled the Mediator saying at the mediation that he had been “notified” that Mr. Liebowitz would not be coming and would be sending an associate instead. Hearing Tr. 87. He testified that he was not “100 percent sure[]” whether the Mediator said “I did not grant permission.” Hearing Tr. 87. But Mr. Newberg did recall the Mediator saying that Mr. Usherson was “expected . . . to be there.” Id. at 85.",
"Finally, the Mediator testified that he could not recall whether Mr. Liebowitz had mentioned that Mr. Freeman would be appearing instead of Mr. Liebowitz. Id. at 99-100. The Mediator 18 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 20 19 of of 62 61 acknowledged that, at some point prior to the mediation, he had realized that Mr. Liebowitz was in Los Angeles and likely would not be attending the mediation in person. Id. at 97-98. The Mediator was clear, however, that he did not give permission for Mr. Usherson to appear by phone. Id. at 107-08. The Mediator spoke with Mr. Liebowitz several times on October 30, 2019, the last of which was right before the Mediator emailed Mr. Newberg at 8:15 p.m. Id. at 96, 102. The Mediator stated that, during these conversations, Mr. Liebowitz never even mentioned the possibility of Mr. Usherson’s appearing by telephone.",
"Id. at 100 (“Mr. Usherson[] . . . was just not part of the conversation.”), 117. The first time the Mediator learned that Mr. Usherson would not be coming was “[w]hen the mediation started.” Id. at 103, 105. F. Bandshell Discovers That the Photograph Was Registered After This Case Was Filed At the close of the hearing, the Court heard brief oral argument. Among other things, Mr. Newberg clarified that, in light of stipulation of voluntary dismissal stating that “each side” was “to bear its own costs and attorney’s fees,” ECF No. 45, neither he nor Bandshell was seeking to recover attorney’s fees or costs. Hearing Tr. 130. Mr. Newberg explained that if fees and costs were used as a measure of the sanctions to be imposed, Mr. Liebowitz should be directed to pay the Court or “some sort of legal aid pro bono fund.” Id. Mr. Newberg then returned to the question of whether the Photograph had been registered before Mr. Liebowitz filed the Complaint as required by Section 411(a) of the Copyright Act.",
"Mr. Newberg revealed that he had just received the Copyright Office’s deposit files for the 046 Registration and confirmed that the Photograph was not in fact registered under that number. Hearing Tr. 127. In response, Mr. Freeman admitted that it is the regular practice of the Liebowitz Law Firm to file copyright infringement cases without verifying that the works in 19 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 21 20 of of 62 61 question are properly registered, because of the “additional expense.” Id. at 139. Mr. Freeman stated that “[t]he client will say to us, ‘This photograph is on deposit with this registration.’ And we take them for their word.” Id. at 141. Mr. Freeman stated that, in this case, Mr. Usherson had “represented to us that he” had registered the Photograph. Id. at 140. Mr. Freeman further stated that, prior to filing the Complaint, the firm had checked on the Copyright Office’s website “that Mr. Usherson was the copyright claimant in that particular case.” Id.",
"In light of these revelations, the Court ordered both sides to file letter-briefs addressing the issue and ordered Mr. Newberg to serve a copy of the deposit files on Plaintiff. ECF No. 52. In his letter, Mr. Liebowitz admitted that “Paragraph 9 of the Complaint” was “inaccurate” because the Photograph was not, in fact, registered “as part of the 046 Registration.” ECF No. 57, at 1. Mr. Liebowitz disclosed that his firm had registered the Photograph under registration number VAu 1-373-272 (the “272 Registration”), but not until August 22, 2019 — more than a month after the Complaint in this case was filed. Id. Mr. Liebowitz attributed the false statement in the Complaint to “clerical error,” noted that “administrative mistakes or clerical errors do happen in the copyright registration process,” and insisted that, but for dismissal of the case, Mr. Usherson could have cured the problem by amending the Complaint.",
"Id. at 1, 3. In Bandshell’s response, Mr. Newberg reminded the Court that, at the initial pretrial conference, Mr. Liebowitz had denied any knowledge of “other registrations or other photographs.” ECF No. 58, at 3. Mr. Newberg argued that Mr. Liebowitz’s new explanation thus “defie[d] belief.” Id. at 1. Mr. Newberg also pointed out that Mr. Liebowitz had incorrectly asserted that “the failure to obtain a registration prior to filing suit provides grounds to amend the complaint,” ECF No. 57, at 1, citing this Court’s decision in Malibu Media holding that premature filing 20 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 22 21 of of 62 61 necessitates dismissal. ECF No.",
"58, at 2. Upon review of these submissions, the Court ordered Mr. Liebowitz, Mr. Freeman, and Mr. Usherson himself to submit declarations addressing the registration of the Photograph and the alleged “administrative mistake.” ECF No. 59. In his declaration, Mr. Freeman admitted that the Photograph was registered by the Liebowitz Law Firm after the Complaint was filed but claimed that he had “no personal knowledge of this administrative mistake until after the January 8, 2020 hearing.” ECF No. 64, at 6. Mr. Freeman explained his representations at the close of the January 8th hearing by saying (not altogether convincingly) that he had been speaking based on his “general knowledge of [the Liebowitz Law Firm’s] custom and practices.” Id. at 4-5 (emphasis in original). Mr. Usherson averred that he had “identifi[ed] the 046 Registration” when he “authorized Mr. Liebowitz to file a copyright infringement action.” ECF No.",
"62, at 4. But Mr. Usherson also stated that, before the Complaint was filed, he had provided to the Liebowitz Law Firm a CD-ROM containing all of the photographs in the 046 Registration. Id. at 3. The Photograph was not among them. Then, “[s]ometime after” the lawsuit was filed, Mr. Usherson provided the firm with a CD-ROM containing thirty additional photographs, including the Photograph, which the firm registered in the 272 Registration. Id. at 4. Finally, Mr. Liebowitz admitted that he had conducted no investigation into whether the Photograph was properly registered before filing the Complaint, even though he and his firm “had the ability as of June 2019 to double-check whether the Photograph was part of [the] images that were included on a CD-Rom that Mr. Usherson had previously sent.” ECF No. 63, at 3.",
"Instead, Mr. Liebowitz relied solely on an entry in the firm’s internal case-tracking system, which noted that the Photograph was “associated with the 046 Registration.” Id. at 2-3. This 21 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 23 22 of of 62 61 entry was made by “a member of [the firm’s] administrative staff, Zachary Cuff.” Id. Mr. Liebowitz also stated that he had no role in filing the 272 Registration, which was performed by his firm’s “internal staff at the request of Mr. Cuff.” Id. at 4.",
"Mr. Liebowitz claimed that he did not realize the Photograph was not properly registered — which he described as a “technical pleading deficiency” — until “subsequent to the January 8, 2020 hearing.” Id. at 4-5. LEGAL STANDARDS “Sanctions may be authorized by any of a number of rules or statutory provisions, or may be permissible on the basis of the court’s inherent powers.” Sakon v. Andreo, 119 F.3d 109, 113 (2d Cir. 1997). Three forms of sanctions are particularly relevant here.",
"First, Rule 16(f) of the Federal Rules of Civil Procedure authorizes sanctions for, among other things, the “fail[ure] to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C); see, e.g., Rice, 2019 WL 3000808, at *3 (imposing sanctions on Mr. Liebowitz for violations of Rule 16(f)). “In deciding whether a sanction is merited [under Rule 16(f)], the court need not find that the party acted in bad faith.” Huebner v. Midland Credit Mgmt., Inc., 897 F.3d 42, 53 (2d Cir. 2018) (internal quotation marks omitted). Instead, the Court need only find that there is clear and convincing evidence that counsel disregarded a clear and unambiguous scheduling or other pretrial order. See id.",
"(“The fact that a pretrial order was violated is sufficient to allow some sanction.” (internal quotation marks omitted)). Second, “district courts have the inherent power” to sanction a party “for bad faith conduct violating the court’s orders even if procedural rules exist which sanction the same conduct.” S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (internal quotation marks omitted); see also Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991) 22 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 24 23 of of 62 61 (“[N]either is a federal court forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or the Rules.”); Rice, 2019 WL 3000808, at *3-4 (imposing sanctions on Mr. Liebowitz pursuant to the Court’s inherent authority).",
"A court may impose sanctions under its inherent authority if “it finds, by clear and convincing evidence, that the party or attorney knowingly submitted a materially false or misleading pleading, or knowingly failed to correct false statements, as part of a deliberate and unconscionable scheme to interfere with the Court’s ability to adjudicate the case fairly.” Braun ex rel. Advanced Battery Techs., Inc. v. Zhiguo Fu, No. 11-CV-4383 (CM) (DF), 2015 WL 4389893, at *17 (S.D.N.Y. July 10, 2015); see also Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 114 (2d Cir. 2009) (conditioning sanctions based on a court’s inherent authority on “clear evidence that the conduct at issue is (1) entirely without color and (2) motivated by improper purposes”). Under this “inherent power a court may assess attorney’s fees as a sanction.” Chambers, 501 U.S. at 45. To warrant an award of attorney’s fees, the Court must find that the wrongdoer acted in bad faith or that he willfully disobeyed the Court’s orders. See id.",
"at 50. Finally, under 28 U.S.C. § 1927, a district court may award attorney’s fees against an attorney who “multiplies the proceedings in any case unreasonably and vexatiously.” The standard for sanctions under Section 1927 is effectively the same as the inherent-authority standard: A court must find that “(1) the challenged claim was without a colorable basis and (2) the claim was brought in bad faith.” Enmon v. Prospect Capital Corp., 675 F.3d 138, 143 (2d Cir.",
"2012) (internal quotation marks omitted); see United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991) (“Bad faith is the touchstone of an award under [Section 23 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 25 24 of of 62 61 1927].”). Indeed, as the Second Circuit has explained, “[i]n practice, the only meaningful difference between an award made under § 1927 and one made pursuant to the court’s inherent power is . . . that awards under § 1927 are made only against attorneys . . . while an award made under the court’s inherent power may be made against an attorney, a party, or both.” Enmon, 675 F.3d at 144 (internal quotation marks omitted). To impose sanctions under Section 1927, a court must make factual findings with a “high degree of specificity,” Dow Chem. Pac. Ltd. v. Rascator Mar.",
"S.A., 782 F.2d 329, 344 (2d Cir. 1986) (internal quotation marks omitted), but it may infer bad faith when counsel’s “actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose,” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999) (internal quotation marks omitted).2 Sanctions on any of these grounds may be imposed by the Court sua sponte. See Fed. R. Civ. P. 16(f)(1) (noting that the Court may impose sanctions “[o]n motion or on its own”); Chambers, 501 U.S. at 43-44 (inherent authority); Gallop v. Cheney, 642 F.3d 364, 370 (2d Cir.",
"2011) (Section 1927). Thus, the Court may sanction misconduct that occurred during this case without regard for what Bandshell argued in its sanctions motion and notwithstanding the fact 2 Rule 11 of the Federal Rules of Civil Procedure is arguably another source of authority for sanctions in this case. See, e.g., S.E.C. v. Smith, 710 F.3d 87, 97 (2d Cir. 2013) (“Under Rule 11(c)(3) . . . sanctions are appropriate when an individual has made a false statement to the court and has done so in bad faith.”). Under Rule 11, however, “[t]he court must not impose a monetary sanction .",
". . on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.” Fed. R. Civ. P. 11(c)(5)(B). That limitation arguably does not apply here, as the voluntary dismissal was filed and so-ordered after Bandshell had filed a motion for sanctions and the Court had scheduled an evidentiary hearing to determine if Mr. Liebowitz’s representations to the Court were truthful. But the Court need not decide whether Rule 11 would be a valid basis for sanctions because Rule 11(c)(5)(B)’s limitation does not apply to the Court’s authority to impose sanctions under its inherent authority, Section 1927, or Rule 16(f), see Rice, 2019 WL 3000808, at *5, and those bases suffice.",
"24 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 26 25 of of 62 61 that the parties entered a stipulation of dismissal in which Bandshell agreed to bear its own fees and costs. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395-96 (1990); Steeger v. JMS Cleaning Servs., LLC, No. 17-CV-8013 (DLC), 2018 WL 1363497, at *3 (S.D.N.Y. Mar. 15, 2018). Further, the Court may impose sanctions pursuant to Rule 16, its inherent authority, and Section 1927 on the lawyer engaging in misconduct, the lawyer’s firm, or both. See, e.g., Rice, 2019 WL 3000808, at *2; see also Enmon, 675 F.3d at 148 (affirming sanctions imposed pursuant to Section 1927 and the district court’s inherent authority on both an attorney and his firm where the attorney “was a founding, named partner of a firm that .",
". . had ten or fifteen lawyers during the relevant time period” and “[t]hroughout the litigation, [the attorney’s] actions were indistinguishable from those of [the firm]”). Pursuant to its inherent authority, the Court may also impose sanctions on a party. See, e.g., Enmon, 675 F.3d at 144-45. Ultimately, the decision whether to impose sanctions is left to the Court’s discretion. See, e.g., Macolor v. Libiran, No. 14-CV-4555 (JMF), 2015 WL 337561, at *2 (S.D.N.Y.",
"Jan. 23, 2015). DISCUSSION Applying the foregoing standards here, the Court concludes that a range of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm, including referral of Mr. Liebowitz to the Grievance Committee, are amply justified. Sanctions are appropriate for (1) Mr. Liebowitz’s repeated violations of the Court’s Orders; (2) Mr. Liebowitz’s repeated lies to the Court, including under oath, about whether the Mediator granted Mr. Usherson permission to participate in the mediation by telephone; and (3) the false allegation in the Complaint regarding registration of the Photograph and the failure to reasonably investigate the issue, both prior to filing suit and when put on notice about the issue during the litigation. 25 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 27 26 of of 62 61 The Court will address each basis for sanctions in turn.",
"A. Mr. Liebowitz’s Repeated Violations of the Court’s Orders The Court starts with the lowest hanging fruit: Mr. Liebowitz’s repeated violations of the Court’s Orders. Indeed, it is essentially undisputed, and for good reason, that Mr. Liebowitz violated at least six of the Court’s Orders: 1. On July 15, 2019, the Court ordered Mr. Usherson to “file proof of service no more than three days after service has been effected.” ECF No. 6. Bandshell was served on September 5, 2019, but Mr. Liebowitz did not file proof of service until September 21, 2019, thirteen days after the Court’s deadline. ECF No. 7. 2. On July 15, 2019, the Court also ordered Mr. Usherson to produce limited discovery to Bandshell “by the earlier of 14 days after service of process or three business days in advance of any mediation session.” ECF No. 6. Mr. Liebowitz failed to produce these materials (or to notify Mr. Newberg that none of the required discovery existed) by the September 19, 2019 deadline. Only when Mr. Newberg prodded him on September 20, 2019, did Mr. Liebowitz respond: “My client is still looking but as of now doesn’t look like any licensing for this photo.” ECF No. 16, at 12.",
"3. On July 15, 2019, the Court scheduled an initial pretrial conference and ordered that “all pretrial conferences must be attended by the attorney who will serve as principal trial counsel.” ECF No. 5, at 1. In addition, the Mediation Program’s rules (which were incorporated by reference into the Court’s Order at ECF No. 6), required that “the lawyer who will be primarily responsible for handling the trial of the matter” attend the mediation. Mediation Rule 9(c). Mr. Liebowitz attended the initial conference but did not attend the mediation on October 31, 2019. At the evidentiary hearing, Mr. Liebowitz was evasive about whether he or Mr. Freeman was trial counsel (even though Mr. Freeman never even entered a notice of appearance), but either way Mr. Liebowtiz violated an Order of the Court: If he was principal trial counsel, he violated the Court’s Order by failing to appear at the mediation; if he was not principal trial counsel, then he violated the Court’s Order by appearing at the initial conference.",
"4. On July 15, 2019, the Court ordered that Mr. Liebowitz and Mr. Usherson participate in mediation “no later than two weeks before the initial pretrial conference,” initially scheduled for October 10, 2019. ECF No. 5, at 1 (emphasis in original). Neither did, and Mr. Liebowitz did not request an extension of the mediation deadline at least forty-eight hours in advance, as required by the Court’s Individual Rules. Instead, on October 4, 2019, Mr. Liebowitz filed a letter attempting (at best, disingenuously) to pin blame onto the Mediation Office for the missed deadline and requesting permission to conduct the mediation by telephone. See ECF No. 12. 26 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 28 27 of of 62 61 5.",
"On October 7, 2019, the Court extended the deadline to mediate, and ordered that “[t]he parties shall conduct the in-person mediation no later than October 31, 2019.” ECF No. 13. Further, as discussed below, the Mediation Office’s procedures required that Mr. Usherson appear at the mediation in person. Mr. Liebowitz agreed that he and Mr. Usherson would participate in a mediation session on October 31, 2019, ECF No. 16, at 27, but neither showed up. As discussed below, Mr. Liebowitz gave no notice to opposing counsel, the Mediator, or the Court that Mr. Usherson would not be attending in person.",
"6. On November 15, 2019, the Court ordered both parties to address in their sanctions briefing “whether the Court should hold an evidentiary hearing and, if so, what witnesses should be called and how it should be conducted.” ECF No. 20, at 6. Mr. Liebowitz failed to address those issues in his brief. ECF No. 21. This litany of violations, standing alone, justifies sanctions under Rule 16(f). See, e.g., Polaris Images Corp. v. CBS Interactive, Inc., No. 19-CV-3670 (VEC), 2019 WL 5067167, at *2-3 (S.D.N.Y. Oct. 9, 2019) (sanctioning Mr. Liebowitz for failing to timely file proof of service and produce pre-mediation discovery, and rejecting Mr. Liebowitz’s claim of “administrative oversight” because “the undersigned is unconvinced that they are indeed good faith oversights”).",
"The Court need not make a finding of bad faith to justify sanctions under Rule 16(f), but there is no doubt that Mr. Liebowitz’s violations of these court Orders were willful. First, the Orders “were explicit and,” with one possible exception, “there is no suggestion that [Mr. Liebowitz] misread or misunderstood them.” Petrisch v. JP Morgan Chase, 789 F. Supp. 2d 437, 455 (S.D.N.Y. 2011). The one possible exception is the failure of Mr. Liebowitz and Mr. Usherson to attend the mediation; as to those violations, Mr. Liebowitz proffers several explanations, but as discussed below, Mr. Liebowitz’s shifting explanations are patently incredible — evidence of bad faith in itself.",
"Second, there is no “good-faith explanation” for Mr. Liebowitz’s failure to comply, particularly in light of the findings set forth below. See S. New England Tel. Co., 624 F.3d at 148. And finally, Mr. Liebowitz’s “failure to comply was ‘not isolated but rather [part of] a pattern’ of non-compliance in this case dating to” even before “the 27 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 29 28 of of 62 61 very first conference.” Yu v. Diguojiaoyu, Inc., No. 18-CV-7303 (JMF), 2019 WL 6174204, at *5 (S.D.N.Y. Nov. 20, 2019) (quoting S. New England Tel., 624 F.3d at 148).",
"In fact, Mr. Liebowitz’s violations are part of an even longer pattern of violations in scores of cases. Despite many judicial warnings, Mr. Liebowitz has engaged in similar misconduct for years, every time making the same excuses for his behavior. See, e.g., Chevrestt v. Barstool Sports, Inc., No. 20-CV-1949 (VEC), 2020 WL 2301210, at *2 (S.D.N.Y. May 8, 2020) (sanctioning Mr. Liebowitz under Rule 16(f) and finding that his attempt to plead “administrative oversight” was “disingenuous, distasteful, unpersuasive, and likely perjurious”); Polaris Images Corp., 2019 WL 5067167, at *3 (imposing sanctions under Rule 16(f) and noting that “given the frequency with which Mr. Liebowitz commits ‘administrative errors,’ the undersigned is unconvinced that they are indeed good faith oversights”); Steeger, 2018 WL 1363497, at *2-3) (imposing monetary sanctions and a requirement that Mr. Liebowitz complete “four CLE credit hours in ethics and professionalism” in an effort to address Mr. Liebowitz’s “pattern of omissions and misrepresentations”). Indeed, he has been found to have acted in bad faith several times this year, alone. See, e.g., Ward, 2020 WL 2219070, at *3 (imposing $20,000 in sanctions under the Court’s inherent authority and noting that “Liebowitz’s conduct in this case has been irresponsible, unreasonable, and detrimental to the fair administration of justice”); Wisser v. Vox Media, Inc., No. 19-CV-1445 (LGS), 2020 WL 1547381, at *6 (S.D.N.Y.",
"Apr. 1, 2020) (finding bad faith and imposing sanctions for, among other things, affixing his client’s signature to interrogatory responses without authorization and without the client having even read the responses); Rock v. Enfants Riches Deprimes, LLC, No. 17-CV-2618 (ALC), 2020 WL 468904, at *4, *7 (S.D.N.Y. Jan. 29, 2020) (granting attorney’s fees against Mr. Liebowitz’s 28 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 30 29 of of 62 61 client totaling over $100,000, $10,000 of which Mr. Liebowitz and his firm were responsible for as sanctions, and finding that Mr. Liebowitz’s “conduct — of failing to investigate the evidentiary basis for a Complaint, of stonewalling discovery, of misleading the Court, and of making meritless arguments — undoubtedly demonstrates bad faith”). As one court, after surveying the ever-growing body of cases sanctioning Mr. Liebowitz, put it: Mr. Liebowitz’s and his firm’s “inability to follow specific orders . .",
". is part of a pattern . . . . He and his firm are demonstrably incapable of complying with the rules of the many courts where Mr. Liebowitz is filing hundreds of lawsuits.” Mondragon, 2020 WL 2395641, at *13; see id. at *3 (finding that Mr. Liebowitz “has demonstrated, both in this case and in many other copyright cases in this and other districts, a disregard for basic federal courtroom rules, procedures, and practices”). B. Mr. Liebowitz’s Lies to the Court That said, Mr. Liebowitz’s repeated and willful violations of the Court’s Orders pale in comparison to his more serious misconduct in this case: his lies, including his lies under oath. Mr. Liebowitz repeatedly represented to the Court that he had received permission before the October 31, 2019 mediation for Mr. Usherson to appear by telephone at the mediation. He made these claims in open court (despite a warning from the Court to be “very, very, very careful” about his representations in light of the contempt finding by Judge Seibel, see Initial Conf.",
"Tr. 7); in multiple filings with the Court, including at least one declaration sworn under penalty of perjury; and in his testimony, also under oath, at the evidentiary hearing. In fact, to this day, Mr. Liebowitz maintains that “such permissions were in fact granted” by the Mediator. ECF No. 54, at 3. But based on a careful review of the record, including an evaluation of the witnesses’ demeanor at the January 8, 2020 hearing, the Court finds by clear and convincing evidence that 29 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 31 30 of of 62 61 these representations were false and made in bad faith. See S.E.C. v. Smith, 798 F. Supp. 2d 412, 424 (N.D.N.Y. 2011) (“[T]here must exist clear and convincing evidence that an individual’s conduct was not merely negligent but was undertaken with subjective bad faith.”).3 First and most obviously, Mr. Liebowitz’s claims are contradicted by the Mediator, who testified unequivocally at the hearing that Mr. Liebowitz never mentioned the possibility that Mr. Usherson would not attend the mediation in person. Hearing Tr. 100-01. The Court finds this testimony credible, based not only its observations of the Mediator’s demeanor at the hearing and his lack of any stake in this matter, but also on the fact that it is corroborated by Mr. Newberg’s testimony and documentary evidence.",
"Most notably, the Mediator’s email exchange with Mr. Newberg shortly after the Mediator’s final phone call with Mr. Liebowitz on October 30th makes plain that the Mediator had no clue that Mr. Usherson (and Mr. Liebowitz, for that matter) would not be attending the mediation in person the next day. ECF No. 16, at 32. For instance, at 6:34 p.m. on October 30, 2019, Mr. Newberg stated in an email his expectation that “we will see Mr. Liebowitz and Mr. Usherson tomorrow . . . at the mediation,” ECF No.",
"36, at 24, and the Mediator replied, “Talked to Richard and he has been tied up. He will review tonight and get back to us in the morning. Hopefully we can settle this before need to go to in person 3 The Court is inclined to believe — and if the applicable standard were a preponderance of the evidence would find — that Mr. Liebowitz also lied about getting advance permission from the Mediator for Mr. Freeman to appear in his stead. But the record is admittedly more muddled on that front. For instance, Mr. Newberg stated in his second declaration that the Mediator had indicated that Mr. Liebowitz had informed the Mediator “that Mr. Liebowitz was out of town and that Mr. Liebowitz’s associate would be at the mediation instead.” ECF No. 36, at 4. Further, at the hearing, the Mediator testified that he could not remember whether Mr. Liebowitz had said “anything one way or another about whether he would be appearing at the mediation on the 31st.” Hearing Tr. 99. The Mediator indicated that he somehow “became aware” that Mr. Liebowitz was in Los Angeles and could not recall whether Mr. Liebowitz “may have told me.” Hearing Tr. 98.",
"As a result, the Court is not prepared to find by clear-and- convincing evidence that Mr. Liebowitz’s representations on that score were made in bad faith. 30 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 32 31 of of 62 61 mediation,” ECF No. 16, at 32. Later that night, Mr. Newberg reiterated his expectation of an in- person mediation, stating, “I would have assumed Mr. Usherson either flew to NY tonight or is likewise on a very early plane.” Id. In response, the Mediator said simply: “I understand.” Id. At no point in these emails did the Mediator reveal any awareness that either Mr. Usheron or Mr. Liebowitz would not be attending in person the next day — much less that he had given them both permission not to attend that very night, as Mr. Liebowitz claims.",
"That would be enough to conclude that Mr. Liebowitz lied under oath. Additionally, however, the Court finds, based in part on its assessment of his demeanor at the hearing and in part on the content of the testimony, that Mr. Liebowitz’s testimony, on its own terms, was unworthy of belief. To start, several portions of Mr. Liebowitz’s testimony were patently incredible. Two examples will suffice. First, it defies credibility to claim, as Mr. Liebowitz did, that, with him in Los Angeles for a networking event and Mr. Usherson at home in Georgia, he waited until approximately 8:00 p.m. on the night before the mediation (which was already scheduled to take place on the last date permitted by the Court — after the Court had admonished Mr. Liebowitz for failing to mediate by its first deadline) to ask the Mediator for permission to send an associate on his behalf and to allow Mr. Usherson to participate by telephone. When pressed, Mr. Liebowitz claimed that he would have flown to New York that night and arranged for Mr. Usherson to do the same had the Mediator not granted permission. But putting aside the inherent incredibility of that claim, by Mr. Liebowitz’s own admission, he had not booked or even researched flights, and there is no evidence that he ever told Mr. Usherson about the potential need to travel on short notice.",
"Put simply, Mr. Liebowitz’s story defies belief. 31 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 33 32 of of 62 61 A second example: On November 14, 2019, only two weeks after the relevant events had occurred, Mr. Liebowitz was unable to recall when he had allegedly obtained permission from the Mediator for Mr. Usherson to appear by telephone. Initial Conf. Tr. 7 (“I don’t know the exact date, but it was before the mediation.”). Yet almost two months later, he was suddenly able to remember that the Mediator had granted him permission by telephone between 7:30 and 8:00 p.m. on October 30th. Hearing Tr. 22. When confronted with the discrepancy, Mr. Liebowitz claimed that his memory had been refreshed by the documents attached to Mr. Newberg’s initial declaration.",
"Id. at 50-51. But that declaration was filed before the November 14th initial pretrial conference, and Mr. Liebowitz had even responded to it before the conference. See ECF No. 19. Next, Mr. Liebowitz’s testimony was also incredible because, in contrast to the Mediator’s and Mr. Newberg’s testimony, there is absolutely no evidence to corroborate it. He made no reference to the Mediator granting permission for Mr. Usherson to appear by telephone in any email; in fact, he made no record of it at all. Hearing Tr. 39-40 (“No, no record. I just had a phone call with the Mediator and spoke with Mr. Freeman. And that’s — that’s what happened.”).",
"Nor do his own associates — Mr. Freeman and his sister, Ms. Liebowitz — back up his account. Their declarations say nothing about the Mediator granting consent. See ECF No. 23, ¶¶ 4-5; ECF No. 24. And orally, Mr. Freeman explicitly contradicted Mr. Liebowitz’s testimony on the point. While Mr. Liebowitz testified at the hearing that he told Mr. Freeman on October 30th that the Mediator had approved his requests, Mr. Freeman reported at the November 14th initial pretrial conference — again, only two weeks after the relevant events — that he had “no knowledge one way or the other as to what clearances were made in terms of 32 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 34 33 of of 62 61 telephonic appearances.” Initial Conf.",
"Tr. 9. Nor was that the only inconsistency between Mr. Liebowitz’s testimony and the representations of his own employee. Mr. Liebowitz testified under oath that he had discussed the case with Mr. Freeman on “numerous occasions” on and before October 30th. Hearing Tr. 32. But Mr. Freeman consistently maintained — at the November 14th initial pretrial conference, in his own sworn declaration, and at the conclusion of the hearing — that he did not even know the case existed until the evening of October 30th. Initial Conf. Tr. 9; ECF No. 23, ¶ 4; Hearing Tr. 138. Third, Mr. Liebowitz’s testimony is internally inconsistent, a function of his explanations shifting to suit the moment.",
"Again, two examples will suffice. First, Mr. Liebowitz’s initial story was unambiguous: He asked for, and received, the Mediator’s consent for Mr. Usherson to appear telephonically. At various times, Mr. Liebowitz acknowledged that the Mediation Rules required the presence of a party, unless the mediator granted consent for a telephonic appearance. ECF No. 19, at 1; Initial Conf. Tr. 6-7. But later, perhaps to hedge his bets, Mr. Liebowitz took a different tack: that neither the Court’s Orders nor the Mediation Rules actually required Mr. Usherson to appear in person in the first place. ECF No. 21, at 3-4; ECF No.",
"22, ¶¶ 7-9, 12; Hearing Tr. 59-60; see also id. at 135-36. It strains credulity to conclude that Mr. Liebowitz actually believed that assertion, and not only because it was made so belatedly. For one thing, it is demonstrably false, as the Mediation Rules explicitly state that “[e]ach party must attend mediation,” unless, if certain requirements are met, the mediator grants consent to participate by telephone. Mediation Rules 9(a), (f); see also ECF No. 13 (denying Mr. Liebowitz’s application to conduct the mediation by telephone and mandating an “in-person mediation”).4 For another, it 4 Read in context, the Mediation Office procedures make plain that the term “party” does not refer to counsel and refers here to Mr. Usherson. Further, there is no doubt that Mr. 33 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 35 34 of of 62 61 is belied by Mr. Liebowitz’s own objection in another case to the telephonic appearance of an opposing party located in Israel, on the ground that “the rules of the mediation office requires [sic]” parties to appear in person.",
"Sadowski, No. 18-CV-9193, ECF No. 21; see Hearing Tr. 11- 16. And finally, it makes no sense in light of Mr. Liebowitz’s first and principal story: that he explicitly asked for, and received, the Mediator’s consent for Mr. Usherson to appear telephonically. After all, if he believed in good faith that Mr. Usherson did not have to appear in person at all, why ask for permission to appear telephonically the night before the mediation and risk the possibility that, with Mr. Usherson in Georgia, the Mediator might say no?",
"The answer is that, contrary to his testimony, he never asked — and he knew full well that Mr. Usherson was required to appear in person. He just thought he could get away with it, either because the Mediator would ratify the decision or because he thought the case would settle and no one would care. The second example of Mr. Liebowitz’s shifting and internally inconsistent explanations is his “custom and practice” defense: that the Mediator, who had mediated five of his other cases, had a “custom and practice” of allowing his clients to appear by telephone. Conspicuously, Mr. Liebowitz did not even mention this defense in his first submissions and arguments to the Court — that is, in the two letters he filed between Bandshell’s sanctions motion and the initial pretrial conference; at the initial pretrial conference; or in his formal opposition to the sanctions motion and his supporting declaration filed thereafter. The “custom and practice” defense appeared for the first time in Mr. Liebowitz’s December 16th letter — a belatedness underscored by the fact Liebowitz was bound by the Mediation Rules.",
"The Court’s initial mediation order provided that Local Rule 83.9 “shall govern,” ECF No. 6, and Local Rule 83.9 provides, in relevant part, that the mediation program “shall be governed by” the Mediation Rules. 34 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 36 35 of of 62 61 that Mr. Freeman had to make an application at the outset of the hearing to expand the scope of Mr. Liebowitz’s direct testimony to include it. Yet by the hearing’s end, it was arguably Mr. Liebowitz’s principal defense; indeed, he and Mr. Freeman uttered the words “custom and practice” or variations thereof at least fourteen times during the hearing. Once again, however, the defense is an odd fit given Mr. Liebowitz’s initial and principal story: that he requested and obtained the Mediator’s explicit consent. The defense might have been compelling if Mr. Liebowitz’s claim was that he had assumed the Mediator’s consent. But the Mediator’s alleged custom and practice do not shed any light on whether, as Mr. Liebowitz actually claimed, he affirmatively consented.",
"Moreover, once again, if Mr. Liebowitz assumed from his past dealings with the Mediator that he already had the Mediator’s permission for Mr. Usherson to appear telephonically, why ask for permission the night before and risk being told that he had to appear? The answer, once again, is that Mr. Liebowitz did not do what he claimed he did. The “custom and practice” defense is nothing more than an after-the-fact justification, conjured up by Mr. Liebowitz when it became apparent that the Court was not inclined to buy into his initial story. In short, the Court easily finds by clear and convincing evidence that Mr. Liebowitz lied — repeatedly and under oath — by claiming that he sought and obtained the Mediator’s consent for Mr. Usherson to participate in the mediation by telephone.",
"Disturbingly, that misconduct is also part of a broader pattern. See Steeger, 2018 WL 1363497, at *2 (noting that Mr. Liebowitz has been “plagued” by a “pattern of omissions and misrepresentations”); see also Sands v. Bauer Media Grp. USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 6324866, at *2 n.1 (S.D.N.Y. Nov. 26, 2019) (“Nor is this the only occasion on which Mr. Liebowitz has made an untrue statement to a judge of this Court.”); Berger Tr. 14 (“Mr. Liebowitz has woven himself a very tangled web 35 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 37 36 of of 62 61 of lies.”); id. (“[T]he whole issue why I question Mr. Liebowitz’s fitness to practice is the dishonesty and the failure to own up to the dishonesty and the doubling and quintupling and octupling down on the dishonesty.”); Pereira v. 3072541 Can. Inc., No.",
"17-CV-6945 (RA), 2018 WL 5999636, at *3 (S.D.N.Y. Nov. 15, 2018) (“The Court finds particularly concerning Mr. Liebowitz’s . . . propensity to take unreasonable positions and omit crucial facts — or even to make outright misrepresentations — in an apparent attempt to increase costs and to extort unwarranted settlements.”).5 In fact, Mr. Liebowitz’s conduct in this case is strikingly similar to his conduct in Judge Seibel’s case, Berger. In both cases, Mr. Liebowitz’s travails began with a comparatively minor infraction: there, his absence at a pretrial conference, and here, his client’s absence from mediation. In both cases, rather than admit the truth and accept the consequences, Mr. Liebowitz concocted a story: there, that his grandfather’s death prevented him from appearing at the conference, and here, that the Mediator had granted consent. In both cases, he dug his hole deeper by repeating his lies over and over, including under oath. See Berger Tr.",
"24- 27 (“[Mr. Liebowitz] knew he was lying; and he then chose to repeat that lie six, eight, ten times.”). In both cases, he tried — without success — to make his problems go away by 5 Regrettably, there is reason to believe that Mr. Liebowitz’s pattern of lying continued unabated even after this Court’s January evidentiary hearing. On May 7, 2020, in a hearing before Magistrate Judge N. Reid Neureiter in the District of Colorado, Mr. Liebowitz testified under oath that he did not know “whether Judge Seibel had referred the contempt finding against him to a disciplinary body.” Mondragon, 2020 WL 2395641, at *10. But Mr. Liebowitz was present in court on November 13, 2019, when Judge Seibel explicitly stated that she had “made a referral to the grievance committee” of this Court and was “not going to withdraw it.” Berger Tr. 27; see also id. at 26 (“[T]his order of contempt, unfortunately, is going to follow Mr. Liebowitz wherever he goes in the future where he is asked, ‘Have you ever been held in contempt?’ because I am not going to vacate it.”).",
"Moreover, as of May 11, 2020, Mr. Liebowitz had not taken the remedial steps — a continuing legal education course in small law firm management and mentorship by a lawyer experienced in copyright law — that he had promised Judge Seibel he would take. See Mondragon, 2020 WL 2395641, at *11. 36 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 38 37 of of 62 61 voluntarily dismissing the case before sanctions were imposed. And in both cases, he ultimately sought to excuse his misconduct by invoking his relative youth and inexperience, his hefty caseload, and poor case management practices. Berger Tr. 13; Hearing Tr. 81-82. Mr. Liebowitz (through Mr. Freeman) wisely concedes that lying to the Court, repeatedly and under oath, is “grounds for sanctions” against him. Hearing Tr. 132; see, e.g., Macolor, 2015 WL 1267337, at *4 (“Whatever the appropriate definition [of ‘bad faith’], making a false statement with the intent to mislead the Court certainly meets that definition.”); Roberts v. Bennaceur, 658 F. App’x 611, 615 (2d Cir. 2016) (summary order) (affirming discovery sanctions and noting numerous “misrepresentations” and “inadequate explanations” that demonstrated “bad faith throughout these proceedings”); see also Enmon, 675 F.3d at 146 (affirming sanctions based on “ample evidence” of “persistent misrepresentations” made in bad faith).",
"And, as discussed, there is ample evidence in this case that that is precisely what Mr. Liebowitz did. Moreover, while Mr. Liebowitz’s failures to obey court orders can arguably be explained (though not justified) by his relative inexperience, heavy caseload, and inadequate case management practices, the same cannot be said for his dishonesty. See Berger Tr. 14 (“I am not really super sympathetic to the notion that . . . somebody is young and inexperienced and therefore unaware that it’s wrong to lie. We all learn that as children.”); see also Mondragon, 2020 WL 2395641, at *8 (“While many of Mr. Liebowitz’s failings seem to originate with his massive caseload and corresponding inability to follow the rules and schedules of the numerous different courts where he has cases pending, those failings also extend to what appears to be a problem with truth-telling.” (emphasis added)). The simple fact is that Mr. Liebowitz has a problem: He does not feel constrained by the truth and, when cornered, has no compunction 37 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 39 38 of of 62 61 about lying, even under oath.",
"It follows that sanctions should be, and are, imposed. C. Mr. Liebowitz’s False Allegation that the Photograph Was Registered Prior to the Suit and His Failure to Reasonably Investigate the Issue Finally, the evidence clearly and convincingly shows that Mr. Liebowitz brought — and maintained — this case in bad faith by willfully disregarding the fact that the case was fatally flawed from its inception. As noted, under Section 411(a) of the Copyright Act, an infringement action may not be filed “until . . . registration of the copyright claim has been made.” 17 U.S.C. § 411(a); see Rudkowski v. MIC Network, Inc., No. 17-CV-3647 (DAB), 2018 WL 1801307, at *3 (S.D.N.Y.",
"Mar. 23, 2018) (warning Mr. Liebowitz that “possession of a registration certificate is a condition precedent to filing a copyright claim”). Paragraph 9 of the Complaint in this case did allege that the Photograph was registered as part of the 046 Registration. But in the face of irrefutable evidence to the contrary, Mr. Liebowitz now concedes — as he must — that that allegation was false and that the Photograph was not registered until August 22, 2019, almost a month and a half after the lawsuit was filed. Mr. Liebowitz has two responses to this extraordinary revelation. First, he seeks to trivialize it by calling it a “technical pleading deficiency” and suggesting that, but for the voluntary dismissal, he could have cured the problem by amending the Complaint. ECF No. 63, ¶ 18; ECF No.",
"57, at 1-3. Second, throwing his own client and a member of his administrative staff under the proverbial bus, he claims that he did not know about the untimely registration. ECF No. 63, ¶¶ 4-9. Neither response is persuasive. First, as a matter of law, Mr. Liebowitz is wrong in suggesting that he could have cured the Section 411(a) violation through amendment. Mr. Liebowitz cites as support for that suggestion a twenty-eight-year-old decision from this District. See ECF No. 57, at 2 (citing Atkins v. Publ’ns Int’l, Ltd., No. 91-CV-7427 (KMW), 1992 WL 309581 (S.D.N.Y. 1992)). But 38 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 40 39 of of 62 61 that case predates Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, in which the Supreme Court held that a “‘registration . . . has been made’ within the meaning of 17 U.S.C. § 411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.” 139 S. Ct. 881, 892 (2019).",
"In the wake of that decision, this Court and others held that where a plaintiff “improperly filed suit before a copyright was registered,” the suit “must be dismissed notwithstanding a plaintiff’s post- registration amendment.” Malibu Media, 2019 WL 1454317, at *1; accord Pickett v. Migos Touring, Inc., 420 F. Supp. 3d 197, 205 (S.D.N.Y. 2019); Xclusive-Lee, Inc. v. Hadid, No. 19- CV-520 (PKC) (CLP), 2019 WL 3281013, at *4 (E.D.N.Y. July 18, 2019). Thus, Mr. Liebowitz is just plain wrong in suggesting that the error was no big deal. Had the error been disclosed while the lawsuit was pending, Bandshell would have been entitled to dismissal.",
"Notably, there is a strong argument that Mr. Liebowitz’s suggestion that he could have cured the defect through amendment is itself made in bad faith. First, it is hard to believe that he would be unaware of the recent law on that issue. His practice is devoted to copyright infringement cases; in little more than four years, he has filed approximately 2,500 such cases and, at the time of the mediation in this case, his firm had more than 400 such cases pending in federal court. See Hearing Tr. 80-81; Sadowski v. Ziff Davis, LLC, No. 20-CV-2244 (DLC), 2020 WL 3397714, at *4 (S.D.N.Y. June 19, 2020).",
"But assuming for the sake of argument that Mr. Liebowitz does not keep up on developments in copyright law (which would be inexcusable, but is nevertheless all too plausible), he was explicitly put on notice of the fact that an untimely registration is not curable at the initial pretrial conference in this case, when Mr. Newberg first raised the issue and noted that dismissal would be required if the Photograph was registered after 39 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 41 40 of of 62 61 the Complaint was filed, citing Fourth Estate and this Court’s holding in Malibu Media that a premature filing “is a non-curable error.” Initial Conf.",
"Tr. 17. Making matters even worse, Mr. Liebowitz persisted in pressing the point even after Mr. Newberg, in his post-hearing letter, explicitly noted that the suggestion was “incorrect,” citing Malibu Media and other precedent. Compare ECF No. 58, at 2, with ECF No. 63, ¶¶ 18-19. These facts support an inference of bad faith. See Gollomp v. Spitzer, 568 F.3d 355, 369 (2d Cir. 2009) (affirming a finding of bad faith where plaintiff’s counsel had filed claims “that were clearly barred by the Eleventh Amendment,” which “several courts had already instructed plaintiff’s counsel”); In re Gushlak, No. 11-MC-218 (NGG), 2012 WL 2564523, at *3, *7-8, *10 (E.D.N.Y.",
"July 2, 2012) (concluding that an attorney acted unreasonably and in bad faith where he made “utterly frivolous” legal arguments whose futility would have been revealed by “basic legal research or a moment’s thought,” and then persisted in making the arguments even after they were refuted). Mr. Liebowitz’s efforts to distance himself from responsibility for the untimely registration and the false allegation in the Complaint, and his attempt to pin blame on either his client or an administrative assistant at his firm, are similarly unavailing. For one thing, the evidence clearly and convincingly shows that Mr. Liebowitz did know about the untimely registration, at least as of August 22, 2019, when his firm registered the Photograph under the 272 Registration, if not earlier. Indeed, as Mr. Freeman explained at the January 8th hearing, the firm increasingly files copyright registration applications itself “[s]o we know for sure it’s on deposit.” Hearing Tr.",
"139-140. And that is what happened here: Sometime after July 10, 2019, when the Complaint in this case was filed, Mr. Usherson sent the firm a CD-ROM containing all of the photographs that he had not yet registered — including the Photograph — and Mr. 40 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 42 41 of of 62 61 Liebowitz’s firm proceeded to register them. ECF No. 62, at 4. The firm thus had knowledge that the Photograph had not been registered prior to the filing of the Complaint. And it is hard to believe that Mr. Liebowitz, as “lead counsel for Plaintiff” and the “founding member of Liebowitz Law Firm,” ECF No.",
"63, at 1, was unaware of the fact himself. It is far more plausible — indeed likely — that, upon receiving the Photograph from Mr. Usherson, Mr. Liebowitz realized that it had not yet been registered and sought to quietly take care of the problem, hoping that Bandshell and the Court would be none the wiser and he would escape dismissal. In any event, even if Mr. Liebowitz did not personally know that the Photograph had not been registered when this case was filed, he certainly should have known — and his lack of knowledge is attributable to an inexcusable failure to conduct a reasonable investigation before and during the case.",
"“An attorney ‘is entitled to rely on his or her client’s statements as to factual claims when those statements are objectively reasonable.’ However, the attorney must still engage in ‘an inquiry reasonable under the circumstances.’” Chien v. Skystar Bio Pharm. Co., 256 F.R.D. 67, 75 (D. Conn. 2009) (Kravitz, J. ), aff’d, 378 F. App’x 109 (2d Cir. 2010) (quoting Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329 (2d Cir.1995), and Fed. R. Civ. P. 11(b)); see also Rabin v. Dow Jones & Co., Inc., 665 F. App’x 21, 23-24 (2d Cir. 2016) (summary order) (affirming a finding of bad faith where counsel admitted that two allegations in his complaint were “overstatement[s]” and that he “failed to conduct a good-faith investigation into that evidence or to adjust the pleadings” and “sought to suppress the truth by withholding relevant evidence,” until he was finally “confronted with evidence of dishonesty in his deposition,” at which point he “dubiously claimed a bad memory”). Mr. Liebowitz engaged in 41 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 43 42 of of 62 61 no investigation at all despite the fact that he “had the ability .",
". . to double-check whether the Photograph was part of the images that were included” in the 046 Registration using the CD- ROM that Mr. Usherson had sent the firm. ECF No. 63, at 3. It is no answer to say, as Mr. Liebowitz does, that he relied on his administrative assistant; Mr. Liebowitz is the lawyer who signed the Complaint containing the affirmatively false allegation. Making matters worse, Mr. Liebowitz and his firm received a second CD-ROM, which would have revealed that the Photograph was not among those registered as part of the 046 Registration, and the firm then registered the Photograph itself. And to top it off, at the initial pretrial conference in November 2019, Mr. Newberg specifically addressed the 272 Registration and raised doubts about whether the Photograph had been timely registered — putting Mr. Liebowitz on notice of what turns out to have been a fatal defect in the Complaint. Initial Conf. Tr.",
"17. Under these circumstances, it was Mr. Liebowitz’s obligation to investigate whether the Photograph was properly registered.6 Nevertheless, Mr. Liebowitz and his firm conducted no investigation until after the January 8, 2020 hearing and, even then, did so only because the Court ordered them to file a letter addressing the issue and, when that did not clear things up, declarations. See ECF No. 64, at 3, 5-6; ECF No. 63, at 4. In fact, Mr. Liebowitz actively stonewalled Mr. Newberg’s request 6 Mr. Liebowitz also argues that it was not his responsibility to confirm that the Photograph was properly registered because “the burden to retrieve a certified deposit copy from the U.S. Copyright Office rests upon the alleged infringer.” ECF No. 57, at 3. The cases he cites in support of that proposition, however, are inapposite because they involved challenges by defendants to the validity of an alleged registration. See, e.g., Goodman v. Univ. Beauty Prods., Inc., No. 17-CV-1716 (KBF), 2018 WL 1274855, at *5 (S.D.N.Y. Mar.",
"9, 2018) (concluding that the defendants “failed to proffer any evidence” in support of their argument at summary judgment “that the registration is deficient”). The argument also misses the point: Mr. Liebowitz personally signed and filed the Complaint, which contained what he now admits was a false allegation. It was his obligation to conduct a reasonable investigation to confirm the accuracy of the affirmative allegations to which he chose to sign his name, particularly after Mr. Newberg alerted him to the allegation’s falsity at the initial pretrial conference. 42 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 44 43 of of 62 61 for discovery on the issue at the initial pretrial conference, stating: “I don’t know what defense counsel means about other registrations or other photographs.",
"I will have to see what my office did, but this is the correct registration.” Initial Conf. Tr. 17-18. It is hard to avoid the conclusion that Mr. Liebowitz hoped to settle the case before the truth came to light. In fact, Mr. Freeman himself conceded that the firm’s “custom and practice” had been to file suits without checking if the works in question are actually registered to avoid “an additional expense,” at least until they “believe that [they]’re going to proceed with the case to summary judgment.” Hearing Tr. 139. Clearly hoping to settle the case before reaching that stage, Mr. Liebowitz argued to the Court at the initial pretrial conference that “the appropriate thing to do at this stage is to just set discovery, set the dates, and let the parties engage and hopefully during that process the parties could eventually get to a settlement number.” Initial Conf.",
"Tr. 18. Once again, this misconduct is not unique to this case, but fits a broader pattern. In another recent case, for example, Mr. Liebowitz filed suit alleging copyright infringement of a photograph of musician Lou Reed, even though the alleged registration explicitly excluded “previously published works” like the photograph. Rock, 2020 WL 468904, at *1. Mr. Liebowitz nevertheless pressed the suit. When confronted about the registration issue, he “produced no evidence that the Photograph was registered” and “actively stonewalled discovery requests” for information about the alleged registration. Id. at *1, *3.",
"Mr. Liebowitz also defied Judge Carter’s order to obtain and produce any relevant deposit files from the Copyright Office. Id. at *3. “After it became apparent that the Photograph was not registered,” Mr. Liebowitz attempted to argue that the registration had “mistakenly” excluded the Photograph, without any evidentiary support. Id. at *4. Judge Carter rejected the argument and concluded that “[t]his 43 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 45 44 of of 62 61 conduct — of failing to investigate the evidentiary basis for a Complaint, of stonewalling discovery, of misleading the Court, and of making meritless arguments — undoubtedly demonstrates bad faith.” Id. He therefore sanctioned Mr. Liebowitz and his firm $10,000. See id. at *7. As in Rock, the conduct of Mr. Liebowitz and his firm in this case “undoubtedly demonstrates bad faith.” Rock, 2020 WL 468904, at *4. As a result of that bad faith, Mr. Newberg and Bandshell had to bear the expense of defending a case that was fatally flawed from its inception.",
"And, as in Rock, when the truth came to light, Mr. Liebowitz feebly blamed the false allegation in the Complaint on “clerical” or “administrative error.” ECF No. 57, at 3; ECF No. 63, at 4. Mr. Liebowitz and his firm cannot escape responsibility so easily. Their willful disregard of the registration requirement is part of their broader strategy to use the burdens of litigation to extract settlements, even in frivolous or unmeritorious suits. See Otto v. Hearst Comm’ns, Inc., No. 17-CV-4712 (GHW), 2020 WL 377479, at *3 & n.1 (S.D.N.Y. Jan. 23, 2020) (noting that “Otto and [Mr. Liebowitz, his counsel,] consistently and undeniably asserted inflated values for Otto’s copyright” using “figures [that] were wholly unsupported by the evidentiary record”). And by filing the lawsuit without conducting any investigation into the truth or falsity of Paragraph 9 of the Complaint, and by maintaining the lawsuit and failing to conduct any investigation even after being put on notice about a potential registration problem, Mr. Liebowitz and his firm “multiplie[d] the proceedings .",
". . unreasonably and vexatiously.” 28 U.S.C. § 1927. It follows that sanctions are warranted on this basis, as well. D. The Nature and Amount of the Appropriate Sanctions So what sanctions should the Court impose? In deciding what sanctions to impose, the 44 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 46 45 of of 62 61 Court may consider the following factors, among others: “(i) whether the misconduct was the product of intentional bad faith; (ii) whether and to what extent the misconduct prejudiced the injured party; (iii) whether there is a pattern of misbehavior rather than an isolated instance; (iv) whether and when the misconduct was corrected; and (v) whether further misconduct is likely to occur in the future.” Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp.",
"2d 378, 394 (S.D.N.Y. 2010) (discussing the Court’s inherent authority to investigate and sanction frauds on the Court). Sanctions should be “no more severe than reasonably necessary to deter repetition” of the misconduct “or comparable conduct by similarly situated persons.” Macolor, 2015 WL 1267337, at *5 (internal quotation marks omitted). If specific deterrence — that is, deterring Mr. Liebowitz from repeating his misconduct — were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment) would suffice.",
"After all, his first lie in this case occurred only one day after he was dressed down by Judge Seibel for repeatedly lying about his grandfather’s death, and despite a warning from the Court to be “very, very, very careful” about what he said. Initial Conf. Tr. 7. And thereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies over and over, including under oath. (In fact, he arguably expanded upon his lies, concocting, after the fact, his “custom and practice” excuse.) Even more troubling, as the discussion above makes clear, Mr. Liebowitz’s misconduct in this case is part of a larger pattern that has led judges on this court — and, as his practice has expanded to other districts, judges on other courts — to chastise him, impose sanctions on him, and require his clients to post bonds to cover future adverse awards of attorney’s fees and costs resulting from his misbehavior. The list of such cases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order. 45 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 47 46 of of 62 61 And even that list is likely not exhaustive.",
"For one thing, there may well be orders imposing sanctions or requiring a bond that are not easily searchable on Westlaw or Lexis. For another, as this case, the case before Judge Seibel, and this Court’s prior decision imposing sanctions in Rice make clear, Mr. Liebowitz frequently drops his cases when the going gets tough and sanctions are on the horizon. See Berger Tr. 25 (“[W]hen [Mr. Liebowitz] gets into hot water, he just decides to kick the can down the road as long as he can: Try to drop the case, hope the judge will go away.”); see, e.g., Ramales v. Alexander Wang Inc., No. 20-CV-0926 (DLC), ECF No. 32, ¶¶ 9-11 (S.D.N.Y.",
"June 2, 2020) (opposing counsel’s declaration in support of a sanctions motion stating that counsel had repeatedly requested licensing history from Mr. Liebowitz, who first claimed he could not retrieve it “without a subpoena,” and then admitted that there was “no licensing history and that his client was wrong,” at which point he settled the case and avoided adjudication of the sanctions motion). Undoubtedly there are cases in which that tactic succeeded and Mr. Liebowitz was never held to account. Thus, there may be no sanction short of disbarment that would stop Mr. Liebowitz from further misconduct. But because disbarment is an issue for the Grievance Committee, this Court is left with the task of crafting a sanction that could conceivably deter Mr. Liebowitz from repeating his misconduct again. Moreover, another purpose of sanctions is general deterrence — that is, deterrence of “comparable conduct by similarly situated persons.” Macolor, 2015 WL 1267337, at *5 (internal quotation marks omitted). In view of both considerations, it is plain that substantial sanctions — a mix of monetary and non-monetary sanctions — are well justified. As discussed above, much of Mr. Liebowitz’s misconduct was the product of intentional bad faith.",
"In addition, Bandshell and Mr. Newberg (who handled the case pro bono) incurred considerable 46 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 48 47 of of 62 61 expenses as a result of Mr. Liebowitz’s misconduct, having to defend against a lawsuit that was flawed from its inception, having to appear at a mediation that was doomed from the start, and having to litigate the issue of sanctions. Moreover, there is, to put it mildly, a long and ignominious history of misbehavior by Mr. Liebowitz, and an enormous risk that he will continue his pattern of misbehavior.",
"And finally, Mr. Liebowitz never corrected his misconduct, but rather repeated his lies under oath and, in the case of the false allegation regarding the copyright registration, proffered unconvincing excuses. See Passlogix, 708 F. Supp. 2d at 394. In light of that record, and the fact that prior efforts to deter him — including hefty fines, see, e.g., Ward, 2020 WL 2219070, at *4 ($20,000), and sizeable awards of attorney’s fees and costs, see, e.g., Craig, 2019 WL 2992043, at *4, *7 ($98,532.62) — were insufficient, substantial sanctions are plainly warranted. Additionally, the Court concludes that the same sanctions should be imposed on Mr. Liebowitz and on his firm.7 Without question, an attorney’s actions may be attributed to his firm for purposes of sanctions where the firm is small; the attorney is its founding partner and leader; and, throughout the litigation, the attorney’s actions were indistinguishable from those of the firm. See Enmon, 675 F.3d at 148; see also, e.g., Rock, 2020 WL 468904, at *4 (imposing 7 The Court declines to sanction Mr. Usherson himself, as “the sins of the lawyer” are not automatically “visited on the client,” and the evidence in the record does not clearly and convincingly demonstrate any bad-faith misconduct by Mr. Usherson.",
"See, e.g., Ransmeier v. Mariani, 718 F.3d 64, 71 (2d Cir. 2013). If anything, Mr. Usherson was ill served by Mr. Liebowitz — who likely agreed to voluntary dismissal of Mr. Usherson’s claims in an effort to protect his own hide. If so, Mr. Usherson may in fact have a legal malpractice claim against Mr. Liebowitz. See Mondragon, 2020 WL 2395641, at *10 (characterizing Mr. Liebowitz’s testimony at the evidentiary hearing in this case, based on a review of the transcript, as “a damning self-indictment by a lawyer who has perfected a recipe for the regular commission of legal malpractice”); see also id. at *12 (finding that “Mr.",
"Liebowitz regularly is committing legal malpractice”); id. at 13 (“Mr. Liebowitz . . . represents a clear and present danger . . . to the interests of his own clients.”). 47 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 49 48 of of 62 61 sanctions on Mr. Liebowitz and his firm jointly and severally); Craig v. UMG Recordings, Inc., No. 16-CV-5439 (JPO), 2019 WL 2992043, at *10 (S.D.N.Y. July 9, 2019) (same). That is plainly the case here.",
"Mr. Liebowitz admits that he is the “founding member of Liebowitz Law Firm, PLLC,” ECF No. 63, ¶ 2; the firm is small, consisting of mostly staff and only a handful of lawyers other than Mr. Liebowitz, including Mr. Freeman and Mr. Liebowitz’s sister; and throughout this litigation, Mr. Liebowitz’s actions have been indistinguishable from those of his firm, as evidenced by the fact that Mr. Freeman appeared at the November 14, 2019 initial conference on behalf of both Mr. Liebowitz and the firm in connection with the sanctions motion. What is more, in an effort to minimize his personal responsibility, Mr. Liebowitz himself has repeatedly tried to place blame for some of his misconduct on his firm, as he did most clearly with the false allegation in Paragraph 9 of the Complaint. See ECF No.",
"63, ¶¶ 4- 9. Accordingly, his actions may be attributed to the firm, and the sanctions that follow are imposed jointly and severally on them both. The Court begins with monetary sanctions. A“well-accepted” measure of sanctions for “bad faith conduct that unnecessarily prolongs a proceeding and multiplies the expense incurred by an adversary” is the opposing counsel’s attorney’s fees and costs. Homkow v. Musika Records, Inc., No. 04-CV-3587 (KMW) (THK), 2009 WL 721732, at *25 (S.D.N.Y. Mar. 18, 2009); see also 28 U.S.C. § 1927 (expressly requiring that the offending party “satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”). Significantly, that is true even though the principal goal of sanctions is not to remedy harm to the opposing side, but to deter repetition of the misconduct or comparable conduct by others. Thus, courts have pegged sanctions to attorney’s fees and costs even where the opposing counsel did 48 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 50 49 of of 62 61 not actually receive fees.",
"See, e.g., Dallas v. Goldberg, No. 95-CV-9076 (LTS) (RLE), 2003 WL 22872325, at *1 (S.D.N.Y. Dec. 5, 2003) (requiring the defendants to pay, as sanctions under Rule 16 and the court’s inherent authority, “reasonable attorneys’ fees and expenses incurred” even though the plaintiff’s lawyer had handled the case “on a pro bono basis at the request of the Court”); see also Nat’l Lawyers Guild v. Att’y Gen., 94 F.R.D. 616, 618 (S.D.N.Y. 1982) (“[C]ourts have rejected the contention, in situations analogous to Rule 37 sanctions, that plaintiffs represented on a pro bono basis are not entitled to attorneys’ fees, or should receive a reduced amount.” (citations omitted)); cf. Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673, 680 (10th Cir. 2012) (“The purpose of Rule 37 attorney-fee sanctions would be thwarted if a party could escape the sanction whenever opposing counsel’s compensation is unaffected by the abuse.”). But see Goldman v. Barrett, No. 15-CV-9223 (PGG), 2019 WL 4572725, at *7 n.9 (S.D.N.Y.",
"Sept. 20, 2019) (expressing skepticism that “pro bono counsel is entitled to be compensated at market rates in connection with a sanctions award” (internal quotation marks and alterations omitted)). Thus, the Court concludes that the reasonable attorney’s fees and costs Bandshell would have incurred in connection with the mediation and the sanctions motion are an appropriate measure of sanctions here. That is true even though Bandshell’s counsel handled the case pro bono. And it is true even though Bandshell and Mr. Newberg disclaimed fees and costs when agreeing to dismissal of the case and, thus, do not seek to recover the fees and costs for themselves. Here, as set forth in an accounting submitted by Bandshell at the Court’s request, fees would have come to $84,435 and costs did come to $1,423.99, for a total of $85,858.99. ECF 56, at 2. The fees are based on Mr. Newberg’s hourly rate of $855 and his associate’s 49 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 51 50 of of 62 61 hourly rate of $420. See id. When evaluating attorney’s fees, a court must determine whether the proposed fees are “reasonable,” based on “a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir.",
"2011). Given Mr. Newberg’s experience, credentials, and position as a partner at McGuireWoods, and taking into account “all of the case-specific variables . . . relevant to the reasonableness of attorney’s fees,” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009) (emphasis omitted), including the fact that Mr. Newberg handled the case pro bono, the Court finds that his hourly rate is reasonable. See, e.g., Rock, 2020 WL 468904, at *5. His associate’s rate, however, exceeds the reasonable rate for an attorney with less than one year’s experience. See Tiffany & Co. v. Costco Wholesale Corp., No. 13-CV-1041 (LTS) (DCF), 2019 WL 120765, at *10 (S.D.N.Y. Jan. 7, 2019) (finding that rates of “$315-$585 per hour for an associate (depending on experience)” are reasonable). Thus, the Court reduces the associate’s hourly rate to $315 — a reduction of $105 per hour for 22.3 hours of work, for a total reduction of $2,341.50. The Court concludes that the hours both attorneys worked and their costs were reasonable. That yields a total of $83,517.49 in fees and costs attributable to the mediation and the sanctions motion.",
"Thus, the Court orders Mr. Liebowitz and his firm, jointly and severally, to pay to the Court $83,517.49 for misrepresenting that the Mediator gave permission for Mr. Usherson not to attend the mediation in person and for his multiple other violations of the Court’s Orders. In addition, the Court orders Mr. Liebowitz and his firm, jointly and severally, to pay to the Court $20,000 for falsely alleging that the Photograph was registered, not conducting a reasonable investigation prior to filing the lawsuit and after being put on notice of the 50 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 52 51 of of 62 61 registration issue, and maintaining the suit thereafter.",
"This type of misconduct is a self-avowed “custom and practice” of the Liebowitz Law Firm, Hearing Tr. 139, and has undoubtedly affected other cases, see, e.g., Rock, 2020 WL 468904, at *2 (“Plaintiff and his counsel knew, or should have known, that the Photograph was not registered.”). Taking into consideration all of the relevant factors, including Mr. Liebowitz’s stonewalling of any investigation into the registration issue once it was raised by opposing counsel, the Court concludes that sanctions of $20,000 are no greater than necessary to provide adequate deterrence, to Mr. Liebowitz, to his firm. and to others similarly situated. See, e.g., Ward, 2020 WL 2219070, at *3-4 (imposing $20,000 in sanctions for filing a lawsuit in bad faith and proceeding even after being notified that venue was improper). The Court imposes these sanctions, as well as the non-monetary sanctions discussed below, pursuant to Rule 16, Section 1927, and the Court’s inherent authority. The Court finds that, in total, these sanctions are “no more severe than reasonably necessary to deter repetition” of the misconduct “or comparable conduct by similarly situated persons.” Macolor, 2015 WL 1267337, at *5 (internal quotation marks omitted); cf.",
"Craig, No. 16-CV-5439, ECF No. 110 (sanctioning Mr. Liebowitz and his firm in the amount of $98,532.62 in attorney’s fees and costs); Rock, 2020 WL 468904, at *4, *7 (granting attorney’s fees against Mr. Liebowitz’s client totaling over $100,000, of which Mr. Liebowitz and his firm were responsible for $10,000). In fact, if anything, the scope of Mr. Liebowitz’s misconduct, his overall record, and the fact that the case was fatally flawed from its inception would have supported a larger monetary sanction. In addition, the Court concludes that two types of non-monetary sanctions are warranted to deter future misconduct. First, Mr. Liebowitz shall be required to serve a copy of this Opinion 51 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 53 52 of of 62 61 and Order on Mr. Usherson and every other current client of the Liebowitz Law Firm and to file it on the docket of any pending case brought by Mr. Liebowitz or any attorney working for his firm, as well as on the docket of any new case brought within one year from the date of the Opinion and Order by Mr. Liebowitz or any attorney working for his firm.",
"See In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 2-3 (N.D. Cal. June 12, 2020) (finding that Mr. Liebowitz “has falsely held himself out as a member of this Court’s bar on multiple occasions,” creating “good grounds for doubting that Liebowitz should be permitted to practice in this District even on a pro hac vice basis,” and thus requiring Mr. Liebowitz to “submit a copy of this Order in every open case in this District in which he has been admitted pro hac vice,” as well as “with every future pro hac vice application he may file in this District between June 13, 2020, and June 13, 2021”); Gallop, 667 F.3d at 230 (requiring sanctioned counsel “for a period of one year from the date of entry of this order, to provide notice of the sanctions imposed upon him in this case . . . to any federal court in this Circuit before which he appears or seeks to appear”).",
"In addition, in any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or any attorney working for the Liebowitz Law Firm that involves allegations of copyright infringement, the complaint must include as an attached exhibit a copy of the deposit files maintained by the U.S. Copyright Office reflecting the registration of the relevant copyrighted work or works at issue. Cf. Gertskis v. N.Y. Dep’t of Health & Mental Hygiene, No. 13-CV-2024 (JMF), 2014 WL 2933149, at *7 (S.D.N.Y. June 27, 2014) (requiring that any future action be filed as an application for leave to file with a copy of the order imposing sanctions for frivolous litigation); In re Martin-Trigona, 592 F. Supp. 1566, 1573 (D. Conn. 52 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 54 53 of of 62 61 1984) (Cabranes, J.)",
"(entering a permanent injunction placing limits on new lawsuits in response to a history of vexatious and harassing litigation). Finally, the Court will send a copy of this Opinion and Order to the Chair of the Court’s Grievance Committee to take whatever action the Committee deems appropriate. See Berger Tr. 27 (finding “this series of events serious enough to warrant . . . consideration” by the Grievance Committee); Mondragon, 2020 WL 2395641, at *1, *14 (concluding that “steps should be taken promptly by appropriate disciplinary authorities to suspend [Mr. Liebowitz’s] ability to file new cases unless and until he has demonstrated he has appropriate systems in place to assure regular compliance with court rules and rules of professional conduct”); cf. Konangataa v. Am. Broad.",
"Cos., No. 16-CV-7382 (LAK), No. 16-CV-7383 (LAK), No. 16-CV-7472 (LAK), 2017 WL 2684067, at *3 (S.D.N.Y. June 21, 2017) (noting that “defendants may pursue any claims of professional misconduct on the part of plaintiff’s attorney [Mr. Liebowitz] before appropriate disciplinary bodies”). CONCLUSION The Supreme Court has observed that “[m]embership in the bar is a privilege burdened with conditions. An attorney is received into that ancient fellowship for something more than private gain. He becomes an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.” In re Snyder, 472 U.S. 634, 644 (1985) (internal quotation marks and alterations omitted). Further, “[a]s an officer of the court, a member of the bar enjoys singular powers that others do not possess.” Id.",
"at 644. In exchange for “[t]he license granted by the court,” members of the bar must “conduct themselves in a manner compatible with the role of courts in the administration of justice.” Id. at 645. 53 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 55 54 of of 62 61 In this case and others, Mr. Liebowitz and his firm have fallen far short of that standard and failed to “conduct themselves in a manner compatible with the role of courts in the administration of justice.” Id. at 645. Accordingly, and for the reasons stated above, the Court concludes that sanctions must be imposed on Mr. Liebowitz and his firm, as follows: (1) Within seven days of the date of this Opinion and Order, Mr. Liebowitz and his firm shall pay to the Clerk of Court sanctions totaling $103,517.49; (2) By the same date, Mr. Liebowitz shall serve a copy of this Opinion and Order by overnight courier on Mr. Usherson and file proof of such service on ECF; (3) Within thirty days of the date of this Opinion and Order, Mr. Liebowitz and his firm shall serve a copy of this Opinion and Order, either by email or by overnight courier, on every one of the firm’s current clients and Mr. Liebowitz shall file a declaration attesting to such service on ECF; (4) By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of any currently pending case that was brought by Mr. Liebowitz or his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF; (5) In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of the case within two days of filing the complaint or otherwise initiating the case; and (6) In any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or his firm that involves allegations or claims of copyright infringement, the complaint shall include as an attached exhibit a copy of the deposit files maintained by the U.S.",
"Copyright Office reflecting prior registration of the relevant copyrighted work or works at issue. In addition, as noted above, the Court will send a copy of this Opinion and Order to the Chair of the Court’s Grievance Committee to take whatever action the Committee deems appropriate. The Clerk of Court is directed to terminate ECF No. 14. SO ORDERED. Dated: June 26, 2020 __________________________________ New York, New York JESSE M. FURMAN United States District Judge 54 Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 56 55 of of 62 61 APPENDIX 1.",
"Sadowski v. Ziff Davis, LLC, No. 20-CV-2244 (DLC), 2020 WL 3397714, at *4 (S.D.N.Y. June 19, 2020) (citing the fact that “Liebowitz regularly fails to comply with court orders . . . [and] has been repeatedly sanctioned” as a factor weighing in favor of requiring a bond to cover fees and costs, and noting that “[w]hile one can always hope that Liebowitz will comply with court orders in this case and conform his behavior to the standards of his chosen profession, it is difficult to be sanguine on this score given his track record”). 2. In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No.",
"17, at 1-2 (N.D. Cal. June 12, 2020) (finding that Mr. Liebowitz “has falsely held himself out as a member of this Court’s bar on multiple occasions,” even though he “never has been a member”; noting that his “unprofessional and blameworthy conduct” is “consistent with the extensive public record of discipline he has amassed in courts across the United States”; and concluding that there are “good grounds for doubting that Liebowitz should be permitted to practice in this District even on a pro hac vice basis”). 3. Ramales v. Alexander Wang Inc., No. 20-CV-0926 (DLC), ECF No. 32, ¶¶ 9-11 (S.D.N.Y. June 12, 2020) (declaration in support of a sanctions motion stating that opposing counsel repeatedly requested licensing history from Mr. Liebowitz, who first claimed he could not retrieve it “without a subpoena,” and then admitted that there was “no licensing history and that his client was wrong,” at which point he filed a notice of settlement at ECF No.",
"39 and avoided adjudication of the sanctions motion). 4. Geerds v. San Francisco Bay View Inc., No. 19-CV-6465 (JST), ECF No. 29 (N.D. Cal. June 10, 2020) (denying Mr. Liebowitz’s motion for admission pro hac vice in a case he filed in the Northern District on October 8, 2019, one day after he was disbarred in In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019)). 5. Polaris Images Corp. v. ENTtech Media Grp., LLC, No. 19-CV-8208 (KPF), 2020 U.S. Dist. LEXIS 97851, at *3 (S.D.N.Y.",
"June 3, 2020) (finding that the Court could not award attorney’s fees under 17 U.S.C. § 505 against Mr. Liebowitz’s client because Mr. Liebowitz had filed a notice of voluntary dismissal before the Court ruled on the defendant’s motion to dismiss, and noting that “[t]he Court sympathizes with ENTtech’s frustration with Plaintiffs’ conduct, and is only too aware of the notoriety that Plaintiffs’ counsel, Richard Liebowitz, has obtained in this District”). 6. Alvarado v. Mother Jones, LLC, No. 19-CV-6417 (JST), ECF No. 25, at 2-4 (N.D. Cal. May 14, 2020) (denying Mr. Liebowitz’s motion to appear pro hac vice after finding that Mr. Liebowitz continues to “regularly” file and litigate cases in the Northern District of California following his order of disbarment in In re Richard P. Liebowitz). 7. Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, i Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 57 56 of of 62 61 *14 (D. Colo. May 11, 2020) (concluding that “Mr. Liebowitz’s continued practice of law represents a clear and present danger to the fair and efficient administration of justice, and steps should be taken promptly by appropriate disciplinary authorities to suspend his ability to file new cases unless and until he has demonstrated he has appropriate systems in place to assure regular compliance with court rules and rules of professional conduct,” and requiring that Mr. Liebowitz associate with a Colorado-based attorney with at least five years of experience, who must co-sign any filings in the case, and that Mr. Liebowitz file a copy of the sanctions order in all other cases he has filed in the District of Colorado or files in the following sixth months).",
"8. Chevrestt v. Barstool Sports, Inc., No. 20-CV-1949 (VEC), 2020 WL 2301210, at *2 & n.4 (S.D.N.Y. May 8, 2020) (sanctioning Mr. Liebowitz under Rule 16, and finding that his attempt to plead “administrative oversight” was “disingenuous, distasteful, unpersuasive, and likely perjurious,” noting that he filed twenty-five new cases during the time he allegedly was prevented from complying with the Court’s order to timely file proof of service). 9. Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *3 (S.D. Ill. May 7, 2020) (concluding that Mr. Liebowitz “likely filed this action as a bad faith, frivolous effort to harass [the defendant]”; imposing $20,000 in sanctions under the Court’s inherent authority; and noting that “Liebowitz’s conduct in this case has been irresponsible, unreasonable, and detrimental to the fair administration of justice, harming both [the defendant], the Court, and even his own client, who has lost his opportunity to advance what appears to have been a meritorious claim”). 10. Wisser v. Vox Media, Inc., No. 19-CV-1445 (LGS), 2020 WL 1547381, at *3, *6 (S.D.N.Y.",
"Apr. 1, 2020) (imposing sanctions for various discovery violations, including affixing his client’s signature to interrogatory responses without authorization and without the client having even read the responses; and finding that “[c]lear evidence shows that Mr. Liebowitz’s and his firm’s actions . . . were so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose” (internal quotation marks omitted)). 11. Masi v. Mythical Entm’t, No. 19-CV-438 (FL), 2020 WL 1490704, at *1-2 (E.D.N.C. Mar.",
"24, 2020) (dismissing the case without prejudice for failure to comply with court orders because of Mr. Liebowitz’s refusal to cure a “litany” of filing deficiencies, which “mirrored numerous deficiencies in other cases before this court involving attorney Liebowitz,” in violation of the Court’s repeated warnings and orders). 12. Dermansky v. Tel. Media, LLC, No. 19-CV-1149 (PKC) (PK), 2020 U.S. Dist. LEXIS 44475, at *22 n.7, 24 (E.D.N.Y. Mar. 13, 2020) (citing Mr. Liebowitz’s “misleading conduct,” such as “cherry picking the few cases that support his maximum statutory damages request while ignoring the more numerous cases litigated by the same attorney awarding far less,” in past cases and the current case, and warning him that he may be subject to Rule 11 sanctions if he continues to engage in such conduct (internal quotation ii Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 58 57 of of 62 61 marks omitted)). 13.",
"Rock v. Enfants Riches Deprimes, LLC, No. 17-CV-2618 (ALC), 2020 WL 468904, at *4, *7 (S.D.N.Y. Jan. 29, 2020) (granting attorney’s fees against Mr. Liebowitz’s client totaling over $100,000, $10,000 of which Mr. Liebowitz and his firm were responsible for as sanctions, and finding that Mr. Liebowitz’s “conduct — of failing to investigate the evidentiary basis for a Complaint, of stonewalling discovery, of misleading the Court, and of making meritless arguments — undoubtedly demonstrates bad faith”). 14. Otto v. Hearst Comm’ns, Inc., No. 17-CV-4712, 2020 WL 377479, at *3-4 (S.D.N.Y. Jan. 23, 2020) (denying Mr. Liebowitz’s motion for attorney’s fees because he and his client Otto “consistently and undeniably asserted inflated values for Otto’s copyright” that were “wholly unsupported by the evidentiary record”; and noting that “[t]he protection of copyright is an important value, but there is little benefit to the copyright law in rewarding Otto for prolonging litigation in pursuit of an unjustifiably inflated claim”). 15. Karavani v. Nooklyn, Inc., No.",
"19-CV-1588 (ENV) (RER), 2019 U.S. Dist. LEXIS 224199, at n.2 (E.D.N.Y. Dec. 13, 2019) (affirming the magistrate judge’s decision to require Mr. Liebowitz’s client to post a bond because “[t]he bond order was well founded . . . and was heavily buttressed [by] multiple recent cases where plaintiff’s attorney has been ordered to post a bond and been previously sanctioned for misconduct in similar circumstances”). 16. Sands v. Bauer Media Grp. USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 6324866, at *1-3 (S.D.N.Y. Nov. 26, 2019) (dismissing an action with prejudice because of Mr. Liebowitz’s client’s failure to post a bond to cover costs and attorney’s fees awarded to the opposing party because of Mr. Liebowitz’s “discovery abuse” and “failure . . . to comply with discovery obligations,” and noting that “[i]n his zeal to deny that he files suits to extort settlements,” Mr. Liebowitz stated falsely under penalty of perjury that his client did not make a settlement demand in this case, even though he plainly did at both the initial conference and in an email “from Mr. Liebowitz . . . in which Mr. Liebowitz himself proposed settling for $25,000”).",
"17. Berger v. Imagina Consulting, Inc., No. 18-CV-8956 (CS), 2019 WL 6695047, at *4 (S.D.N.Y. Nov. 1, 2019) (holding Mr. Liebowitz in contempt of Court, imposing sanctions of $500 per day he failed to comply with the Court’s orders, and ordering Mr. Liebowitz to appear and show cause on pain of “arrest by the United States Marshals Service” in connection with Mr. Liebowitz’s misrepresentation about the date on which his grandfather passed away, which he made in order to justify missing a discovery conference, and his refusal to provide documentation reflecting the actual date of passing — misconduct which would later be referred to the Southern District’s Grievance Committee). 18.",
"Polaris Images Corp. v. CBS Interactive, Inc., No. 19-CV-3670 (VEC), 2019 WL iii Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 59 58 of of 62 61 5067167, at *3 (S.D.N.Y. Oct. 9, 2019) (imposing sanctions under Rule 16; concluding that “given the frequency with which Mr. Liebowitz commits ‘administrative errors,’ the undersigned is unconvinced that they are indeed good faith oversights”; and noting “Mr. Liebowitz’s continual disregard for this Court’s orders in multiple other cases”).",
"19. In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019) (ordering Mr. Liebowitz removed from the membership roll of the bar of the Court after he filed a case without being an active member of the state bar and submitted an explanation that was “not responsive and does not say anything at all about his membership in the State Bar of California”; and directing him to “disclose these [order to show cause] proceedings to any judge in this district before whom Liebowitz has a pending pro hac vice application”). 20. Craine v. Stylish Curves LLC, No. 19-CV-3995 (BMC), Text-Only Order (E.D.N.Y.",
"Sept. 3, 2019) (sanctioning Mr. Liebowitz for failing to appear at an initial status conference or request an entry of default, as ordered by the Court; noting that Mr. Liebowitz “made no effort to even contact this Court” until more than a week after the deadline passed; and, after rescheduling the status conference, directing Mr. Liebowitz to “attend this conference personally, not send some other lawyer”). 21. Mango v. Democracy Now! Prods., No.",
"18-CV-10588 (DLC), 2019 U.S. Dist. LEXIS 123550, at *15 (S.D.N.Y. July 24, 2019) (concluding that “[t]he history of Liebowitz’s failure to comply with court orders counsels in favor of the imposition of an additional bond” on his client). 22. Rice v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *4-5 (S.D.N.Y. July 10, 2019) (imposing $8,745.50 in sanctions under Rule 16 and the Court’s inherent authority, and finding that Mr. Liebowitz’s “disobedience of the Court’s Orders — both the Orders requiring mediation and Liebowitz’s appearance on May 2 — was willful”). 23. Craig v. UMG Recordings, Inc., No. 16-CV-5439 (JPO), 2019 WL 2992043, at *4, *7 (S.D.N.Y. July 9, 2019) (holding Mr. Liebowitz and his firm jointly and severally liable for an attorney’s fees and costs award of $98,532.62, and “reaffirm[ing] [the Court’s] inference that Liebowitz acted in bad faith” in filing a frivolous motion). 24. Stelzer v. Lead Stories LLC, No.",
"19-CV-0473 (PAB) (KMT), 2019 WL 5095689, at *4 (D. Colo. July 3, 2019) (granting dismissal with prejudice as a sanction for repeated failures to comply with deadlines and court orders, including a failure to attend a scheduled conference, and noting that “Plaintiff’s counsel has previously been sanctioned in another district for similar behavior, which clearly has had no deterrent effect”). 25.",
"Rice v. Musee Lingerie, LLC, No. 18-CV-9130 (AJN), 2019 U.S. Dist. LEXIS 111487, at *6 (S.D.N.Y. July 3, 2019) (noting that “Plaintiff’s attorney, Mr. Liebowitz, has previously been sanctioned by courts in this District for failure to comply with court orders and for filing misleading documents with the courts,” and ordering the imposition iv Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 60 59 of of 62 61 of a bond on his client because “Defendant here has a justified concern that Plaintiff, through his counsel, will evade court orders, or not proceed with this litigation prudently”).",
"26. Stridiron v. Cmty. Broads., LLC, No. 19-CV-108 (MAD) (ATB), 2019 U.S. Dist. LEXIS 103805, at *10-11 (N.D.N.Y. June 21, 2019) (noting that “like in the present matter, Mr. Liebowitz has regularly been found to have failed to comply with court orders,” and “courts in the Southern and Eastern Districts of New York have now begun to regularly require plaintiffs represented by Mr. Liebowitz to file bonds before proceeding further with his lawsuits, after a number of them were dismissed as frivolous from the bench or voluntarily dismissed by the plaintiff when it was made clear that the suits were subject to dismissal”). 27. Lee v. W Architecture & Landscape Architecture, LLC, No. 18-CV-5820 (PKC) (CLP), 2019 U.S. Dist. LEXIS 89335, at *12-13 (E.D.N.Y. May 28, 2019) (relying on “counsel’s history of violating court orders,” both “in this case” and in “other cases,” to impose a bond on Mr. Liebowitz’s client, and noting that “plaintiff has failed to timely file motion papers and failed to move this case forward”). 28. Dvir v. Dancing Astronaut, Inc., No.",
"18-CV-9416 (VEC), ECF No. 31, at 1, 6 (S.D.N.Y. May 22, 2019) (imposing sanctions under Rule 16 because “Mr. Liebowitz failed to comply with this Court’s order — communicated to him in-person, face-to-face, by the undersigned,” to be suspended for eighteen months in the “hopes” of deterring “Mr. Liebowitz’s future noncompliance with [the Court’s] orders”). 29. Otto v. Hearst Comm’ns, Inc., No. 17-CV-4712 (GHW) (JLC), 2019 WL 1034116, at *12 (S.D.N.Y. Feb. 21, 2019) (concluding that sanctions were not warranted “on the current record” for Mr. Liebowitz’s alleged misrepresentations during settlement negotiations, although it was “a close call,” and noting that “[t]his is hardly the first time that Liebowitz and his firm have had their reputation called into question, and the Court can only hope it will be the last”). 30. Pereira v. 3072541 Canada Inc., No. 17-CV-6945 (RA), 2018 WL 5999636, at *3 (S.D.N.Y.",
"Nov. 15, 2018) (finding that “Mr. Liebowitz failed to follow this Court’s orders and rules in at least three ways,” although ultimately declining to impose monetary sanctions, and expressing concern over “Mr. Liebowitz’s repeated failures to follow the orders and rules of this Court and others within the district, as well as his propensity to take unreasonable positions and to omit crucial facts — or even to make outright misrepresentations — in an apparent attempt to increase costs and to extort unwarranted settlements”). 31. McDermott v. Monday Monday, LLC, No.",
"17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018) (denying Mr. Liebowitz’s request for the Court to redact the term “copyright troll” from an opinion that described him as such because “[a]s evidenced by the astonishing volume of filings coupled with an astonishing rate of voluntary dismissals and quick settlements, it is undisputable that Mr. Liebowitz is v Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 61 60 of of 62 61 a copyright troll”). 32. Ferdman v. CBS Interactive Inc., 342 F. Supp. 3d 515, 529-30 (S.D.N.Y. 2018) (imposing discovery sanctions because “Plaintiff [represented by Mr. Liebowitz] has offered no explanation for his failure to produce copyright application-related materials during discovery,” and therefore denying Plaintiff’s motion for summary judgment because “there is a genuine issue of material fact as to whether the photographs that are the subject of Plaintiff’s infringement claim are included in the copyright registration”).",
"33. Seidman v. GAX Prods., LLC, No. 18-CV-2048 (RA) (BCM), ECF No. 23, at 3 (S.D.N.Y. Sept. 6, 2018) (sanctioning Mr. Liebowitz for serving unsigned interrogatory responses, “even after this Court expressly reminded [his client] of that obligation” in an order, and making arguments defending his actions that were “meritless as a matter of law”). 34. Leibowitz v. Galore Media Inc., No. 18-CV-2626 (RA) (HBP), ECF No. 18, at 6 (S.D.N.Y. July 11, 2018) (ordering Mr. Liebowitz’s client to post a bond in part because “defendant has a justified concern that plaintiff’s counsel, Richard P. Liebowitz, will evade court orders or voluntarily dismiss the action in an attempt to make plaintiff’s assets unreachable in the event costs are awarded to defendant”). 35. Romanowicz v. Alister & Paine, Inc., No. 17-CV-8937 (PAE) (KHP), ECF No.",
"24 (S.D.N.Y. June 22, 2018) (imposing monetary sanctions on Mr. Liebowitz after he “failed to attend the [inquest] hearing as ordered and failed to request an adjournment,” in addition to other violations of the Court’s orders). 36. Terry v. Masterpiece Adver. Design, No. 17-CV-8240 (NRB), 2018 U.S. Dist. LEXIS 104467, at *4-5 (S.D.N.Y. June 21, 2018) (rejecting Mr. Liebowitz’s argument that the Court should award $20,000 in damages without conducting any inquest as having “no basis in law” and being “constructed from whole cloth,” as previously ruled in the same case before Mr. Liebowitz “repeat[ed] [it] as part of this second motion”). 37. Steeger v. JMS Cleaning Servs., LLC, No. 17-CV-8013 (DLC), 2018 WL 1363497, at *2- 3 (S.D.N.Y. Mar. 15, 2018) (imposing monetary sanctions and a requirement that Mr. Liebowitz complete “four CLE credit hours in ethics and professionalism” in an effort to address Mr. Liebowitz’s “pattern of omissions and misrepresentations,” and noting that even Mr. Liebowitz’s motion for reconsideration of the sanctions order “continues the pattern”).",
"38. Reynolds v. Hearst Comm’ns, Inc., No. 17-CV-6720 (DLC), 2018 U.S. Dist. LEXIS 35453, at *12 (S.D.N.Y. Mar. 5, 2018) (“Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign [to which the plaintiff had voluntarily given the photograph at issue, and which then passed the vi Case 1:19-cv-06368-JMF Case 1:20-cv-00881-RP Document Document1-5 68 Filed Filed 08/24/20 06/26/20 Page Page 62 61 of of 62 61 photograph along to the defendant], as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.”). 39. Janik v. SMG Media, Inc., No. 16-CV-7308 (JGK) (AJP), 2018 WL 345111, at *16 (S.D.N.Y. Jan. 10, 2018) (concluding that “the Liebowitz Law Firm made a total hash of discovery, requiring multiple court conferences,” and “there was a failure of counsel to adequately communicate and coordinate with the plaintiffs, let alone with opposing counsel and the Court,” and warning that “the Liebowitz Law Firm needs to consider its reputation with the Court and, frankly, clean up its act”).",
"40. Konangataa v. American Broad. Cos., Inc., No. 16-CV-7382 (LAK), No. 16-CV-7383 (LAK), No. 16-CV-7472 (LAK), 2017 WL 2684067, at *2-3 (S.D.N.Y. June 21, 2017) (granting attorney’s fees to Mr. Liebowitz’s adversary because “no reasonable lawyer with any familiarity with the law of copyright could have thought that [the use of work at issue] . . . was anything but fair,” and noting that “defendants may pursue any claims of professional misconduct on the part of plaintiff’s attorney before appropriate disciplinary bodies”). vii"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/143391233/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:14-cr-00209-MAK Document 364 Filed 04/24/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : CRIMINAL ACTION : v. : NO. 14-209-1 : MARQUIS WILSON :
ORDER AND NOW, this 24th day of April 2020, upon considering the Defendant’s pro se Motion
for compassionate release under the First Step Act based upon a fear of contracting COVID-19 in
FCI Allenwood while allegedly treating for cancer (ECF Doc. No. 361), the United States’
Response (ECF Doc. No. 362), and for reasons in the accompanying Memorandum, it is
ORDERED:
1. The Defendant’s Motion for compassionate release (ECF Doc. No. 361) is
DENIED without prejudice to be renewed, if necessary, following exhausting his request for
compassionate release with the Bureau of Prisons and providing medical data confirming his at-
risk status; and,
2. The United States Attorney shall serve a copy of this Order on Marquis Wilson
USM # 71390-066 at FCI Allenwood Medium no later than Tuesday, April 28, 2020 and file a
certificate of service confirming compliance no later than Friday, May 1, 2020.
________________________ KEARNEY, J. Case 2:14-cr-00209-MAK Document 364 Filed 04/24/20 Page 2 of 2 | 2020-04-24 | [
"Case 2:14-cr-00209-MAK Document 364 Filed 04/24/20 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : CRIMINAL ACTION : v. : NO. 14-209-1 : MARQUIS WILSON : ORDER AND NOW, this 24th day of April 2020, upon considering the Defendant’s pro se Motion for compassionate release under the First Step Act based upon a fear of contracting COVID-19 in FCI Allenwood while allegedly treating for cancer (ECF Doc. No. 361), the United States’ Response (ECF Doc.",
"No. 362), and for reasons in the accompanying Memorandum, it is ORDERED: 1. The Defendant’s Motion for compassionate release (ECF Doc. No. 361) is DENIED without prejudice to be renewed, if necessary, following exhausting his request for compassionate release with the Bureau of Prisons and providing medical data confirming his at- risk status; and, 2. The United States Attorney shall serve a copy of this Order on Marquis Wilson USM # 71390-066 at FCI Allenwood Medium no later than Tuesday, April 28, 2020 and file a certificate of service confirming compliance no later than Friday, May 1, 2020. ________________________ KEARNEY, J. Case 2:14-cr-00209-MAK Document 364 Filed 04/24/20 Page 2 of 2"
]
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Hedrick, J. G.S. 15-200, in pertinent part, provides that where a probationer resides in a county or judicial district other than that in which he was placed on probation, the resident judge of the superior court of the district where the said probationer resides “. . . shall on request of the probationer, return such probationer for hearing and disposition to the county or judicial district in which such probationer was originally placed on probation; . . . The record discloses that the defendant’s request to be returned to Surry County had been filed with the probation officer at 10:00 a.m. 17 April 1970, and that the same had been delivered to the Resident Judge before 2:00 p.m. 17 April 1970. The applicable portions of the statute are mandatory, and in the instant case required the court to return the probationer to Surry County for a hearing and disposition as to the violation of the conditions of probation. Instead, Judge Gambill heard the report of the probation officer, made findings of fact, and entered an order extending probation. He also issued a “Probation Violation Warrant and Order for a Capias” to have the defendant returned to Surry County for a further hearing as to “whether or not he has violated the terms and conditions of the Probation judgment.” The two orders appear to be contradictory. When the motion was made by the defendant to be returned to Surry County the statute required that he be returned. It was error for Judge Gambill to conduct a hearing and extend the period of probation and the order purporting to do so is hereby vacated. The order of Judge Gambill transferring the case to Surry County was proper. The case is returned to Wilkes County for further proceedings consistent with this opinion. Error and remanded. Mallard, C.J., and Parker, J., concur. | 07-20-2022 | [
"Hedrick, J. G.S. 15-200, in pertinent part, provides that where a probationer resides in a county or judicial district other than that in which he was placed on probation, the resident judge of the superior court of the district where the said probationer resides “. . . shall on request of the probationer, return such probationer for hearing and disposition to the county or judicial district in which such probationer was originally placed on probation; . .",
". The record discloses that the defendant’s request to be returned to Surry County had been filed with the probation officer at 10:00 a.m. 17 April 1970, and that the same had been delivered to the Resident Judge before 2:00 p.m. 17 April 1970. The applicable portions of the statute are mandatory, and in the instant case required the court to return the probationer to Surry County for a hearing and disposition as to the violation of the conditions of probation. Instead, Judge Gambill heard the report of the probation officer, made findings of fact, and entered an order extending probation. He also issued a “Probation Violation Warrant and Order for a Capias” to have the defendant returned to Surry County for a further hearing as to “whether or not he has violated the terms and conditions of the Probation judgment.” The two orders appear to be contradictory. When the motion was made by the defendant to be returned to Surry County the statute required that he be returned. It was error for Judge Gambill to conduct a hearing and extend the period of probation and the order purporting to do so is hereby vacated. The order of Judge Gambill transferring the case to Surry County was proper. The case is returned to Wilkes County for further proceedings consistent with this opinion.",
"Error and remanded. Mallard, C.J., and Parker, J., concur."
]
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653 N.E.2d 421 (1995) 273 Ill.App.3d 635 210 Ill. Dec. 516 Virginia BISHOP, Adm'r of the Estate of Ray Bishop, Deceased, Plaintiff-Appellant, v. TRI COUNTY RADIOLOGISTS, LTD., Defendant-Appellee. No. 3-94-0760. Appellate Court of Illinois, Third District. July 18, 1995. As Modified September 20, 1995. Mark D. Howard, Peoria, for Virginia Bishop. Gregory Q. Hill, Charles C. Hughes, and Deanne F. Jones, Kehart, Shafter, Hughes, Webber, P.C., Decatur, for Tri County Radiologists. Justice BRESLIN delivered the opinion of the court: The plaintiff, Virginia Bishop, as administrator of the estate of Ray Bishop, sought damages from the defendant, Tri County Radiologists, Ltd., for its alleged negligence in causing Ray Bishop to lose a chance of surviving lung cancer. The circuit court dismissed the plaintiff's amended complaint for failure to state a cause of action. We affirm. The plaintiff's amended complaint alleged the following facts. The defendant, through one of its doctors, X-rayed Ray Bishop's lungs in July 1991. The defendant misread the X-ray at that time and consequently failed to diagnose the presence of lung cancer. By the time the cancer was discovered in November 1991, it had progressed to a point where it was inoperable. Bishop died from lung cancer in June 1992. The complaint further alleged that there was a 10% to 20% chance that Bishop's cancer was in stage I or stage II of its progression *422 in July 1991. If the cancer was in stage I or stage II at that time, then it would have been operable, and with proper treatment Bishop would have had a 40% to 50% chance of surviving for at least five years. The complaint sought damages for the 40% to 50% chance of survival that Ray Bishop allegedly lost due to the defendant's negligence. The trial court ruled that a lost chance of survival was not a compensable injury under Illinois law and accordingly dismissed the complaint with prejudice. The issue on appeal is whether Illinois should join a number of States that allow recovery for negligent deprivation of a chance of survival under the "pure form" of the loss of chance doctrine. There are several variations of the loss of chance doctrine. (See generally Kramer v. Lewisville Memorial Hospital (Tex.1993), 858 S.W.2d 397.) The version which the plaintiff asks us to adopt recognizes a lost chance of survival as a distinct injury, apart from death, for which compensation may be sought. This is known as the "pure form" of the loss of chance doctrine and is distinct from the loss of chance doctrine which affects the quantum of proof needed to establish proximate cause in wrongful death cases alleging medical malpractice. (See Hajian v. Holy Family Hospital (1995), 273 Ill.App.3d 932, 941, 210 Ill. Dec. 156, 652 N.E.2d 1132; Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill.App.3d 479, 493 N.E.2d 6.) Under the pure form of the doctrine, a plaintiff may recover by showing that the medical malpractice more likely than not decreased a substantial chance of survival and that the injured person ultimately died. Perez v. Las Vegas Medical Center (1991), 107 Nev. 1, 6, 805 P.2d 589, 592. We decline to adopt the pure form of the loss of chance doctrine under the facts of this case. Even if we were to allow recovery under the doctrine, the facts alleged by the plaintiff would not be sufficient to state a cause of action. As noted above, the loss of chance doctrine requires a plaintiff to show that, more probably than not, a defendant's negligence caused the decedent to lose a substantial chance of survival. The plaintiff in the case at bar cannot make such a showing. The plaintiff has alleged that there was a 10% to 20% chance that the decedent's cancer was in stage I or stage II at the time the X-ray was taken. The 40% to 50% chance of survival for which the plaintiff seeks damages only existed if the cancer was in stage I or stage II at the time of the X-ray. Under the facts alleged, then, there was an 80% to 90% chance that the 40% to 50% chance of survival did not exist at the time of the X-ray. Therefore, the plaintiff has failed to allege that the defendant's negligence more likely than not caused Ray Bishop to lose a chance of survival. Consequently, the trial court's dismissal of the plaintiff's action must be upheld, and we need not determine whether Illinois should adopt the pure form of the loss of chance doctrine. For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. Affirmed. STOUDER, P.J., and McCUSKEY, J., concur. | 10-30-2013 | [
"653 N.E.2d 421 (1995) 273 Ill.App.3d 635 210 Ill. Dec. 516 Virginia BISHOP, Adm'r of the Estate of Ray Bishop, Deceased, Plaintiff-Appellant, v. TRI COUNTY RADIOLOGISTS, LTD., Defendant-Appellee. No. 3-94-0760. Appellate Court of Illinois, Third District. July 18, 1995. As Modified September 20, 1995. Mark D. Howard, Peoria, for Virginia Bishop. Gregory Q. Hill, Charles C. Hughes, and Deanne F. Jones, Kehart, Shafter, Hughes, Webber, P.C., Decatur, for Tri County Radiologists. Justice BRESLIN delivered the opinion of the court: The plaintiff, Virginia Bishop, as administrator of the estate of Ray Bishop, sought damages from the defendant, Tri County Radiologists, Ltd., for its alleged negligence in causing Ray Bishop to lose a chance of surviving lung cancer. The circuit court dismissed the plaintiff's amended complaint for failure to state a cause of action. We affirm.",
"The plaintiff's amended complaint alleged the following facts. The defendant, through one of its doctors, X-rayed Ray Bishop's lungs in July 1991. The defendant misread the X-ray at that time and consequently failed to diagnose the presence of lung cancer. By the time the cancer was discovered in November 1991, it had progressed to a point where it was inoperable. Bishop died from lung cancer in June 1992. The complaint further alleged that there was a 10% to 20% chance that Bishop's cancer was in stage I or stage II of its progression *422 in July 1991. If the cancer was in stage I or stage II at that time, then it would have been operable, and with proper treatment Bishop would have had a 40% to 50% chance of surviving for at least five years. The complaint sought damages for the 40% to 50% chance of survival that Ray Bishop allegedly lost due to the defendant's negligence.",
"The trial court ruled that a lost chance of survival was not a compensable injury under Illinois law and accordingly dismissed the complaint with prejudice. The issue on appeal is whether Illinois should join a number of States that allow recovery for negligent deprivation of a chance of survival under the \"pure form\" of the loss of chance doctrine. There are several variations of the loss of chance doctrine. (See generally Kramer v. Lewisville Memorial Hospital (Tex.1993), 858 S.W.2d 397.) The version which the plaintiff asks us to adopt recognizes a lost chance of survival as a distinct injury, apart from death, for which compensation may be sought.",
"This is known as the \"pure form\" of the loss of chance doctrine and is distinct from the loss of chance doctrine which affects the quantum of proof needed to establish proximate cause in wrongful death cases alleging medical malpractice. (See Hajian v. Holy Family Hospital (1995), 273 Ill.App.3d 932, 941, 210 Ill. Dec. 156, 652 N.E.2d 1132; Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill.App.3d 479, 493 N.E.2d 6.) Under the pure form of the doctrine, a plaintiff may recover by showing that the medical malpractice more likely than not decreased a substantial chance of survival and that the injured person ultimately died.",
"Perez v. Las Vegas Medical Center (1991), 107 Nev. 1, 6, 805 P.2d 589, 592. We decline to adopt the pure form of the loss of chance doctrine under the facts of this case. Even if we were to allow recovery under the doctrine, the facts alleged by the plaintiff would not be sufficient to state a cause of action. As noted above, the loss of chance doctrine requires a plaintiff to show that, more probably than not, a defendant's negligence caused the decedent to lose a substantial chance of survival. The plaintiff in the case at bar cannot make such a showing. The plaintiff has alleged that there was a 10% to 20% chance that the decedent's cancer was in stage I or stage II at the time the X-ray was taken. The 40% to 50% chance of survival for which the plaintiff seeks damages only existed if the cancer was in stage I or stage II at the time of the X-ray. Under the facts alleged, then, there was an 80% to 90% chance that the 40% to 50% chance of survival did not exist at the time of the X-ray. Therefore, the plaintiff has failed to allege that the defendant's negligence more likely than not caused Ray Bishop to lose a chance of survival.",
"Consequently, the trial court's dismissal of the plaintiff's action must be upheld, and we need not determine whether Illinois should adopt the pure form of the loss of chance doctrine. For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. Affirmed. STOUDER, P.J., and McCUSKEY, J., concur."
]
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Hardin, P. J.: The court held in Matter of Cuddeback (3 App. Div. 103), viz.: “ An appeal will not always be dismissed because the question is ho longer a practical one. Notwithstanding the fact that an election has been held and a decision of the question involved cannot affect the result of that election, yet where the point at issue is one of public interest, affecting the rights .of all the electors of the State,, the courts will determine it.” ' Following the'doctrine there laid down, it seems that we ought not, in this case, to dismiss the appeal because the question here involved is as much a- matter of public interest as the question involved in the case from which the quotation has been made. The enrollment was made for the benefit of the Republican party. The relator was a member of that party and sought the information which the enrollment would afford him. While he was'consulting the books and gathering from them the information which he, as a member of the Republican party, was entitled to, he-was interrupted and prevented from the completion of his efforts.. He, in effect, was denied the full privileges of “ an inspection.”', (Cotheal v. Brouwer, 5 N. Y. 562.) The denial was not put upon the ground that he was taking unnecessary time or interfering with the rights of any other member of the party to examine the books, . but upon the assertion that he had no right while' inspecting tO' make a copy of the list of names he found on .the enrollment.. Such denial seems to have interfered with the rights and privileges of a member of the party in whose interest the enrollment was made.. (Mutter v. Eastern & Midland Railways Company, 59 L. T. Rep. 117; S. C., 38 Ch. Div. 92.) In that case Lord Justice.Lindley,. in delivering judgment, said that an examination of. the authorities had led him to the conclusion that, speaking generally, a right to' take copies is always treated as incidental to a right to inspect.. *341<c When the right to inspect and take a copy is not expressly conferred, the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest.” (See, also, Nelson v. Anglo-American Land, Mortgage & Agency Company, 75 L. T. Rep. 482; cited in 31 Am. Law Rev. 916, 917.) The Special Term might, therefore, have properly awarded a mandamus requiring the defendant to allow the relator- a further examination and inspection of the enrollment. These views would seem to lead to the conclusion that the Special Term improperly denied the writ, .and that its order should be reversed. Follett and Green, JJ., concurred; Adams and Ward, JJ., dissented. | 01-06-2022 | [
"Hardin, P. J.: The court held in Matter of Cuddeback (3 App. Div. 103), viz. : “ An appeal will not always be dismissed because the question is ho longer a practical one. Notwithstanding the fact that an election has been held and a decision of the question involved cannot affect the result of that election, yet where the point at issue is one of public interest, affecting the rights .of all the electors of the State,, the courts will determine it.” ' Following the'doctrine there laid down, it seems that we ought not, in this case, to dismiss the appeal because the question here involved is as much a- matter of public interest as the question involved in the case from which the quotation has been made. The enrollment was made for the benefit of the Republican party. The relator was a member of that party and sought the information which the enrollment would afford him. While he was'consulting the books and gathering from them the information which he, as a member of the Republican party, was entitled to, he-was interrupted and prevented from the completion of his efforts.. He, in effect, was denied the full privileges of “ an inspection.”', (Cotheal v. Brouwer, 5 N. Y.",
"562.) The denial was not put upon the ground that he was taking unnecessary time or interfering with the rights of any other member of the party to examine the books, . but upon the assertion that he had no right while' inspecting tO' make a copy of the list of names he found on .the enrollment.. Such denial seems to have interfered with the rights and privileges of a member of the party in whose interest the enrollment was made.. (Mutter v. Eastern & Midland Railways Company, 59 L. T. Rep. 117; S. C., 38 Ch. Div.",
"92.) In that case Lord Justice.Lindley,. in delivering judgment, said that an examination of. the authorities had led him to the conclusion that, speaking generally, a right to' take copies is always treated as incidental to a right to inspect.. *341<c When the right to inspect and take a copy is not expressly conferred, the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest.” (See, also, Nelson v. Anglo-American Land, Mortgage & Agency Company, 75 L. T. Rep. 482; cited in 31 Am. Law Rev. 916, 917.) The Special Term might, therefore, have properly awarded a mandamus requiring the defendant to allow the relator- a further examination and inspection of the enrollment.",
"These views would seem to lead to the conclusion that the Special Term improperly denied the writ, .and that its order should be reversed. Follett and Green, JJ., concurred; Adams and Ward, JJ., dissented."
]
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967 F.2d 135 61 USLW 2110, 1992 Copr.L.Dec. P 26,959,23 U.S.P.Q.2d 1676 HODGE E. MASON and HODGE MASON MAPS, INC., Plaintiffs-Appellants,v.MONTGOMERY DATA, INC., ET AL., Defendants-Appellees. No. 91-2305. United States Court of Appeals,Fifth Circuit. July 28, 1992.
Thomas G. Gee, Martin L. McGregor, Richard S. Siluk, Baker & Botts, Houston, Tex., for plaintiffs-appellants. David B. Wolf, Walter, Conston, Alexander & Green, New York City, amicus curiae for Rand McNally & Co. Jerry Sadler, Houston, Tex., amici curiae for Key Maps, Thomas Bros. Map Co. and Mapsco. Lionel M. Schooler, Gilpin, Paxson & Bersch, Houston, Tex., for Landata, Inc. of Houston. James B. Gambrell, Marc L. Delflache, Eugene R. Montalvo, Pravel, Gambrell, Hewitt, Kimball & Krieger, Houston, Tex., for Montgomery Data & Conroe Title. Appeals from the United States District Court for the Southern District of Texas. Before SNEED1, REAVLEY and BARKSDALE, Circuit Judges. REAVLEY, Circuit Judge:
1 Hodge E. Mason, Hodge Mason Maps, Inc., and Hodge Mason Engineers, Inc. (collectively Mason) sued Montgomery Data, Inc. (MDI), Landata, Inc. of Houston (Landata), and Conroe Title & Abstract Co. (Conroe Title), claiming that the defendants infringed Mason's copyrights on 233 real estate ownership maps of Montgomery County, Texas. The district court initially held that Mason cannot recover statutory damages or attorney's fees for any infringement of 232 of the copyrights. The court later held that Mason's maps are not copyrightable under the idea/expression merger doctrine, and granted summary judgment for the defendants. We agree with Mason that the maps are copyrightable, so we reverse the district court's judgment and remand the case. But we agree with the district court that, if Mason proves that the defendants infringed his copyrights,2 he can only recover statutory damages and attorney's fees for the infringements of one of the 233 maps.
I. BACKGROUND
2 Between August 1967 and July 1969, Mason created and published 118 real estate ownership maps that, together, cover all of Montgomery County. The maps, which display copyright notices, pictorially portray the location, size, and shape of surveys, land grants, tracts, and various topographical features within the county. Numbers and words on the maps identify deeds, abstract numbers, acreage, and the owners of the various tracts. Mason obtained the information that he included on the maps from a variety of sources.3 Relying on these sources, Mason initially determined the location and dimensions of each survey in the county, and then drew the corners and lines of the surveys onto topographical maps of the county that were published by the United States Geological Survey (USGS).4 He then determined the location of the property lines of the real estate tracts within each survey and drew them on the USGS maps. Finally, Mason traced the survey and tract lines onto transparent overlays, enlarged clean USGS maps and the overlays, added names and other information to the overlays, and combined the maps and overlays to print the final maps. Mason testified that he used substantial judgment and discretion to reconcile inconsistencies among the various sources, to select which features to include in the final map sheets, and to portray the information in a manner that would be useful to the public. From 1970 to 1980, Mason revised the original maps and eventually published 115 new maps with copyright notices, for a total of 233 maps. Mason sold copies of his maps individually and in sets.
3 Mason's infringement claims are based on the defendants' use of his maps as part of a geographical indexing system that Landata created to continuously organize and store ever-changing title information on each tract in Montgomery County. To create this sytem, Landata purchased a set of Mason's maps and reorganized them by cutting and pasting them into 72 map sheets. Landata then attached a transparent overlay to each of the 72 sheets, and depicted on these overlays numerous updates and corrections to the information on Mason's maps. Landata arbitrarily assigned identification numbers ("arb numbers") to tracts or areas within the county, and added these numbers to the overlays. Using this process, Landata created an inked mylar "master overlay" for each of the 72 reorganized map sheets. Landata then made sepia copies of the master overlays, and began registering ownership and other changes on the sepia copies from the hundreds of land grants that are recorded in the county each day. Using this system, the defendants are able to retrieve current ownership and other information on any tract by locating its arb number on the appropriate overlay and entering that number into a computer database that contains data on each tract.
4 In 1985, several title companies, including Conroe Title, incorporated MDI as a joint title plant. MDI and Landata then entered into a series of agreements under which Conroe Title and MDI's other shareholders can use Landata's system when they issue title insurance policies. On September 17, 1985, Landata asked Mason for permission to use his maps as part of its system, but Mason denied the request because Landata refused to pay a licensing fee. Landata then provided its products to MDI without Mason's permission. Each of MDI's shareholders purchased an original set of Mason's maps, and either MDI or the shareholders reorganized the maps from 118 to 72 map sheets according to Landata's specifications. Landata provided MDI with a set of sepia copies of the master overlays for each set of reorganized maps and with access to its computer database. Annually from 1982 through 1986, and again in 1989, Landata or MDI produced new, updated editions of the master overlays.
5 Mason registered the copyright for one of the original 118 maps in October 1968. After learning of Landata's use of his maps, Mason registered the copyrights for the remaining 117 original maps and the 115 revised maps between October and December 1987. Mason filed this suit in September 1988, claiming infringement of his 233 copyrights under 17 U.S.C. § 106, and seeking statutory damages and attorney's fees under 17 U.S.C. §§ 504-05. In December 1989, the defendants sought a partial summary judgment that, even if Mason proves copyright infringement, 17 U.S.C. § 412 precludes an award of statutory damages or attorney's fees for any infringement of the 232 maps that Mason registered in 1987. The district court granted this motion on June 1, 1990. Mason v. Montgomery Data, Inc., 741 F. Supp. 1282, 1287 (S.D.Tex.1990). In September 1990, Mason filed a motion for partial summary judgment that the defendants had infringed his copyrights. The defendants countered with motions for summary judgment in which they asserted that Mason's maps are not copyrightable and, even if they are, the defendants' use of the maps does not constitute infringement. The district court granted the defendants' motions after holding that Mason's maps are not copyrightable because the idea embodied in the maps is inseparable from the maps' expression of that idea. Mason v. Montgomery Data, Inc., 765 F. Supp. 353, 356 (S.D.Tex.1991). The court dismissed Mason's claims with prejudice and awarded the defendants costs and attorney's fees.II. DISCUSSION
A. THE COPYRIGHTABILITY OF MASON'S MAPS 1. The Idea/Expression Merger Doctrine
6 The Copyright Act extends copyright protection to "original works of authorship fixed in any tangible medium of expression." 17 U.S.C.A. § 102(a) (West Supp.1992). The scope of that protection, however, is not unlimited. "In no case does copyright protection for an original work of authorship extend to any idea, ... regardless of the form in which it is described, explained, illustrated, or embodied in such work." Id. § 102(b) (emphasis added). Thus, while a copyright bars others from copying an author's original expression of an idea, it does not bar them from using the idea itself. "Others are free to utilize the 'idea' so long as they do not plagiarize its 'expression.' " Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir.1971). In some cases, however, it is so difficult to distinguish between an idea and its expression that the two are said to merge. Thus, when there is essentially only one way to express an idea, "copying the 'expression' will not be barred, since protecting the 'expression' in such circumstances would confer a monopoly of the 'idea' upon the copyright owner free of the conditions and limitations imposed by the patent law." Id. at 742. By denying protection to an expression that is merged with its underlying idea, we "prevent an author from monopolizing an idea merely by copyrighting a few expressions of it." Toro Co. v. R & R Products Co., 787 F.2d 1208, 1212 (8th Cir.1986).5
7 The district court applied these principles to the present case and concluded that "the problem with the Hodge Mason maps is ... that [they] express the only pictorial presentation which could result from a correct interpretation of the legal description and other factual information relied upon by the plaintiffs in producing the maps." Mason, 765 F. Supp. at 355. The court believed that,
8 [t]o extend copyright protection to the Hodge Mason maps, which resulted from facts essentially in the public domain, would give the plaintiffs a monopoly over the facts. In other words, anyone who has the desire and ability to correctly interpret the legal descriptions and toil through the factual information relied upon by the plaintiffs in creating their maps, would create a pictorial presentation so substantially similar to the plaintiffs['] that they could be accused of copyright infringement. This result would clearly upset Congress' intent to balance the "competing concerns of providing incentive to authors to create and of fostering competition in such creativity."
9 Id. at 356 (quoting Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3rd Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S. Ct. 690, 79 L. Ed. 2d 158 (1984)). The court thus concluded that "the plaintiffs' idea to create the maps, based on legal and factual public information, is inseparable from its expression embodied within the maps, and hence not subject to copyright protection." Id.
10 We agree with Mason that the district court erred in applying the merger doctrine in this case. To determine whether the doctrine is applicable in any case, the court must "focus on whether the idea is capable of various modes of expression." Apple Computer, 714 F.2d at 1253. Thus, the court must first identify the idea that the work expresses, and then attempt to distinguish that idea from the author's expression of it. If the court concludes that the idea and its expression are inseparable, then the merger doctrine applies and the expression will not be protected. Conversely, if the court can distinguish the idea from its expression, then the expression will be protected because the fact that one author has copyrighted one expression of that idea will not prevent other authors from creating and copyrighting their own expressions of the same idea. In all cases, "[t]he guiding consideration in drawing the line is the preservation of the balance between competition and protection reflected in the patent and copyright laws." Herbert Rosenthal Jewelry, 446 F.2d at 742.
11 The district court determined that Mason's idea, "which includes drawing the abstract and tract boundaries, indicating the ownership name, the tract size, and the other factual information" on a map of Montgomery County, was "to create the maps, based on legal and factual public information." Mason, 765 F. Supp. at 356. Mason argues that the court clearly erred in finding that this idea can be expressed in only one or a limited number of ways. We agree. The record in this case contains copies of maps created by Mason's competitors that prove beyond dispute that the idea embodied in Mason's maps is capable of a variety of expressions. Although the competitors' maps and Mason's maps embody the same idea, they differ in the placement, size, and dimensions of numerous surveys, tracts, and other features. The record also contains affidavits in which licensed surveyors and experienced mapmakers explain that the differences between Mason's maps and those of his competitors are the natural result of each mapmaker's selection of sources, interpretation of those sources, discretion in reconciling inconsistencies among the sources, and skill and judgment in depicting the information.6
12 MDI argues that this evidence is irrelevant because there is no proof that Mason and his competitors obtained their information from the same sources. But the fact that different mapmakers with the same idea could reach different conclusions by relying on different sources only supports our result. Whether Mason and his competitors relied on different sources, or interpreted the same sources and resolved inconsistencies among them differently, or made different judgments as to how to best depict the information from those sources, the differences in their maps confirm the fact that the idea embodied in Mason's maps can be expressed in a variety of ways. By selecting different sources, or by resolving inconsistencies among the same sources differently, or by coordinating, arranging, or even drawing the information differently, other mapmakers may create--and indeed have created-- expressions of Mason's idea that differ from those that Mason created.7
13 Finally, the defendants contend that this court's decision in Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d at 1458, requires application of the merger doctrine in this case. Kern River concerned the copyrightability of maps on which Kern River Gas Transmission Company (Kern River) depicted the location that it proposed for construction of a gas pipeline. The idea at issue in Kern River was simply the placing on a map of Kern River's certain "proposed location for a prospective pipeline." Id. at 1464. This court concluded that that idea merged with Kern River's expression because there was only one way to effectively express that idea. Id.
14 The defendants argue that the merger doctrine applies in this case because drawing lines on a public map is the only way to depict the locations of surveys and boundary lines in Montgomery County, just as it was the only way to depict the location of a pipeline in Kern River. But the distinction between Kern River and this case is not in the methods available for depicting an object's location on a map, but in the ideas that the maps in the two cases embody. We cannot determine whether an idea is capable of a variety of expressions until we first identify what that idea is. A court's decision whether to apply the merger doctrine often depends on how it defines the author's idea. For this reason, in defining the idea the court should be guided by "the balance between competition and protection reflected in the patent and copyright laws." Herbert Rosenthal Jewelry, 446 F.2d at 742.8
15 We focus in this case on an earlier point in the mapping process, a point prior to the selection of information and decisions where to locate tract lines. The idea here was to bring together the available information on boundaries, landmarks, and ownership, and to choose locations and an effective pictorial expression of those locations. That idea and its final expression are separated by Mason's efforts and creativity that are entitled to protection from competitors. The evidence in this case demonstrates that a mapmaker who desires to express the idea of depicting the location and ownership of property in Montgomery County in map form must select information from numerous sources, reconcile inconsistencies among those sources, and depict the information according to the mapmaker's skill and judgment. Although Mason sought to depict the information accurately, the conflicts among the sources and the limitations inherent in the process of representing reality in pictorial map form required him to make choices that resulted in independent expression. Extending protection to that expression will not grant Mason a monopoly over the idea, because other mapmakers can express the same idea differently. The protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected. "[T]he facts and ideas ... are free for the taking.... "[T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas." Feist, 111 S. Ct. at 1289 (quoting Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM.L.REV. 1865, 1868 (1990)).
16 For these reasons, we conclude that the district court erred by applying the merger doctrine in this case. Because the idea embodied in Mason's maps can be expressed in a variety of ways, the merger doctrine does not render Mason's expression of that idea uncopyrightable.
2. The "Originality" Requirement
17 Landata contends that, even if the merger doctrine does not apply, Mason's maps are uncopyrightable because they are not "original" under Feist. Although the district court applied the merger doctrine to hold that Mason's maps are not copyrightable, it found that "the problem with the Hodge Mason maps is not a lack of originality." Mason, 765 F. Supp. at 355. We agree that Mason's maps are original. Originality does not require "novelty, ingenuity, or aesthetic merit." H.R.REP. No. 1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664; see also Feist, 111 S. Ct. at 1287. Instead, originality "means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Feist, 111 S. Ct. at 1287 (citing 1 M. Nimmer & D. Nimmer, COPYRIGHT § 2.01[A]-[B] (1990)). The parties do not dispute Mason's claim that he independently created his maps, but Landata contends that they do not possess the degree of creativity necessary to qualify them as original under Feist.
18 Mason's maps pass muster under Feist because Masons' selection, coordination, and arrangement of the information that he depicted are sufficiently creative to qualify his maps as original "compilations" of facts.9 Under the originality standard, bare facts are never copyrightable "because facts do not owe their origin to an act of authorship." Id. at 1288. A compilation of facts, however, may be copyrightable if the author made choices as to "which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers." Id. at 1289. The author's selection, coordination, and arrangement of facts, however, are protected only if they were "made independently ... and entail a minimal degree of creativity." Id.
19 In Feist, the Court held that the defendant, who copied a list of names, towns, and telephone numbers from the white pages of the plaintiff's telephone directory, did not copy anything that was "original" to the plaintiff. Id. at 1296. The Court explained that the plaintiff's selection of facts to publish--the name, town, and telephone number of each person who applied for telephone service--"lacks the modicum of creativity necessary to transform mere selection into copyrightable expression." Id. And the plaintiff's arrangement of these facts, which involved "nothing more than list[ing] ... [the] subscribers in alphabetical order," is "not only unoriginal, it is practically inevitable." Id. at 1297. Because the plaintiff "simply [took] the data provided by its subscribers and list[ed] it alphabetically by surname ..., [t]he end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity." Id. at 1296.
20 But the evidence in this case demonstrates that Mason exercised sufficient creativity when he created his maps. In his deposition and affidavit, Mason explained the choices that he independently made to select information from numerous and sometimes conflicting sources, and to depict that information on his maps.10 Mason's compilation of the information on his maps involved creativity that far exceeds the required minimum level.
21 Mason's maps also possess sufficient creativity to merit copyright protection as pictorial and graphic works of authorship. Historically, most courts have treated maps solely as compilations of facts. See Wolf, supra note 4, at 227. The Copyright Act, however, categorizes maps not as factual compilations but as "pictorial, graphic, and sculptural works"--a category that includes photographs and architectural plans. 17 U.S.C.A. § 101 (West Supp.1992). Some courts have recognized that maps, unlike telephone directories and other factual compilations, have an inherent pictorial or photographic nature that merits copyright protection. See, e.g., Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145, 149 (7th Cir.1985) ("Teasing pictures from the debris left by conveyancers is a substantial change in the form of the information. The result is copyrightable...."), cert. denied, 474 U.S. 1061, 106 S. Ct. 806, 88 L. Ed. 2d 781 (1986); United States v. Hamilton, 583 F.2d 448, 451 (9th Cir.1978) ("Expression in cartography is not so different from other artistic forms seeking to touch upon external realities that unique rules are needed to judge whether the authorship is original."). We agree with these courts. As Wolf explains in his article:
22 It is true that maps are factual compilations insofar as their subject matter is concerned. Admittedly, most maps present information about geographic relationships, and the "accuracy" of this presentation, with its utilitarian aspects, is the reason most maps are made and sold. Unlike most other factual compilations, however, maps translate this subject-matter into pictorial or graphic form.... Since it is this pictorial or graphic form, and not the map's subject matter, that is relevant to copyright protection, maps must be distinguished from non-pictorial fact compilations.... A map does not present objective reality; just as a photograph's pictorial form is central to its nature, so a map transforms reality into a unique pictorial form central to its nature.
23 Wolf, supra note 4, at 239-40.
24 The level of creativity required to make a work of authorship original "is extremely low; even a slight amount will suffice." Feist, 111 S. Ct. at 1287. We think that the process by which Mason, using his own skill and judgment, pictorially portrayed his understanding of the reality in Montgomery County by drawing lines and symbols in particular relation to one another easily exceeds that level.
25 Because Mason's maps possess sufficient creativity in both the selection, coordination, and arrangement of the facts that they depict, and as in the pictorial, graphic nature of the way that they do so, we find no error in the district court's determination that Mason's maps are original.
B. AVAILABILITY OF STATUTORY DAMAGES
26 Mason sought statutory damages rather than actual damages. The district court held that section 412 of the Copyright Act precludes an award of statutory damages (and attorney's fees) for any alleged infringement of all but one of Mason's maps. See Mason, 741 F. Supp. at 1285-87. Mason calls that holding error, but we agree with the district court. Section 412 provides that:
27 no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for ... (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
28 17 U.S.C.A. § 412 (West Supp.1992). Mason argues that Congress' use of the phrase "for any infringement" in this section reveals its intent that courts treat each of a defendant's infringing acts separately and deny statutory damages only for those specific infringing acts that commenced prior to registration. Thus, Mason argues, section 412 allows him to recover statutory damages and attorney's fees for any infringement that the defendants commenced after he registered the copyrights, even though they commenced other, separate infringements of the same work prior to registration. The district court rejected this argument because it interpreted the term "infringement" to mean all of a defendant's acts of infringement of any one work. Thus, the court interpreted "the words 'commencement of infringement' to mean the first act of infringement in a series of on-going separate infringements." 741 F. Supp. at 1286.
29 We find section 412 to be ambiguous and open to either interpretation. But we find support for the district court's interpretation in the legislative history of section 412. The House Report explains that "clause (2) [of section 412] would generally deny an award of [statutory damages and attorney's fees] where infringement takes place before registration." H.R.REP. No. 1476 at 158, reprinted in 1976 U.S.C.C.A.N. at 5659, 5774 (emphasis added). In contrast to the "for any infringement" language of section 412, this language reveals Congress' intent that statutory damages be denied not only for the particular infringement that a defendant commenced before registration, but for all of that defendant's infringements of a work if one of those infringements commenced prior to registration.
30 In addition to the legislative history of section 412, we find support for the district court's interpretation in 17 U.S.C. § 504. We look to section 504 for assistance in understanding section 412 because section 412 bars an award of statutory damages "as provided by section 504." Section 504 provides that:
31 the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
32 17 U.S.C.A. § 504(c)(1) (West Supp.1992) (emphasis added). Under this section, the total number of "awards" of statutory damages (each ranging from $500 to $20,000) that a plaintiff may recover in any given action depends on the number of works that are infringed and the number of individually liable infringers, regardless of the number of infringements of those works.11 So if a plaintiff proves that one defendant committed five separate infringements of one copyrighted work, that plaintiff is entitled to only one award of statutory damages ranging from $500 to $20,000. And if a plaintiff proves that two different defendants each committed five separate infringements of five different works, the plaintiff is entitled to ten awards, not fifty. It would be inconsistent to read section 504 to include all of one defendant's infringements of one work within "an award of statutory damages," and then read section 412 to treat each infringement separately for purposes of barring that award.
33 Moreover, section 504 provides that the plaintiff may elect to recover an award of statutory damages for all of one defendant's infringements of any one work "instead of actual damages and profits." Thus, if all of one defendant's infringements commenced after registration, the plaintiff may not elect to recover statutory damages for some of those infringements and actual damages for the rest. See H.R.REP. No. 1476 at 161, reprinted in 1976 U.S.C.C.A.N. at 5659, 5777 ("Recovery of actual damages and profits under section 504(b) or of statutory damages under section 504(c) is alternative."). Under Mason's argument, a plaintiff could recover actual damages for infringements that a defendant commenced before registration, and still recover statutory damages for infringements of the same work that the same defendant commenced after registration. This argument must fail because "an award of statutory damages"--which section 504 giveth and section 412 taketh away--encompasses all of one defendant's infringements of one work.
34 Finally, our conclusion accords with the purpose of section 412. Congress included section 412 in the Copyright Act of 1976 because "[c]opyright registration for published works, which is useful and important to users and the public at large, would no longer be compulsory [under the 1976 Act], and should therefore be induced in some practical way." H.R.REP. No. 1476 at 158, reprinted in 1976 U.S.C.C.A.N. at 5659, 5774. Denying an "award of the special or 'extraordinary' remedies of statutory damages or attorney's fees where ... infringement commenced after publication and before registration" encourages early registration of copyrights. Id. As one court has noted, "[t]he threat of such a denial would hardly provide a significant motivation to register early if the owner of the work could obtain those remedies for acts of infringement taking place after a belated registration." Singh v. Famous Overseas, Inc., 680 F. Supp. 533, 536 (E.D.N.Y.1988).
35 We thus conclude that a plaintiff may not recover an award of statutory damages and attorney's fees for infringements that commenced after registration if the same defendant commenced an infringement of the same work prior to registration. Mason published his 233 maps between 1967 and 1980, and registered the copyright in one map in October 1968. By the time he registered the remaining 232 copyrights in 1987, the defendants had reorganized Mason's maps and created and used the overlays and computer database. As to each work and each defendant, the alleged acts of infringement that could give rise to an award of statutory damages had commenced prior to registration of 232 of the works. We thus uphold this ruling of the district court. If Mason proves infringement, he may elect to recover statutory damages and attorney's fees only for the infringements of the map that he registered in 1968.
C. DEFENDANTS' COSTS AND ATTORNEY'S FEES
36 Because we reverse the district court's final judgment, the defendants are not presently entitled to costs and attorney's fees as "prevailing parties." See 17 U.S.C. § 505. We thus reverse the court's amended final judgment of June 5, 1991 that awarded costs and attorney's fees to the defendants.
III. CONCLUSION
37 We REVERSE the court's judgments dismissing plaintiff's action and awarding the defendants costs and attorney's fees, and we REMAND the case for further proceedings consistent with this opinion.
38 REVERSED and REMANDED.
1 Senior Circuit Judge of the Ninth Circuit, sitting by designation
2 In addition to arguing that Mason's maps are not copyrightable, the defendants argued in their motions for summary judgment that their actions did not constitute actionable infringement of those copyrights. Although the district court did not address these arguments when it granted summary judgment, Landata asks us to affirm the summary judgment in the defendants' favor on these grounds. We decline this invitation, and remand the case for the district court to address these issues
3 These sources included tax, deed, and survey records from Montgomery County; data provided by the San Jacinto River Authority; survey records, maps, and abstracts of land titles from the Texas General Land Office; title data and subdivision information provided by Conroe Title; a map from the City of Conroe, Texas; and maps from the United States Coast and Geodetic Survey
4 The USGS has mapped much of the United States, including Montgomery County. Most private mapmakers, like Mason, use USGS topographical maps as starting points for their own maps. See David B. Wolf, Is There any Copyright Protection for Maps after Feist?, 39 J. COPYRIGHT SOC'Y USA 224, 226 (1992)
5 Mason argues that application of the merger doctrine does not render a work uncopyrightable, but rather prevents a finding of infringement of an otherwise copyrightable work. See Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir.1991) (Second Circuit "has considered this so-called 'merger' doctrine in determining whether actionable infringement has occurred, rather than whether a copyright is valid"). But this court has applied the merger doctrine to the question of copyrightability. See Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1460 (5th Cir.) (because the idea and its expression embodied in plaintiff's maps are inseparable, "the maps at issue are not copyrightable"), cert. denied, --- U.S. ----, 111 S. Ct. 374, 112 L. Ed. 2d 336 (1990). In any event, because we find the merger doctrine inapplicable in this case, the effect of its application is irrelevant
6 One of the experts, Pliny M. Gale, examined Mason's maps and the competitors' maps and concluded that: the assembly, graphic representation, and positioning of various records and features involves considerable skill, judgment and originality. ... The differences I note between the Mason maps and the other maps which I have examined are to be expected because of the numerous interpretations of records, individual judgments, and map base selection which must be taken into account when producing an ownership map based on a large number of instruments spanning over 100 years of development. .... In my inspection of the maps, I found that the Mason map includes many features which are unique to the graphic representations selected by Mason, and which do not appear in any public record information. Gale Aff. at 2-4. Another mapmaker, Milton R. Hanks, stated: In compiling a map as detailed and complex as the Mason maps of Montgomery County, the mapmaker will necessarily make many individual judgments in placing various features from various sets of records onto a single map. .... ... When the Mason map is overlaid with the Tobin map at the same scale ..., many differences in placement of various features and surveys are readily observed. The differences between the two maps are exactly the sort of differences that I would expect to observe between two independently produced maps based on the same ancient records. The reason for the differences is that a large number of independent judgments must be made in any large-scale mapping project of this type. Hanks Aff. at 2, 5.
7 Citing Feist Publications, Inc. v. Rural Tel. Serv. Co., --- U.S. ----, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991), the defendants contend that an author's selection, coordination, and arrangement of facts merit consideration in the decision whether a work is "original," but they are irrelevant to the application of the merger doctrine. We disagree. The question in Feist was whether a compilation of facts contained sufficient originality to be copyrightable. The Court explained that, although the facts contained in a compilation can never be original, the author's selection, arrangement, and coordination of those facts may be. Id. 111 S.Ct. at 1288-89. But nothing in Feist suggests that those factors are inapplicable to the question whether an idea is subject to a variety of expressions. As we have explained, it is precisely because mapmakers who seek to express the idea embodied in Mason's maps must make choices as to selection, coordination, and arrangement that they can express that idea in a variety of ways
8 Thus, as one commentator states: In copyright law, an "idea" is not an epistemological concept, but a legal conclusion prompted by notions--often unarticulated and unproven--of appropriate competition. Thus, copyright doctrine attaches the label "idea" to aspects of works which, if protected, would (or, we fear, might) preclude, or render too expensive, subsequent authors' endeavors. Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone, 92 COLUM.L.REV. 338, 346 (1992) (footnotes omitted).
9 A compilation "is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. § 101
10 Mason explained in his deposition: In 1967, I placed all of the survey lines in the county on the [USGS] topo[graphical] maps. Now, you just don't draw it on there. I placed each corner of each survey separately; each line of each survey separately ..., and each--the positioning of each survey corner, each survey line was a matter of judgment. You just can't buy a map, of any source I know, that has them all on there correctly.... So, each line was placed on there. I made a judgment on each corner, each line for every survey. Then, the same system worked for the tracts within the survey; and I detailed on the topo map the individual real property lines within each survey. In his affidavit, Mason explained that he chose to "locate each individual survey on the topographic maps independently of each of the other surveys," to place the oldest titled grants on the topographic maps first, and then add the more recent surveys proceeding from the earliest grants, and to position the surveys on the USGS maps "not only by examining the record facts, but also by using topographic features shown on U.S.G.S. maps, especially the features from the U.S.G.S. map commonly found at property boundaries as a check on [his] placement of the survey and real property boundaries." Mason Aff. at 2.
11 The legislative history of section 504 is particularly direct on this point: Although ... an award of minimum statutory damages may be multiplied if separate works and separately liable infringers are involved in the suit, a single award ... is to be made "for all infringements involved in the action." A single infringer of a single work is liable for a single amount ..., no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series. .... ... Where the infringements of one work were committed by a single infringer acting individually, a single award of statutory damages would be made.... However, where separate infringements for which two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate. H.R.REP. No. 1476 at 162, reprinted in 1976 U.S.C.C.A.N. at 5659, 5778. As the D.C. Circuit explained, "[b]oth the text of [section 504(c)(1) ] and its legislative history make clear that statutory damages are to be calculated according to the number of works infringed, not the number of infringements.... [O]nly one penalty lies for multiple infringements of one work." Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C.Cir.1990). | 08-23-2011 | [
"967 F.2d 135 61 USLW 2110, 1992 Copr.L.Dec. P 26,959,23 U.S.P.Q.2d 1676 HODGE E. MASON and HODGE MASON MAPS, INC., Plaintiffs-Appellants,v.MONTGOMERY DATA, INC., ET AL., Defendants-Appellees. No. 91-2305. United States Court of Appeals,Fifth Circuit. July 28, 1992. Thomas G. Gee, Martin L. McGregor, Richard S. Siluk, Baker & Botts, Houston, Tex., for plaintiffs-appellants. David B. Wolf, Walter, Conston, Alexander & Green, New York City, amicus curiae for Rand McNally & Co. Jerry Sadler, Houston, Tex., amici curiae for Key Maps, Thomas Bros. Map Co. and Mapsco. Lionel M. Schooler, Gilpin, Paxson & Bersch, Houston, Tex., for Landata, Inc. of Houston.",
"James B. Gambrell, Marc L. Delflache, Eugene R. Montalvo, Pravel, Gambrell, Hewitt, Kimball & Krieger, Houston, Tex., for Montgomery Data & Conroe Title. Appeals from the United States District Court for the Southern District of Texas. Before SNEED1, REAVLEY and BARKSDALE, Circuit Judges. REAVLEY, Circuit Judge: 1 Hodge E. Mason, Hodge Mason Maps, Inc., and Hodge Mason Engineers, Inc. (collectively Mason) sued Montgomery Data, Inc. (MDI), Landata, Inc. of Houston (Landata), and Conroe Title & Abstract Co. (Conroe Title), claiming that the defendants infringed Mason's copyrights on 233 real estate ownership maps of Montgomery County, Texas. The district court initially held that Mason cannot recover statutory damages or attorney's fees for any infringement of 232 of the copyrights. The court later held that Mason's maps are not copyrightable under the idea/expression merger doctrine, and granted summary judgment for the defendants. We agree with Mason that the maps are copyrightable, so we reverse the district court's judgment and remand the case.",
"But we agree with the district court that, if Mason proves that the defendants infringed his copyrights,2 he can only recover statutory damages and attorney's fees for the infringements of one of the 233 maps. I. BACKGROUND 2 Between August 1967 and July 1969, Mason created and published 118 real estate ownership maps that, together, cover all of Montgomery County. The maps, which display copyright notices, pictorially portray the location, size, and shape of surveys, land grants, tracts, and various topographical features within the county. Numbers and words on the maps identify deeds, abstract numbers, acreage, and the owners of the various tracts. Mason obtained the information that he included on the maps from a variety of sources.3 Relying on these sources, Mason initially determined the location and dimensions of each survey in the county, and then drew the corners and lines of the surveys onto topographical maps of the county that were published by the United States Geological Survey (USGS).4 He then determined the location of the property lines of the real estate tracts within each survey and drew them on the USGS maps. Finally, Mason traced the survey and tract lines onto transparent overlays, enlarged clean USGS maps and the overlays, added names and other information to the overlays, and combined the maps and overlays to print the final maps.",
"Mason testified that he used substantial judgment and discretion to reconcile inconsistencies among the various sources, to select which features to include in the final map sheets, and to portray the information in a manner that would be useful to the public. From 1970 to 1980, Mason revised the original maps and eventually published 115 new maps with copyright notices, for a total of 233 maps. Mason sold copies of his maps individually and in sets. 3 Mason's infringement claims are based on the defendants' use of his maps as part of a geographical indexing system that Landata created to continuously organize and store ever-changing title information on each tract in Montgomery County. To create this sytem, Landata purchased a set of Mason's maps and reorganized them by cutting and pasting them into 72 map sheets. Landata then attached a transparent overlay to each of the 72 sheets, and depicted on these overlays numerous updates and corrections to the information on Mason's maps. Landata arbitrarily assigned identification numbers (\"arb numbers\") to tracts or areas within the county, and added these numbers to the overlays. Using this process, Landata created an inked mylar \"master overlay\" for each of the 72 reorganized map sheets.",
"Landata then made sepia copies of the master overlays, and began registering ownership and other changes on the sepia copies from the hundreds of land grants that are recorded in the county each day. Using this system, the defendants are able to retrieve current ownership and other information on any tract by locating its arb number on the appropriate overlay and entering that number into a computer database that contains data on each tract. 4 In 1985, several title companies, including Conroe Title, incorporated MDI as a joint title plant. MDI and Landata then entered into a series of agreements under which Conroe Title and MDI's other shareholders can use Landata's system when they issue title insurance policies. On September 17, 1985, Landata asked Mason for permission to use his maps as part of its system, but Mason denied the request because Landata refused to pay a licensing fee. Landata then provided its products to MDI without Mason's permission. Each of MDI's shareholders purchased an original set of Mason's maps, and either MDI or the shareholders reorganized the maps from 118 to 72 map sheets according to Landata's specifications. Landata provided MDI with a set of sepia copies of the master overlays for each set of reorganized maps and with access to its computer database.",
"Annually from 1982 through 1986, and again in 1989, Landata or MDI produced new, updated editions of the master overlays. 5 Mason registered the copyright for one of the original 118 maps in October 1968. After learning of Landata's use of his maps, Mason registered the copyrights for the remaining 117 original maps and the 115 revised maps between October and December 1987. Mason filed this suit in September 1988, claiming infringement of his 233 copyrights under 17 U.S.C. § 106, and seeking statutory damages and attorney's fees under 17 U.S.C. §§ 504-05. In December 1989, the defendants sought a partial summary judgment that, even if Mason proves copyright infringement, 17 U.S.C. § 412 precludes an award of statutory damages or attorney's fees for any infringement of the 232 maps that Mason registered in 1987. The district court granted this motion on June 1, 1990. Mason v. Montgomery Data, Inc., 741 F. Supp. 1282, 1287 (S.D.Tex.1990). In September 1990, Mason filed a motion for partial summary judgment that the defendants had infringed his copyrights. The defendants countered with motions for summary judgment in which they asserted that Mason's maps are not copyrightable and, even if they are, the defendants' use of the maps does not constitute infringement. The district court granted the defendants' motions after holding that Mason's maps are not copyrightable because the idea embodied in the maps is inseparable from the maps' expression of that idea.",
"Mason v. Montgomery Data, Inc., 765 F. Supp. 353, 356 (S.D.Tex.1991). The court dismissed Mason's claims with prejudice and awarded the defendants costs and attorney's fees.II. DISCUSSION A. THE COPYRIGHTABILITY OF MASON'S MAPS 1. The Idea/Expression Merger Doctrine 6 The Copyright Act extends copyright protection to \"original works of authorship fixed in any tangible medium of expression.\" 17 U.S.C.A. § 102(a) (West Supp.1992). The scope of that protection, however, is not unlimited. \"In no case does copyright protection for an original work of authorship extend to any idea, ... regardless of the form in which it is described, explained, illustrated, or embodied in such work.\" Id. § 102(b) (emphasis added). Thus, while a copyright bars others from copying an author's original expression of an idea, it does not bar them from using the idea itself.",
"\"Others are free to utilize the 'idea' so long as they do not plagiarize its 'expression.' \" Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir.1971). In some cases, however, it is so difficult to distinguish between an idea and its expression that the two are said to merge. Thus, when there is essentially only one way to express an idea, \"copying the 'expression' will not be barred, since protecting the 'expression' in such circumstances would confer a monopoly of the 'idea' upon the copyright owner free of the conditions and limitations imposed by the patent law.\" Id. at 742. By denying protection to an expression that is merged with its underlying idea, we \"prevent an author from monopolizing an idea merely by copyrighting a few expressions of it.\"",
"Toro Co. v. R & R Products Co., 787 F.2d 1208, 1212 (8th Cir.1986).5 7 The district court applied these principles to the present case and concluded that \"the problem with the Hodge Mason maps is ... that [they] express the only pictorial presentation which could result from a correct interpretation of the legal description and other factual information relied upon by the plaintiffs in producing the maps.\" Mason, 765 F. Supp. at 355. The court believed that, 8 [t]o extend copyright protection to the Hodge Mason maps, which resulted from facts essentially in the public domain, would give the plaintiffs a monopoly over the facts. In other words, anyone who has the desire and ability to correctly interpret the legal descriptions and toil through the factual information relied upon by the plaintiffs in creating their maps, would create a pictorial presentation so substantially similar to the plaintiffs['] that they could be accused of copyright infringement. This result would clearly upset Congress' intent to balance the \"competing concerns of providing incentive to authors to create and of fostering competition in such creativity.\" 9 Id.",
"at 356 (quoting Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3rd Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S. Ct. 690, 79 L. Ed. 2d 158 (1984)). The court thus concluded that \"the plaintiffs' idea to create the maps, based on legal and factual public information, is inseparable from its expression embodied within the maps, and hence not subject to copyright protection.\" Id. 10 We agree with Mason that the district court erred in applying the merger doctrine in this case. To determine whether the doctrine is applicable in any case, the court must \"focus on whether the idea is capable of various modes of expression.\" Apple Computer, 714 F.2d at 1253. Thus, the court must first identify the idea that the work expresses, and then attempt to distinguish that idea from the author's expression of it. If the court concludes that the idea and its expression are inseparable, then the merger doctrine applies and the expression will not be protected. Conversely, if the court can distinguish the idea from its expression, then the expression will be protected because the fact that one author has copyrighted one expression of that idea will not prevent other authors from creating and copyrighting their own expressions of the same idea.",
"In all cases, \"[t]he guiding consideration in drawing the line is the preservation of the balance between competition and protection reflected in the patent and copyright laws.\" Herbert Rosenthal Jewelry, 446 F.2d at 742. 11 The district court determined that Mason's idea, \"which includes drawing the abstract and tract boundaries, indicating the ownership name, the tract size, and the other factual information\" on a map of Montgomery County, was \"to create the maps, based on legal and factual public information.\" Mason, 765 F. Supp. at 356. Mason argues that the court clearly erred in finding that this idea can be expressed in only one or a limited number of ways.",
"We agree. The record in this case contains copies of maps created by Mason's competitors that prove beyond dispute that the idea embodied in Mason's maps is capable of a variety of expressions. Although the competitors' maps and Mason's maps embody the same idea, they differ in the placement, size, and dimensions of numerous surveys, tracts, and other features. The record also contains affidavits in which licensed surveyors and experienced mapmakers explain that the differences between Mason's maps and those of his competitors are the natural result of each mapmaker's selection of sources, interpretation of those sources, discretion in reconciling inconsistencies among the sources, and skill and judgment in depicting the information.6 12 MDI argues that this evidence is irrelevant because there is no proof that Mason and his competitors obtained their information from the same sources. But the fact that different mapmakers with the same idea could reach different conclusions by relying on different sources only supports our result. Whether Mason and his competitors relied on different sources, or interpreted the same sources and resolved inconsistencies among them differently, or made different judgments as to how to best depict the information from those sources, the differences in their maps confirm the fact that the idea embodied in Mason's maps can be expressed in a variety of ways.",
"By selecting different sources, or by resolving inconsistencies among the same sources differently, or by coordinating, arranging, or even drawing the information differently, other mapmakers may create--and indeed have created-- expressions of Mason's idea that differ from those that Mason created.7 13 Finally, the defendants contend that this court's decision in Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d at 1458, requires application of the merger doctrine in this case. Kern River concerned the copyrightability of maps on which Kern River Gas Transmission Company (Kern River) depicted the location that it proposed for construction of a gas pipeline. The idea at issue in Kern River was simply the placing on a map of Kern River's certain \"proposed location for a prospective pipeline.\" Id. at 1464. This court concluded that that idea merged with Kern River's expression because there was only one way to effectively express that idea. Id. 14 The defendants argue that the merger doctrine applies in this case because drawing lines on a public map is the only way to depict the locations of surveys and boundary lines in Montgomery County, just as it was the only way to depict the location of a pipeline in Kern River.",
"But the distinction between Kern River and this case is not in the methods available for depicting an object's location on a map, but in the ideas that the maps in the two cases embody. We cannot determine whether an idea is capable of a variety of expressions until we first identify what that idea is. A court's decision whether to apply the merger doctrine often depends on how it defines the author's idea. For this reason, in defining the idea the court should be guided by \"the balance between competition and protection reflected in the patent and copyright laws.\" Herbert Rosenthal Jewelry, 446 F.2d at 742.8 15 We focus in this case on an earlier point in the mapping process, a point prior to the selection of information and decisions where to locate tract lines.",
"The idea here was to bring together the available information on boundaries, landmarks, and ownership, and to choose locations and an effective pictorial expression of those locations. That idea and its final expression are separated by Mason's efforts and creativity that are entitled to protection from competitors. The evidence in this case demonstrates that a mapmaker who desires to express the idea of depicting the location and ownership of property in Montgomery County in map form must select information from numerous sources, reconcile inconsistencies among those sources, and depict the information according to the mapmaker's skill and judgment. Although Mason sought to depict the information accurately, the conflicts among the sources and the limitations inherent in the process of representing reality in pictorial map form required him to make choices that resulted in independent expression. Extending protection to that expression will not grant Mason a monopoly over the idea, because other mapmakers can express the same idea differently.",
"The protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected. \"[T]he facts and ideas ... are free for the taking.... \"[T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.\" Feist, 111 S. Ct. at 1289 (quoting Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM.L.REV.",
"1865, 1868 (1990)). 16 For these reasons, we conclude that the district court erred by applying the merger doctrine in this case. Because the idea embodied in Mason's maps can be expressed in a variety of ways, the merger doctrine does not render Mason's expression of that idea uncopyrightable. 2. The \"Originality\" Requirement 17 Landata contends that, even if the merger doctrine does not apply, Mason's maps are uncopyrightable because they are not \"original\" under Feist. Although the district court applied the merger doctrine to hold that Mason's maps are not copyrightable, it found that \"the problem with the Hodge Mason maps is not a lack of originality.\" Mason, 765 F. Supp. at 355.",
"We agree that Mason's maps are original. Originality does not require \"novelty, ingenuity, or aesthetic merit.\" H.R.REP. No. 1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664; see also Feist, 111 S. Ct. at 1287. Instead, originality \"means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.\" Feist, 111 S. Ct. at 1287 (citing 1 M. Nimmer & D. Nimmer, COPYRIGHT § 2.01[A]-[B] (1990)). The parties do not dispute Mason's claim that he independently created his maps, but Landata contends that they do not possess the degree of creativity necessary to qualify them as original under Feist. 18 Mason's maps pass muster under Feist because Masons' selection, coordination, and arrangement of the information that he depicted are sufficiently creative to qualify his maps as original \"compilations\" of facts.9 Under the originality standard, bare facts are never copyrightable \"because facts do not owe their origin to an act of authorship.\" Id. at 1288. A compilation of facts, however, may be copyrightable if the author made choices as to \"which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers.\" Id.",
"at 1289. The author's selection, coordination, and arrangement of facts, however, are protected only if they were \"made independently ... and entail a minimal degree of creativity.\" Id. 19 In Feist, the Court held that the defendant, who copied a list of names, towns, and telephone numbers from the white pages of the plaintiff's telephone directory, did not copy anything that was \"original\" to the plaintiff. Id. at 1296. The Court explained that the plaintiff's selection of facts to publish--the name, town, and telephone number of each person who applied for telephone service--\"lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.\" Id. And the plaintiff's arrangement of these facts, which involved \"nothing more than list[ing] ... [the] subscribers in alphabetical order,\" is \"not only unoriginal, it is practically inevitable.\" Id. at 1297.",
"Because the plaintiff \"simply [took] the data provided by its subscribers and list[ed] it alphabetically by surname ..., [t]he end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.\" Id. at 1296. 20 But the evidence in this case demonstrates that Mason exercised sufficient creativity when he created his maps. In his deposition and affidavit, Mason explained the choices that he independently made to select information from numerous and sometimes conflicting sources, and to depict that information on his maps.10 Mason's compilation of the information on his maps involved creativity that far exceeds the required minimum level.",
"21 Mason's maps also possess sufficient creativity to merit copyright protection as pictorial and graphic works of authorship. Historically, most courts have treated maps solely as compilations of facts. See Wolf, supra note 4, at 227. The Copyright Act, however, categorizes maps not as factual compilations but as \"pictorial, graphic, and sculptural works\"--a category that includes photographs and architectural plans. 17 U.S.C.A. § 101 (West Supp.1992). Some courts have recognized that maps, unlike telephone directories and other factual compilations, have an inherent pictorial or photographic nature that merits copyright protection.",
"See, e.g., Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145, 149 (7th Cir.1985) (\"Teasing pictures from the debris left by conveyancers is a substantial change in the form of the information. The result is copyrightable....\"), cert. denied, 474 U.S. 1061, 106 S. Ct. 806, 88 L. Ed. 2d 781 (1986); United States v. Hamilton, 583 F.2d 448, 451 (9th Cir.1978) (\"Expression in cartography is not so different from other artistic forms seeking to touch upon external realities that unique rules are needed to judge whether the authorship is original.\"). We agree with these courts. As Wolf explains in his article: 22 It is true that maps are factual compilations insofar as their subject matter is concerned. Admittedly, most maps present information about geographic relationships, and the \"accuracy\" of this presentation, with its utilitarian aspects, is the reason most maps are made and sold. Unlike most other factual compilations, however, maps translate this subject-matter into pictorial or graphic form.... Since it is this pictorial or graphic form, and not the map's subject matter, that is relevant to copyright protection, maps must be distinguished from non-pictorial fact compilations.... A map does not present objective reality; just as a photograph's pictorial form is central to its nature, so a map transforms reality into a unique pictorial form central to its nature.",
"23 Wolf, supra note 4, at 239-40. 24 The level of creativity required to make a work of authorship original \"is extremely low; even a slight amount will suffice.\" Feist, 111 S. Ct. at 1287. We think that the process by which Mason, using his own skill and judgment, pictorially portrayed his understanding of the reality in Montgomery County by drawing lines and symbols in particular relation to one another easily exceeds that level. 25 Because Mason's maps possess sufficient creativity in both the selection, coordination, and arrangement of the facts that they depict, and as in the pictorial, graphic nature of the way that they do so, we find no error in the district court's determination that Mason's maps are original. B. AVAILABILITY OF STATUTORY DAMAGES 26 Mason sought statutory damages rather than actual damages.",
"The district court held that section 412 of the Copyright Act precludes an award of statutory damages (and attorney's fees) for any alleged infringement of all but one of Mason's maps. See Mason, 741 F. Supp. at 1285-87. Mason calls that holding error, but we agree with the district court. Section 412 provides that: 27 no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for ... (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. 28 17 U.S.C.A.",
"§ 412 (West Supp.1992). Mason argues that Congress' use of the phrase \"for any infringement\" in this section reveals its intent that courts treat each of a defendant's infringing acts separately and deny statutory damages only for those specific infringing acts that commenced prior to registration. Thus, Mason argues, section 412 allows him to recover statutory damages and attorney's fees for any infringement that the defendants commenced after he registered the copyrights, even though they commenced other, separate infringements of the same work prior to registration. The district court rejected this argument because it interpreted the term \"infringement\" to mean all of a defendant's acts of infringement of any one work.",
"Thus, the court interpreted \"the words 'commencement of infringement' to mean the first act of infringement in a series of on-going separate infringements.\" 741 F. Supp. at 1286. 29 We find section 412 to be ambiguous and open to either interpretation. But we find support for the district court's interpretation in the legislative history of section 412. The House Report explains that \"clause (2) [of section 412] would generally deny an award of [statutory damages and attorney's fees] where infringement takes place before registration.\" H.R.REP. No. 1476 at 158, reprinted in 1976 U.S.C.C.A.N. at 5659, 5774 (emphasis added). In contrast to the \"for any infringement\" language of section 412, this language reveals Congress' intent that statutory damages be denied not only for the particular infringement that a defendant commenced before registration, but for all of that defendant's infringements of a work if one of those infringements commenced prior to registration. 30 In addition to the legislative history of section 412, we find support for the district court's interpretation in 17 U.S.C.",
"§ 504. We look to section 504 for assistance in understanding section 412 because section 412 bars an award of statutory damages \"as provided by section 504.\" Section 504 provides that: 31 the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just. 32 17 U.S.C.A. § 504(c)(1) (West Supp.1992) (emphasis added). Under this section, the total number of \"awards\" of statutory damages (each ranging from $500 to $20,000) that a plaintiff may recover in any given action depends on the number of works that are infringed and the number of individually liable infringers, regardless of the number of infringements of those works.11 So if a plaintiff proves that one defendant committed five separate infringements of one copyrighted work, that plaintiff is entitled to only one award of statutory damages ranging from $500 to $20,000. And if a plaintiff proves that two different defendants each committed five separate infringements of five different works, the plaintiff is entitled to ten awards, not fifty. It would be inconsistent to read section 504 to include all of one defendant's infringements of one work within \"an award of statutory damages,\" and then read section 412 to treat each infringement separately for purposes of barring that award.",
"33 Moreover, section 504 provides that the plaintiff may elect to recover an award of statutory damages for all of one defendant's infringements of any one work \"instead of actual damages and profits.\" Thus, if all of one defendant's infringements commenced after registration, the plaintiff may not elect to recover statutory damages for some of those infringements and actual damages for the rest. See H.R.REP. No. 1476 at 161, reprinted in 1976 U.S.C.C.A.N. at 5659, 5777 (\"Recovery of actual damages and profits under section 504(b) or of statutory damages under section 504(c) is alternative.\"). Under Mason's argument, a plaintiff could recover actual damages for infringements that a defendant commenced before registration, and still recover statutory damages for infringements of the same work that the same defendant commenced after registration. This argument must fail because \"an award of statutory damages\"--which section 504 giveth and section 412 taketh away--encompasses all of one defendant's infringements of one work. 34 Finally, our conclusion accords with the purpose of section 412. Congress included section 412 in the Copyright Act of 1976 because \"[c]opyright registration for published works, which is useful and important to users and the public at large, would no longer be compulsory [under the 1976 Act], and should therefore be induced in some practical way.\"",
"H.R.REP. No. 1476 at 158, reprinted in 1976 U.S.C.C.A.N. at 5659, 5774. Denying an \"award of the special or 'extraordinary' remedies of statutory damages or attorney's fees where ... infringement commenced after publication and before registration\" encourages early registration of copyrights. Id. As one court has noted, \"[t]he threat of such a denial would hardly provide a significant motivation to register early if the owner of the work could obtain those remedies for acts of infringement taking place after a belated registration.\" Singh v. Famous Overseas, Inc., 680 F. Supp. 533, 536 (E.D.N.Y.1988). 35 We thus conclude that a plaintiff may not recover an award of statutory damages and attorney's fees for infringements that commenced after registration if the same defendant commenced an infringement of the same work prior to registration. Mason published his 233 maps between 1967 and 1980, and registered the copyright in one map in October 1968. By the time he registered the remaining 232 copyrights in 1987, the defendants had reorganized Mason's maps and created and used the overlays and computer database.",
"As to each work and each defendant, the alleged acts of infringement that could give rise to an award of statutory damages had commenced prior to registration of 232 of the works. We thus uphold this ruling of the district court. If Mason proves infringement, he may elect to recover statutory damages and attorney's fees only for the infringements of the map that he registered in 1968. C. DEFENDANTS' COSTS AND ATTORNEY'S FEES 36 Because we reverse the district court's final judgment, the defendants are not presently entitled to costs and attorney's fees as \"prevailing parties.\"",
"See 17 U.S.C. § 505. We thus reverse the court's amended final judgment of June 5, 1991 that awarded costs and attorney's fees to the defendants. III. CONCLUSION 37 We REVERSE the court's judgments dismissing plaintiff's action and awarding the defendants costs and attorney's fees, and we REMAND the case for further proceedings consistent with this opinion. 38 REVERSED and REMANDED. 1 Senior Circuit Judge of the Ninth Circuit, sitting by designation 2 In addition to arguing that Mason's maps are not copyrightable, the defendants argued in their motions for summary judgment that their actions did not constitute actionable infringement of those copyrights. Although the district court did not address these arguments when it granted summary judgment, Landata asks us to affirm the summary judgment in the defendants' favor on these grounds. We decline this invitation, and remand the case for the district court to address these issues 3 These sources included tax, deed, and survey records from Montgomery County; data provided by the San Jacinto River Authority; survey records, maps, and abstracts of land titles from the Texas General Land Office; title data and subdivision information provided by Conroe Title; a map from the City of Conroe, Texas; and maps from the United States Coast and Geodetic Survey 4 The USGS has mapped much of the United States, including Montgomery County.",
"Most private mapmakers, like Mason, use USGS topographical maps as starting points for their own maps. See David B. Wolf, Is There any Copyright Protection for Maps after Feist?, 39 J. COPYRIGHT SOC'Y USA 224, 226 (1992) 5 Mason argues that application of the merger doctrine does not render a work uncopyrightable, but rather prevents a finding of infringement of an otherwise copyrightable work. See Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir.1991) (Second Circuit \"has considered this so-called 'merger' doctrine in determining whether actionable infringement has occurred, rather than whether a copyright is valid\"). But this court has applied the merger doctrine to the question of copyrightability. See Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1460 (5th Cir.) (because the idea and its expression embodied in plaintiff's maps are inseparable, \"the maps at issue are not copyrightable\"), cert.",
"denied, --- U.S. ----, 111 S. Ct. 374, 112 L. Ed. 2d 336 (1990). In any event, because we find the merger doctrine inapplicable in this case, the effect of its application is irrelevant 6 One of the experts, Pliny M. Gale, examined Mason's maps and the competitors' maps and concluded that: the assembly, graphic representation, and positioning of various records and features involves considerable skill, judgment and originality. ... The differences I note between the Mason maps and the other maps which I have examined are to be expected because of the numerous interpretations of records, individual judgments, and map base selection which must be taken into account when producing an ownership map based on a large number of instruments spanning over 100 years of development. .... In my inspection of the maps, I found that the Mason map includes many features which are unique to the graphic representations selected by Mason, and which do not appear in any public record information.",
"Gale Aff. at 2-4. Another mapmaker, Milton R. Hanks, stated: In compiling a map as detailed and complex as the Mason maps of Montgomery County, the mapmaker will necessarily make many individual judgments in placing various features from various sets of records onto a single map. .... ... When the Mason map is overlaid with the Tobin map at the same scale ..., many differences in placement of various features and surveys are readily observed. The differences between the two maps are exactly the sort of differences that I would expect to observe between two independently produced maps based on the same ancient records. The reason for the differences is that a large number of independent judgments must be made in any large-scale mapping project of this type. Hanks Aff. at 2, 5. 7 Citing Feist Publications, Inc. v. Rural Tel. Serv.",
"Co., --- U.S. ----, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991), the defendants contend that an author's selection, coordination, and arrangement of facts merit consideration in the decision whether a work is \"original,\" but they are irrelevant to the application of the merger doctrine. We disagree. The question in Feist was whether a compilation of facts contained sufficient originality to be copyrightable. The Court explained that, although the facts contained in a compilation can never be original, the author's selection, arrangement, and coordination of those facts may be. Id. 111 S.Ct. at 1288-89. But nothing in Feist suggests that those factors are inapplicable to the question whether an idea is subject to a variety of expressions.",
"As we have explained, it is precisely because mapmakers who seek to express the idea embodied in Mason's maps must make choices as to selection, coordination, and arrangement that they can express that idea in a variety of ways 8 Thus, as one commentator states: In copyright law, an \"idea\" is not an epistemological concept, but a legal conclusion prompted by notions--often unarticulated and unproven--of appropriate competition. Thus, copyright doctrine attaches the label \"idea\" to aspects of works which, if protected, would (or, we fear, might) preclude, or render too expensive, subsequent authors' endeavors.",
"Jane C. Ginsburg, No \"Sweat\"? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone, 92 COLUM.L.REV. 338, 346 (1992) (footnotes omitted). 9 A compilation \"is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.\" 17 U.S.C. § 101 10 Mason explained in his deposition: In 1967, I placed all of the survey lines in the county on the [USGS] topo[graphical] maps. Now, you just don't draw it on there. I placed each corner of each survey separately; each line of each survey separately ..., and each--the positioning of each survey corner, each survey line was a matter of judgment. You just can't buy a map, of any source I know, that has them all on there correctly....",
"So, each line was placed on there. I made a judgment on each corner, each line for every survey. Then, the same system worked for the tracts within the survey; and I detailed on the topo map the individual real property lines within each survey. In his affidavit, Mason explained that he chose to \"locate each individual survey on the topographic maps independently of each of the other surveys,\" to place the oldest titled grants on the topographic maps first, and then add the more recent surveys proceeding from the earliest grants, and to position the surveys on the USGS maps \"not only by examining the record facts, but also by using topographic features shown on U.S.G.S. maps, especially the features from the U.S.G.S. map commonly found at property boundaries as a check on [his] placement of the survey and real property boundaries.\"",
"Mason Aff. at 2. 11 The legislative history of section 504 is particularly direct on this point: Although ... an award of minimum statutory damages may be multiplied if separate works and separately liable infringers are involved in the suit, a single award ... is to be made \"for all infringements involved in the action.\" A single infringer of a single work is liable for a single amount ..., no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series. .... ... Where the infringements of one work were committed by a single infringer acting individually, a single award of statutory damages would be made.... However, where separate infringements for which two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate.",
"H.R.REP. No. 1476 at 162, reprinted in 1976 U.S.C.C.A.N. at 5659, 5778. As the D.C. Circuit explained, \"[b]oth the text of [section 504(c)(1) ] and its legislative history make clear that statutory damages are to be calculated according to the number of works infringed, not the number of infringements.... [O]nly one penalty lies for multiple infringements of one work.\" Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C.Cir.1990)."
]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 98-1327
CAMILLE T. TAYLOR,
Plaintiff - Appellant,
versus
AMERICAN ASSOCIATION OF PHARMACEUTICAL SCIENTISTS,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-97-1765-A)
Submitted: June 18, 1998 Decided: July 2, 1998
Before MURNAGHAN and WILKINS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Camille T. Taylor, Appellant Pro Se. Susan Rebecca Podolsky, JENNER & BLOCK, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:
Camille Taylor appeals the district court’s order granting the
Defendant’s motion for summary judgment in her employment discrim-
ination suit. We have reviewed the record and the district court’s
opinion and find no reversible error. Accordingly, we affirm on the
reasoning of the district court. Taylor v. American Association of
Pharmaceutical Scientists, No. CA-97-1765-A (E.D. Va. Feb. 27,
1998). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2 | 07-04-2013 | [
"UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-1327 CAMILLE T. TAYLOR, Plaintiff - Appellant, versus AMERICAN ASSOCIATION OF PHARMACEUTICAL SCIENTISTS, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-97-1765-A) Submitted: June 18, 1998 Decided: July 2, 1998 Before MURNAGHAN and WILKINS, Circuit Judges, and PHILLIPS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Camille T. Taylor, Appellant Pro Se. Susan Rebecca Podolsky, JENNER & BLOCK, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Camille Taylor appeals the district court’s order granting the Defendant’s motion for summary judgment in her employment discrim- ination suit. We have reviewed the record and the district court’s opinion and find no reversible error.",
"Accordingly, we affirm on the reasoning of the district court. Taylor v. American Association of Pharmaceutical Scientists, No. CA-97-1765-A (E.D. Va. Feb. 27, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2"
]
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Exhibit 10(ii)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Note Exchange Agreement
Note Exchange Agreement
BETWEEN
Healthbridge, Inc.
AND
Holders of Convertible Promissory Notes
Issued by Providence Exploration, LLC
DATED
April 10, 2006
--------------------------------------------------------------------------------
NOTE EXCHANGE AGREEMENT
THIS NOTE EXCHANGE AGREEMENT (“Agreement”) is entered into as of April 10, 2006, by and between Healthbridge, Inc., a Texas corporation (“Company”), and the individuals and entities identified in Exhibit A to this Agreement (the “Holders”).
WITNESSETH:
WHEREAS, the Holders are the beneficial and record owners and holders of certain Convertible Promissory Notes (the “Notes”) issued by Providence Exploration, L.L.C., a Texas limited liability company (“Providence”);
WHEREAS, Providence has entered into a Joint Exploration Agreement with Harding Company, dated October 1, 2005, as amended, to purchase, explore and develop certain oil, gas and mineral interests underlying approximately 6,272 acres in Comanche and Hamilton Counties, Texas;
WHEREAS, Providence has entered into an Agreement of Purchase and Sale with Global Mineral Solutions, LP, dated March 31, 2006, to purchase, explore and develop certain oil, gas and mineral interests underlying approximately 12,832 acres in Val Verde County, Texas;
WHEREAS, the Company has entered into a commitment to loan up to five million dollars ($5,000,000) to Providence pursuant to a Secured Revolving Replacement Promissory Note, dated December 1, 2005, for the purpose of funding Providence’s purchase of said oil, gas and mineral interests and to fund Providence’s ongoing exploration and development obligations under said Joint Exploration Agreement and said Agreement of Purchase and Sale;
WHEREAS, contemporaneously with its execution of this Agreement the Company is entering into that certain Securities Exchange Agreement (the “Securities Exchange Agreement”) with Abram and Shirley Janz (collectively, “Janz”), sole members of Providence, pursuant to which Janz has agreed to exchange 100% ownership of Providence for certain shares of the $0.0001 par value common stock of the Company (“Company Stock”);
WHEREAS, the Company desires to acquire from the Holders, and the Holders desire to convey to the Company, all of the Notes in exchange for Twelve Million Two Hundred Thirteen Thousand Six Hundred Seventy (12,213,670) shares of Company Stock distributed to the Holders on a pro rata basis in proportion to their respective Note holdings on the Closing Date of this Agreement; and
WHEREAS, Janz has made it a condition to closing of the transactions contemplated in the Securities Exchange Agreement that the transactions contemplated in this Agreement be consummated; and the Holders have made it a condition to closing of the transactions contemplated in this Agreement that the transactions contemplated in the Securities Exchange Agreement be consummated.
NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and agreements set forth herein, the parties hereto agree as follows:
--------------------------------------------------------------------------------
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.2 Defined Terms. Unless otherwise specifically defined in this Agreement or the context otherwise requires, capitalized terms used in this Agreement shall have the following meanings: 1.1.1 "Agreement" means this agreement, the recitals hereto and the Exhibit attached to this
Agreement, in each case, as they may be amended or supplemented from time to time, and the expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby”, and similar expressions, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; and unless otherwise indicated, references to sections and subsections are to sections and subsections in this Agreement.
1.1.2 “Applicable Law” means any domestic or foreign statute, law, ordinance, regulation, by-law or order that applies to the Company, Providence, or the Holders.
1.1.5 “Assets” means all of the properties, rights and assets of Providence or the Company, as applicable, including, without limitation, Inventory, cash and cash equivalents, all investments, accounts receivable, drilling and service rigs, Goodwill, Lands, Fixed Plant and Equipment, Personal Property and material contracts.
1.1.4 “Business” means the business of providing energy exploration services and the business of exploring, developing and producing oil and gas.
1.1.5 “Business Day” means any day other than a Saturday, a Sunday or a day on which chartered banks in the United States of America are authorized or obligated by law to close.
1.1.6 "Closing Date" has the meaning set forth in subsection 2.7.
1.1.7 “Employees” means all persons engaged in the Business including employees, employees on leave, contract employees and owner-operators, if any.
1.1.8 “Encumbrance” means any encumbrance of any kind whatever and includes, without limitation, any adverse claim, security interest, mortgage, lien, hypothecation, pledge, assignment, charge, trust or deemed trust (whether contractual, statutory or otherwise arising), or any other right, option or claim of others affecting the Assets, and any covenant or other agreement, restriction or limitation on the transfer of the Assets.
1.1.9 “Environmental Laws” includes all applicable laws, statutes, regulations, by-laws, rules and Orders of any Governmental Authority where Providence has carried on business and the common law, relating, in whole or in part, to the environment, and includes those laws relating to the storage, generation, use, handling, manufacture, processing, transportation, import, export, treatment, release or disposal of any Hazardous Substance.
1.1.10 “Environmental Permits” includes all certificates, approvals, consents, authorizations, registrations, and licenses issued, granted, conferred, created or required by any Governmental Authority pursuant to any Environmental Laws.
1.1.11 “Fixed Plant and Equipment” means all plant, machinery and equipment situated on the Lands, if any.
1.1.12 “Governmental Authority” includes any domestic or foreign government whether state, federal, provincial, or municipal and any governmental agency, governmental authority, governmental tribunal or governmental commission of any kind whatsoever.
1.1.13 “Goodwill” means:
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1.1.13.1 all customer lists, contracts, files, records and outstanding quotations;
1.1.13.2 all trade marks (registered or not), trade names, designs, URL and domain names, logos, industrial design applications and copyrights (registered or not) used in the Business;
1.1.13.3 all trade secrets and confidential information of Providence in relation to the Business;
1.1.13.4 all know-how of the Business including:
1.1.13.4.1 all information of a scientific or technical nature whether in oral, written, graphic, machine readable, electronic or physical form; and
1.1.13.4.2 all patterns, plans, designs, research data, research plans, trade secrets and other proprietary know-how, processes, formulas, drawings, technology, blue prints, flow sheets, equipment and parts lists, instructions, manuals, records and procedures.
1.1.14 “Hazardous Substance” means any hazardous waste, hazardous substance, hazardous material, toxic substance, dangerous substance or dangerous good or contaminant as defined or identified in any Environmental Law.
1.1.15 “Inventory” means all inventories of products relating to the Business, all supplies, and equipment relating thereto.
1.1.16 “Lands” means the lands leased by Providence in relation to the Business including, without limitation, the lands on which the Facilities are located, the leased mineral interests underlying approximately 6,272 acres in Comanche and Hamilton Counties, Texas, and the leased mineral interests underlying approximately 12,832 acres in Val Verde County, Texas.
1.1.17 “Loss” means any and all loss, liability, damage, cost or expense actually suffered or incurred by a party resulting from the subject matter of any claim, including the costs and expenses of any action, suit, proceeding, demand, assessment, judgment, settlement or compromise relating thereto (including legal fees on a solicitor’s and his own client basis), net of any tax savings arising as a result of expensing the same, less the amount of any judgment awarded as a result of any counterclaim or set-off relating to that claim.
1.1.18 “Order” means any order, judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, Governmental Authority, or other person who is authorized to make legally binding determinations.
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1.1.19 “Permits” means all permits, licenses, authorizations, agreements or understandings relating to the Business and issued by any Governmental Authority, or to which any Governmental Authority is a party, including, without limitation, the Environmental Permits.
1.1.20 “Personal Property” means all of the equipment, vehicles, machinery, furniture, chattels and other tangible personal property used in the Business as at the Closing Date and any and all operating manuals, warranty information or other documentation relating thereto.
1.1.21 “Pollution” means any type of environmental damage or contamination which contravenes any Environmental Law, including, without limiting the generality of the foregoing, damage to or contamination by any substance, waste, or goods including, without limiting the generality of the foregoing, any Hazardous Substance.
1.1.22 “Promissory Note” means the Secured Revolving Replacement Promissory Note, dated December 1, 2005, executed by Providence in favor of the Company that commits the Company to loan an amount of up to five million dollars ($5,000,000) to Providence on or before the Closing Date.
1.1.23 “Providence” means Providence Exploration, LLC, and it’s wholly owned subsidiaries: PDX Drilling, LLC, an energy exploration services company and Providence Resources, LLC, an oil and gas exploration company, both of which are Texas limited liability companies.
1.1.24 "Taxes" means all taxes and similar governmental charges, including:
1.1.24.1 state, federal, provincial, municipal and local, foreign or other income, franchise, capital, real property, personal property, withholding, payroll, employer health, transfer, sales, use, excise, goods and services, consumption, countervail and value added taxes, all other taxes of any kind relating to Providence, or the Business and imposed by any Governmental Authority, whether disputed or not; and
1.1.24.2 assessments, charges, duties, fees, imposts, levies or other governmental charges and interest, penalties or additions associated therewith.
1.2 Gender and Number. The terms defined in the singular shall have a comparable meaning when used in the plural and vice versa, and words importing gender include all genders.
1.3 Currency. Unless specified, all references to currency in this Agreement shall mean United States dollars. 1.4 Section Headings. The section and subsection headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
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ARTICLE II
EXCHANGE OF SHARES FOR NOTES
2.1 Exchange. Upon and subject to the terms of this Agreement, the Company hereby agrees to issue and deliver Twelve Million Two Hundred Thirteen Thousand Six Hundred Seventy (12,213,670) shares of Company Stock (the “Exchanged Shares”) to the Holders (which Exchanged Shares shall be allocated among the respective Holders in the manner shown on Exhibit A to this Agreement); and each Holder hereby agrees to exchange, assign, transfer and set over his, her or its Note(s) to the Company as consideration for the Exchanged Shares, all on the Closing Date.
2.2 Adequate Consideration. Each Holder expressly acknowledges that the Exchanged Shares to which such Holder is entitled pursuant to this Agreement constitute adequate consideration for the Note such Holder is surrendering. To the extent interest has accrued and has not been paid on a given Holder’s Note and that interest is not recognized in the value of the Exchanged Shares issuable to the Holder under the terms of this Agreement, such Holder hereby waives the right to receive any such interest.
2.3 Share Valuation Price. The valuation of the Notes, in the aggregate, shall be deemed equivalent to the
valuation of the Exchanged Shares.
2.4 Tax Free. The exchange of Notes for Exchanged Shares will be deemed by the parties to be a tax free
exchange.
2.5 Resale Restrictions. The Exchanged Shares issued to Holders shall be subject to resale restrictions imposed pursuant to the Securities Act of 1933 as amended and thus restricted for a period of at least twelve (12) months from the date of issuance.
2.6 Company Loans. The Company has committed to Providence, prior to the Closing Date, to loan Providence up to five million dollars ($5,000,000) pursuant to a Secured Revolving Replacement Promissory Note, dated December 1, 2005, as an inducement for Providence to enter into this Agreement, the receipt of approximately four million two hundred seven thousand three hundred five dollars ($4,207,305) of such monies being hereby acknowledged.
2.7 Closing Date. The Closing Date of the transaction contemplated hereby shall take place on May 26, 2006, at the offices of Healthbridge, at 11 a.m. Pacific Daylight Time.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Holders. Each Holder, acting severally and not jointly, makes the representations and warranties set out herein to the Company, recognizing that the Company is relying on such representations and warranties in entering into the transactions contemplated by this Agreement. All due diligence searches, investigations or inspections by the Company, up to the Closing Date, are without prejudice to the Company’s right to rely upon the representations and warranties of each Holder in entering into the transactions contemplated by this Agreement. Each Holder, acting severally and not jointly, makes the following representations and warranties to the Company:
3.1.1 Authority, Filings, Consents and Approvals. Such Holder has duly authorized, executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of such Holder, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. No other proceedings on the part of such Holder are necessary to authorize the entering into of this Agreement and the consummation of the transactions contemplated hereby by such Holder. The execution, delivery and performance of this Agreement and the agreements contemplated herein will not require such Holder to obtain any consent, waiver, authorization or approval of, or make any prior filing with or give notice to, any person, except for such consents, waivers, authorizations or approvals that have already been obtained or which if not obtained or provided would not be reasonably likely to have a material adverse effect on the Business.
3.1.2 Characterization of the Notes. Such Holder’s Note constitutes the legitimate obligation of Providence, enforceable in accordance with its terms, and is owned and held of record and beneficially by such Holder.
3.1.3 The Notes. Such Holder has good and valid title to such Holder’s Note, free and clear of all Encumbrances. Such Holder’s Note bears no restriction on transfer that would prohibit conveyance to the Company.
3.1.4 Absence of Legal Conflicts. The execution and delivery of this Agreement by such Holder does not, and the performance of this Agreement by such Holder of the transactions contemplated by this Agreement will not:
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3.1.4.1 conflict with or violate any Applicable Law; or
3.1.4.3 result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any Assets pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which such Holder is a party in relation to the Business or by which the Business or the Assets are bound or affected, which, in any such case, would prohibit or delay such Holder’s ability to perform such Holder’s obligations under this Agreement.
3.1.5 Litigation. There are no claims, actions, proceedings, suits, investigations or reviews pending or, to the knowledge of such Holder, threatened against such Holder or otherwise in relation to the Business or the Assets or such Holder’s Note, before or by any Governmental Authority or court.
3.1.6 Investment Intent. Such Holder is acquiring the Exchanged Shares for investment purposes only and not with a view of immediate resale or distribution and will not resell or otherwise transfer or dispose of the Exchanged Shares except in accordance with the provisions of all Applicable Laws.
3.2 Company. The Company makes the representations and warranties set out herein to the Holders, recognizing that the Holders are relying on such representations and warranties in entering into the transactions contemplated by this Agreement. All due diligence searches, investigations or inspections by the Holders, up to the Closing Date, are without prejudice to the Holders’ right to rely upon the representations and warranties of the Company in entering into the transactions contemplated by this Agreement.
3.2.1 Incorporation and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas and is duly qualified as a foreign corporation in all jurisdictions in which the failure to so qualify would have a material adverse effect on the Company. The Company has all requisite power and authority to own, lease and operate its properties.
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3.2.2 Authority, Filings, Consents and Approvals. The Company has the corporate power and authority to enter into this Agreement and to perform the transactions contemplated by this Agreement subject to shareholder approval and the filing of pertinent disclosure filings with the Securities and Exchange Commission (“Commission”). This Agreement has been duly authorized, executed and delivered by the Company’s board of directors and, subject to shareholder approval, constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. Except for obtaining shareholder approval, no other proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the agreements contemplated herein will not require the Company to obtain any other consent, waiver, authorization or approval of, or make any filing with or give prior notice to, any person, except for any such consents, waivers, authorizations or approvals that relate to shareholder approval and disclosure filings with the Commission.
3.2.3 Capitalization of the Company. The authorized capital of the Company consists of (a) fifty million (50,000,000) Company Shares, of which seventeen million two hundred thirty thousand eight hundred forty-one (17,230,841) Company Shares (the “Outstanding Shares”) are issued and outstanding, and (b) twenty five million (25,000,000) preferred shares of par value $0.0001 per share, none of which are outstanding. The Outstanding Shares are duly authorized, validly issued, fully paid and non-assessable.
3.2.5 Derivative Shares. The Company has the following derivative securities (the "Derivative Shares") issued and outstanding:
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3.2.4.1 three hundred and fifteen thousand one hundred and fourteen (315,114) common share purchase warrants exercisable at thirty cents ($0.30) per share at any time until November 30, 2010;
3.2.4.2 four million four hundred and eighty one thousand dollars ($4,481,000) plus seven percent (7%) accrued interest in debt convertible into common shares at thirty five cents ($0.35) per share at any time until November 30, 2010;
3.2.4.3 Two hundred fifty thousand dollars ($250,000) plus ten percent (10%) accrued interest in debt convertible into common shares at twenty five cents ($0.10) per share at any time until May 6, 2010.
Except as to the Outstanding Shares and the Derivative Shares, the Company has not granted any other rights nor incurred any other commitments to purchase, acquire, convert or exchange any other securities for common or preferred shares of the Company and there are no other contracts, commitments, agreements, understandings, arrangements or restrictions that require the Company to issue, sell or deliver any of its stock or other securities. The Company has sufficient authorized, unissued shares of its common stock to consummate the transactions contemplated herein, and such stock bears no restriction on issuance that would prohibit issuance to the Holders as contemplated herein.
3.2.5 Corporate Records. All transactions of the Company have been promptly and properly recorded or filed in or with its respective books and records, and the minute books contain complete and accurate records of the meetings and proceedings of stockholders and directors thereof.
3.2.6 Company Directors. The directors and officers of the Company are as follows:
Nora Coccaro Nora Coccaro President and Chief Executive Officer, Chief Financial Officer, and Principal Accounting Officer Markus Mueller
3.2.7 Liabilities. Except as shown in its most recent publicly released audited financial statements and interim un-audited financial statements (the “Company Financials”) the Company has no material liabilities of any kind whatsoever, contingent or non-contingent, other than those incurred in the ordinary course of business, including, without limitation, commercial real estate leases, utilities, telephone, and legal services.
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3.2.8 Liabilities at Closing. Except as may otherwise be set forth in Section 3.2.7 above, the value of all liabilities of the Company, including any exposure under any guarantees, as at the Closing Date, shall not be in excess of those normally incurred and paid by the Company in the ordinary course of business.
3.2.9 Assets. The Company has good and marketable, legal and beneficial title to all of the property comprising its assets as shown on the Company Financials, free and clear of all Encumbrances. Such assets constitute all of the property, rights and other assets used by the Company, or which are necessary or desirable to conduct the Company’s business as conducted prior to the date hereof. Without limiting the generality of the foregoing, none of the personal property or the fixed plant and equipment shown in the Company Financials is leased or otherwise used in the Company’s business subject to any agreement with any third party.
3.2.10 Corporate Records and Financial Statements. All material transactions relating to the Company’s business have been promptly and properly recorded or filed in or with the Company’s books and records. The minute books of the Company contain complete and accurate records of the meetings and proceedings of stockholders and directors thereof. The Company Financials for the period ending March 31, 2006, fairly and accurately present the financial condition of the Company as at such date and the results of its operations for the period then ended.
3.2.11 Environmental Compliance. Except in compliance with Environmental Laws, to the knowledge of the Company and its directors, the Company has not caused or permitted, and the Company and its directors have no knowledge of, any material release or disposal by any person of any Hazardous Substance on or from any premises formerly or presently used in the Company’s business. All Hazardous Substances generated, handled, stored, treated, processed, transported or disposed of in the course of the Company’s business have been generated, handled, stored, treated, processed, transported or disposed of in all material respects, in compliance with applicable Environmental Laws.
3.2.12 Payment of Taxes. The Company has paid all Taxes due and payable in relation to the Company’s business and has paid all assessments that the Company has received in respect of Taxes.
3.2.13 Reassessments. No reassessments of Taxes have been issued against the Company in relation to the Company’s Business nor is the Company aware of any pending or threatened assessment or reassessment for Taxes. The Company has not executed or filed with any Governmental Authority any agreement extending the period for assessment, reassessment or collection of any Taxes.
3.2.14 Withholdings. The Company has withheld from each payment made to any of its current or former Employees, officers and directors, and to all other persons, all amounts required by law and will continue to do so until the Closing Date. The Company has remitted or will remit, such withheld amounts within the prescribed periods to the appropriate Governmental Authority. The Company has charged and collected and has remitted or will remit on a timely basis all Taxes as required by Applicable Law on any sale, supply or delivery whatsoever, made in relation to the Company’s business.
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3.2.15 Contracts. The Company is not a party to, or bound by, any material contract, agreement or commitment of any kind in relation to its business other than this Agreement and the Securities Exchange Agreement (the “Company Contracts”). The Company Contracts are in full force and effect.
3.2.16 Employees. Complete and accurate particulars of the Company’s Employees pertaining to the date of hire of such Employees and their annual remuneration and the names of those on long term disability, workers’ compensation or leave of absence (if any) will be provided to Holders upon request. The Company does not have any written employment agreements relating to any of its Employees.
3.2.17 Collective/Employment Agreements. None of the Company’s Employees is employed under a contract that cannot be terminated by the Company, with or without notice, including those Employees who are employed on indefinite hire requiring reasonable notice of termination by Applicable Law. The Company is not a party, either directly or by operation of law, to any collective bargaining agreement. No trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent holds bargaining rights with respect to any of the Company’s Employees by way of certification, interim certification, voluntary recognition, or successor rights. There are no threatened or pending union organizing activities involving the Company’s Employees and there are no threatened labor disputes or work stoppages relating to, or connected with, the Company’s business.
3.2.18 Occupational Health and Safety. There are no outstanding inspection orders or charges or any other Orders made against the Company or its business. The Company is in compliance with all occupational health and safety rules and regulations in all material respects in relation to its business and there are no outstanding violations of such rules and regulations.
3.2.19 Insurance. The Company carries no insurance related to its business or assets.
3.2.20 Permits. The Company is in possession of and is in compliance with all Permits required by any Governmental Authority that are necessary to conduct the Company’s business.
3.2.21 Absence of Legal Conflict. The execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company and the consummation by it of the transactions contemplated by this Agreement will not:
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3.2.21.1 conflict with or violate the constituent documents of the Company; 3.2.21.2 conflict with or violate any Applicable Law; or
3.2.21.3 result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company is a party or by which the Company or any of its properties is bound or affected, which, in any such case, would prohibit or delay the Company’s ability to perform its obligations under this Agreement.
3.2.22 Reporting Status. The Company is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and is current in all required filings with the Commission as of the execution of this Agreement. The Company’s reports filed with the Commission can be viewed at www.sec.gov. The Company will obtain approval of the transactions contemplated herein by the shareholders of the Company pursuant to a proxy solicitation (the “Proxy Solicitation”). Without limiting the generality of the foregoing:
3.2.22.1 the Proxy Solicitation will be conducted in compliance with Applicable Law.
3.2.22.2 the meeting of the Company’s shareholders to approve the transactions contemplated in this Agreement (the “Meeting”) will be noticed and conducted in all material respects in compliance with Applicable Law and with the Company’s constituent documents.
3.2.22.3 at the Meeting, a quorum of shareholders of the Company will be present in person or represented by proxy.
3.4.22.4 the transactions contemplated in this Agreement will be presented to the requisite number of the Company’s shareholders present in person or represented by proxy at the Meeting, in accordance with Applicable Law and the Company’s constituent documents.
3.2.23 Litigation. There are no claims, actions, proceedings, suits, investigations or reviews pending or, to the knowledge of the Company’s directors, threatened against the Company or otherwise in relation to the Company or its assets or the Outstanding Shares or the Derivative Shares, before or by any Governmental Authority or court.
3.2.24 Conduct of Business - Changes. Since March 31, 2006: 3.2.24.1 the Company has conducted its business in the ordinary course, using reasonable efforts to preserve such business; 3.2.24.2 there has not been any material adverse change in the Company's assets, or affairs or the financial condition of the Company's business; 3.2.24.3 the Company has not: 3.2.24.3.1 increased the compensation paid or payable to any of its Employees or increased the benefits to which its Employees are entitled or provided any new benefits for any such Employees; or
3.2.24.3.2 modified, amended or terminated any contract to which it is or was a party in relation to the Company’s business, except in the ordinary course of business with a view to the best interests of the Company’s business.
3.2.25 Investment Intent. The Company is acquiring the Notes for investment purposes only and not with a view to or for resale or distribution and will not resell or otherwise transfer or dispose of the Notes except in accordance with the provisions of all Applicable Laws.
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ARTICLE IV
CLOSING
4.1 Holders' Deliveries at Closing. On the Closing Date or unless expressly determined in writing otherwise, the Holders shall deliver to the Company the following: 4.1.1 The original Notes, duly endorsed for transfer to the Company; 4.1.2 Any consents required to transfer the Notes to the Company;
4.1.3 A closing certificate jointly signed by the Holders, certifying that at and as of the Closing Date, the representations and warranties made by the Holders contained in this Agreement are true and correct as if made at the Closing Date and that all covenants, agreements and conditions required by this Agreement to be performed or complied with by the Holders prior to or at the Closing Date have been performed and complied with, except as otherwise specifically disclosed to Company by notice in writing; and
4.1.4 Such other documents, certificates, instruments and agreements as are required or contemplated to be delivered to the Company by the Holders pursuant to this Agreement.
4.2 The Company's Deliveries at Closing. On the Closing Date or unless expressly determined in writing otherwise, the Company shall deliver to the Holders the following:
4.2.4 Share certificates representing the Exchanged Shares, duly issued for delivery to the respective Holders in the respective share amounts detailed on Exhibit A;
4.2.5 An original copy of a resolution of the board of directors of the Company authorizing the execution and delivery of this Agreement and the issuance of the Exchanged Shares in exchange for the Notes;
4.2.3 A closing certificate of a principal officer of the Company, certifying that at and as of the Closing Date, the representations and warranties made by the Company contained in this Agreement are true and correct as if made at the Closing Date and that all covenants, agreements and conditions required by this Agreement to be performed or complied with by the Company prior to or at the Closing Date have been performed and complied with, except as otherwise specifically disclosed to the Holders by notice in writing; and
4.2.4 Such other documents, certificates, instruments and agreements as are required or contemplated to be delivered to the Holders by the Company pursuant to this Agreement.
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ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions Precedent to Obligations of the Company. The obligations of the Company under this Agreement to consummate the transactions contemplated hereby shall be subject to the satisfaction on or before the Closing Date of the following conditions, provided, however, that the Company may waive the pre-Closing Date performance of the following conditions without waiving its right to require the post-Closing Date performance of the following conditions (unless expressly waived in a signed writing):
5.1.1 Representations and Warranties True. The representations and warranties of the Holders shall be in all material respects true and accurate as of the date when made, and, except as to representations and warranties that are expressly limited to a state of facts existing at a time prior to the Closing Date, shall be in all material respects true and accurate at and as of the Closing Date.
5.1.2 Performance of Covenants. The Holders shall have performed and complied in all material respects with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by each Holder prior to or as of the Closing Date.
5.1.3 No Governmental or Other Proceeding or Litigation. No Order of any court or administrative agency shall be in effect which restrains or prohibits any transaction contemplated hereby; and no suit, action (other than the exercise of dissenters’ rights), investigation, inquiry or proceeding by any governmental body or other person or entity shall be pending or threatened that challenges the validity or legality, or seeks to restrain the consummation, of the transactions contemplated hereby.
5.1.4 Closing Documentation. The Company shall have received the documents identified in Section 4.1 and such additional documentation on the Closing Date as the Company and its counsel may reasonably require to evidence compliance by the Holders with all of their obligations under this Agreement.
5.1.5 Shareholder Approval. The transactions contemplated herein shall have been approved at the Meeting by holders of the requisite number of the Company’s outstanding voting securities.
5.1.6 Securities Exchange Agreement Executed, Consummated. The Securities Exchange Agreement shall have been executed by all parties to it and the transactions contemplated therein shall have been consummated, or shall be consummated contemporaneously with the transactions contemplated in this Agreement.
5.2 Conditions Precedent to Obligations of the Holders. The obligations of the Holders under this Agreement to consummate the transactions contemplated hereby shall be subject to the satisfaction, or to the waiver by the Holders on or before the Closing Date of the following conditions, provided, however, that the Holders may waive the pre-Closing Date performance of the following conditions without waiving their right to require the post-Closing Date performance of the following conditions (unless expressly waived in a signed writing):
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5.2.1 Representations and Warranties True. The representations and warranties of the Company shall be in all material respects true and accurate as of the date when made, and, except as to representations and warranties that are expressly limited to a state of facts existing at a time prior to the Closing Date, shall be in all material respects true and accurate at and as of the Closing Date.
5.2.2 Performance of Covenants. The Company shall have performed and complied in all material respects with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by it prior to or as of the Closing Date including but not limited to the obligation to loan Providence up to $5,000,000 pursuant to the terms of the Promissory Note on or prior to the Closing Date.
5.2.3 No Governmental or Other Proceeding or Litigation. No Order of any court or administrative agency shall be in effect that restrains or prohibits any transaction contemplated hereby; and no suit, action, other than the exercise of dissenters’ rights, investigation, inquiry or proceeding by any governmental body or other person or entity shall be pending or threatened that challenges the validity or legality, or seeks to restrain the consummation, of the transactions contemplated hereby.
5.2.4 Closing Documentation. The Holders shall have received the documents identified in Section 4.2 and such additional documentation on the Closing Date as the Holders and their respective counsel may reasonably require to evidence compliance by the Company with all of its obligations under this Agreement.
5.2.5 Shareholder Approval. The transactions contemplated herein shall have been approved at the Meeting by holders of the requisite number of the Company’s outstanding voting securities.
5.2.6 Securities Exchange Agreement Executed, Consummated. The Securities Exchange Agreement shall have been executed by all parties to it and the transactions contemplated therein shall have been consummated, or shall be consummated contemporaneously with the transactions contemplated in this Agreement.
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ARTICLE VI
INDEMNIFICATION
6.1 Indemnity of the Holders. The Company agrees to defend, indemnify and hold harmless each Holder from and against, and to reimburse each Holder with respect to, all Losses (“Holders’ Losses”) asserted against or incurred by such Holder by reason of, arising out of, or in connection with any material breach of any representation or warranty contained in this Agreement made by the Company or in any document or closing certificate delivered by the Company pursuant to the provisions of this Agreement or in connection with the transactions contemplated thereby. Notwithstanding the foregoing provisions of this Section 6.1, no claim for indemnification shall be made by any Holder against the Company unless and until the aggregate of all Holders’ Losses exceed $25,000.
6.2 Indemnity of the Company. Each Holder, acting severally and not jointly, agrees to defend, indemnify and hold harmless the Company from and against, and to reimburse the Company with respect to, all Losses (“Company Losses”) asserted against or incurred the Company by reason of, arising out of, or in connection with any material breach of any representation or warranty contained in this Agreement and made by such Holder or in any document or certificate delivered by such Holder pursuant to the provisions of this Agreement or in connection with the transactions contemplated thereby; provided, however, that each Holder shall only be required to defend, indemnify and hold harmless the Company for the representations and warranties made by such Holder. Notwithstanding the foregoing provisions of this Section 6.2, no claim for indemnification shall be made by Company against any Holder unless and until the aggregate Company Losses exceed $25,000.
6.3 Indemnification Procedure. A party (an “Indemnified Party”) seeking indemnification shall give prompt notice to the other party (the “Indemnifying Party”) of any claim for indemnification arising under this Article VI. The Indemnifying Party shall have the right to assume and to control the defense of any such claim with counsel reasonably acceptable to such Indemnified Party, at the Indemnifying Party’s own cost and expense, including the cost and expense of reasonable attorneys’ fees and disbursements in connection with such defense, in which event the Indemnifying Party shall not be obligated to pay the fees and disbursements of separate counsel for such in such action. In the event, however, that such Indemnified Party’s legal counsel shall determine that defenses may be available to such Indemnified Party that are different from or in addition to those available to the Indemnifying Party, in that there could reasonably be expected to be a conflict of interest if such Indemnifying Party and the Indemnified Party have common counsel in any such proceeding, or if the Indemnified Party has not assumed the defense of the action or proceedings, then such Indemnifying Party may employ separate counsel to represent or defend such Indemnified Party, and the Indemnifying Party shall pay the reasonable fees and disbursements of counsel for such Indemnified Party. No settlement of any such claim or payment in connection with any such settlement shall be made without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
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ARTICLE VII
NO JOINT AND SEVERAL OBLIGATIONS
7 The Holders acknowledge and agree that the Company is entering into this Agreement in reliance upon the personal covenants of the Holders. All covenants, representations and warranties provided by the Holders in this Agreement are provided on a several and not joint basis as between the respective Holders with the intent and effect that the Holders shall be severally and not jointly bound thereby, and responsible therefor, up to the Closing Date, and after the Closing Date the Holders shall remain severally and not jointly liable for the breach of any representations, warranties or covenants under this Agreement made by any of the Holders.
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ARTICLE VIII
MISCELLANEOUS
8.1 Amendment and Modification; Waiver. This Agreement may only be amended or modified in writing, signed by all of the parties hereto. No waiver in writing of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided.
8.2 Further Assurances. The parties will execute and deliver such further documents and do such further and other things as may be necessary to carry out and give effect to the intent of this Agreement and the transactions contemplated hereby.
8.3 Expenses. Except as otherwise expressly provided in this Agreement and whether or not the transactions contemplated by this Agreement are completed, the parties shall bear their own respective expenses (including, but not limited to, all compensation and expenses of counsel, consultants, actuaries and independent accountants) incurred in connection with this Agreement and the transactions contemplated hereby.
8.4 Public Disclosure. The parties agree that, except as may be required to comply with the requirements of Applicable Laws, the parties shall keep the terms of this Agreement, and the agreements entered into in relation hereto, confidential. In this regard, the Holders acknowledge that the Company is a publicly traded and that the Company may decide, in its sole discretion, when and how to comply with applicable reporting requirements incumbent upon it’s publicly traded status.
8.5 Assignment. No party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other parties hereto, such consent not to be unreasonably withheld.
8.6 Parties in Interest. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors, heirs or other personal legal representatives and permitted assigns. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any person other than the Company and the Holders or their respective successors, heirs or other personal legal representatives or permitted assigns, any rights or remedies under or by reason of this Agreement.
8.7 Counterparts. This Agreement and any amendments hereto may be executed in one or more counterparts, each of which shall be deemed to be an original by the parties executing such counterpart, but all of which shall be considered one and the same instrument. A signed facsimile or telecopied copy of this Agreement shall be effectual and valid proof of execution and delivery.
8.8 Performance on Holidays. If any action is required to be taken pursuant to this Agreement on or by a specified date that is not a Business Day, then such action shall be valid if taken on or by the next succeeding Business Day.
8.9 Notice. All communications, notices, requests, consents or demands given or required under this Agreement shall be in writing and shall be deemed to have been duly given when delivered to, or received by prepaid registered or certified mail or recognized overnight courier addressed to, or upon receipt of a facsimile sent to, the party for whom intended, as follows, or to such other address or facsimile number as may be furnished by such party by notice in the manner provided herein:
If to Company:
Healthbridge, Inc.1066 West Hastings Street, Suite 2610
Vancouver, British Columbia V6E 3X2
Attn: Nora Coccaro
Phone: (604) 602-1717
Fax: (604) 687-6755
Email: noracoccaro@attglobal.net
With a copy to:
Ruairidh W. Campbell, Esq.
Orsa & Company
1403 E 900 S
Salt Lake City, UT 84105
Phone: (801) 582-9606
Fax: (801) 582-9629
Email: ruairidhcampbell@msn.com
If to a Holder:
To the address of such Holder shown on the signature page to this Agreement, or to such other address as the Holder shall have notified the other parties in writing
With a copy to:
David Turner, Esq.
Scheef and Stone, L.L.P.
5956 Sherry Lane, Suite 1400
Dallas, Texas 75225
Phone: (214) 706-4205
Fax: (214) 706-4242
Email: david.turner@solidcounsel.com
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8.10 Governing Law. This Agreement will be construed and enforced in accordance with and governed by the laws of the State of Texas, without reference to principles of conflicts of law. Each of the parties consents to the jurisdiction of the federal courts whose districts encompass any part of the State of Texas in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of such proceeding in such jurisdictions. Each party hereby agrees that if another party to this Agreement obtains a judgment against it in such a proceeding, the party that obtained such judgment may enforce same by summary judgment in the courts of any country having jurisdiction over the party against whom such judgment was obtained, and each party hereby waives any defenses available to it under local law and agrees to the enforcement of such a judgment. Each party to this Agreement irrevocably consents to the service of process in any such proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth herein. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law.
8.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, this Agreement shall be interpreted and enforced as if such provision were severed or limited, but only to the extent necessary to render such provision and this Agreement enforceable.
8.12 Entire Agreement. This Agreement and any instruments and agreements to be executed pursuant to this Agreement, sets forth the entire understanding of the parties hereto with respect to its subject matter, merges and supersedes all prior and contemporaneous understandings with respect to its subject matter and may not be waived or modified, in whole or in part, except by a writing signed by each of the parties hereto. No waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of the same or any other provision in any other instance. Failure of any party to enforce any provision of this Agreement shall not be construed as a waiver of its rights under such provision.
[Signature Pages Follow]
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IN WITNESS WHEREOF each of the parties hereto has executed this Agreement as of the date first set forth above.
The Company:
HEALTHBRIDGE, INC.
By: /s/ Nora Coccaro
Nora Coccaro
Chief Executive Officer
Holders: Address:
c/o Scherrer and Partner Bleicherweg 66 /s/ Edward Kneiffel 8002 Zurich, Switzerland Edward Kneiffel
c/o Scherrer and Partner Bleicherweg 66 /s/ Christian Diem 8002 Zurich, Switzerland Christian Diem
c/o Scherrer and Partner Bleicherweg 66 /s/ George Scherrer 8002 Zurich, Switzerland George Scherrer
c/o Scherrer and Partner Bleicherweg 66 /s/ Markus Muller 8002 Zurich, Switzerland Markus Muller
GLOBAL PROJECT FINANCE AG
Sunnaerai 1 6072 Sachseln By: /s Global Project Finance AG Switzerland Name (print): Title:
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Birmensdorferstrasse 55 8044 Zurich
By: /s/ JTE Project Finanz AG SwitzerlandName (print):Title:
SWANLAKE INVESTMENTS LIMITED
Shirley House 50 Shirley Street
By: /s/ Swanlake Investments Limited Nassau, BahamasName (print):Title:
CARRERA INVESTMENTS LIMITED
Shirley House 50 Shirley Street
By: /s/ Carrera Investments Limited Nassau, BahamasName (print):Title:
c/o Thurn and Taxis Capital
Management AG Vaduz
Seestrasse 33
/s/ Bo Thorwald Berglin CH-8702 Zollikon, SwitzerlandBo Thorwald Berglin
c/o Thurn and Taxis Capital
Management AG Vaduz
Seestrasse 33
/s/ Gosta Wilhelm Bergholtz CH-8702 Zollikon, SwitzerlandGosta Wilhelm Bergholtz
c/o Thurn and Taxis Capital
Management AG Vaduz
Seestrasse 33
/s/ Inge Wicki CH-8702 Zollikon, SwitzerlandInge Wicki
Gartenstrasse 10
/s/ James Ladner CH 8002 Zurich, SwitzerlandJames Ladner
709 Garner Place Estevan, Saskatchewan
/s/Neal Bezaire CanadaNeal Bezaire
709 Garner Place Estevan, Saskatchewan
/s/ Norma Bezaire CanadaNorma Bezaire
RR #5 Saskatoon, Saskatchewan
/s/ Arden Gibb CanadaArden Gibb
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Exhibit A
To
Note Exchange Agreement
Holder No. Shares Edward Kneiffel 50,000 Christian Diem 400,000 George Scherrer 400,000 Markus Muller 2,160,949 Global Project Finance AG 1,100,000 JTE Finanz AG 500,000 Swanlake Investments Limited 1,600,000 Carrera Investments Limited 1,485,037 Bo Thorwald Berglin 2,658,759 Gosta Wilhelm Bergholtz 291,119 Inge Wicki 291,119 James Ladner 681,119 Neal and Norma Bezaire 165,000 Arden Gibb 430,568
TOTAL 12,213,670
-------------------------------------------------------------------------------- | [
"Exhibit 10(ii) -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Note Exchange Agreement Note Exchange Agreement BETWEEN Healthbridge, Inc. AND Holders of Convertible Promissory Notes Issued by Providence Exploration, LLC DATED April 10, 2006 -------------------------------------------------------------------------------- NOTE EXCHANGE AGREEMENT THIS NOTE EXCHANGE AGREEMENT (“Agreement”) is entered into as of April 10, 2006, by and between Healthbridge, Inc., a Texas corporation (“Company”), and the individuals and entities identified in Exhibit A to this Agreement (the “Holders”).",
"WITNESSETH: WHEREAS, the Holders are the beneficial and record owners and holders of certain Convertible Promissory Notes (the “Notes”) issued by Providence Exploration, L.L.C., a Texas limited liability company (“Providence”); WHEREAS, Providence has entered into a Joint Exploration Agreement with Harding Company, dated October 1, 2005, as amended, to purchase, explore and develop certain oil, gas and mineral interests underlying approximately 6,272 acres in Comanche and Hamilton Counties, Texas; WHEREAS, Providence has entered into an Agreement of Purchase and Sale with Global Mineral Solutions, LP, dated March 31, 2006, to purchase, explore and develop certain oil, gas and mineral interests underlying approximately 12,832 acres in Val Verde County, Texas; WHEREAS, the Company has entered into a commitment to loan up to five million dollars ($5,000,000) to Providence pursuant to a Secured Revolving Replacement Promissory Note, dated December 1, 2005, for the purpose of funding Providence’s purchase of said oil, gas and mineral interests and to fund Providence’s ongoing exploration and development obligations under said Joint Exploration Agreement and said Agreement of Purchase and Sale; WHEREAS, contemporaneously with its execution of this Agreement the Company is entering into that certain Securities Exchange Agreement (the “Securities Exchange Agreement”) with Abram and Shirley Janz (collectively, “Janz”), sole members of Providence, pursuant to which Janz has agreed to exchange 100% ownership of Providence for certain shares of the $0.0001 par value common stock of the Company (“Company Stock”); WHEREAS, the Company desires to acquire from the Holders, and the Holders desire to convey to the Company, all of the Notes in exchange for Twelve Million Two Hundred Thirteen Thousand Six Hundred Seventy (12,213,670) shares of Company Stock distributed to the Holders on a pro rata basis in proportion to their respective Note holdings on the Closing Date of this Agreement; and WHEREAS, Janz has made it a condition to closing of the transactions contemplated in the Securities Exchange Agreement that the transactions contemplated in this Agreement be consummated; and the Holders have made it a condition to closing of the transactions contemplated in this Agreement that the transactions contemplated in the Securities Exchange Agreement be consummated. NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and agreements set forth herein, the parties hereto agree as follows: -------------------------------------------------------------------------------- ARTICLE I DEFINITIONS AND INTERPRETATION 1.2 Defined Terms.",
"Unless otherwise specifically defined in this Agreement or the context otherwise requires, capitalized terms used in this Agreement shall have the following meanings: 1.1.1 \"Agreement\" means this agreement, the recitals hereto and the Exhibit attached to this Agreement, in each case, as they may be amended or supplemented from time to time, and the expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby”, and similar expressions, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; and unless otherwise indicated, references to sections and subsections are to sections and subsections in this Agreement. 1.1.2 “Applicable Law” means any domestic or foreign statute, law, ordinance, regulation, by-law or order that applies to the Company, Providence, or the Holders.",
"1.1.5 “Assets” means all of the properties, rights and assets of Providence or the Company, as applicable, including, without limitation, Inventory, cash and cash equivalents, all investments, accounts receivable, drilling and service rigs, Goodwill, Lands, Fixed Plant and Equipment, Personal Property and material contracts. 1.1.4 “Business” means the business of providing energy exploration services and the business of exploring, developing and producing oil and gas. 1.1.5 “Business Day” means any day other than a Saturday, a Sunday or a day on which chartered banks in the United States of America are authorized or obligated by law to close. 1.1.6 \"Closing Date\" has the meaning set forth in subsection 2.7. 1.1.7 “Employees” means all persons engaged in the Business including employees, employees on leave, contract employees and owner-operators, if any. 1.1.8 “Encumbrance” means any encumbrance of any kind whatever and includes, without limitation, any adverse claim, security interest, mortgage, lien, hypothecation, pledge, assignment, charge, trust or deemed trust (whether contractual, statutory or otherwise arising), or any other right, option or claim of others affecting the Assets, and any covenant or other agreement, restriction or limitation on the transfer of the Assets.",
"1.1.9 “Environmental Laws” includes all applicable laws, statutes, regulations, by-laws, rules and Orders of any Governmental Authority where Providence has carried on business and the common law, relating, in whole or in part, to the environment, and includes those laws relating to the storage, generation, use, handling, manufacture, processing, transportation, import, export, treatment, release or disposal of any Hazardous Substance. 1.1.10 “Environmental Permits” includes all certificates, approvals, consents, authorizations, registrations, and licenses issued, granted, conferred, created or required by any Governmental Authority pursuant to any Environmental Laws. 1.1.11 “Fixed Plant and Equipment” means all plant, machinery and equipment situated on the Lands, if any.",
"1.1.12 “Governmental Authority” includes any domestic or foreign government whether state, federal, provincial, or municipal and any governmental agency, governmental authority, governmental tribunal or governmental commission of any kind whatsoever. 1.1.13 “Goodwill” means: -------------------------------------------------------------------------------- 1.1.13.1 all customer lists, contracts, files, records and outstanding quotations; 1.1.13.2 all trade marks (registered or not), trade names, designs, URL and domain names, logos, industrial design applications and copyrights (registered or not) used in the Business; 1.1.13.3 all trade secrets and confidential information of Providence in relation to the Business; 1.1.13.4 all know-how of the Business including: 1.1.13.4.1 all information of a scientific or technical nature whether in oral, written, graphic, machine readable, electronic or physical form; and 1.1.13.4.2 all patterns, plans, designs, research data, research plans, trade secrets and other proprietary know-how, processes, formulas, drawings, technology, blue prints, flow sheets, equipment and parts lists, instructions, manuals, records and procedures.",
"1.1.14 “Hazardous Substance” means any hazardous waste, hazardous substance, hazardous material, toxic substance, dangerous substance or dangerous good or contaminant as defined or identified in any Environmental Law. 1.1.15 “Inventory” means all inventories of products relating to the Business, all supplies, and equipment relating thereto. 1.1.16 “Lands” means the lands leased by Providence in relation to the Business including, without limitation, the lands on which the Facilities are located, the leased mineral interests underlying approximately 6,272 acres in Comanche and Hamilton Counties, Texas, and the leased mineral interests underlying approximately 12,832 acres in Val Verde County, Texas. 1.1.17 “Loss” means any and all loss, liability, damage, cost or expense actually suffered or incurred by a party resulting from the subject matter of any claim, including the costs and expenses of any action, suit, proceeding, demand, assessment, judgment, settlement or compromise relating thereto (including legal fees on a solicitor’s and his own client basis), net of any tax savings arising as a result of expensing the same, less the amount of any judgment awarded as a result of any counterclaim or set-off relating to that claim.",
"1.1.18 “Order” means any order, judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, Governmental Authority, or other person who is authorized to make legally binding determinations. -------------------------------------------------------------------------------- 1.1.19 “Permits” means all permits, licenses, authorizations, agreements or understandings relating to the Business and issued by any Governmental Authority, or to which any Governmental Authority is a party, including, without limitation, the Environmental Permits. 1.1.20 “Personal Property” means all of the equipment, vehicles, machinery, furniture, chattels and other tangible personal property used in the Business as at the Closing Date and any and all operating manuals, warranty information or other documentation relating thereto. 1.1.21 “Pollution” means any type of environmental damage or contamination which contravenes any Environmental Law, including, without limiting the generality of the foregoing, damage to or contamination by any substance, waste, or goods including, without limiting the generality of the foregoing, any Hazardous Substance.",
"1.1.22 “Promissory Note” means the Secured Revolving Replacement Promissory Note, dated December 1, 2005, executed by Providence in favor of the Company that commits the Company to loan an amount of up to five million dollars ($5,000,000) to Providence on or before the Closing Date. 1.1.23 “Providence” means Providence Exploration, LLC, and it’s wholly owned subsidiaries: PDX Drilling, LLC, an energy exploration services company and Providence Resources, LLC, an oil and gas exploration company, both of which are Texas limited liability companies.",
"1.1.24 \"Taxes\" means all taxes and similar governmental charges, including: 1.1.24.1 state, federal, provincial, municipal and local, foreign or other income, franchise, capital, real property, personal property, withholding, payroll, employer health, transfer, sales, use, excise, goods and services, consumption, countervail and value added taxes, all other taxes of any kind relating to Providence, or the Business and imposed by any Governmental Authority, whether disputed or not; and 1.1.24.2 assessments, charges, duties, fees, imposts, levies or other governmental charges and interest, penalties or additions associated therewith. 1.2 Gender and Number.",
"The terms defined in the singular shall have a comparable meaning when used in the plural and vice versa, and words importing gender include all genders. 1.3 Currency. Unless specified, all references to currency in this Agreement shall mean United States dollars. 1.4 Section Headings. The section and subsection headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. -------------------------------------------------------------------------------- ARTICLE II EXCHANGE OF SHARES FOR NOTES 2.1 Exchange. Upon and subject to the terms of this Agreement, the Company hereby agrees to issue and deliver Twelve Million Two Hundred Thirteen Thousand Six Hundred Seventy (12,213,670) shares of Company Stock (the “Exchanged Shares”) to the Holders (which Exchanged Shares shall be allocated among the respective Holders in the manner shown on Exhibit A to this Agreement); and each Holder hereby agrees to exchange, assign, transfer and set over his, her or its Note(s) to the Company as consideration for the Exchanged Shares, all on the Closing Date.",
"2.2 Adequate Consideration. Each Holder expressly acknowledges that the Exchanged Shares to which such Holder is entitled pursuant to this Agreement constitute adequate consideration for the Note such Holder is surrendering. To the extent interest has accrued and has not been paid on a given Holder’s Note and that interest is not recognized in the value of the Exchanged Shares issuable to the Holder under the terms of this Agreement, such Holder hereby waives the right to receive any such interest. 2.3 Share Valuation Price. The valuation of the Notes, in the aggregate, shall be deemed equivalent to the valuation of the Exchanged Shares. 2.4 Tax Free. The exchange of Notes for Exchanged Shares will be deemed by the parties to be a tax free exchange. 2.5 Resale Restrictions. The Exchanged Shares issued to Holders shall be subject to resale restrictions imposed pursuant to the Securities Act of 1933 as amended and thus restricted for a period of at least twelve (12) months from the date of issuance. 2.6 Company Loans. The Company has committed to Providence, prior to the Closing Date, to loan Providence up to five million dollars ($5,000,000) pursuant to a Secured Revolving Replacement Promissory Note, dated December 1, 2005, as an inducement for Providence to enter into this Agreement, the receipt of approximately four million two hundred seven thousand three hundred five dollars ($4,207,305) of such monies being hereby acknowledged.",
"2.7 Closing Date. The Closing Date of the transaction contemplated hereby shall take place on May 26, 2006, at the offices of Healthbridge, at 11 a.m. Pacific Daylight Time. -------------------------------------------------------------------------------- ARTICLE III REPRESENTATIONS AND WARRANTIES 3.1 Holders. Each Holder, acting severally and not jointly, makes the representations and warranties set out herein to the Company, recognizing that the Company is relying on such representations and warranties in entering into the transactions contemplated by this Agreement.",
"All due diligence searches, investigations or inspections by the Company, up to the Closing Date, are without prejudice to the Company’s right to rely upon the representations and warranties of each Holder in entering into the transactions contemplated by this Agreement. Each Holder, acting severally and not jointly, makes the following representations and warranties to the Company: 3.1.1 Authority, Filings, Consents and Approvals. Such Holder has duly authorized, executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of such Holder, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. No other proceedings on the part of such Holder are necessary to authorize the entering into of this Agreement and the consummation of the transactions contemplated hereby by such Holder.",
"The execution, delivery and performance of this Agreement and the agreements contemplated herein will not require such Holder to obtain any consent, waiver, authorization or approval of, or make any prior filing with or give notice to, any person, except for such consents, waivers, authorizations or approvals that have already been obtained or which if not obtained or provided would not be reasonably likely to have a material adverse effect on the Business. 3.1.2 Characterization of the Notes. Such Holder’s Note constitutes the legitimate obligation of Providence, enforceable in accordance with its terms, and is owned and held of record and beneficially by such Holder. 3.1.3 The Notes. Such Holder has good and valid title to such Holder’s Note, free and clear of all Encumbrances. Such Holder’s Note bears no restriction on transfer that would prohibit conveyance to the Company. 3.1.4 Absence of Legal Conflicts. The execution and delivery of this Agreement by such Holder does not, and the performance of this Agreement by such Holder of the transactions contemplated by this Agreement will not: -------------------------------------------------------------------------------- 3.1.4.1 conflict with or violate any Applicable Law; or 3.1.4.3 result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any Assets pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which such Holder is a party in relation to the Business or by which the Business or the Assets are bound or affected, which, in any such case, would prohibit or delay such Holder’s ability to perform such Holder’s obligations under this Agreement.",
"3.1.5 Litigation. There are no claims, actions, proceedings, suits, investigations or reviews pending or, to the knowledge of such Holder, threatened against such Holder or otherwise in relation to the Business or the Assets or such Holder’s Note, before or by any Governmental Authority or court. 3.1.6 Investment Intent. Such Holder is acquiring the Exchanged Shares for investment purposes only and not with a view of immediate resale or distribution and will not resell or otherwise transfer or dispose of the Exchanged Shares except in accordance with the provisions of all Applicable Laws. 3.2 Company. The Company makes the representations and warranties set out herein to the Holders, recognizing that the Holders are relying on such representations and warranties in entering into the transactions contemplated by this Agreement. All due diligence searches, investigations or inspections by the Holders, up to the Closing Date, are without prejudice to the Holders’ right to rely upon the representations and warranties of the Company in entering into the transactions contemplated by this Agreement. 3.2.1 Incorporation and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas and is duly qualified as a foreign corporation in all jurisdictions in which the failure to so qualify would have a material adverse effect on the Company.",
"The Company has all requisite power and authority to own, lease and operate its properties. -------------------------------------------------------------------------------- 3.2.2 Authority, Filings, Consents and Approvals. The Company has the corporate power and authority to enter into this Agreement and to perform the transactions contemplated by this Agreement subject to shareholder approval and the filing of pertinent disclosure filings with the Securities and Exchange Commission (“Commission”). This Agreement has been duly authorized, executed and delivered by the Company’s board of directors and, subject to shareholder approval, constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. Except for obtaining shareholder approval, no other proceedings on the part of the Company are necessary to authorize the consummation of the transactions contemplated hereby.",
"The execution, delivery and performance of this Agreement and the agreements contemplated herein will not require the Company to obtain any other consent, waiver, authorization or approval of, or make any filing with or give prior notice to, any person, except for any such consents, waivers, authorizations or approvals that relate to shareholder approval and disclosure filings with the Commission. 3.2.3 Capitalization of the Company. The authorized capital of the Company consists of (a) fifty million (50,000,000) Company Shares, of which seventeen million two hundred thirty thousand eight hundred forty-one (17,230,841) Company Shares (the “Outstanding Shares”) are issued and outstanding, and (b) twenty five million (25,000,000) preferred shares of par value $0.0001 per share, none of which are outstanding. The Outstanding Shares are duly authorized, validly issued, fully paid and non-assessable. 3.2.5 Derivative Shares. The Company has the following derivative securities (the \"Derivative Shares\") issued and outstanding: -------------------------------------------------------------------------------- 3.2.4.1 three hundred and fifteen thousand one hundred and fourteen (315,114) common share purchase warrants exercisable at thirty cents ($0.30) per share at any time until November 30, 2010; 3.2.4.2 four million four hundred and eighty one thousand dollars ($4,481,000) plus seven percent (7%) accrued interest in debt convertible into common shares at thirty five cents ($0.35) per share at any time until November 30, 2010; 3.2.4.3 Two hundred fifty thousand dollars ($250,000) plus ten percent (10%) accrued interest in debt convertible into common shares at twenty five cents ($0.10) per share at any time until May 6, 2010.",
"Except as to the Outstanding Shares and the Derivative Shares, the Company has not granted any other rights nor incurred any other commitments to purchase, acquire, convert or exchange any other securities for common or preferred shares of the Company and there are no other contracts, commitments, agreements, understandings, arrangements or restrictions that require the Company to issue, sell or deliver any of its stock or other securities. The Company has sufficient authorized, unissued shares of its common stock to consummate the transactions contemplated herein, and such stock bears no restriction on issuance that would prohibit issuance to the Holders as contemplated herein. 3.2.5 Corporate Records.",
"All transactions of the Company have been promptly and properly recorded or filed in or with its respective books and records, and the minute books contain complete and accurate records of the meetings and proceedings of stockholders and directors thereof. 3.2.6 Company Directors. The directors and officers of the Company are as follows: Nora Coccaro Nora Coccaro President and Chief Executive Officer, Chief Financial Officer, and Principal Accounting Officer Markus Mueller 3.2.7 Liabilities.",
"Except as shown in its most recent publicly released audited financial statements and interim un-audited financial statements (the “Company Financials”) the Company has no material liabilities of any kind whatsoever, contingent or non-contingent, other than those incurred in the ordinary course of business, including, without limitation, commercial real estate leases, utilities, telephone, and legal services. -------------------------------------------------------------------------------- 3.2.8 Liabilities at Closing. Except as may otherwise be set forth in Section 3.2.7 above, the value of all liabilities of the Company, including any exposure under any guarantees, as at the Closing Date, shall not be in excess of those normally incurred and paid by the Company in the ordinary course of business. 3.2.9 Assets. The Company has good and marketable, legal and beneficial title to all of the property comprising its assets as shown on the Company Financials, free and clear of all Encumbrances. Such assets constitute all of the property, rights and other assets used by the Company, or which are necessary or desirable to conduct the Company’s business as conducted prior to the date hereof.",
"Without limiting the generality of the foregoing, none of the personal property or the fixed plant and equipment shown in the Company Financials is leased or otherwise used in the Company’s business subject to any agreement with any third party. 3.2.10 Corporate Records and Financial Statements. All material transactions relating to the Company’s business have been promptly and properly recorded or filed in or with the Company’s books and records. The minute books of the Company contain complete and accurate records of the meetings and proceedings of stockholders and directors thereof. The Company Financials for the period ending March 31, 2006, fairly and accurately present the financial condition of the Company as at such date and the results of its operations for the period then ended.",
"3.2.11 Environmental Compliance. Except in compliance with Environmental Laws, to the knowledge of the Company and its directors, the Company has not caused or permitted, and the Company and its directors have no knowledge of, any material release or disposal by any person of any Hazardous Substance on or from any premises formerly or presently used in the Company’s business. All Hazardous Substances generated, handled, stored, treated, processed, transported or disposed of in the course of the Company’s business have been generated, handled, stored, treated, processed, transported or disposed of in all material respects, in compliance with applicable Environmental Laws.",
"3.2.12 Payment of Taxes. The Company has paid all Taxes due and payable in relation to the Company’s business and has paid all assessments that the Company has received in respect of Taxes. 3.2.13 Reassessments. No reassessments of Taxes have been issued against the Company in relation to the Company’s Business nor is the Company aware of any pending or threatened assessment or reassessment for Taxes. The Company has not executed or filed with any Governmental Authority any agreement extending the period for assessment, reassessment or collection of any Taxes. 3.2.14 Withholdings. The Company has withheld from each payment made to any of its current or former Employees, officers and directors, and to all other persons, all amounts required by law and will continue to do so until the Closing Date. The Company has remitted or will remit, such withheld amounts within the prescribed periods to the appropriate Governmental Authority. The Company has charged and collected and has remitted or will remit on a timely basis all Taxes as required by Applicable Law on any sale, supply or delivery whatsoever, made in relation to the Company’s business.",
"-------------------------------------------------------------------------------- 3.2.15 Contracts. The Company is not a party to, or bound by, any material contract, agreement or commitment of any kind in relation to its business other than this Agreement and the Securities Exchange Agreement (the “Company Contracts”). The Company Contracts are in full force and effect. 3.2.16 Employees. Complete and accurate particulars of the Company’s Employees pertaining to the date of hire of such Employees and their annual remuneration and the names of those on long term disability, workers’ compensation or leave of absence (if any) will be provided to Holders upon request. The Company does not have any written employment agreements relating to any of its Employees. 3.2.17 Collective/Employment Agreements. None of the Company’s Employees is employed under a contract that cannot be terminated by the Company, with or without notice, including those Employees who are employed on indefinite hire requiring reasonable notice of termination by Applicable Law. The Company is not a party, either directly or by operation of law, to any collective bargaining agreement.",
"No trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent holds bargaining rights with respect to any of the Company’s Employees by way of certification, interim certification, voluntary recognition, or successor rights. There are no threatened or pending union organizing activities involving the Company’s Employees and there are no threatened labor disputes or work stoppages relating to, or connected with, the Company’s business. 3.2.18 Occupational Health and Safety. There are no outstanding inspection orders or charges or any other Orders made against the Company or its business. The Company is in compliance with all occupational health and safety rules and regulations in all material respects in relation to its business and there are no outstanding violations of such rules and regulations.",
"3.2.19 Insurance. The Company carries no insurance related to its business or assets. 3.2.20 Permits. The Company is in possession of and is in compliance with all Permits required by any Governmental Authority that are necessary to conduct the Company’s business. 3.2.21 Absence of Legal Conflict. The execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company and the consummation by it of the transactions contemplated by this Agreement will not: -------------------------------------------------------------------------------- 3.2.21.1 conflict with or violate the constituent documents of the Company; 3.2.21.2 conflict with or violate any Applicable Law; or 3.2.21.3 result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company is a party or by which the Company or any of its properties is bound or affected, which, in any such case, would prohibit or delay the Company’s ability to perform its obligations under this Agreement. 3.2.22 Reporting Status.",
"The Company is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and is current in all required filings with the Commission as of the execution of this Agreement. The Company’s reports filed with the Commission can be viewed at www.sec.gov. The Company will obtain approval of the transactions contemplated herein by the shareholders of the Company pursuant to a proxy solicitation (the “Proxy Solicitation”). Without limiting the generality of the foregoing: 3.2.22.1 the Proxy Solicitation will be conducted in compliance with Applicable Law. 3.2.22.2 the meeting of the Company’s shareholders to approve the transactions contemplated in this Agreement (the “Meeting”) will be noticed and conducted in all material respects in compliance with Applicable Law and with the Company’s constituent documents. 3.2.22.3 at the Meeting, a quorum of shareholders of the Company will be present in person or represented by proxy.",
"3.4.22.4 the transactions contemplated in this Agreement will be presented to the requisite number of the Company’s shareholders present in person or represented by proxy at the Meeting, in accordance with Applicable Law and the Company’s constituent documents. 3.2.23 Litigation. There are no claims, actions, proceedings, suits, investigations or reviews pending or, to the knowledge of the Company’s directors, threatened against the Company or otherwise in relation to the Company or its assets or the Outstanding Shares or the Derivative Shares, before or by any Governmental Authority or court. 3.2.24 Conduct of Business - Changes. Since March 31, 2006: 3.2.24.1 the Company has conducted its business in the ordinary course, using reasonable efforts to preserve such business; 3.2.24.2 there has not been any material adverse change in the Company's assets, or affairs or the financial condition of the Company's business; 3.2.24.3 the Company has not: 3.2.24.3.1 increased the compensation paid or payable to any of its Employees or increased the benefits to which its Employees are entitled or provided any new benefits for any such Employees; or 3.2.24.3.2 modified, amended or terminated any contract to which it is or was a party in relation to the Company’s business, except in the ordinary course of business with a view to the best interests of the Company’s business.",
"3.2.25 Investment Intent. The Company is acquiring the Notes for investment purposes only and not with a view to or for resale or distribution and will not resell or otherwise transfer or dispose of the Notes except in accordance with the provisions of all Applicable Laws. -------------------------------------------------------------------------------- ARTICLE IV CLOSING 4.1 Holders' Deliveries at Closing. On the Closing Date or unless expressly determined in writing otherwise, the Holders shall deliver to the Company the following: 4.1.1 The original Notes, duly endorsed for transfer to the Company; 4.1.2 Any consents required to transfer the Notes to the Company; 4.1.3 A closing certificate jointly signed by the Holders, certifying that at and as of the Closing Date, the representations and warranties made by the Holders contained in this Agreement are true and correct as if made at the Closing Date and that all covenants, agreements and conditions required by this Agreement to be performed or complied with by the Holders prior to or at the Closing Date have been performed and complied with, except as otherwise specifically disclosed to Company by notice in writing; and 4.1.4 Such other documents, certificates, instruments and agreements as are required or contemplated to be delivered to the Company by the Holders pursuant to this Agreement. 4.2 The Company's Deliveries at Closing.",
"On the Closing Date or unless expressly determined in writing otherwise, the Company shall deliver to the Holders the following: 4.2.4 Share certificates representing the Exchanged Shares, duly issued for delivery to the respective Holders in the respective share amounts detailed on Exhibit A; 4.2.5 An original copy of a resolution of the board of directors of the Company authorizing the execution and delivery of this Agreement and the issuance of the Exchanged Shares in exchange for the Notes; 4.2.3 A closing certificate of a principal officer of the Company, certifying that at and as of the Closing Date, the representations and warranties made by the Company contained in this Agreement are true and correct as if made at the Closing Date and that all covenants, agreements and conditions required by this Agreement to be performed or complied with by the Company prior to or at the Closing Date have been performed and complied with, except as otherwise specifically disclosed to the Holders by notice in writing; and 4.2.4 Such other documents, certificates, instruments and agreements as are required or contemplated to be delivered to the Holders by the Company pursuant to this Agreement.",
"-------------------------------------------------------------------------------- ARTICLE V CONDITIONS PRECEDENT TO CLOSING 5.1 Conditions Precedent to Obligations of the Company. The obligations of the Company under this Agreement to consummate the transactions contemplated hereby shall be subject to the satisfaction on or before the Closing Date of the following conditions, provided, however, that the Company may waive the pre-Closing Date performance of the following conditions without waiving its right to require the post-Closing Date performance of the following conditions (unless expressly waived in a signed writing): 5.1.1 Representations and Warranties True. The representations and warranties of the Holders shall be in all material respects true and accurate as of the date when made, and, except as to representations and warranties that are expressly limited to a state of facts existing at a time prior to the Closing Date, shall be in all material respects true and accurate at and as of the Closing Date. 5.1.2 Performance of Covenants. The Holders shall have performed and complied in all material respects with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by each Holder prior to or as of the Closing Date.",
"5.1.3 No Governmental or Other Proceeding or Litigation. No Order of any court or administrative agency shall be in effect which restrains or prohibits any transaction contemplated hereby; and no suit, action (other than the exercise of dissenters’ rights), investigation, inquiry or proceeding by any governmental body or other person or entity shall be pending or threatened that challenges the validity or legality, or seeks to restrain the consummation, of the transactions contemplated hereby. 5.1.4 Closing Documentation. The Company shall have received the documents identified in Section 4.1 and such additional documentation on the Closing Date as the Company and its counsel may reasonably require to evidence compliance by the Holders with all of their obligations under this Agreement. 5.1.5 Shareholder Approval. The transactions contemplated herein shall have been approved at the Meeting by holders of the requisite number of the Company’s outstanding voting securities. 5.1.6 Securities Exchange Agreement Executed, Consummated. The Securities Exchange Agreement shall have been executed by all parties to it and the transactions contemplated therein shall have been consummated, or shall be consummated contemporaneously with the transactions contemplated in this Agreement. 5.2 Conditions Precedent to Obligations of the Holders. The obligations of the Holders under this Agreement to consummate the transactions contemplated hereby shall be subject to the satisfaction, or to the waiver by the Holders on or before the Closing Date of the following conditions, provided, however, that the Holders may waive the pre-Closing Date performance of the following conditions without waiving their right to require the post-Closing Date performance of the following conditions (unless expressly waived in a signed writing): -------------------------------------------------------------------------------- 5.2.1 Representations and Warranties True. The representations and warranties of the Company shall be in all material respects true and accurate as of the date when made, and, except as to representations and warranties that are expressly limited to a state of facts existing at a time prior to the Closing Date, shall be in all material respects true and accurate at and as of the Closing Date.",
"5.2.2 Performance of Covenants. The Company shall have performed and complied in all material respects with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by it prior to or as of the Closing Date including but not limited to the obligation to loan Providence up to $5,000,000 pursuant to the terms of the Promissory Note on or prior to the Closing Date. 5.2.3 No Governmental or Other Proceeding or Litigation. No Order of any court or administrative agency shall be in effect that restrains or prohibits any transaction contemplated hereby; and no suit, action, other than the exercise of dissenters’ rights, investigation, inquiry or proceeding by any governmental body or other person or entity shall be pending or threatened that challenges the validity or legality, or seeks to restrain the consummation, of the transactions contemplated hereby.",
"5.2.4 Closing Documentation. The Holders shall have received the documents identified in Section 4.2 and such additional documentation on the Closing Date as the Holders and their respective counsel may reasonably require to evidence compliance by the Company with all of its obligations under this Agreement. 5.2.5 Shareholder Approval. The transactions contemplated herein shall have been approved at the Meeting by holders of the requisite number of the Company’s outstanding voting securities.",
"5.2.6 Securities Exchange Agreement Executed, Consummated. The Securities Exchange Agreement shall have been executed by all parties to it and the transactions contemplated therein shall have been consummated, or shall be consummated contemporaneously with the transactions contemplated in this Agreement. -------------------------------------------------------------------------------- ARTICLE VI INDEMNIFICATION 6.1 Indemnity of the Holders. The Company agrees to defend, indemnify and hold harmless each Holder from and against, and to reimburse each Holder with respect to, all Losses (“Holders’ Losses”) asserted against or incurred by such Holder by reason of, arising out of, or in connection with any material breach of any representation or warranty contained in this Agreement made by the Company or in any document or closing certificate delivered by the Company pursuant to the provisions of this Agreement or in connection with the transactions contemplated thereby.",
"Notwithstanding the foregoing provisions of this Section 6.1, no claim for indemnification shall be made by any Holder against the Company unless and until the aggregate of all Holders’ Losses exceed $25,000. 6.2 Indemnity of the Company. Each Holder, acting severally and not jointly, agrees to defend, indemnify and hold harmless the Company from and against, and to reimburse the Company with respect to, all Losses (“Company Losses”) asserted against or incurred the Company by reason of, arising out of, or in connection with any material breach of any representation or warranty contained in this Agreement and made by such Holder or in any document or certificate delivered by such Holder pursuant to the provisions of this Agreement or in connection with the transactions contemplated thereby; provided, however, that each Holder shall only be required to defend, indemnify and hold harmless the Company for the representations and warranties made by such Holder. Notwithstanding the foregoing provisions of this Section 6.2, no claim for indemnification shall be made by Company against any Holder unless and until the aggregate Company Losses exceed $25,000. 6.3 Indemnification Procedure. A party (an “Indemnified Party”) seeking indemnification shall give prompt notice to the other party (the “Indemnifying Party”) of any claim for indemnification arising under this Article VI. The Indemnifying Party shall have the right to assume and to control the defense of any such claim with counsel reasonably acceptable to such Indemnified Party, at the Indemnifying Party’s own cost and expense, including the cost and expense of reasonable attorneys’ fees and disbursements in connection with such defense, in which event the Indemnifying Party shall not be obligated to pay the fees and disbursements of separate counsel for such in such action.",
"In the event, however, that such Indemnified Party’s legal counsel shall determine that defenses may be available to such Indemnified Party that are different from or in addition to those available to the Indemnifying Party, in that there could reasonably be expected to be a conflict of interest if such Indemnifying Party and the Indemnified Party have common counsel in any such proceeding, or if the Indemnified Party has not assumed the defense of the action or proceedings, then such Indemnifying Party may employ separate counsel to represent or defend such Indemnified Party, and the Indemnifying Party shall pay the reasonable fees and disbursements of counsel for such Indemnified Party. No settlement of any such claim or payment in connection with any such settlement shall be made without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. -------------------------------------------------------------------------------- ARTICLE VII NO JOINT AND SEVERAL OBLIGATIONS 7 The Holders acknowledge and agree that the Company is entering into this Agreement in reliance upon the personal covenants of the Holders.",
"All covenants, representations and warranties provided by the Holders in this Agreement are provided on a several and not joint basis as between the respective Holders with the intent and effect that the Holders shall be severally and not jointly bound thereby, and responsible therefor, up to the Closing Date, and after the Closing Date the Holders shall remain severally and not jointly liable for the breach of any representations, warranties or covenants under this Agreement made by any of the Holders. -------------------------------------------------------------------------------- ARTICLE VIII MISCELLANEOUS 8.1 Amendment and Modification; Waiver.",
"This Agreement may only be amended or modified in writing, signed by all of the parties hereto. No waiver in writing of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. 8.2 Further Assurances. The parties will execute and deliver such further documents and do such further and other things as may be necessary to carry out and give effect to the intent of this Agreement and the transactions contemplated hereby. 8.3 Expenses. Except as otherwise expressly provided in this Agreement and whether or not the transactions contemplated by this Agreement are completed, the parties shall bear their own respective expenses (including, but not limited to, all compensation and expenses of counsel, consultants, actuaries and independent accountants) incurred in connection with this Agreement and the transactions contemplated hereby. 8.4 Public Disclosure.",
"The parties agree that, except as may be required to comply with the requirements of Applicable Laws, the parties shall keep the terms of this Agreement, and the agreements entered into in relation hereto, confidential. In this regard, the Holders acknowledge that the Company is a publicly traded and that the Company may decide, in its sole discretion, when and how to comply with applicable reporting requirements incumbent upon it’s publicly traded status. 8.5 Assignment. No party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other parties hereto, such consent not to be unreasonably withheld. 8.6 Parties in Interest.",
"This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors, heirs or other personal legal representatives and permitted assigns. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any person other than the Company and the Holders or their respective successors, heirs or other personal legal representatives or permitted assigns, any rights or remedies under or by reason of this Agreement. 8.7 Counterparts. This Agreement and any amendments hereto may be executed in one or more counterparts, each of which shall be deemed to be an original by the parties executing such counterpart, but all of which shall be considered one and the same instrument. A signed facsimile or telecopied copy of this Agreement shall be effectual and valid proof of execution and delivery. 8.8 Performance on Holidays.",
"If any action is required to be taken pursuant to this Agreement on or by a specified date that is not a Business Day, then such action shall be valid if taken on or by the next succeeding Business Day. 8.9 Notice. All communications, notices, requests, consents or demands given or required under this Agreement shall be in writing and shall be deemed to have been duly given when delivered to, or received by prepaid registered or certified mail or recognized overnight courier addressed to, or upon receipt of a facsimile sent to, the party for whom intended, as follows, or to such other address or facsimile number as may be furnished by such party by notice in the manner provided herein: If to Company: Healthbridge, Inc.1066 West Hastings Street, Suite 2610 Vancouver, British Columbia V6E 3X2 Attn: Nora Coccaro Phone: (604) 602-1717 Fax: (604) 687-6755 Email: noracoccaro@attglobal.net With a copy to: Ruairidh W. Campbell, Esq.",
"Orsa & Company 1403 E 900 S Salt Lake City, UT 84105 Phone: (801) 582-9606 Fax: (801) 582-9629 Email: ruairidhcampbell@msn.com If to a Holder: To the address of such Holder shown on the signature page to this Agreement, or to such other address as the Holder shall have notified the other parties in writing With a copy to: David Turner, Esq. Scheef and Stone, L.L.P. 5956 Sherry Lane, Suite 1400 Dallas, Texas 75225 Phone: (214) 706-4205 Fax: (214) 706-4242 Email: david.turner@solidcounsel.com -------------------------------------------------------------------------------- 8.10 Governing Law. This Agreement will be construed and enforced in accordance with and governed by the laws of the State of Texas, without reference to principles of conflicts of law.",
"Each of the parties consents to the jurisdiction of the federal courts whose districts encompass any part of the State of Texas in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of such proceeding in such jurisdictions. Each party hereby agrees that if another party to this Agreement obtains a judgment against it in such a proceeding, the party that obtained such judgment may enforce same by summary judgment in the courts of any country having jurisdiction over the party against whom such judgment was obtained, and each party hereby waives any defenses available to it under local law and agrees to the enforcement of such a judgment.",
"Each party to this Agreement irrevocably consents to the service of process in any such proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth herein. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law. 8.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, this Agreement shall be interpreted and enforced as if such provision were severed or limited, but only to the extent necessary to render such provision and this Agreement enforceable. 8.12 Entire Agreement. This Agreement and any instruments and agreements to be executed pursuant to this Agreement, sets forth the entire understanding of the parties hereto with respect to its subject matter, merges and supersedes all prior and contemporaneous understandings with respect to its subject matter and may not be waived or modified, in whole or in part, except by a writing signed by each of the parties hereto.",
"No waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of the same or any other provision in any other instance. Failure of any party to enforce any provision of this Agreement shall not be construed as a waiver of its rights under such provision. [Signature Pages Follow] -------------------------------------------------------------------------------- IN WITNESS WHEREOF each of the parties hereto has executed this Agreement as of the date first set forth above. The Company: HEALTHBRIDGE, INC. By: /s/ Nora Coccaro Nora Coccaro Chief Executive Officer Holders: Address: c/o Scherrer and Partner Bleicherweg 66 /s/ Edward Kneiffel 8002 Zurich, Switzerland Edward Kneiffel c/o Scherrer and Partner Bleicherweg 66 /s/ Christian Diem 8002 Zurich, Switzerland Christian Diem c/o Scherrer and Partner Bleicherweg 66 /s/ George Scherrer 8002 Zurich, Switzerland George Scherrer c/o Scherrer and Partner Bleicherweg 66 /s/ Markus Muller 8002 Zurich, Switzerland Markus Muller GLOBAL PROJECT FINANCE AG Sunnaerai 1 6072 Sachseln By: /s Global Project Finance AG Switzerland Name (print): Title: -------------------------------------------------------------------------------- Birmensdorferstrasse 55 8044 Zurich By: /s/ JTE Project Finanz AG SwitzerlandName (print):Title: SWANLAKE INVESTMENTS LIMITED Shirley House 50 Shirley Street By: /s/ Swanlake Investments Limited Nassau, BahamasName (print):Title: CARRERA INVESTMENTS LIMITED Shirley House 50 Shirley Street By: /s/ Carrera Investments Limited Nassau, BahamasName (print):Title: c/o Thurn and Taxis Capital Management AG Vaduz Seestrasse 33 /s/ Bo Thorwald Berglin CH-8702 Zollikon, SwitzerlandBo Thorwald Berglin c/o Thurn and Taxis Capital Management AG Vaduz Seestrasse 33 /s/ Gosta Wilhelm Bergholtz CH-8702 Zollikon, SwitzerlandGosta Wilhelm Bergholtz c/o Thurn and Taxis Capital Management AG Vaduz Seestrasse 33 /s/ Inge Wicki CH-8702 Zollikon, SwitzerlandInge Wicki Gartenstrasse 10 /s/ James Ladner CH 8002 Zurich, SwitzerlandJames Ladner 709 Garner Place Estevan, Saskatchewan /s/Neal Bezaire CanadaNeal Bezaire 709 Garner Place Estevan, Saskatchewan /s/ Norma Bezaire CanadaNorma Bezaire RR #5 Saskatoon, Saskatchewan /s/ Arden Gibb CanadaArden Gibb -------------------------------------------------------------------------------- Exhibit A To Note Exchange Agreement Holder No.",
"Shares Edward Kneiffel 50,000 Christian Diem 400,000 George Scherrer 400,000 Markus Muller 2,160,949 Global Project Finance AG 1,100,000 JTE Finanz AG 500,000 Swanlake Investments Limited 1,600,000 Carrera Investments Limited 1,485,037 Bo Thorwald Berglin 2,658,759 Gosta Wilhelm Bergholtz 291,119 Inge Wicki 291,119 James Ladner 681,119 Neal and Norma Bezaire 165,000 Arden Gibb 430,568 TOTAL 12,213,670 --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 1 of 42
EXHIBIT A Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 2 of 42 Court of Common Pleas of Philadelphia County For Prothonotary Use Only (Docket Number) Trial Division Civil Cover Sheet E-Filing Number: 2005005845 PLAINTIFF'S NAME DEFENDANT'S NAME FERDINAND BENJAMIN JBS S.A.
PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 957 ANCHOR STREET AVENIDA BRIG FARIA LIMA 2.391 2 ANDAR JD PHILADELPHIA PA 19124 PAULISTANO SAO PAULO
PLAINTIFF'S NAME DEFENDANT'S NAME FERDINAND BENJAMIN JBS USA FOOD COMPANY
PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 957 ANCHOR STREET 1770 PROMONTORY CIRCLE PHILADELPHIA PA 19124 GREELEY CO 80634
PLAINTIFF'S NAME DEFENDANT'S NAME JBS USA HOLDINGS, INC.
PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 1770 PROMONTORY CIRCLE GREELEY CO 80634
TOTAL NUMBER OF PLAINTIFFS TOTAL NUMBER OF DEFENDANTS COMMENCEMENT OF ACTION X Complaint Petition Action Notice of Appeal 2 5 Writ of Summons Transfer From Other Jurisdictions AMOUNT IN CONTROVERSY COURT PROGRAMS
Arbitration Mass Tort Commerce Settlement $50,000.00 or less X Jury Savings Action Minor Court Appeal Minors X More than $50,000.00 Non-Jury Petition Statutory Appeals W/D/Survival Other: CASE TYPE AND CODE
2O - PERSONAL INJURY - OTHER
STATUTORY BASIS FOR CAUSE OF ACTION
RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET NUMBER) IS CASE SUBJECT TO COORDINATION ORDER? YES NO
MAY 07 2020 A. SILIGRINI
TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appellant: FERDINAND BENJAMIN , FERDINAND BENJAMIN Papers may be served at the address set forth below.
NAME OF PLAINTIFF'S/PETITIONER'S/APPELLANT'S ATTORNEY ADDRESS
ROBERT J. MONGELUZZI ONE LIBERTY PLACE 52ND FLOOR 1650 MARKET ST. PHONE NUMBER FAX NUMBER PHILADELPHIA PA 19103 (215)496-8282 (215)496-0999
SUPREME COURT IDENTIFICATION NO. E-MAIL ADDRESS
36283 VSmith@smbb.com
SIGNATURE OF FILING ATTORNEY OR PARTY DATE SUBMITTED ROBERT MONGELUZZI Thursday, May 07, 2020, 08:34 am
FINAL COPY (Approved by the Prothonotary Clerk) Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 3 of 42
COMPLETE LIST OF DEFENDANTS: 1. JBS S.A. AVENIDA BRIG FARIA LIMA 2.391 2 ANDAR JD PAULISTANO SAO PAULO 2. JBS USA FOOD COMPANY 1770 PROMONTORY CIRCLE GREELEY CO 80634 3. JBS USA HOLDINGS, INC. 1770 PROMONTORY CIRCLE GREELEY CO 80634 4. JBS SOUDERTON, INC. ALIAS: C/O CORPORATION SERVICE COMPANY 2595 INTERSTATE DRIVE SUITE 103 HARRISBURG PA 17110 5. PILGRIMS PRIDE CORPORATION ALIAS: C/O CORPORATION SERVICE COMPANY 2595 INTERSTATE DRIVE SUITE 103 HARRISBURG PA 17110 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 4 of 42
SALTZ MONGELUZZI & BENDESKY P.C. Filed and Attested by the BY: ROBERT J. MONGELUZZI/STEVEN G. WIGRIZER Office of Judicial Records JEFFREY P. GOODMAN/JASON S. WEISS 07 MAY ATTORNEYS 2020 FOR 08:34 am PLAINTIFF A. SILIGRINI Identification No.: 36283/30396/309433/310446 1650 Market Street, 52nd Floor Philadelphia, PA 19103 (215) 496-8282
FERDINAND BENJAMIN, Individually and as the Personal Representative of the PHILADELPHIA COUNTY Estate of ENOCK BENJAMIN, Deceased COURT OF COMMON PLEAS 957 Anchor Street LAW DIVISION Philadelphia, PA 19124
Plaintiff MAY TERM, 2020 v. NO.: __________ JBS S.A. Avenida Brig Faria Lima 2.391 2 Andar Jd Paulistano Sao Paulo, SP 01452-000 Brazil JURY OF 12 DEMANDED
And
JBS USA FOOD COMPANY THIS IS NOT AN ARBITRATION 1770 Promontory Circle, MATTER Greeley, CO 80634
And
JBS USA HOLDINGS, INC. 1770 Promontory Circle Greeley, CO 80634
And
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 5 of 42
JBS SOUDERTON, INC. c/o Corporation Service Company 2595 Interstate Drive, Suite 103 Harrisburg, PA 17110
And
PILGRIM’S PRIDE CORPORATION c/o Corporation Service Company 2595 Interstate Drive, Suite 103 Harrisburg, PA 17110
Defendants
NOTICE TO DEFEND NOTICE AVISO
You have been sued in court. If you wish to defend against the Le han demandado a usted en la corte. Si usted quiere defenderse de estas claims set forth in the following pages, you must take action within demandas expuestas en las páginas siguientes, usted tiene veinte (20) días de twenty (20) days after this complaint and notice are served, by plazo al partir de la fecha de la demanda y la notificación. Hace falta asentar entering a written appearance personally or by attorney and filing in una comparecía escrita o en persona o con un abogado y entregar a la corte en writing with the court your defenses or objections to the claims set forma escrita sus defensas o sus objeciones a las demandas en contra de su forth against you. You are warned that if you fail to do so the case persona. Sea avisado que si usted no se defiende, la corte tomará midas y may proceed without you and a judgment may be entered against you puede continuar la demanda en contra suya sin previo aviso o notificación. by the court without further notice for any money claimed in the Además, la corte puede decidir a favor del demandante y requiere que usted complaint or for any other claim or relief requested by the plaintiff. cumpla con todas las provisiones de esta demanda. Usted puede perder dinero You may lose money or property or other rights important to you. o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATA-MENTE. SI YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT NO TIENE ABOGADO O SINO TIENE EL DI-NERO SUFICIENTE DE ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET TELEPHONO A LA OFICINA CUYA DIRECCIÓN SE ENCUENTRA FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUDE CONSEGUIR HELP. ASISTENCIA LEGAL.
PHILADELPHIA BAR ASSOCIATION ASOCIACIÓN DE LICENCIADOS DE FILADELFIA LAWYER REFERRAL AND INFORMATION SERVICE SERVICIO DE REFERENCIA E INFORMACIÓN LEGAL 1101 MARKET STREET 1101 CALLE DE MERCADO PHILADELPHIA, PA 19107 FILADELFIA, PA 19107 TELEPHONE: (215) 238-6333 TELÉFONO: (215) 238-6333
2
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 6 of 42
COMPLAINT – CIVIL ACTION
Introduction
1. This wrongful death and survival action concerns the negligent, reckless, and
outrageous conduct of JBS, the largest beef processing company in the world, because it elected
to pursue profits over safety during a global pandemic.
2. On April 3, 2020, Enock Benjamin died of respiratory failure caused by the
pandemic virus, COVID-19.
’
3. At the time of his death, Mr. Benjamin was a union steward at the JBS meat
processing plant in Souderton, PA.
4. Enock Benjamin was known as the “go-to-man” for JBS Souderton employees
and as a “champion of the people” by his colleagues.
5. Co-workers have also publicly described Mr. Benjamin as a man “who did so
much to defend the rights of his colleagues . . . he loved to work, and he worked until the last
moment he could.”
6. Enock Benjamin’s death was the predictable and preventable result of the JBS
Defendants’ decisions to ignore worker safety.
3
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 7 of 42
7. The JBS Defendants ignored federal guidance and put plant workers in the
crosshairs of a global pandemic.
8. Despite the known risks regarding COVID-19, prior to shutting down the plant on
March 30, 2020, the JBS Defendants: (1) failed to provide sufficient personal protective
equipment; (2) forced workers to work in close proximity; (3) forced workers to use cramped
and crowded work areas, break areas, restrooms, and hallways; (4) discouraged workers from
taking sick leave in a manner that had sick workers in fear of losing their jobs; and (5) failed to
properly provide testing and monitoring for individuals who have may have been exposed to the
virus that causes COVID-19.
9. Instead, at the Souderton facility where Mr. Benjamin worked, JBS increased
production during March 2020, adding a “Saturday Kill” to capitalize on increased demand
caused by public panic purchases of ground meat.
10. During this critical timeframe in March 2020, Mr. Benjamin contracted COVID-
19 while working at JBS Souderton because the JBS Defendants inexplicably failed to take
proper safety precautions to protect workers.
11. By keeping the Souderton plant open without providing the proper and
recommended safety precautions, JBS intentionally misrepresented the safety of the facility.
12. By choosing profits over safety, JBS demonstrated a reckless disregard to the
rights and safety of others, including Enock Benjamin.
FACTS COMMON TO ALL COUNTS A Global Pandemic
13. COVID-19 is an infectious respiratory disease which is caused by a virus known
as “the novel coronavirus.”
14. The virus which caused COVID-19 is highly contagious.
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15. The virus spreads mainly person-to-person, primarily through coughs or sneezes
from an infected person in close proximity to another.
16. The virus is especially dangerous because it can be spread by people who are
asymptomatic or pre-symptomatic.
17. For these reasons, the preferred mechanism to combat the virus has been
widespread “stay-at-home” orders to prevent being exposed to the novel coronavirus.
18. On January 21, 2020, the United States reported its first case of the novel
coronavirus.
19. By this time, it was widely reported that the virus had already spread across Asia
and Europe.
20. On January 30, 2020, the United States reported its first case of COVID-19
acquired via community spread.
21. In this context, it has been stated that “community spread” means “that people
have been infected with the virus in an area, including some who are not sure how or where they
became infected.”
22. On January 31, 2020, the World Health Organization (“WHO”) declared COVID-
19 a “public health emergency of international concern.”
23. On March 9, 2020, with over 500 COVID-19 infections in the United States, the
CDC published federal guidelines for workers.
24. These guidelines included recommendations for social distancing of at least 6
feet, and the use of Personal Protective Equipment (“PPE”) for workers.
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25. The same day, March 9, 2020, OSHA released its own guidelines, recommending
that companies should offer surgical masks or respirators to workers who could be infected with
COVID-19, especially those that worked in close quarters:
OSHA “Guidance on Preparing Workplaces for COVID-19,” March 9, 2020
26. Despite this guidance, the JBS Defendants did not obtain masks or other PPE for
their workers until April 2, 2020, when there already were over 240,000 confirmed COVID-19
infections in the United States, and 5,794 confirmed deaths.
27. Despite the clear danger that COVID-19 posed for its workers, the JBS
Defendants did not mandate the use of masks and/or PPE for their workers until April 14, 2020
when there were already 585,909 confirmed COVID-19 infections in the United States, and
23,577 confirmed deaths.
28. At the time of this filing, there are at least 1,168,896 confirmed cases in the
United States with over 70,000 deaths attributable to COVID-19 during this pandemic.
Meat Processing Plants – A Melting Pot for the Spread of Infection
29. Meat processing plants are known to be “notoriously dangerous.”
30. Meatpacking plants present unique safety issues because of the proximity within
which employees work (“elbow-to-elbow”) using cutting tools and in a challenging environment.
31. In 2009, the spread of the H1N1 virus put meat processing plants on notice of the
dangerous conditions that the spread of airborne virus posed to their workers.
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32. As recently as 2016, regulations were promulgated to promote worker’s safety to
protect against airborne illness at the plants.
33. The enhanced coverage of meat processing plants that has occurred as a result of
the COVID-19 pandemic highlighted the pre-existing dangerous conditions which workers were
exposed to at these plants.
34. One report quotes plant workers as stating that “we’re modern slaves.”
35. Meat processing plant workers have been quoted as stating that “the workers are
being sacrificed” in recent media coverage.
36. Meat processing plants pose specific challenges regarding physical distancing of
workers that JBS needed to assess and accommodate before allowing work to continue.
Pennsylvania’s Plants – Most Infected in the Nation
37. As of May 1, 2020, Pennsylvania had more recorded coronavirus cases among
meat plant workers than any other state.
38. As of that same date, there were 858 confirmed COVID-19 cases from workers at
meat processing plants in Pennsylvania.
39. That number will steadily increase as time progresses, and tragically, Enock
Benjamin’s death will not be the last.
The JBS Defendants
40. Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS
Souderton, Inc., and Pilgrim’s Pride Corporation, are herein collectively referred to as the “JBS
Defendants” and/or “JBS”.
41. JBS, a multinational corporation, is the world’s largest meat processor.
42. JBS beef products fill the shelves of grocery stores across the United States.
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43. With such an important role in the food supply chain, safety should be of
paramount concern to JBS.
44. However, based upon publicly available information, JBS has consistently placed
profits over safety.
45. A review of OSHA statistics for 14,000 participating companies described
“17,533 incidents of the most severe work-related injuries [‘work-related amputations or
hospitalizations’] during the period from January 2015 through September 2016.”
46. JBS had the sixth (6th) most severe injuries reported from that survey.
JBS Souderton Plant
47. In 2008, Enock Benjamin started working at the JBS Plant in Souderton, PA.
48. JBS Souderton is known as “a big player in the Eastern beef market” because JBS
USA claims that it is the largest beef facility east of Chicago.
49. JBS Souderton has approximately 1,400 employees and specializes in beef
processing and packaging.
50. Every day hundreds of workers report to the plant floor for work in close
proximity involving extremes of temperature, dampness, and hazardous footing.
51. A large percentage of the workers are immigrants, which results in company-wide
communications regularly required to be translated in Spanish, Arabic, and Haitian Creole.
52. Enock Benjamin was of Haitian descent.
53. Workers stand only a few feet apart and, because of the volume of the machines at
The Plant, are required to stand within inches of each other to communicate. A typical meat
packing and processing line is depicted below:
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The COVID-19 Pandemic in the United States
54. Recently, Carmen Dominguez, a union steward at the JBS Souderton facility,
described the working conditions as follows:
“On a normal day, work at a meatpacking plant is not easy. The slaughterhouse is boiling hot. People who aren’t used to the temperature can feel as if they are experiencing high blood pressure. The freezer is super cold and will amplify any flulike symptoms. Workers wear as many layers as they can to stay warm, but it is difficult.”
55. In 2019, a worker died on the job at JBS Souderton, resulting in OSHA making
workplace safety recommendations for the facility.
56. Based upon information and belief, the culture at JBS Souderton resulted in
workers coming to work sick for fear of losing their job if missing multiple days of work.
57. Based upon information and belief, by early March the virus was firmly
established in the Souderton plant.
58. The March 9, 2020 OSHA guidance specifically instructed workplaces to send
sick workers home:
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OSHA “Guidance on Preparing Workplaces for COVID-19,” March 9, 2020
59. Despite the skyrocketing risk of COVID-19 infections for workers, the JBS
Defendants ignored the safety of workers and required them to report for duty each day in
cramped conditions and without adequate PPE.
60. Despite these known risks, the JBS Defendants refused to close their plants or
otherwise limit the number of workers reporting for duty each day.
61. Based upon information and belief, as of March 2020 many employees were led
to believe that the individuals who were out sick had the flu, not COVID-19.
62. Based upon information and belief, upon learning of the first positive COVID
individual in the facility in early March 2020, JBS failed to change its policies and procedures.
63. Based upon information belief, instead of implementing proper safety policies and
procedures, due to increased business demands in March 2020, JBS Souderton added a
“Saturday Kill” to meet increased demand in ground beef sales.
64. Based upon information and belief, after the first positive COVID-19 result, JBS
sent a letter to “Souderton Team Members” stating that “one of our team members has tested
positive for COVID-19 after exhibiting flu-like symptoms.”
65. Based upon information and belief, the only employees who were given off work
after this test were “team members who were in direct contact with the individual for extended
periods of time.”
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66. Based upon information and belief, after the first positive COVID-19 result, JBS
Souderton team members were informed that “Our Souderton facility will remain open."
67. One union steward described publicly described the conditions in the plant prior
to the shut down as follows:
“Before this closure, people had started to panic. Social distancing was limited. Employees didn’t cover their mouths. In meatpacking plants, workers are piled up on top of one another, often touching because there are so many of us. Many decided to stay at home on leave because they were afraid of becoming infected or of spreading the coronavirus to their families.”
68. On March 27, 2020, the Souderton facility closed for sanitation after multiple
workers had fallen ill.
69. At that time, there were over 2,000 confirmed cases of COVID-19 in
Pennsylvania.
70. On March 30, 2020, JBS USA stated publicly that it was “temporarily” reducing
production after several senior management team members displayed flu-like symptoms: “The
JBS Souderton, Pa., beef production facility has temporarily reduced production because several
senior management team members have displayed flu-like symptoms.”
71. As of this date, JBS USA publicly claimed that it only had “four or five”
confirmed COVID-19 cases among its hourly workers at the time of closure.
72. JBS spokesperson Cameron Bruett stated that the shutdown was “out of an
abundance of caution[.]”
73. Based upon information and belief, workers were outspoken about the lack of
safety equipment prior to the plant shutting down.
74. Based upon information and belief, employees did complain about the lack of
masks prior to the shutdown.
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75. Based upon information and belief, workers complained about bring COVID-19
home to their families before the shutdown.
76. Based upon media reports, by April 2, 2020, there were nineteen (19) employees
that were confirmed to test positively at the Souderton plant.
COVID-19 Infections at all JBS Plants
77. COVID-19 spread quickly through the JBS Defendants’ meat packing plants.
78. Despite the clear and present danger the virus presented, JBS Defendants kept
their facilities across the United States open or shuttered them only temporarily, even after
hundreds of workers fell ill and others died.
79. Based upon information and belief, the JBS Defendants had a ‘work while sick’
policy.
80. The JBS Defendants did not require workers experiencing COVID-19 symptoms
to report their illness to their superiors.
81. The JBS Defendants did not require these workers to self-quarantine at home,
despite federal guidance to the contrary.
82. In a demonstration of placing profits over safety, the JBS Defendants ignored the
health of their vulnerable workers and did not shut any plants prior to March 30, 2020 despite a
mountain of evidence of a public safety concern of unforeseen magnitude.
83. JBS operates scores of beef plants nationwide.
84. JBS USA has experienced COVID-19 outbreaks at least at seven (7) of those
plants; Souderton, Pennsylvania; Greeley, Colorado; Plainwell, Michigan; Green Bay,
Wisconsin; Cactus, Texas; Worthington, Minnesota and Grand Island, Nebraska.
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85. On April 14, 2020, JBS USA had to shut down the facility in Greeley, CO
because of the coronavirus outbreak.
86. “While the Greeley beef facility is critical to the U.S. food supply and local
producers, the continued spread of coronavirus in Weld County requires decisive action,” said
Andre Nogueira, CEO of JBS USA.
87. However, according to media reports, despite experiencing “increased
absenteeism” at other plants, JBS continued to operate “the majority of its facilities across the
country at or near capacity.”
88. A simultaneously released statement on behalf of JBS addressed absenteeism as
follows: “When COVID-19 is prevalent in the community, fear is heightened, absenteeism rises,
and the challenge of keeping the virus out becomes greater . . . when absenteeism levels become
too high, facilities cannot safely operate.”
The Death of Enock Benjamin
89. Based upon information and belief, up to and including March 27, 2020, workers
at JBS Souderton were still not required to wear masks and/or other PPE, despite CDC and
OSHA guidance to the contrary.
90. Based upon information and belief, up to and including March 27, 2020, workers
at JBS Souderton were still required to work within 6 feet of one another, despite CDC and
OSHA guidance to the contrary.
91. Based upon information and belief, up to and including March 27, 2020, workers
at JBS Souderton were not required to report to their superiors if they were experiencing
COVID-19 symptoms.
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92. Based upon information and belief, when Enock Benjamin last arrived for work at
the JBS Souderton Plant on March 27, 2020, a number of his co-workers had already become
infected.
93. On March 27, 2020, Enock Benjamin left JBS Souderton after experiencing
cough-like symptoms.
94. Over the next week, Enock Benjamin’s condition continued to worsen and
breathing became nearly impossible.
95. On April 3, 2020, Enock Benjamin’s son, Ferdinand, called EMTs to assist
Enock, who was unable to breathe.
96. Enock Benjamin died in his son’s arms before the ambulance arrived.
97. An autopsy report confirmed the Enock Benjamin died from respiratory
complications related to COVID-19.
98. Mr. Benjamin’s death was the predictable and preventable result of the JBS
Defendants’ failures to consider the safety of their workers.
99. The Defendants knew, or in the exercise of a reasonable degree of care, should
have known that if OSHA and CDC guidance were not followed, workers would become
infected with and could succumb to COVID-19.
100. Instead, the JBS Defendants placed profits over safety.
101. As a result of the JBS Defendants’ outrageous, reckless, and grossly negligent
actions which demonstrated a total disregard for the workers’ safety, Enock Benjamin became
infected with COVID-19 at JBS Souderton.
102. Mr. Benjamin died only days after leaving JBS Souderton for the last time.
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103. The JBS Defendants actions demonstrated a knowing willingness to sacrifice the
health of Mr. Benjamin and others for its’ own corporate greed.
Present Safety Conditions at JBS Souderton
104. On April 20, 2020, the JBS Souderton plant re-opened in Pennsylvania.
105. Based upon information and belief, JBS provided masks, a shield, and gloves
upon re-opening.
106. JBS has failed to state publicly why these materials were not provided at JBS
Souderton prior to the March 30, 2020 shutdown.
107. Based upon information and belief, upon re-opening JBS is not regularly or
consistently taking employee temperatures.
108. Moreover, based upon information and belief, upon reopening JBS was still not
providing COVID-19 testing for all those at the facility.
109. A JBS Spokesperson stated that any worker who does not qualify as high-risk, but
is concerned about contracting COVID-19 “can choose to self-quarantine and take unpaid
leave.”
110. JBS’ failure to even presently enforce necessary safety policies and procedures
demonstrate a continued failure to respect and appreciate the threat of harm to the public that the
continued unsafe operation of meat plants pose.
The Parties 111. Plaintiff, Ferdinand Benjamin, is an adult individual and a citizen of the
Commonwealth of Pennsylvania residing at the above captioned address.
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112. Ferdinand Benjamin brings this suit as the Personal Representative1 of the Estate
of Enock Benjamin, on his own behalf and on behalf of all statutory beneficiaries, and as the
personal representative of Enock Benjamin.
113. Enock Benjamin was, at all relevant times, an adult citizen of the Commonwealth
of Pennsylvania, residing in Philadelphia County.
114. Defendant, JBS S.A., is a corporation organized and existing under the laws of
Brazil, with a principal place of business at the above captioned address.
115. At all times relevant to this cause of action, JBS S.A. was engaged in business
within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial
basis.
116. At all times relevant to this cause of action, JBS S.A. regularly conducted
business in Philadelphia County.
117. At all relevant times, JBS S.A. was acting by and through its agents, servants
and/or employees, who were acting within the course and scope of their agency, service, and
employment with JBS S.A.
118. Defendant, JBS USA Food Company (“JBS USA”), is a corporation organized
and existing under the laws of the state of Delaware, with a principal place of business at the
above captioned address.
119. At all times relevant to this cause of action, JBS USA was engaged in business
within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial
basis.
1 Due to COVID-19 restrictions, at present the Register of Wills of Philadelphia County is only entertaining emergency applications. Letters of Administration will be obtained at the first reasonable opportunity.
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120. At all times relevant to this cause of action, JBS USA regularly conducted
business in Philadelphia County.
121. At all relevant times, JBS USA was acting by and through its agents, servants
and/or employees, who were acting within the course and scope of their agency, service, and
employment with JBS USA.
122. Defendant, JBS USA Holdings, Inc. (“JBS Holdings”), is a corporation organized
and existing under the laws of the state of Delaware, with a principal place of business at the
above captioned address.
123. At all times relevant to this cause of action, JBS Holdings was engaged in
business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and
substantial basis.
124. At all times relevant to this cause of action, JBS Holdings regularly conducted
business in Philadelphia County.
125. At all relevant times, JBS Holdings was acting by and through its agents, servants
and/or employees, who were acting within the course and scope of their agency, service, and
employment with JBS Holdings.
126. Defendant, JBS Souderton, Inc. (“JBS Souderton”), is a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, with an address for service at the
above captioned address.
127. At all times relevant to this cause of action, JBS Souderton was engaged in
business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and
substantial basis.
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128. At all times relevant to this cause of action, JBS Souderton regularly conducted
business in Philadelphia County.
129. At all relevant times, JBS Souderton was acting by and through its agents,
servants and/or employees, who were acting within the course and scope of their agency, service,
and employment with JBS Souderton.
130. Defendant, Pilgrim’s Pride Corporation (“Pilgrim’s Pride”), is a corporation
organized and existing under the laws of the state of Delaware, with an address for service at the
above captioned address.
131. At all times relevant to this cause of action, Defendant Pilgrim’s Pride was
engaged in business within the Commonwealth of Pennsylvania on a regular, systematic,
continuous, and substantial basis.
132. At all times relevant to this cause of action, Defendant Pilgrim’s Pride regularly
conducted business in Philadelphia County.
133. At all relevant times, Defendant Pilgrim’s Pride was acting by and through its
agents, servants and/or employees, who were acting within the course and scope of their agency,
service, and employment with Pilgrim’s Pride.
134. Upon information and belief, Defendant JBS USA Holdings, Inc. is a wholly-
owned subsidiary of Defendant JBS S.A.
135. Upon information and belief, Defendant JBS USA Food Company is a wholly-
owned subsidiary of JBS USA Holdings, Inc.
136. Upon information and belief, Defendant JBS Souderton, Inc. is a wholly-owned
subsidiary of Defendant JBS USA Food Company.
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137. Upon information and belief, Defendant Pilgrim’s Pride is a subsidiary of
Defendant JBS USA Holdings, Inc.
138. Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS
Souderton, Inc., and Pilgrim’s Pride Corporation, owned, operated, managed, and otherwise
controlled the meat packing plant at 249 Allentown Road, Souderton, PA 18964 (“The JBS
Souderton Plant”).
139. Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS
Souderton, Inc., and Pilgrim’s Pride Corporation, by and through their agents, servants, and/or
employees, collectively and individually made decisions related to worker health, safety,
protection, and sanitation in light of the COVID-19 pandemic.
140. The JBS Defendants are, collectively, the world’s largest meat processor and own,
operate, manage and otherwise control more than sixty (60) meat processing plants in the United
States.
141. As a direct result of the carelessness, negligence, recklessness, gross negligence,
and/or other liability producing conduct of the Defendants, Plaintiff’s decedent, Enock
Benjamin, suffered illness and injuries that led to his death.
142. Mr. Benjamin sustained conscious pain and suffering, and fear of impending
death.
143. Mr. Benjamin sustained a permanent loss of earnings and loss of earning capacity.
144. Mr. Benjamin sustained permanent loss of enjoyment of life, loss of life’s
pleasures, and loss of life’s hedonic pleasures.
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145. Mr. Benjamin has been permanently prevented from performing all his usual
duties, occupations, recreational activities, and avocations, all to his and his beneficiaries’ loss
and detriment.
146. The outrageous conduct described herein warrants the imposition of punitive
damages to deter the JBS Defendants and meat processing plants that operate in Pennsylvania
and across the country from placing profits over the safety of their workers, their workers’
families, and the public at large.
COUNT I Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants NEGLIGENCE
147. Plaintiff hereby incorporates all preceding paragraphs of this Complaint by
reference.
148. At all relevant times, the JBS Defendants owned, operated, maintained and
otherwise controlled the JBS Souderton Plant, and controlled and supervised the work being
done at the Plant.
149. Specifically, the JBS Defendants controlled and supervised all safety precautions
and procedures at the Plant, including those related to COVID-19 protection and prevention.
150. Control over the operations and safety decisions at the Souderton Plant were not
limited to JBS Souderton, Inc. Instead, key decisions were controlled by corporate
representatives at the parent level.
151. The specific decisions related to whether or not to provide PPE, whether or not to
properly distance workers, and whether or not to take other measures to prevent the spread of
COVID-19 at the Souderton Plaint were controlled by the corporate leaders in Colorado and
Brazil.
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152. In connection with their control and supervision of the Plant, the JBS Defendants
developed plans, recommendations, guidance, and safety procedures and specifications for
performance of work at the Plant.
153. The JBS Defendants, having possession and control of the Plant and the work
being done there, owed a duty to all those working at the Plant, including Enock Benjamin, a
business invitee, to provide a reasonably safe work environment, free from unreasonable and
dangerous hazards.
154. The negligence, gross negligence, carelessness and recklessness of the JBS
Defendants, their agents, servants, and/or employees, which were the cause of Enock Benjamin’s
death, consisted of, but was not limited to, the following:
a. Ignoring the risk of COVID-19 infection to workers at the JBS Souderton Plant;
b. Failing to provide workers with any equipment to help prevent the spread of
COVID-19 at The Plant;
c. Intentionally ignoring the fact that workers at the JBS Souderton Plant were
infected with and/or were displaying symptoms consistent with COVID-19;
d. Failing to provide appropriate PPE at JBS Souderton prior to March 30, 2020
e. Failing to provide workers with any equipment to help prevent the spread of
COVID-19 at The Plant;
f. Failing to close the JBS Souderton Plant, despite the fact that the JBS Defendants
knew, or should have known, that workers at the plant were suffering from
COVID-19;
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g. Failing to close the JBS Souderton Plant, despite the fact that the JBS Defendants
knew, or should have known, that workers at the plant were suffering from
symptoms consistent with COVID-19;
h. Ignoring federal guidance from the CDC and OSHA by not mandating the use of
masks and PPE at the JBS Souderton Plant;
i. Ignoring federal guidance from the CDC and OSHA by not mandating and/or
enforcing social distancing guidelines at the JBS Souderton Plant;
j. Ignoring federal guidance from the CDC and OSHA by not mandating that
workers who were feeling ill report their symptoms to their superiors;
k. Ignoring federal guidance from the CDC and OSHA by not mandating that
workers who were feeling ill stay home from work and self-quarantine;
l. Requiring workers to stand less than 6 feet apart;
m. Failing to implement policies and procedures that mandated workers kept 6 feet
apart;
n. Failing to provide workers with masks and/or PPE;
o. Failing to provide workers with clear guidelines for social distancing;
p. Failing to reduce the numbers of workers per shift at the JBS Souderton Plant,
despite the fact that the JBS Defendants knew, or should have known, that
workers in close proximity to one another were more prone to infection;
q. Refusing to close the JBS Souderton Plant entirely in a timely fashion, even
though the JBS Defendants knew workers at other JBS Plants across the country
had come infected with COVID-19;
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r. Enforcing and/or maintaining a formal and/or informal ‘work while sick’ policy at
the JBS Souderton Plant;
s. Failing to properly sanitize or otherwise disinfect the JBS Souderton Plant,
despite the fact that workers at the plant were falling ill;
t. Failing to perform temperature checks on workers arriving at the JBS Souderton
Plant before they were allowed inside the Plant;
u. Violating federal and state guidelines and requirements related to COVID-19
prevention in the workplace;
v. Violating OSHA regulations, including OSHA 1910.132, related to the use of
PPE;
w. Breaching their duties under various sections of the Restatement (Second) of
Torts, including, but not limited to, § 340, et seq.; § 341, et seq.; and § 500, et seq.
x. Failing to provide Enock Benjamin with a safe place to work;
y. Allowing workers at the JBS Souderton Plant, including Enock Benjamin, to
become infected by COVID-19 while working at The Plant;
z. Failing to properly train and supervise their employees and employees of
subcontractors about the danger posed by COVID-19 and the necessary methods
to prevent infection;
aa. Failing to properly train and supervise their employees and employees of
subcontractors about federal and state guidelines regarding COVID-19 and
federal and state guidelines to prevent COVID-19 infection;
bb. Failing to warn Enock Benjamin and other workers at the JBS Souderton Plant of
the danger posed by COVID-19;
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cc. Failing to adopt, enact, employ, and enforce proper and adequate safety programs,
precautions, procedures, measures, and plans;
dd. Failing to provide workers with safety equipment;
ee. Failing to provide workers with adequate safety equipment;
ff. Failing to properly supervise and inspect the work being done at the JBS
Souderton Plant;
gg. Failing to prevent workers at the JBS Souderton Plant from being infected by
COVID-19.
hh. Failing to properly train supervisors and managers in determining when to shut
down the plant due to a safety concerns;
ii. Failing to provide proper training on how to combat an airborne virus;
jj. Failing to hire and/or select appropriate individuals for managerial positions;
kk. Failing to conduct appropriate safety surveys of the Plant;
ll. Failing to hire appropriate consultants for how to respond to an airborne virus;
mm. Failing to timely obtain appropriate PPE materials to protect workers.
nn. Failing to implement proper policies and/or procedures for shutting the Plant
down in the face of widespread virus/pandemic;
oo. Failing to properly consider the safety of members of the public that would come
into contact with those who worked at the facility; and
pp. Failure to express due care under the circumstances described herein.
155. The Defendants’ actions and/or inactions were substantial factors and/or factual
causes and/or increased the risk of harm to Plaintiff’s decedent.
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156. The acts and omissions set forth herein were done in a negligent, grossly
negligent, willful, reckless, and wanton fashion with a conscious indifference to the rights of
members of the public generally, and Plaintiff’s decedent in particular.
WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and/or
severally, in an amount in excess of the jurisdictional threshold in compensatory damages,
punitive damages, delay damages pursuant to Pa.R.C.P. 238, interest, and allowable costs of suit,
and brings this action to recover the same.
COUNT II Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants FRAUDULENT MISREPRESENTATION
157. Plaintiff hereby incorporates all preceding paragraphs of this Complaint by
reference.
158. The JBS Defendants owed lawful business invitees at the JBS Souderton Plant,
including Enock Benjamin, the highest duty of care.
159. The JBS Defendants knew that workers at the JBS Souderton Plant had become
infected with COVID-19, and/or were displaying symptoms consistent with COVID-19, prior to
closing The Plant on March 30, 2020.
160. The JBS Defendants knew that workers at the JBS Souderton Plant were
especially susceptible to COVID-19, and knew that once one worker was infected, the virus was
likely to spread to others.
161. Despite this knowledge, the JBS Defendants did not warn workers that others at
the JBS Souderton Plant had become infected with COVID-19 and/or were displaying symptoms
consistent with COVID-19 prior to March 27, 2020.
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162. Despite this knowledge, the JBS Defendants directly misrepresented to workers
that there was no risk of infection and/or that the workers were unlikely to become infected
and/or deliberately withheld their knowledge of workers at The Plant becoming infected with
COVID-19.
163. The JBS Defendants fraudulently misrepresented the risk of infection to other
workers at The Plant to induce those workers to continue their employment at The Plant.
164. The JBS Defendants fraudulently misrepresented the risk of infection to other
workers at The Plant to induce those workers to continue making the JBS Defendants profitable.
165. The JBS Defendants willfully and intentionally withheld their knowledge of
COVID-19 infections at the JBS Souderton Plant.
166. Workers at the JBS Souderton Plant, including Enock Benjamin, relied on the JBS
Defendants’ misrepresentations and continued to arrive for work each day, completely unaware
that other workers at the plant were infected with COVID-19 and/or were displaying symptoms
consistent with COVID-19.
167. As a direct and proximate result of Enock Benjamin’s reliance on the JBS
Defendants’ misrepresentations, Enock Benjamin became infected with COVID-19 while
working at the JBS Souderton Plant, and died only days later.
WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and/or
severally, in an amount in excess of the jurisdictional threshold in compensatory damages,
punitive damages, delay damages pursuant to Pa.R.C.P. 238, interest, and allowable costs of suit,
and brings this action to recover the same.
26
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COUNT III Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants INTENTIONAL MISREPRESENTATION
168. Plaintiff hereby incorporates all preceding paragraphs of this Complaint here by
reference.
169. The JBS Defendants owed lawful business invitees at the JBS Souderton Plant,
including Enock Benjamin, the highest duty of care.
170. At all relevant times, the JBS Defendants represented to business invitees,
including Enock Benjamin, that it was safe for workers to arrive for their shifts at the JBS
Souderton Plant.
171. At all relevant times, the JBS Defendants’ representations were material to Enock
Benjamin’s presence at the JBS Souderton Plant.
172. The JBS Defendants’ representation that it was safe for workers to arrive for their
shifts at the JBS Souderton Plant was false.
173. This misrepresentation was made intentionally and knowingly.
174. The JBS Defendants learned they had misrepresented the risk of COVID-19
infections to workers at the JBS Souderton Plant, learned that workers at the Plant, including
Enock Benjamin, relied upon the JBS Defendants’ misrepresentations, and the JBS Defendants
failed to correct their misrepresentations.
175. At all relevant times, the JBS Defendants had actual knowledge of the risk of
COVID-19 infections to workers at the JBS Souderton Plant, including Enock Benjamin.
176. At all relevant times, the JBS Defendants had actual knowledge that workers at
the JBS Souderton Plant were infected with COVID-19 and/or were experiencing symptoms
consistent with COVID-19.
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177. Despite their actual knowledge of COVID-19 infections at the JBS Souderton
Plant, and the risk these infections posed to other workers, including Enock Benjamin, the JBS
Defendants kept the JBS Souderton Plant open to workers up to and through at least March 27,
2020.
178. The JBS Defendants’ motivation for intentionally misrepresenting the safety of
the JBS Souderton Plant was to make money and to continue to profit.
179. The JBS Defendants intentionally misrepresented and deceived workers into
believing that the JBS Souderton Plant was safe to ensure that workers continued to show up
each day for their shifts and to ensure that the JBS Defendants continued to profit.
180. Workers at the JBS Souderton Plant, including Enock Benjamin, justifiably relied
upon the JBS Defendants’ false representation that the JBS Souderton Plant was safe at all
relevant times.
181. The conduct of the JBS Defendants, as described above, demonstrated a reckless
disregard for the safety and health of workers at the JBS Souderton Plant.
182. The death and injuries sustained by Plaintiff’s decedent was caused by the
negligence, gross negligence, carelessness, recklessness, outrageous conduct and intentional
misrepresentations of the JBS Defendants, acting by and through their agents, servants, workers
and/or employees, both generally and in the following respects:
a. Failing to close the JBS Souderton Plant despite the known dangers caused by
COVID-19 infections at the plant;
b. Failing to close the JBS Souderton Plant despite the known dangers caused by
workers displaying symptoms of COVID-19 infections at the plant;
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c. Failing to warn workers at the JBS Souderton Plant of the dangers posed by
COVID-19 infections at the plant;
d. Failing to warn workers at the JBS Souderton Plant of the dangers posed by
workers displaying symptoms of COVID-19 infections at the plant;
e. Exposing workers at the JBS Souderton Plant to unacceptable risks of harm;
f. Violating applicable OSHA regulations, including the General Duty Cause;
g. Failing to provide special precautions which would have protected workers from
the particular and unreasonable risks of harm which the JBS Defendants
recognized;
h. Failing to train and supervise workers at the JBS Souderton Plant properly;
i. Failing to adequately warn workers at the JBS Souderton Plant of the peculiar
and/or unsafe conditions and/or special dangers existing at the JBS Souderton
Plant;
j. Violating and failing to comply with Federal and State statutes, local ordinances,
and all other rules or regulations applicable or in effect, and specifically OSHA
and CDC guidance regarding COVID-19 protection and prevention for
workplaces and workers;
k. Failing to adopt, enact, employ and enforce proper and adequate safety programs,
precautions, procedures, measures and plans; and
l. Failing to cease and/or postpone operations until proper and necessary precautions
could be taken to safeguard workers at the JBS Souderton Plant.
183. The JBS Defendants’ conduct, as described above, demonstrated a wanton
disregard for the safety and health of workers at the JBS Souderton Plant.
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184. By reason of the intentional misrepresentations of the JBS Defendants, as set forth
above, Plaintiff’s decedent suffered an agonizing and horrific death.
185. By conducting itself as set forth above, the JBS Defendants’ intentional
misrepresentations were a substantial factor, a factual cause of and/or increased the risk of harm
to Plaintiff’s decedent.
186. The JBS Defendants’ intentional misrepresentations qualify as an exception to the
Fair Share Act, 42 Pa.C.S. § 7102, and therefore all JBS Defendants are jointly and severally
liable for the death of Enock Benjamin and all injuries related to his death.
WHEREFORE, Plaintiff demands that judgment be entered in favor of the wrongful
death beneficiaries and against Defendants, jointly and severally, in an amount in excess of the
jurisdictional threshold in compensatory damages, punitive damages, interest, and allowable
costs of suit and brings this action to recover the same.
COUNT IV Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants WRONGFUL DEATH
187. Plaintiff hereby incorporates all preceding paragraphs of this Complaint by
reference.
188. Enock Benjamin is survived by his son, Ferdinand Benjamin, his wife, Mireille
Benjamin, and his daughter, Debbie Benjamin.
189. By reason of the death of Enock Benjamin, his beneficiaries have in the past and
will in the future continue to suffer great pecuniary loss, including, but not limited to, loss of
support, loss of aid, loss of services, loss of companionship, loss of consortium and comfort, loss
of counseling, and loss of guidance.
30
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190. As a direct and proximate result of the foregoing, decedent, Enock Benjamin’s
wrongful death beneficiaries incurred or have been caused to incur and pay large and various
expenses for medical treatment, hospital care and medicine rendered to decedent until the time of
his death and to incur various funeral, burial, and estate and administration expenses for which
Plaintiff is entitled to compensation.
191. Plaintiff, individually and as Administratrix Ad Prosequendum of the Estate of
Enock Benjamin, brings this action by virtue of the Wrongful Death Act, 42 Pa.C.S.A. § 8301,
and Pa.R.C.P. 2202, and claims all benefits and recoverable damages under the Wrongful Death
Act on behalf of all other persons entitled to recover under law, namely Mireille Benjamin and
Debbie Benjamin.
192. Plaintiff brings this action by virtue of, inter alia, 42 Pa.C.S. § 8301 and claim all
damages encompassed thereby, including any and all damages members of the Estate are entitled
to under Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010).
WHEREFORE, Plaintiff demands that judgment be entered in favor of the wrongful
death beneficiaries and against Defendants, jointly and severally, in an amount in excess of the
jurisdictional threshold in compensatory damages, punitive damages, interest, and allowable
costs of suit and brings this action to recover the same.
COUNT V Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants SURVIVAL ACT
193. Plaintiff incorporates all preceding paragraphs of this Complaint here by
reference.
194. Plaintiff claims on behalf of the Estate of Enock Benjamin all damages suffered
by the Estate by reason of the death of Enock Benjamin, including, without limiting the
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generality of the following: the severe injuries and symptoms suffered by Enock Benjamin,
which resulted in his death; the anxiety, horror, fear of impending death, mental disturbance,
pain, suffering and other intangible losses which Enock Benjamin suffered prior to his death; the
loss of future earning capacity suffered by Enock Benjamin from the date of his death until the
time in the future that he would have lived had he not died as a result of the injuries he sustained
by reason of the Defendants’ conduct.
195. Plaintiff brings this action on behalf of the Estate of Enock Benjamin, by virtue of
the Survival Act, 42 Pa.C.S.A. § 8302, and claims all benefits of the Survival Act on behalf of
Enock Benjamin’s Estate, and other persons entitled to recover under law.
WHEREFORE, Plaintiff demands that judgment be entered in favor of the wrongful
death beneficiaries and against Defendants, jointly and severally, in an amount in excess of the
jurisdictional threshold in compensatory damages, punitive damages, interest, and allowable
costs of suit and brings this action to recover the same.
SALTZ MONGELUZZI & BENDESKY P.C.
By: /s/ Robert J. Mongeluzzi ROBERT J. MONGELUZZI STEVEN G. WIGRIZER JEFFREY P. GOODMAN JASON S. WEISS
Attorneys for Plaintiff, Ferdinand Benjamin, Personal Representative of the Estate of Enock Benjamin
32
Case ID: 200500370 1=6?598< 2<@7;=>7 41- +,,%023*"(.,."')+$".2**"+/2&0(,0#20# Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 36 of 42
Filed and Attested by the Office of Judicial Records 07 MAY 2020 08:34 am A. SILIGRINI
VERIFICATION The averments or denials of fact in the foregoing document are true based upon the
dZX_Vcud aVcd`_R] \_`h]VUXV `W Z_W`c^ReZ`_ R_U SV]ZVW( ?W eYV W`cVX`Z_X T`_eRZ_d RgVc^V_ed
which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain
which of the inconsistent averments are true, but signer has knowledge or information sufficient
to form a belief that one of them is true. This verification is made subject to the penalties of 18
Pa. C.S. § 4904, relating to unsworn falsification to authorities.
&'( %" $#$# DATE: _____________________ ______________________________ FERDINAND BENJAMIN
&&
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 37 of 42
SALTZ MONGELUZZI & BENDESKY P.C. Filed and Attested by the BY: ROBERT J. MONGELUZZI/STEVEN G. WIGRIZER Office of Judicial Records JEFFREY P. GOODMAN/JASON S. WEISS 19 MAY ATTORNEYS FOR2020 11:51 am PLAINTIFF E. MEENAN Identification No.: 36283/30396/309433/310446 1650 Market Street, 52nd Floor Philadelphia, PA 19103 (215) 496-8282
FERDINAND BENJAMIN, Individually and as the Personal Representative of the PHILADELPHIA COUNTY Estate of ENOCK BENJAMIN, Deceased COURT OF COMMON PLEAS LAW DIVISION Plaintiff
v. MAY TERM, 2020 JBS S.A., JBS USA FOOD COMPANY, JBS USA HOLDINGS, INC., JBS NO.: 0370 SOUDERTON, INC. And PILGRIM’S PRIDE CORPORATION
Defendants
AFFIDAVIT OF SERVICE
I, Jeffrey P. Goodman, Esquire, hereby certify that service of the Complaint was made on
defendant, JBS USA Food Company, by certified mail on May 14, 2020, at 1770 Promontory Circle,
Greeley, CO 80634.
A true and correct copy of the return receipt is attached hereto and marked as Exhibit “A.”
SALTZ MONGELUZZI & BENDESKY P.C.
By: /s/ Jeffrey P. Gpoodman ROBERT J. MONGELUZZI STEVEN G. WIGRIZER JEFFREY P. GOODMAN JASON S. WEISS
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 38 of 42
Attorneys for Plaintiff, Ferdinand Benjamin, Personal Representative of the Estate of Enock Benjamin
Dated: May 19, 2020
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 39 of 42
Filed and Attested by the Office of Judicial Records 19 MAY 2020 11:51 am E. MEENAN
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 40 of 42
SALTZ MONGELUZZI & BENDESKY P.C. Filed and Attested by the BY: ROBERT J. MONGELUZZI/STEVEN G. WIGRIZER Office of Judicial Records JEFFREY P. GOODMAN/JASON S. WEISS 19 MAY ATTORNEYS FOR2020 12:06 pm PLAINTIFF E. MEENAN Identification No.: 36283/30396/309433/310446 1650 Market Street, 52nd Floor Philadelphia, PA 19103 (215) 496-8282
FERDINAND BENJAMIN, Individually and as the Personal Representative of the PHILADELPHIA COUNTY Estate of ENOCK BENJAMIN, Deceased COURT OF COMMON PLEAS LAW DIVISION Plaintiff
v. MAY TERM, 2020 JBS S.A., JBS USA FOOD COMPANY, JBS USA HOLDINGS, INC., JBS NO.: 0370 SOUDERTON, INC. And PILGRIM’S PRIDE CORPORATION
Defendants
AFFIDAVIT OF SERVICE
I, Jeffrey P. Goodman, Esquire, hereby certify that service of the Complaint was made on
defendant, JBS USA Holdings, Inc., by certified mail on May 14, 2020, at 1770 Promontory Circle,
Greeley, CO 80634.
A true and correct copy of the return receipt is attached hereto and marked as Exhibit “A.”
SALTZ MONGELUZZI & BENDESKY P.C.
By: /s/ Jeffrey P. Gpoodman ROBERT J. MONGELUZZI STEVEN G. WIGRIZER JEFFREY P. GOODMAN JASON S. WEISS
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 41 of 42
Attorneys for Plaintiff, Ferdinand Benjamin, Personal Representative of the Estate of Enock Benjamin
Dated: May 19, 2020
Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 42 of 42
Filed and Attested by the Office of Judicial Records 19 MAY 2020 12:06 pm E. MEENAN
Case ID: 200500370 | 2020-06-02 | [
"Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 1 of 42 EXHIBIT A Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 2 of 42 Court of Common Pleas of Philadelphia County For Prothonotary Use Only (Docket Number) Trial Division Civil Cover Sheet E-Filing Number: 2005005845 PLAINTIFF'S NAME DEFENDANT'S NAME FERDINAND BENJAMIN JBS S.A. PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 957 ANCHOR STREET AVENIDA BRIG FARIA LIMA 2.391 2 ANDAR JD PHILADELPHIA PA 19124 PAULISTANO SAO PAULO PLAINTIFF'S NAME DEFENDANT'S NAME FERDINAND BENJAMIN JBS USA FOOD COMPANY PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 957 ANCHOR STREET 1770 PROMONTORY CIRCLE PHILADELPHIA PA 19124 GREELEY CO 80634 PLAINTIFF'S NAME DEFENDANT'S NAME JBS USA HOLDINGS, INC. PLAINTIFF'S ADDRESS DEFENDANT'S ADDRESS 1770 PROMONTORY CIRCLE GREELEY CO 80634 TOTAL NUMBER OF PLAINTIFFS TOTAL NUMBER OF DEFENDANTS COMMENCEMENT OF ACTION X Complaint Petition Action Notice of Appeal 2 5 Writ of Summons Transfer From Other Jurisdictions AMOUNT IN CONTROVERSY COURT PROGRAMS Arbitration Mass Tort Commerce Settlement $50,000.00 or less X Jury Savings Action Minor Court Appeal Minors X More than $50,000.00 Non-Jury Petition Statutory Appeals W/D/Survival Other: CASE TYPE AND CODE 2O - PERSONAL INJURY - OTHER STATUTORY BASIS FOR CAUSE OF ACTION RELATED PENDING CASES (LIST BY CASE CAPTION AND DOCKET NUMBER) IS CASE SUBJECT TO COORDINATION ORDER? YES NO MAY 07 2020 A. SILIGRINI TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appellant: FERDINAND BENJAMIN , FERDINAND BENJAMIN Papers may be served at the address set forth below. NAME OF PLAINTIFF'S/PETITIONER'S/APPELLANT'S ATTORNEY ADDRESS ROBERT J. MONGELUZZI ONE LIBERTY PLACE 52ND FLOOR 1650 MARKET ST.",
"PHONE NUMBER FAX NUMBER PHILADELPHIA PA 19103 (215)496-8282 (215)496-0999 SUPREME COURT IDENTIFICATION NO. E-MAIL ADDRESS 36283 VSmith@smbb.com SIGNATURE OF FILING ATTORNEY OR PARTY DATE SUBMITTED ROBERT MONGELUZZI Thursday, May 07, 2020, 08:34 am FINAL COPY (Approved by the Prothonotary Clerk) Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 3 of 42 COMPLETE LIST OF DEFENDANTS: 1. JBS S.A. AVENIDA BRIG FARIA LIMA 2.391 2 ANDAR JD PAULISTANO SAO PAULO 2.",
"JBS USA FOOD COMPANY 1770 PROMONTORY CIRCLE GREELEY CO 80634 3. JBS USA HOLDINGS, INC. 1770 PROMONTORY CIRCLE GREELEY CO 80634 4. JBS SOUDERTON, INC. ALIAS: C/O CORPORATION SERVICE COMPANY 2595 INTERSTATE DRIVE SUITE 103 HARRISBURG PA 17110 5. PILGRIMS PRIDE CORPORATION ALIAS: C/O CORPORATION SERVICE COMPANY 2595 INTERSTATE DRIVE SUITE 103 HARRISBURG PA 17110 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 4 of 42 SALTZ MONGELUZZI & BENDESKY P.C. Filed and Attested by the BY: ROBERT J. MONGELUZZI/STEVEN G. WIGRIZER Office of Judicial Records JEFFREY P. GOODMAN/JASON S. WEISS 07 MAY ATTORNEYS 2020 FOR 08:34 am PLAINTIFF A. SILIGRINI Identification No.",
": 36283/30396/309433/310446 1650 Market Street, 52nd Floor Philadelphia, PA 19103 (215) 496-8282 FERDINAND BENJAMIN, Individually and as the Personal Representative of the PHILADELPHIA COUNTY Estate of ENOCK BENJAMIN, Deceased COURT OF COMMON PLEAS 957 Anchor Street LAW DIVISION Philadelphia, PA 19124 Plaintiff MAY TERM, 2020 v. NO. : __________ JBS S.A. Avenida Brig Faria Lima 2.391 2 Andar Jd Paulistano Sao Paulo, SP 01452-000 Brazil JURY OF 12 DEMANDED And JBS USA FOOD COMPANY THIS IS NOT AN ARBITRATION 1770 Promontory Circle, MATTER Greeley, CO 80634 And JBS USA HOLDINGS, INC. 1770 Promontory Circle Greeley, CO 80634 And Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 5 of 42 JBS SOUDERTON, INC. c/o Corporation Service Company 2595 Interstate Drive, Suite 103 Harrisburg, PA 17110 And PILGRIM’S PRIDE CORPORATION c/o Corporation Service Company 2595 Interstate Drive, Suite 103 Harrisburg, PA 17110 Defendants NOTICE TO DEFEND NOTICE AVISO You have been sued in court. If you wish to defend against the Le han demandado a usted en la corte. Si usted quiere defenderse de estas claims set forth in the following pages, you must take action within demandas expuestas en las páginas siguientes, usted tiene veinte (20) días de twenty (20) days after this complaint and notice are served, by plazo al partir de la fecha de la demanda y la notificación.",
"Hace falta asentar entering a written appearance personally or by attorney and filing in una comparecía escrita o en persona o con un abogado y entregar a la corte en writing with the court your defenses or objections to the claims set forma escrita sus defensas o sus objeciones a las demandas en contra de su forth against you. You are warned that if you fail to do so the case persona. Sea avisado que si usted no se defiende, la corte tomará midas y may proceed without you and a judgment may be entered against you puede continuar la demanda en contra suya sin previo aviso o notificación. by the court without further notice for any money claimed in the Además, la corte puede decidir a favor del demandante y requiere que usted complaint or for any other claim or relief requested by the plaintiff. cumpla con todas las provisiones de esta demanda.",
"Usted puede perder dinero You may lose money or property or other rights important to you. o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATA-MENTE. SI YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT NO TIENE ABOGADO O SINO TIENE EL DI-NERO SUFICIENTE DE ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET TELEPHONO A LA OFICINA CUYA DIRECCIÓN SE ENCUENTRA FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUDE CONSEGUIR HELP. ASISTENCIA LEGAL. PHILADELPHIA BAR ASSOCIATION ASOCIACIÓN DE LICENCIADOS DE FILADELFIA LAWYER REFERRAL AND INFORMATION SERVICE SERVICIO DE REFERENCIA E INFORMACIÓN LEGAL 1101 MARKET STREET 1101 CALLE DE MERCADO PHILADELPHIA, PA 19107 FILADELFIA, PA 19107 TELEPHONE: (215) 238-6333 TELÉFONO: (215) 238-6333 2 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 6 of 42 COMPLAINT – CIVIL ACTION Introduction 1.",
"This wrongful death and survival action concerns the negligent, reckless, and outrageous conduct of JBS, the largest beef processing company in the world, because it elected to pursue profits over safety during a global pandemic. 2. On April 3, 2020, Enock Benjamin died of respiratory failure caused by the pandemic virus, COVID-19. ’ 3. At the time of his death, Mr. Benjamin was a union steward at the JBS meat processing plant in Souderton, PA. 4. Enock Benjamin was known as the “go-to-man” for JBS Souderton employees and as a “champion of the people” by his colleagues. 5. Co-workers have also publicly described Mr. Benjamin as a man “who did so much to defend the rights of his colleagues . . . he loved to work, and he worked until the last moment he could.” 6. Enock Benjamin’s death was the predictable and preventable result of the JBS Defendants’ decisions to ignore worker safety. 3 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 7 of 42 7. The JBS Defendants ignored federal guidance and put plant workers in the crosshairs of a global pandemic.",
"8. Despite the known risks regarding COVID-19, prior to shutting down the plant on March 30, 2020, the JBS Defendants: (1) failed to provide sufficient personal protective equipment; (2) forced workers to work in close proximity; (3) forced workers to use cramped and crowded work areas, break areas, restrooms, and hallways; (4) discouraged workers from taking sick leave in a manner that had sick workers in fear of losing their jobs; and (5) failed to properly provide testing and monitoring for individuals who have may have been exposed to the virus that causes COVID-19. 9. Instead, at the Souderton facility where Mr. Benjamin worked, JBS increased production during March 2020, adding a “Saturday Kill” to capitalize on increased demand caused by public panic purchases of ground meat.",
"10. During this critical timeframe in March 2020, Mr. Benjamin contracted COVID- 19 while working at JBS Souderton because the JBS Defendants inexplicably failed to take proper safety precautions to protect workers. 11. By keeping the Souderton plant open without providing the proper and recommended safety precautions, JBS intentionally misrepresented the safety of the facility. 12. By choosing profits over safety, JBS demonstrated a reckless disregard to the rights and safety of others, including Enock Benjamin. FACTS COMMON TO ALL COUNTS A Global Pandemic 13.",
"COVID-19 is an infectious respiratory disease which is caused by a virus known as “the novel coronavirus.” 14. The virus which caused COVID-19 is highly contagious. 4 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 8 of 42 15. The virus spreads mainly person-to-person, primarily through coughs or sneezes from an infected person in close proximity to another. 16. The virus is especially dangerous because it can be spread by people who are asymptomatic or pre-symptomatic. 17. For these reasons, the preferred mechanism to combat the virus has been widespread “stay-at-home” orders to prevent being exposed to the novel coronavirus. 18. On January 21, 2020, the United States reported its first case of the novel coronavirus. 19. By this time, it was widely reported that the virus had already spread across Asia and Europe. 20. On January 30, 2020, the United States reported its first case of COVID-19 acquired via community spread.",
"21. In this context, it has been stated that “community spread” means “that people have been infected with the virus in an area, including some who are not sure how or where they became infected.” 22. On January 31, 2020, the World Health Organization (“WHO”) declared COVID- 19 a “public health emergency of international concern.” 23. On March 9, 2020, with over 500 COVID-19 infections in the United States, the CDC published federal guidelines for workers. 24. These guidelines included recommendations for social distancing of at least 6 feet, and the use of Personal Protective Equipment (“PPE”) for workers. 5 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 9 of 42 25. The same day, March 9, 2020, OSHA released its own guidelines, recommending that companies should offer surgical masks or respirators to workers who could be infected with COVID-19, especially those that worked in close quarters: OSHA “Guidance on Preparing Workplaces for COVID-19,” March 9, 2020 26.",
"Despite this guidance, the JBS Defendants did not obtain masks or other PPE for their workers until April 2, 2020, when there already were over 240,000 confirmed COVID-19 infections in the United States, and 5,794 confirmed deaths. 27. Despite the clear danger that COVID-19 posed for its workers, the JBS Defendants did not mandate the use of masks and/or PPE for their workers until April 14, 2020 when there were already 585,909 confirmed COVID-19 infections in the United States, and 23,577 confirmed deaths. 28. At the time of this filing, there are at least 1,168,896 confirmed cases in the United States with over 70,000 deaths attributable to COVID-19 during this pandemic. Meat Processing Plants – A Melting Pot for the Spread of Infection 29. Meat processing plants are known to be “notoriously dangerous.” 30.",
"Meatpacking plants present unique safety issues because of the proximity within which employees work (“elbow-to-elbow”) using cutting tools and in a challenging environment. 31. In 2009, the spread of the H1N1 virus put meat processing plants on notice of the dangerous conditions that the spread of airborne virus posed to their workers. 6 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 10 of 42 32. As recently as 2016, regulations were promulgated to promote worker’s safety to protect against airborne illness at the plants. 33. The enhanced coverage of meat processing plants that has occurred as a result of the COVID-19 pandemic highlighted the pre-existing dangerous conditions which workers were exposed to at these plants. 34. One report quotes plant workers as stating that “we’re modern slaves.” 35. Meat processing plant workers have been quoted as stating that “the workers are being sacrificed” in recent media coverage.",
"36. Meat processing plants pose specific challenges regarding physical distancing of workers that JBS needed to assess and accommodate before allowing work to continue. Pennsylvania’s Plants – Most Infected in the Nation 37. As of May 1, 2020, Pennsylvania had more recorded coronavirus cases among meat plant workers than any other state. 38. As of that same date, there were 858 confirmed COVID-19 cases from workers at meat processing plants in Pennsylvania. 39. That number will steadily increase as time progresses, and tragically, Enock Benjamin’s death will not be the last. The JBS Defendants 40. Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation, are herein collectively referred to as the “JBS Defendants” and/or “JBS”.",
"41. JBS, a multinational corporation, is the world’s largest meat processor. 42. JBS beef products fill the shelves of grocery stores across the United States. 7 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 11 of 42 43. With such an important role in the food supply chain, safety should be of paramount concern to JBS. 44. However, based upon publicly available information, JBS has consistently placed profits over safety. 45. A review of OSHA statistics for 14,000 participating companies described “17,533 incidents of the most severe work-related injuries [‘work-related amputations or hospitalizations’] during the period from January 2015 through September 2016.” 46. JBS had the sixth (6th) most severe injuries reported from that survey. JBS Souderton Plant 47.",
"In 2008, Enock Benjamin started working at the JBS Plant in Souderton, PA. 48. JBS Souderton is known as “a big player in the Eastern beef market” because JBS USA claims that it is the largest beef facility east of Chicago. 49. JBS Souderton has approximately 1,400 employees and specializes in beef processing and packaging. 50. Every day hundreds of workers report to the plant floor for work in close proximity involving extremes of temperature, dampness, and hazardous footing. 51. A large percentage of the workers are immigrants, which results in company-wide communications regularly required to be translated in Spanish, Arabic, and Haitian Creole. 52. Enock Benjamin was of Haitian descent.",
"53. Workers stand only a few feet apart and, because of the volume of the machines at The Plant, are required to stand within inches of each other to communicate. A typical meat packing and processing line is depicted below: 8 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 12 of 42 The COVID-19 Pandemic in the United States 54. Recently, Carmen Dominguez, a union steward at the JBS Souderton facility, described the working conditions as follows: “On a normal day, work at a meatpacking plant is not easy. The slaughterhouse is boiling hot. People who aren’t used to the temperature can feel as if they are experiencing high blood pressure.",
"The freezer is super cold and will amplify any flulike symptoms. Workers wear as many layers as they can to stay warm, but it is difficult.” 55. In 2019, a worker died on the job at JBS Souderton, resulting in OSHA making workplace safety recommendations for the facility. 56. Based upon information and belief, the culture at JBS Souderton resulted in workers coming to work sick for fear of losing their job if missing multiple days of work. 57. Based upon information and belief, by early March the virus was firmly established in the Souderton plant. 58. The March 9, 2020 OSHA guidance specifically instructed workplaces to send sick workers home: 9 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 13 of 42 OSHA “Guidance on Preparing Workplaces for COVID-19,” March 9, 2020 59. Despite the skyrocketing risk of COVID-19 infections for workers, the JBS Defendants ignored the safety of workers and required them to report for duty each day in cramped conditions and without adequate PPE. 60. Despite these known risks, the JBS Defendants refused to close their plants or otherwise limit the number of workers reporting for duty each day. 61. Based upon information and belief, as of March 2020 many employees were led to believe that the individuals who were out sick had the flu, not COVID-19.",
"62. Based upon information and belief, upon learning of the first positive COVID individual in the facility in early March 2020, JBS failed to change its policies and procedures. 63. Based upon information belief, instead of implementing proper safety policies and procedures, due to increased business demands in March 2020, JBS Souderton added a “Saturday Kill” to meet increased demand in ground beef sales. 64. Based upon information and belief, after the first positive COVID-19 result, JBS sent a letter to “Souderton Team Members” stating that “one of our team members has tested positive for COVID-19 after exhibiting flu-like symptoms.” 65. Based upon information and belief, the only employees who were given off work after this test were “team members who were in direct contact with the individual for extended periods of time.” 10 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 14 of 42 66.",
"Based upon information and belief, after the first positive COVID-19 result, JBS Souderton team members were informed that “Our Souderton facility will remain open.\" 67. One union steward described publicly described the conditions in the plant prior to the shut down as follows: “Before this closure, people had started to panic. Social distancing was limited. Employees didn’t cover their mouths. In meatpacking plants, workers are piled up on top of one another, often touching because there are so many of us. Many decided to stay at home on leave because they were afraid of becoming infected or of spreading the coronavirus to their families.” 68. On March 27, 2020, the Souderton facility closed for sanitation after multiple workers had fallen ill. 69. At that time, there were over 2,000 confirmed cases of COVID-19 in Pennsylvania. 70. On March 30, 2020, JBS USA stated publicly that it was “temporarily” reducing production after several senior management team members displayed flu-like symptoms: “The JBS Souderton, Pa., beef production facility has temporarily reduced production because several senior management team members have displayed flu-like symptoms.” 71.",
"As of this date, JBS USA publicly claimed that it only had “four or five” confirmed COVID-19 cases among its hourly workers at the time of closure. 72. JBS spokesperson Cameron Bruett stated that the shutdown was “out of an abundance of caution[. ]” 73. Based upon information and belief, workers were outspoken about the lack of safety equipment prior to the plant shutting down. 74. Based upon information and belief, employees did complain about the lack of masks prior to the shutdown. 11 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 15 of 42 75. Based upon information and belief, workers complained about bring COVID-19 home to their families before the shutdown. 76. Based upon media reports, by April 2, 2020, there were nineteen (19) employees that were confirmed to test positively at the Souderton plant.",
"COVID-19 Infections at all JBS Plants 77. COVID-19 spread quickly through the JBS Defendants’ meat packing plants. 78. Despite the clear and present danger the virus presented, JBS Defendants kept their facilities across the United States open or shuttered them only temporarily, even after hundreds of workers fell ill and others died. 79. Based upon information and belief, the JBS Defendants had a ‘work while sick’ policy. 80. The JBS Defendants did not require workers experiencing COVID-19 symptoms to report their illness to their superiors. 81. The JBS Defendants did not require these workers to self-quarantine at home, despite federal guidance to the contrary. 82. In a demonstration of placing profits over safety, the JBS Defendants ignored the health of their vulnerable workers and did not shut any plants prior to March 30, 2020 despite a mountain of evidence of a public safety concern of unforeseen magnitude. 83.",
"JBS operates scores of beef plants nationwide. 84. JBS USA has experienced COVID-19 outbreaks at least at seven (7) of those plants; Souderton, Pennsylvania; Greeley, Colorado; Plainwell, Michigan; Green Bay, Wisconsin; Cactus, Texas; Worthington, Minnesota and Grand Island, Nebraska. 12 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 16 of 42 85. On April 14, 2020, JBS USA had to shut down the facility in Greeley, CO because of the coronavirus outbreak. 86. “While the Greeley beef facility is critical to the U.S. food supply and local producers, the continued spread of coronavirus in Weld County requires decisive action,” said Andre Nogueira, CEO of JBS USA. 87. However, according to media reports, despite experiencing “increased absenteeism” at other plants, JBS continued to operate “the majority of its facilities across the country at or near capacity.” 88. A simultaneously released statement on behalf of JBS addressed absenteeism as follows: “When COVID-19 is prevalent in the community, fear is heightened, absenteeism rises, and the challenge of keeping the virus out becomes greater .",
". . when absenteeism levels become too high, facilities cannot safely operate.” The Death of Enock Benjamin 89. Based upon information and belief, up to and including March 27, 2020, workers at JBS Souderton were still not required to wear masks and/or other PPE, despite CDC and OSHA guidance to the contrary. 90. Based upon information and belief, up to and including March 27, 2020, workers at JBS Souderton were still required to work within 6 feet of one another, despite CDC and OSHA guidance to the contrary. 91.",
"Based upon information and belief, up to and including March 27, 2020, workers at JBS Souderton were not required to report to their superiors if they were experiencing COVID-19 symptoms. 13 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 17 of 42 92. Based upon information and belief, when Enock Benjamin last arrived for work at the JBS Souderton Plant on March 27, 2020, a number of his co-workers had already become infected. 93. On March 27, 2020, Enock Benjamin left JBS Souderton after experiencing cough-like symptoms. 94. Over the next week, Enock Benjamin’s condition continued to worsen and breathing became nearly impossible. 95. On April 3, 2020, Enock Benjamin’s son, Ferdinand, called EMTs to assist Enock, who was unable to breathe. 96. Enock Benjamin died in his son’s arms before the ambulance arrived. 97. An autopsy report confirmed the Enock Benjamin died from respiratory complications related to COVID-19.",
"98. Mr. Benjamin’s death was the predictable and preventable result of the JBS Defendants’ failures to consider the safety of their workers. 99. The Defendants knew, or in the exercise of a reasonable degree of care, should have known that if OSHA and CDC guidance were not followed, workers would become infected with and could succumb to COVID-19. 100. Instead, the JBS Defendants placed profits over safety. 101. As a result of the JBS Defendants’ outrageous, reckless, and grossly negligent actions which demonstrated a total disregard for the workers’ safety, Enock Benjamin became infected with COVID-19 at JBS Souderton. 102. Mr. Benjamin died only days after leaving JBS Souderton for the last time. 14 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 18 of 42 103.",
"The JBS Defendants actions demonstrated a knowing willingness to sacrifice the health of Mr. Benjamin and others for its’ own corporate greed. Present Safety Conditions at JBS Souderton 104. On April 20, 2020, the JBS Souderton plant re-opened in Pennsylvania. 105. Based upon information and belief, JBS provided masks, a shield, and gloves upon re-opening. 106. JBS has failed to state publicly why these materials were not provided at JBS Souderton prior to the March 30, 2020 shutdown. 107.",
"Based upon information and belief, upon re-opening JBS is not regularly or consistently taking employee temperatures. 108. Moreover, based upon information and belief, upon reopening JBS was still not providing COVID-19 testing for all those at the facility. 109. A JBS Spokesperson stated that any worker who does not qualify as high-risk, but is concerned about contracting COVID-19 “can choose to self-quarantine and take unpaid leave.” 110. JBS’ failure to even presently enforce necessary safety policies and procedures demonstrate a continued failure to respect and appreciate the threat of harm to the public that the continued unsafe operation of meat plants pose. The Parties 111. Plaintiff, Ferdinand Benjamin, is an adult individual and a citizen of the Commonwealth of Pennsylvania residing at the above captioned address.",
"15 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 19 of 42 112. Ferdinand Benjamin brings this suit as the Personal Representative1 of the Estate of Enock Benjamin, on his own behalf and on behalf of all statutory beneficiaries, and as the personal representative of Enock Benjamin. 113. Enock Benjamin was, at all relevant times, an adult citizen of the Commonwealth of Pennsylvania, residing in Philadelphia County. 114. Defendant, JBS S.A., is a corporation organized and existing under the laws of Brazil, with a principal place of business at the above captioned address. 115. At all times relevant to this cause of action, JBS S.A. was engaged in business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial basis. 116. At all times relevant to this cause of action, JBS S.A. regularly conducted business in Philadelphia County.",
"117. At all relevant times, JBS S.A. was acting by and through its agents, servants and/or employees, who were acting within the course and scope of their agency, service, and employment with JBS S.A. 118. Defendant, JBS USA Food Company (“JBS USA”), is a corporation organized and existing under the laws of the state of Delaware, with a principal place of business at the above captioned address. 119. At all times relevant to this cause of action, JBS USA was engaged in business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial basis.",
"1 Due to COVID-19 restrictions, at present the Register of Wills of Philadelphia County is only entertaining emergency applications. Letters of Administration will be obtained at the first reasonable opportunity. 16 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 20 of 42 120. At all times relevant to this cause of action, JBS USA regularly conducted business in Philadelphia County. 121. At all relevant times, JBS USA was acting by and through its agents, servants and/or employees, who were acting within the course and scope of their agency, service, and employment with JBS USA. 122. Defendant, JBS USA Holdings, Inc. (“JBS Holdings”), is a corporation organized and existing under the laws of the state of Delaware, with a principal place of business at the above captioned address.",
"123. At all times relevant to this cause of action, JBS Holdings was engaged in business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial basis. 124. At all times relevant to this cause of action, JBS Holdings regularly conducted business in Philadelphia County. 125. At all relevant times, JBS Holdings was acting by and through its agents, servants and/or employees, who were acting within the course and scope of their agency, service, and employment with JBS Holdings.",
"126. Defendant, JBS Souderton, Inc. (“JBS Souderton”), is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with an address for service at the above captioned address. 127. At all times relevant to this cause of action, JBS Souderton was engaged in business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial basis. 17 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 21 of 42 128.",
"At all times relevant to this cause of action, JBS Souderton regularly conducted business in Philadelphia County. 129. At all relevant times, JBS Souderton was acting by and through its agents, servants and/or employees, who were acting within the course and scope of their agency, service, and employment with JBS Souderton. 130. Defendant, Pilgrim’s Pride Corporation (“Pilgrim’s Pride”), is a corporation organized and existing under the laws of the state of Delaware, with an address for service at the above captioned address. 131. At all times relevant to this cause of action, Defendant Pilgrim’s Pride was engaged in business within the Commonwealth of Pennsylvania on a regular, systematic, continuous, and substantial basis.",
"132. At all times relevant to this cause of action, Defendant Pilgrim’s Pride regularly conducted business in Philadelphia County. 133. At all relevant times, Defendant Pilgrim’s Pride was acting by and through its agents, servants and/or employees, who were acting within the course and scope of their agency, service, and employment with Pilgrim’s Pride. 134. Upon information and belief, Defendant JBS USA Holdings, Inc. is a wholly- owned subsidiary of Defendant JBS S.A. 135. Upon information and belief, Defendant JBS USA Food Company is a wholly- owned subsidiary of JBS USA Holdings, Inc. 136. Upon information and belief, Defendant JBS Souderton, Inc. is a wholly-owned subsidiary of Defendant JBS USA Food Company.",
"18 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 22 of 42 137. Upon information and belief, Defendant Pilgrim’s Pride is a subsidiary of Defendant JBS USA Holdings, Inc. 138. Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation, owned, operated, managed, and otherwise controlled the meat packing plant at 249 Allentown Road, Souderton, PA 18964 (“The JBS Souderton Plant”). 139.",
"Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation, by and through their agents, servants, and/or employees, collectively and individually made decisions related to worker health, safety, protection, and sanitation in light of the COVID-19 pandemic. 140. The JBS Defendants are, collectively, the world’s largest meat processor and own, operate, manage and otherwise control more than sixty (60) meat processing plants in the United States. 141. As a direct result of the carelessness, negligence, recklessness, gross negligence, and/or other liability producing conduct of the Defendants, Plaintiff’s decedent, Enock Benjamin, suffered illness and injuries that led to his death. 142. Mr. Benjamin sustained conscious pain and suffering, and fear of impending death. 143. Mr. Benjamin sustained a permanent loss of earnings and loss of earning capacity. 144.",
"Mr. Benjamin sustained permanent loss of enjoyment of life, loss of life’s pleasures, and loss of life’s hedonic pleasures. 19 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 23 of 42 145. Mr. Benjamin has been permanently prevented from performing all his usual duties, occupations, recreational activities, and avocations, all to his and his beneficiaries’ loss and detriment. 146. The outrageous conduct described herein warrants the imposition of punitive damages to deter the JBS Defendants and meat processing plants that operate in Pennsylvania and across the country from placing profits over the safety of their workers, their workers’ families, and the public at large. COUNT I Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants NEGLIGENCE 147. Plaintiff hereby incorporates all preceding paragraphs of this Complaint by reference. 148.",
"At all relevant times, the JBS Defendants owned, operated, maintained and otherwise controlled the JBS Souderton Plant, and controlled and supervised the work being done at the Plant. 149. Specifically, the JBS Defendants controlled and supervised all safety precautions and procedures at the Plant, including those related to COVID-19 protection and prevention. 150. Control over the operations and safety decisions at the Souderton Plant were not limited to JBS Souderton, Inc. Instead, key decisions were controlled by corporate representatives at the parent level. 151. The specific decisions related to whether or not to provide PPE, whether or not to properly distance workers, and whether or not to take other measures to prevent the spread of COVID-19 at the Souderton Plaint were controlled by the corporate leaders in Colorado and Brazil. 20 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 24 of 42 152.",
"In connection with their control and supervision of the Plant, the JBS Defendants developed plans, recommendations, guidance, and safety procedures and specifications for performance of work at the Plant. 153. The JBS Defendants, having possession and control of the Plant and the work being done there, owed a duty to all those working at the Plant, including Enock Benjamin, a business invitee, to provide a reasonably safe work environment, free from unreasonable and dangerous hazards. 154. The negligence, gross negligence, carelessness and recklessness of the JBS Defendants, their agents, servants, and/or employees, which were the cause of Enock Benjamin’s death, consisted of, but was not limited to, the following: a. Ignoring the risk of COVID-19 infection to workers at the JBS Souderton Plant; b.",
"Failing to provide workers with any equipment to help prevent the spread of COVID-19 at The Plant; c. Intentionally ignoring the fact that workers at the JBS Souderton Plant were infected with and/or were displaying symptoms consistent with COVID-19; d. Failing to provide appropriate PPE at JBS Souderton prior to March 30, 2020 e. Failing to provide workers with any equipment to help prevent the spread of COVID-19 at The Plant; f. Failing to close the JBS Souderton Plant, despite the fact that the JBS Defendants knew, or should have known, that workers at the plant were suffering from COVID-19; 21 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 25 of 42 g. Failing to close the JBS Souderton Plant, despite the fact that the JBS Defendants knew, or should have known, that workers at the plant were suffering from symptoms consistent with COVID-19; h. Ignoring federal guidance from the CDC and OSHA by not mandating the use of masks and PPE at the JBS Souderton Plant; i. Ignoring federal guidance from the CDC and OSHA by not mandating and/or enforcing social distancing guidelines at the JBS Souderton Plant; j. Ignoring federal guidance from the CDC and OSHA by not mandating that workers who were feeling ill report their symptoms to their superiors; k. Ignoring federal guidance from the CDC and OSHA by not mandating that workers who were feeling ill stay home from work and self-quarantine; l. Requiring workers to stand less than 6 feet apart; m. Failing to implement policies and procedures that mandated workers kept 6 feet apart; n. Failing to provide workers with masks and/or PPE; o.",
"Failing to provide workers with clear guidelines for social distancing; p. Failing to reduce the numbers of workers per shift at the JBS Souderton Plant, despite the fact that the JBS Defendants knew, or should have known, that workers in close proximity to one another were more prone to infection; q. Refusing to close the JBS Souderton Plant entirely in a timely fashion, even though the JBS Defendants knew workers at other JBS Plants across the country had come infected with COVID-19; 22 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 26 of 42 r. Enforcing and/or maintaining a formal and/or informal ‘work while sick’ policy at the JBS Souderton Plant; s. Failing to properly sanitize or otherwise disinfect the JBS Souderton Plant, despite the fact that workers at the plant were falling ill; t. Failing to perform temperature checks on workers arriving at the JBS Souderton Plant before they were allowed inside the Plant; u. Violating federal and state guidelines and requirements related to COVID-19 prevention in the workplace; v. Violating OSHA regulations, including OSHA 1910.132, related to the use of PPE; w. Breaching their duties under various sections of the Restatement (Second) of Torts, including, but not limited to, § 340, et seq. ; § 341, et seq.",
"; and § 500, et seq. x. Failing to provide Enock Benjamin with a safe place to work; y. Allowing workers at the JBS Souderton Plant, including Enock Benjamin, to become infected by COVID-19 while working at The Plant; z. Failing to properly train and supervise their employees and employees of subcontractors about the danger posed by COVID-19 and the necessary methods to prevent infection; aa.",
"Failing to properly train and supervise their employees and employees of subcontractors about federal and state guidelines regarding COVID-19 and federal and state guidelines to prevent COVID-19 infection; bb. Failing to warn Enock Benjamin and other workers at the JBS Souderton Plant of the danger posed by COVID-19; 23 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 27 of 42 cc. Failing to adopt, enact, employ, and enforce proper and adequate safety programs, precautions, procedures, measures, and plans; dd. Failing to provide workers with safety equipment; ee. Failing to provide workers with adequate safety equipment; ff. Failing to properly supervise and inspect the work being done at the JBS Souderton Plant; gg. Failing to prevent workers at the JBS Souderton Plant from being infected by COVID-19.",
"hh. Failing to properly train supervisors and managers in determining when to shut down the plant due to a safety concerns; ii. Failing to provide proper training on how to combat an airborne virus; jj. Failing to hire and/or select appropriate individuals for managerial positions; kk. Failing to conduct appropriate safety surveys of the Plant; ll. Failing to hire appropriate consultants for how to respond to an airborne virus; mm. Failing to timely obtain appropriate PPE materials to protect workers. nn. Failing to implement proper policies and/or procedures for shutting the Plant down in the face of widespread virus/pandemic; oo. Failing to properly consider the safety of members of the public that would come into contact with those who worked at the facility; and pp. Failure to express due care under the circumstances described herein.",
"155. The Defendants’ actions and/or inactions were substantial factors and/or factual causes and/or increased the risk of harm to Plaintiff’s decedent. 24 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 28 of 42 156. The acts and omissions set forth herein were done in a negligent, grossly negligent, willful, reckless, and wanton fashion with a conscious indifference to the rights of members of the public generally, and Plaintiff’s decedent in particular. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and/or severally, in an amount in excess of the jurisdictional threshold in compensatory damages, punitive damages, delay damages pursuant to Pa.R.C.P. 238, interest, and allowable costs of suit, and brings this action to recover the same. COUNT II Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants FRAUDULENT MISREPRESENTATION 157.",
"Plaintiff hereby incorporates all preceding paragraphs of this Complaint by reference. 158. The JBS Defendants owed lawful business invitees at the JBS Souderton Plant, including Enock Benjamin, the highest duty of care. 159. The JBS Defendants knew that workers at the JBS Souderton Plant had become infected with COVID-19, and/or were displaying symptoms consistent with COVID-19, prior to closing The Plant on March 30, 2020. 160. The JBS Defendants knew that workers at the JBS Souderton Plant were especially susceptible to COVID-19, and knew that once one worker was infected, the virus was likely to spread to others. 161. Despite this knowledge, the JBS Defendants did not warn workers that others at the JBS Souderton Plant had become infected with COVID-19 and/or were displaying symptoms consistent with COVID-19 prior to March 27, 2020.",
"25 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 29 of 42 162. Despite this knowledge, the JBS Defendants directly misrepresented to workers that there was no risk of infection and/or that the workers were unlikely to become infected and/or deliberately withheld their knowledge of workers at The Plant becoming infected with COVID-19. 163. The JBS Defendants fraudulently misrepresented the risk of infection to other workers at The Plant to induce those workers to continue their employment at The Plant. 164. The JBS Defendants fraudulently misrepresented the risk of infection to other workers at The Plant to induce those workers to continue making the JBS Defendants profitable. 165. The JBS Defendants willfully and intentionally withheld their knowledge of COVID-19 infections at the JBS Souderton Plant.",
"166. Workers at the JBS Souderton Plant, including Enock Benjamin, relied on the JBS Defendants’ misrepresentations and continued to arrive for work each day, completely unaware that other workers at the plant were infected with COVID-19 and/or were displaying symptoms consistent with COVID-19. 167. As a direct and proximate result of Enock Benjamin’s reliance on the JBS Defendants’ misrepresentations, Enock Benjamin became infected with COVID-19 while working at the JBS Souderton Plant, and died only days later. WHEREFORE, Plaintiff demands judgment against the Defendants, jointly and/or severally, in an amount in excess of the jurisdictional threshold in compensatory damages, punitive damages, delay damages pursuant to Pa.R.C.P. 238, interest, and allowable costs of suit, and brings this action to recover the same. 26 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 30 of 42 COUNT III Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants INTENTIONAL MISREPRESENTATION 168.",
"Plaintiff hereby incorporates all preceding paragraphs of this Complaint here by reference. 169. The JBS Defendants owed lawful business invitees at the JBS Souderton Plant, including Enock Benjamin, the highest duty of care. 170. At all relevant times, the JBS Defendants represented to business invitees, including Enock Benjamin, that it was safe for workers to arrive for their shifts at the JBS Souderton Plant. 171. At all relevant times, the JBS Defendants’ representations were material to Enock Benjamin’s presence at the JBS Souderton Plant. 172.",
"The JBS Defendants’ representation that it was safe for workers to arrive for their shifts at the JBS Souderton Plant was false. 173. This misrepresentation was made intentionally and knowingly. 174. The JBS Defendants learned they had misrepresented the risk of COVID-19 infections to workers at the JBS Souderton Plant, learned that workers at the Plant, including Enock Benjamin, relied upon the JBS Defendants’ misrepresentations, and the JBS Defendants failed to correct their misrepresentations. 175. At all relevant times, the JBS Defendants had actual knowledge of the risk of COVID-19 infections to workers at the JBS Souderton Plant, including Enock Benjamin. 176. At all relevant times, the JBS Defendants had actual knowledge that workers at the JBS Souderton Plant were infected with COVID-19 and/or were experiencing symptoms consistent with COVID-19.",
"27 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 31 of 42 177. Despite their actual knowledge of COVID-19 infections at the JBS Souderton Plant, and the risk these infections posed to other workers, including Enock Benjamin, the JBS Defendants kept the JBS Souderton Plant open to workers up to and through at least March 27, 2020. 178. The JBS Defendants’ motivation for intentionally misrepresenting the safety of the JBS Souderton Plant was to make money and to continue to profit. 179. The JBS Defendants intentionally misrepresented and deceived workers into believing that the JBS Souderton Plant was safe to ensure that workers continued to show up each day for their shifts and to ensure that the JBS Defendants continued to profit. 180. Workers at the JBS Souderton Plant, including Enock Benjamin, justifiably relied upon the JBS Defendants’ false representation that the JBS Souderton Plant was safe at all relevant times. 181. The conduct of the JBS Defendants, as described above, demonstrated a reckless disregard for the safety and health of workers at the JBS Souderton Plant. 182. The death and injuries sustained by Plaintiff’s decedent was caused by the negligence, gross negligence, carelessness, recklessness, outrageous conduct and intentional misrepresentations of the JBS Defendants, acting by and through their agents, servants, workers and/or employees, both generally and in the following respects: a.",
"Failing to close the JBS Souderton Plant despite the known dangers caused by COVID-19 infections at the plant; b. Failing to close the JBS Souderton Plant despite the known dangers caused by workers displaying symptoms of COVID-19 infections at the plant; 28 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 32 of 42 c. Failing to warn workers at the JBS Souderton Plant of the dangers posed by COVID-19 infections at the plant; d. Failing to warn workers at the JBS Souderton Plant of the dangers posed by workers displaying symptoms of COVID-19 infections at the plant; e. Exposing workers at the JBS Souderton Plant to unacceptable risks of harm; f. Violating applicable OSHA regulations, including the General Duty Cause; g. Failing to provide special precautions which would have protected workers from the particular and unreasonable risks of harm which the JBS Defendants recognized; h. Failing to train and supervise workers at the JBS Souderton Plant properly; i.",
"Failing to adequately warn workers at the JBS Souderton Plant of the peculiar and/or unsafe conditions and/or special dangers existing at the JBS Souderton Plant; j. Violating and failing to comply with Federal and State statutes, local ordinances, and all other rules or regulations applicable or in effect, and specifically OSHA and CDC guidance regarding COVID-19 protection and prevention for workplaces and workers; k. Failing to adopt, enact, employ and enforce proper and adequate safety programs, precautions, procedures, measures and plans; and l. Failing to cease and/or postpone operations until proper and necessary precautions could be taken to safeguard workers at the JBS Souderton Plant. 183.",
"The JBS Defendants’ conduct, as described above, demonstrated a wanton disregard for the safety and health of workers at the JBS Souderton Plant. 29 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 33 of 42 184. By reason of the intentional misrepresentations of the JBS Defendants, as set forth above, Plaintiff’s decedent suffered an agonizing and horrific death. 185. By conducting itself as set forth above, the JBS Defendants’ intentional misrepresentations were a substantial factor, a factual cause of and/or increased the risk of harm to Plaintiff’s decedent. 186. The JBS Defendants’ intentional misrepresentations qualify as an exception to the Fair Share Act, 42 Pa.C.S. § 7102, and therefore all JBS Defendants are jointly and severally liable for the death of Enock Benjamin and all injuries related to his death. WHEREFORE, Plaintiff demands that judgment be entered in favor of the wrongful death beneficiaries and against Defendants, jointly and severally, in an amount in excess of the jurisdictional threshold in compensatory damages, punitive damages, interest, and allowable costs of suit and brings this action to recover the same. COUNT IV Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants WRONGFUL DEATH 187.",
"Plaintiff hereby incorporates all preceding paragraphs of this Complaint by reference. 188. Enock Benjamin is survived by his son, Ferdinand Benjamin, his wife, Mireille Benjamin, and his daughter, Debbie Benjamin. 189. By reason of the death of Enock Benjamin, his beneficiaries have in the past and will in the future continue to suffer great pecuniary loss, including, but not limited to, loss of support, loss of aid, loss of services, loss of companionship, loss of consortium and comfort, loss of counseling, and loss of guidance. 30 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 34 of 42 190. As a direct and proximate result of the foregoing, decedent, Enock Benjamin’s wrongful death beneficiaries incurred or have been caused to incur and pay large and various expenses for medical treatment, hospital care and medicine rendered to decedent until the time of his death and to incur various funeral, burial, and estate and administration expenses for which Plaintiff is entitled to compensation.",
"191. Plaintiff, individually and as Administratrix Ad Prosequendum of the Estate of Enock Benjamin, brings this action by virtue of the Wrongful Death Act, 42 Pa.C.S.A. § 8301, and Pa.R.C.P. 2202, and claims all benefits and recoverable damages under the Wrongful Death Act on behalf of all other persons entitled to recover under law, namely Mireille Benjamin and Debbie Benjamin. 192. Plaintiff brings this action by virtue of, inter alia, 42 Pa.C.S. § 8301 and claim all damages encompassed thereby, including any and all damages members of the Estate are entitled to under Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010). WHEREFORE, Plaintiff demands that judgment be entered in favor of the wrongful death beneficiaries and against Defendants, jointly and severally, in an amount in excess of the jurisdictional threshold in compensatory damages, punitive damages, interest, and allowable costs of suit and brings this action to recover the same.",
"COUNT V Plaintiff, the Estate of Enock Benjamin v. The JBS Defendants SURVIVAL ACT 193. Plaintiff incorporates all preceding paragraphs of this Complaint here by reference. 194. Plaintiff claims on behalf of the Estate of Enock Benjamin all damages suffered by the Estate by reason of the death of Enock Benjamin, including, without limiting the 31 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 35 of 42 generality of the following: the severe injuries and symptoms suffered by Enock Benjamin, which resulted in his death; the anxiety, horror, fear of impending death, mental disturbance, pain, suffering and other intangible losses which Enock Benjamin suffered prior to his death; the loss of future earning capacity suffered by Enock Benjamin from the date of his death until the time in the future that he would have lived had he not died as a result of the injuries he sustained by reason of the Defendants’ conduct.",
"195. Plaintiff brings this action on behalf of the Estate of Enock Benjamin, by virtue of the Survival Act, 42 Pa.C.S.A. § 8302, and claims all benefits of the Survival Act on behalf of Enock Benjamin’s Estate, and other persons entitled to recover under law. WHEREFORE, Plaintiff demands that judgment be entered in favor of the wrongful death beneficiaries and against Defendants, jointly and severally, in an amount in excess of the jurisdictional threshold in compensatory damages, punitive damages, interest, and allowable costs of suit and brings this action to recover the same. SALTZ MONGELUZZI & BENDESKY P.C. By: /s/ Robert J. Mongeluzzi ROBERT J. MONGELUZZI STEVEN G. WIGRIZER JEFFREY P. GOODMAN JASON S. WEISS Attorneys for Plaintiff, Ferdinand Benjamin, Personal Representative of the Estate of Enock Benjamin 32 Case ID: 200500370 1=6?598< 2<@7;=>7 41- +,,%023*\"(.,.",
"\"')+$\".2**\"+/2&0(,0#20# Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 36 of 42 Filed and Attested by the Office of Judicial Records 07 MAY 2020 08:34 am A. SILIGRINI VERIFICATION The averments or denials of fact in the foregoing document are true based upon the dZX_Vcud aVcd`_R] \\_`h]VUXV `W Z_W`c^ReZ`_ R_U SV]ZVW( ?W eYV W`cVX`Z_X T`_eRZ_d RgVc^V_ed which are inconsistent in fact, signer has been unable, after reasonable investigation, to ascertain which of the inconsistent averments are true, but signer has knowledge or information sufficient to form a belief that one of them is true. This verification is made subject to the penalties of 18 Pa. C.S.",
"§ 4904, relating to unsworn falsification to authorities. &'( %\" $#$# DATE: _____________________ ______________________________ FERDINAND BENJAMIN && Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 37 of 42 SALTZ MONGELUZZI & BENDESKY P.C. Filed and Attested by the BY: ROBERT J. MONGELUZZI/STEVEN G. WIGRIZER Office of Judicial Records JEFFREY P. GOODMAN/JASON S. WEISS 19 MAY ATTORNEYS FOR2020 11:51 am PLAINTIFF E. MEENAN Identification No. : 36283/30396/309433/310446 1650 Market Street, 52nd Floor Philadelphia, PA 19103 (215) 496-8282 FERDINAND BENJAMIN, Individually and as the Personal Representative of the PHILADELPHIA COUNTY Estate of ENOCK BENJAMIN, Deceased COURT OF COMMON PLEAS LAW DIVISION Plaintiff v. MAY TERM, 2020 JBS S.A., JBS USA FOOD COMPANY, JBS USA HOLDINGS, INC., JBS NO.",
": 0370 SOUDERTON, INC. And PILGRIM’S PRIDE CORPORATION Defendants AFFIDAVIT OF SERVICE I, Jeffrey P. Goodman, Esquire, hereby certify that service of the Complaint was made on defendant, JBS USA Food Company, by certified mail on May 14, 2020, at 1770 Promontory Circle, Greeley, CO 80634. A true and correct copy of the return receipt is attached hereto and marked as Exhibit “A.” SALTZ MONGELUZZI & BENDESKY P.C. By: /s/ Jeffrey P. Gpoodman ROBERT J. MONGELUZZI STEVEN G. WIGRIZER JEFFREY P. GOODMAN JASON S. WEISS Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 38 of 42 Attorneys for Plaintiff, Ferdinand Benjamin, Personal Representative of the Estate of Enock Benjamin Dated: May 19, 2020 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 39 of 42 Filed and Attested by the Office of Judicial Records 19 MAY 2020 11:51 am E. MEENAN Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 40 of 42 SALTZ MONGELUZZI & BENDESKY P.C.",
"Filed and Attested by the BY: ROBERT J. MONGELUZZI/STEVEN G. WIGRIZER Office of Judicial Records JEFFREY P. GOODMAN/JASON S. WEISS 19 MAY ATTORNEYS FOR2020 12:06 pm PLAINTIFF E. MEENAN Identification No. : 36283/30396/309433/310446 1650 Market Street, 52nd Floor Philadelphia, PA 19103 (215) 496-8282 FERDINAND BENJAMIN, Individually and as the Personal Representative of the PHILADELPHIA COUNTY Estate of ENOCK BENJAMIN, Deceased COURT OF COMMON PLEAS LAW DIVISION Plaintiff v. MAY TERM, 2020 JBS S.A., JBS USA FOOD COMPANY, JBS USA HOLDINGS, INC., JBS NO. : 0370 SOUDERTON, INC. And PILGRIM’S PRIDE CORPORATION Defendants AFFIDAVIT OF SERVICE I, Jeffrey P. Goodman, Esquire, hereby certify that service of the Complaint was made on defendant, JBS USA Holdings, Inc., by certified mail on May 14, 2020, at 1770 Promontory Circle, Greeley, CO 80634. A true and correct copy of the return receipt is attached hereto and marked as Exhibit “A.” SALTZ MONGELUZZI & BENDESKY P.C. By: /s/ Jeffrey P. Gpoodman ROBERT J. MONGELUZZI STEVEN G. WIGRIZER JEFFREY P. GOODMAN JASON S. WEISS Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 41 of 42 Attorneys for Plaintiff, Ferdinand Benjamin, Personal Representative of the Estate of Enock Benjamin Dated: May 19, 2020 Case ID: 200500370 Case 2:20-cv-02594-JP Document 1-1 Filed 06/02/20 Page 42 of 42 Filed and Attested by the Office of Judicial Records 19 MAY 2020 12:06 pm E. MEENAN Case ID: 200500370"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/135783369/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The inventor or joint inventor should note that the instant invention, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1-10, 14 and 15 are pending in the instant invention. According to the Amendments to the Claims, filed May 2, 2022, claims 1-10, 14 and 15 were amended and claims 11-13 were cancelled.
Status of Priority
This invention is a 35 U.S.C. § 371 National Stage Filing of International Application No. PCT/US2019/015757, filed January 13, 2019, which claims priority under 35 U.S.C. § 119(e) to US Provisional Application No. 62/626,745, filed February 6, 2018.
Status of Restrictions / Election of Species
PNG media_image1.png 200 400 media_image1.png Greyscale The forthcoming second Office action and prosecution on the merits includes (1) claims 1-8 and 14, drawn to substituted [1,2,4]triazolo[4,3-a]pyrazines of the Formula I, shown to the right, and/or a pharmaceutical composition thereof; (2) claim 9, drawn to a method of treating chronic kidney disease in a patient, comprising administering… a substituted [1,2,4]triazolo[4,3-a]pyrazine of the Formula I, shown to the right above; (3) claim 10, drawn to a method of treating diabetic kidney disease in a patient, comprising administering… a substituted [1,2,4]triazolo[4,3-a]pyrazine of the Formula I, shown to the right above; and (4) claim 15, drawn to a process for preparing a pharmaceutical composition comprising a substituted [1,2,4]triazolo[4,3-a]pyrazine of the Formula I, shown to the right above, respectively. Similarly, the inventor or joint inventor should further note that the sections of U.S.C. Title 35 that formed the basis of prior rejections formulated, as well as any references supporting said rejections, that are not included with this Office action, may be found in the Non-Final Rejection, mailed on February 3, 2022. Moreover, the inventor or joint inventor should further note that any rejections and/or objections of record not explicitly addressed herein below, are hereby withdrawn, in light of the inventor’s or joint inventor’s arguments and/or the Amendments to the Claims, filed May 2, 2022. Thus, a second Office action and prosecution on the merits of claims 1-10, 14 and 15 is contained within.
Reasons for Allowance
Claims 1-10, 14 and 15 are allowed. The following is a statement of reasons for the indication of allowable subject matter: The prior art is silent with respect to substituted [1,2,4]triazolo[4,3-a]pyrazines of the Formula I, as recited in claim 1. Consequently, the limitation on the core of the substituted [1,2,4]triazolo[4,3-a]pyrazines of the Formula I that is not taught or fairly suggested in the prior art is R4 on the periphery of the [1,2,4]triazolo[4,3-a]pyrazine core. This limitation is present in the recited species of claims 5-8, respectively. Any comments considered necessary by the inventor or joint inventor 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.
Examiner’s Amendment
An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to the inventor or joint inventor, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The following is a statement of examiner’s amendment to the record:
The TITLE of the disclosure: SUBSTITUTED [1,2,4]TRIAZOLO[4,3-a]PYRAZINES PHOSPHODIESTERASE INHIBITORS
has been deleted and replaced with the following: ---“SUBSTITUTED [1,2,4]TRIAZOLO[4,3-a]PYRAZINES AS PHOSPHODIESTERASE INHIBITORS”---
In claim 1, the entire text: has been deleted and replaced with the following: ---“ A compound of formula I:
PNG media_image2.png 200 400 media_image2.png Greyscale
I
or a pharmaceutically acceptable salt or stereoisomer thereof,
wherein:
R1 is CH3, CH2CH3, or cyclopropyl; R2 is H, CH3, or CH2CH3; R3 is CH3 or CH2-(1-methylpyrazol-4-yl); and R4 is C2-C4 alkyl, 1-methylcyclopropyl, or tetrahydropyran-2-yl.”---
In claim 2, the entire text: has been deleted and replaced with the following: ---“The compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof, wherein R1 is cyclopropyl.”---
In claim 3, the entire text: has been deleted and replaced with the following: ---“The compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof, wherein R2 is CH3.”---
In claim 4, the entire text: has been deleted and replaced with the following: ---“The compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof, wherein R3 is CH3.”---
In claim 5, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is:
PNG media_image3.png 200 400 media_image3.png Greyscale ,
or a pharmaceutically acceptable salt thereof.”---
In claim 6, the entire text: has been deleted and replaced with the following:
---“ The compound according to claim 1, wherein the compound is:
PNG media_image4.png 200 400 media_image4.png Greyscale ,
or a pharmaceutically acceptable salt thereof.”---
In claim 7, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is:
PNG media_image5.png 200 400 media_image5.png Greyscale ,
or a pharmaceutically acceptable salt thereof.”---
In claim 8, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is:
PNG media_image6.png 200 400 media_image6.png Greyscale ,
or a pharmaceutically acceptable salt thereof.”---
In claim 9, the entire text: has been deleted and replaced with the following: ---“A pharmaceutical composition comprising at least one pharmaceutically acceptable carrier, diluent, or excipient and a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”---
In claim 10, the entire text: has been deleted and replaced with the following: ---“A method for treating chronic kidney disease in a patient, wherein the method comprises administering to the patient in need thereof a therapeutically effective amount of a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”---
In claim 14, the entire text: has been deleted and replaced with the following: ---“A method for treating diabetic kidney disease in a patient, wherein the method comprises administering to the patient in need thereof a therapeutically effective amount of a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”---
In claim 15, the entire text: has been deleted and replaced with the following: ---“A process for preparing the pharmaceutical composition according to claim 9, wherein the process comprises admixing at least one pharmaceutically acceptable carrier, diluent, or excipient with a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”--- .
Authorization for this examiner’s amendment was given in a telephone interview with Mr. Wei Yan (Reg. No. 68,176) on May 9, 2022.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOUGLAS M. WILLIS, whose telephone number is 571-270-5757. The examiner may normally be reached on Monday thru Thursday from 8:00-6:00 EST. The examiner is also available on alternate Fridays.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mr. Mark Shibuya, may be reached on 571-272-0806. The fax phone number for the organization where this invention or proceeding is assigned is 571-273-8300. Information regarding the status of an invention may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published inventions may be obtained from either Private PAIR or Public PAIR. Status information for unpublished inventions is available through Private PAIR only. For more information about the PAIR system, see http://portal.uspto.gov/external/portal/pair. 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.
/DOUGLAS M WILLIS/ Primary Examiner, Art Unit 1624 | 2022-05-25T15:42:12 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The inventor or joint inventor should note that the instant invention, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Status of the Claims Claims 1-10, 14 and 15 are pending in the instant invention. According to the Amendments to the Claims, filed May 2, 2022, claims 1-10, 14 and 15 were amended and claims 11-13 were cancelled. Status of Priority This invention is a 35 U.S.C. § 371 National Stage Filing of International Application No. PCT/US2019/015757, filed January 13, 2019, which claims priority under 35 U.S.C.",
"§ 119(e) to US Provisional Application No. 62/626,745, filed February 6, 2018. Status of Restrictions / Election of Species PNG media_image1.png 200 400 media_image1.png Greyscale The forthcoming second Office action and prosecution on the merits includes (1) claims 1-8 and 14, drawn to substituted [1,2,4]triazolo[4,3-a]pyrazines of the Formula I, shown to the right, and/or a pharmaceutical composition thereof; (2) claim 9, drawn to a method of treating chronic kidney disease in a patient, comprising administering… a substituted [1,2,4]triazolo[4,3-a]pyrazine of the Formula I, shown to the right above; (3) claim 10, drawn to a method of treating diabetic kidney disease in a patient, comprising administering… a substituted [1,2,4]triazolo[4,3-a]pyrazine of the Formula I, shown to the right above; and (4) claim 15, drawn to a process for preparing a pharmaceutical composition comprising a substituted [1,2,4]triazolo[4,3-a]pyrazine of the Formula I, shown to the right above, respectively. Similarly, the inventor or joint inventor should further note that the sections of U.S.C. Title 35 that formed the basis of prior rejections formulated, as well as any references supporting said rejections, that are not included with this Office action, may be found in the Non-Final Rejection, mailed on February 3, 2022. Moreover, the inventor or joint inventor should further note that any rejections and/or objections of record not explicitly addressed herein below, are hereby withdrawn, in light of the inventor’s or joint inventor’s arguments and/or the Amendments to the Claims, filed May 2, 2022. Thus, a second Office action and prosecution on the merits of claims 1-10, 14 and 15 is contained within.",
"Reasons for Allowance Claims 1-10, 14 and 15 are allowed. The following is a statement of reasons for the indication of allowable subject matter: The prior art is silent with respect to substituted [1,2,4]triazolo[4,3-a]pyrazines of the Formula I, as recited in claim 1. Consequently, the limitation on the core of the substituted [1,2,4]triazolo[4,3-a]pyrazines of the Formula I that is not taught or fairly suggested in the prior art is R4 on the periphery of the [1,2,4]triazolo[4,3-a]pyrazine core. This limitation is present in the recited species of claims 5-8, respectively. Any comments considered necessary by the inventor or joint inventor 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. Examiner’s Amendment An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to the inventor or joint inventor, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee.",
"The following is a statement of examiner’s amendment to the record: The TITLE of the disclosure: SUBSTITUTED [1,2,4]TRIAZOLO[4,3-a]PYRAZINES PHOSPHODIESTERASE INHIBITORS has been deleted and replaced with the following: ---“SUBSTITUTED [1,2,4]TRIAZOLO[4,3-a]PYRAZINES AS PHOSPHODIESTERASE INHIBITORS”--- In claim 1, the entire text: has been deleted and replaced with the following: ---“ A compound of formula I: PNG media_image2.png 200 400 media_image2.png Greyscale I or a pharmaceutically acceptable salt or stereoisomer thereof, wherein: R1 is CH3, CH2CH3, or cyclopropyl; R2 is H, CH3, or CH2CH3; R3 is CH3 or CH2-(1-methylpyrazol-4-yl); and R4 is C2-C4 alkyl, 1-methylcyclopropyl, or tetrahydropyran-2-yl.”--- In claim 2, the entire text: has been deleted and replaced with the following: ---“The compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof, wherein R1 is cyclopropyl.”--- In claim 3, the entire text: has been deleted and replaced with the following: ---“The compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof, wherein R2 is CH3.”--- In claim 4, the entire text: has been deleted and replaced with the following: ---“The compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof, wherein R3 is CH3.”--- In claim 5, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is: PNG media_image3.png 200 400 media_image3.png Greyscale , or a pharmaceutically acceptable salt thereof.”--- In claim 6, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is: PNG media_image4.png 200 400 media_image4.png Greyscale , or a pharmaceutically acceptable salt thereof.”--- In claim 7, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is: PNG media_image5.png 200 400 media_image5.png Greyscale , or a pharmaceutically acceptable salt thereof.”--- In claim 8, the entire text: has been deleted and replaced with the following: ---“ The compound according to claim 1, wherein the compound is: PNG media_image6.png 200 400 media_image6.png Greyscale , or a pharmaceutically acceptable salt thereof.”--- In claim 9, the entire text: has been deleted and replaced with the following: ---“A pharmaceutical composition comprising at least one pharmaceutically acceptable carrier, diluent, or excipient and a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”--- In claim 10, the entire text: has been deleted and replaced with the following: ---“A method for treating chronic kidney disease in a patient, wherein the method comprises administering to the patient in need thereof a therapeutically effective amount of a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”--- In claim 14, the entire text: has been deleted and replaced with the following: ---“A method for treating diabetic kidney disease in a patient, wherein the method comprises administering to the patient in need thereof a therapeutically effective amount of a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”--- In claim 15, the entire text: has been deleted and replaced with the following: ---“A process for preparing the pharmaceutical composition according to claim 9, wherein the process comprises admixing at least one pharmaceutically acceptable carrier, diluent, or excipient with a compound according to claim 1, or a pharmaceutically acceptable salt or stereoisomer thereof.”--- .",
"Authorization for this examiner’s amendment was given in a telephone interview with Mr. Wei Yan (Reg. No. 68,176) on May 9, 2022. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOUGLAS M. WILLIS, whose telephone number is 571-270-5757. The examiner may normally be reached on Monday thru Thursday from 8:00-6:00 EST. The examiner is also available on alternate Fridays. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mr. Mark Shibuya, may be reached on 571-272-0806. The fax phone number for the organization where this invention or proceeding is assigned is 571-273-8300. Information regarding the status of an invention may be obtained from the Patent Application Information Retrieval (PAIR) system.",
"Status information for published inventions may be obtained from either Private PAIR or Public PAIR. Status information for unpublished inventions is available through Private PAIR only. For more information about the PAIR system, see http://portal.uspto.gov/external/portal/pair. 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. /DOUGLAS M WILLIS/ Primary Examiner, Art Unit 1624"
]
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Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION Response to Communication(s) 2. This office action is responsive to the Response filed on February 23, 2022. Claim 1 was canceled. Claims 2-17 are now pending in the application. Terminal Disclaimer 3. The terminal disclaimer filed on 02/23/2022 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of Application Number 16/075,461, now U.S. Patent No. 10,716,138, has been reviewed and is accepted. The terminal disclaimer has been recorded.
Allowable Subject Matter 4. Claims 2-17 are allowed. The following is a statement of reasons for the indication of allowable subject matter: The instant application claims essentially same subject matters of application 16/075,461, previously prosecuted and issued into U.S. Patent number 10,716,138. Claims 2-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 10,716,138. However, the terminal disclaimer in the outstanding Response filed on 02/23/2022 has overcome the rejection. Therefore, the instant application is allowed for the same rationales discussed in the parent application 16/075,461 as incorporated hereinafter. Moreover, the prior art of record, considered individually or in combination, fails to fairly show or suggest the claimed method (claim 16) and communication device (claim 2) comprising, among other limitation, the novel and unobvious limitations as “... configured to generate a second frame used for releasing a network allocation vector (NAV) caused by one of a plurality of first frames, the second frame including first destination information specifying a destination specified from a piece of destination information stored in the one of the plurality of first frames, the plurality of first frames being used for setting respective NAVs which stop transmission of frames of communication devices other than destinations specified from the destination information stored in the plurality of first frames; and ...” structurally and functionally interconnected with other limitations in a manner as recited in dependent claims 3-11. Substantially regarding claims 12-15 and 17, the prior art of record also fails to show the method and communication device for receiving the second frame used for releasing a NAV as the same manner set forth in claims 2-11 and 16.
5. References U.S. 10,009,841; U.S. 10,187,889 and U.S. 10,321,485 are cited because they are put pertinent to improve the control of transmission in telecommunication networks. However, none of references teaches as recited as in above claimed invention.
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 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tri H. Phan, whose telephone number is (571) 272-3074. The examiner can normally be reached on M-F (8:00Am-4:30PM). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chi H. Pham can be reached on (571) 272-3179. 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.
/TRI H PHAN/Primary Examiner, Art Unit 2471 April 15, 2022 | 2022-04-25T20:00:37 | [
"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 Response to Communication(s) 2. This office action is responsive to the Response filed on February 23, 2022. Claim 1 was canceled. Claims 2-17 are now pending in the application. Terminal Disclaimer 3. The terminal disclaimer filed on 02/23/2022 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of Application Number 16/075,461, now U.S. Patent No. 10,716,138, has been reviewed and is accepted.",
"The terminal disclaimer has been recorded. Allowable Subject Matter 4. Claims 2-17 are allowed. The following is a statement of reasons for the indication of allowable subject matter: The instant application claims essentially same subject matters of application 16/075,461, previously prosecuted and issued into U.S. Patent number 10,716,138. Claims 2-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 10,716,138. However, the terminal disclaimer in the outstanding Response filed on 02/23/2022 has overcome the rejection. Therefore, the instant application is allowed for the same rationales discussed in the parent application 16/075,461 as incorporated hereinafter.",
"Moreover, the prior art of record, considered individually or in combination, fails to fairly show or suggest the claimed method (claim 16) and communication device (claim 2) comprising, among other limitation, the novel and unobvious limitations as “... configured to generate a second frame used for releasing a network allocation vector (NAV) caused by one of a plurality of first frames, the second frame including first destination information specifying a destination specified from a piece of destination information stored in the one of the plurality of first frames, the plurality of first frames being used for setting respective NAVs which stop transmission of frames of communication devices other than destinations specified from the destination information stored in the plurality of first frames; and ...” structurally and functionally interconnected with other limitations in a manner as recited in dependent claims 3-11. Substantially regarding claims 12-15 and 17, the prior art of record also fails to show the method and communication device for receiving the second frame used for releasing a NAV as the same manner set forth in claims 2-11 and 16.",
"5. References U.S. 10,009,841; U.S. 10,187,889 and U.S. 10,321,485 are cited because they are put pertinent to improve the control of transmission in telecommunication networks. However, none of references teaches as recited as in above claimed invention. 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 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tri H. Phan, whose telephone number is (571) 272-3074. The examiner can normally be reached on M-F (8:00Am-4:30PM). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chi H. Pham can be reached on (571) 272-3179. 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. /TRI H PHAN/Primary Examiner, Art Unit 2471 April 15, 2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-24.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DANIEL RAGAN, No. 2: 18-cv-0410 JAM KJN P 12 Petitioner, 13 v. ORDER 14 RICHARDSON, 15 Respondent. 16
17 Petitioner is a state prisoner, proceeding without counsel. Pending before the court is
18 petitioner’s motion to stay this action in order to exhaust an additional claim. (ECF No. 17.)
19 Petitioner’s motion to stay is submitted for decision.
20 Petitioner is not required to await resolution of his motion to stay before returning to state
21 court to properly exhaust his state court remedies. In the event that petitioner exhausts his claim
22 in the California Supreme Court prior to this court’s resolution of his request for a stay, petitioner
23 is advised to file a notice of exhaustion in this court.
24 IT IS SO ORDERED.
25 Dated: November 8, 2019
26 27 Rag410.ord 28 1 | 2019-11-08 | [
"1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL RAGAN, No. 2: 18-cv-0410 JAM KJN P 12 Petitioner, 13 v. ORDER 14 RICHARDSON, 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding without counsel. Pending before the court is 18 petitioner’s motion to stay this action in order to exhaust an additional claim. (ECF No. 17.) 19 Petitioner’s motion to stay is submitted for decision.",
"20 Petitioner is not required to await resolution of his motion to stay before returning to state 21 court to properly exhaust his state court remedies. In the event that petitioner exhausts his claim 22 in the California Supreme Court prior to this court’s resolution of his request for a stay, petitioner 23 is advised to file a notice of exhaustion in this court. 24 IT IS SO ORDERED. 25 Dated: November 8, 2019 26 27 Rag410.ord 28 1"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/113569562/ | 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 5/10/2021 has been entered. Response to Amendments Applicant's amendments filed 5/10/2021 to claims 1, 3-4 and 18-19 have been entered. Claims 2 and 8 have been canceled. Claims 1, 3-5, 10-21, and 41-45 remain pending and are being considered on their merits. 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. Claim Interpretation Independent claim 1 limits to a method using a composition comprising SVF cells, microvessel fragments and a matrix. The claim also limits to the composition not being “pre-vascularized” during a coating step using the composition prior to implantation of the composition. Since the claim specifically limits to the presence of microvessel fragments in the composition that is not pre-vascularized, the term “pre-vascularized” is broadly interpreted to include compositions which do not contain vessels that are fully connected to the entire vascular source. In other words, a composition that comprises vessels prior to implantation (as is required by the claim), but that connects with the subjects vasculature following implantation reads on the limitation of a composition that is not pre-vascularized. Applicant should note that there is not a special definition in the specification to provide any specific inclusion/exclusion in vivo source can be considered a vessel fragment. 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, 3-5, 10-21, and 41-45 remain rejected under 35 U.S.C. 103(a) as being unpatentable over Chai et al. (Molecular Therapy- 2007), in view of Kang et al. (Tissue Engineering- 2008), Shepherd et al. (Arterioscler Thromb Vasc Biol- 2003), and Gimble et al. (Circulation Research- 2007). Regarding claim 1, Chai et al. teach biomaterials approach to expand and direct differentiation of stem cells on scaffolds. See Chai et al. at Abstract. Further, Chai et al. teach that scaffolds may include microspheres. See Chai et al. at pg. 468, right column, last paragraph. Chai et al. also teach that the natural stem cell niches may include ECM molecules secreted by stromal cells. See Chai et al. at pg. 469, right column, second paragraph. Moreover, Chai et al. teach that one strategy includes stem cells are amplified and differentiated directly in the scaffold before implantation (e.g., interpreted to mean not cultured prior to contacting the implant scaffold). See Chai et al. at pg. 469, right column, first paragraph. Chai et al. teach that the constructs may be utilized for vasculogenesis. See Chai et al. at pg. 471, right column, third paragraph. Chai et al. also teach that artificial grafts were seeded with differentiated endothelial cells in combination with other cell types such as smooth muscle cells (relevant to claim 3). See Chai et al. at pg. 475, left column, second paragraph. Chai et al. further teach that the capacity of adipose tissue-derived stem cells (ADSCs) to differentiate in vivo and in vitro. See Chai et al. at pg. 475, right column, third and fourth paragraphs. It is noted that ADSCs are a type of cell found in the SVF. However, Chai et al. do not teach SVF cells, or cells comprising microvessel fragments, embedded in a three-dimensional matrix, or that SVF cells expressly enhance vascularization of the tissue, or the cell transplantation. Regarding claims 1, 3, 11, 13, 15, 18, 21, and 41, Kang et al. teach implantation methods and compositions comprising a cell transplant including adipose-derived stromal cells (also known as stromal vascular fraction cells (SFV cells)) after adipocytes are removed from the stromal-vascular fraction, taken to enzymatic digestion, and then placed in contact with macroporous microspheres. See Kang et al. at pg. 26, Isolation of human ASCs; and pg. 27, Implantation. Kang et al. teach that Human ASCs (e.g., mammalian) may be cultured in DMEM and macroporous PLGA microspheres (e.g., the microspheres are the “cell transplant”). See Kang et al. at pg. 26, right column, ASC culture on macroporous PLGA microspheres. Kang et al. teach stromal cells growing on the surface (e.g., at least one layer) or embedded within macroporous microspheres (i.e., “encapsulating”)(i.e., “three-dimensional matrix). See Kang et al. at pg. 28, Fig. 1. Kang et al. teach stromal cells have high-density cell expansion on the microsphere (i.e., interpreted to mean the entire microsphere, or 100% coverage). See Kang et al. at pg. 31, right column, 2nd paragraph. Kang et al teach adhesion to PLGA microsphere surfaces. See Kang et al. at pg. 445, left column, last paragraph. Kang et al. also teach implanting human ASCs into mice (relevant to different species). See Kang et al. at pg. 27, right column, last paragraph. Shepherd et al. teach methods of microvascular constructs that are implantable by isolating fat pads, mincing and digesting with collagenase, and filtering out tissue debris and large vessels. See Shepherd et al. at pg. 899, left column, Microvascular Constructs. Further, See Shepherd et al. at pg. 903, left column, second to last paragraph. Shepherd et al. also teach that the cultured microvasculature can subsequently be remodeled into a functional perfusion circuit, where once implanted the microvasculature inosculates with the host circulation and remodels to contain morphologically identifiable arteries, arterioles, capillaries, venules and veins assembled into a perfused, vascular bed (relevant to claims 43-44). See Shepherd et al. at pg. 902, first paragraph; and Fig. 5. Gimble et al. teach methods in isolating cells from adipose tissue by mincing fat pads, washing extensively to remove hematopoietic cells, incubating the tissue fragments with collagenase, and centrifuging the digest. See Gimble et al. at pg. 1251, left column, Cell Isolation and Mechanical Devices. Further, Gimble et al. teach that after centrifuging the digest a separated stromal vascular fraction (SVF) is pelleted and a population of mature adipocytes is floating. See Gimble et al. at pg. 1251, left column, Cell Isolation and Mechanical Devices. Thus, Gimble et al. do not filter tissue fragments. It would have been obvious to one of ordinary skill in the art at the time the claimed invention was made to combine the teachings of Chai et al., Kang et al., Shepherd et al., and Gimble et al., to achieve a method comprising encapsulating and implanting a tissue or cell transplant and a population of cells comprising stromal vascular fraction cells, wherein the population of cells comprising SVF cells coats at least a portion of the outer surface of the tissue or cell transplant, and wherein the SVF cells present on the surface of, or embedded within a three-dimensional matric comprises microvessel fragments, because Kang et al. teach SVF cells, where Chai et al. states it would be beneficial in some cases to have ECM molecules secreted by stromal cells. See Chai et al. at pg. 469, right column, second paragraph. It also would have been obvious to a person of ordinary skill in the art to have additionally included See Kang et al. at pg. 28, Fig. 1; Gimble et al. at pg. 1251, left column, Cell Isolation and Mechanical Devices; and Shepherd et al. at pg. 901, right column, first paragraph. A person of ordinary skill in the art would have had motivation and a reasonable expectation of success in utilizing the SVF cells, microvessel fragments, and freshly isolated SVF cells for enhancing vascularization, at least because Shepherd et al. teach that each vessel in the model (i.e., freshly isolated microvessel fragment)(e.g., as taught in Gimble et al.) begins as a differentiated vessel element, dedifferentiates into a “generic appearing” vessel during/after angiogenesis and subsequently redifferentiates into a specific element of a perfusion-competent vascular tree, where the scaffolds from Chai et al. also are utilized for vasculogenesis. See Chai et al. at pg. 471, right column, third paragraph; and Sherpherd et al. at pg. 902, left column, first paragraph. As such, the methods, as taught by Chai et al., Kang et al., Gimble et al., and Shepherd et al. would be obvious choices to combine and employ, because known compositions, methods, and improvements for making a composition comprising a tissue or cell transplant and a population of cells comprising stromal vascular fraction cells, wherein the population of cells comprising SVF cells coats at least a portion of the outer surface of the tissue or cell transplant, and wherein the SVF cells present on the surface of, or embedded within a three-dimensional matric comprises microvessel fragments, are desirable. A person of ordinary skill in the art would have had a reasonable expectation of success in doing so because combining known methods and compositions taught by Chai et al., Kang et al., Gimble et al., and Shepherd et al. which are compositions that are transplantable cells (taught by Chai et al., Kang et al., Gimble et al., and Shepherd et al.) which may be cultured on One skilled in the art would have been further motivated to combine the teachings of Chai et al., Kang et al., Gimble et al., and Shepherd et al., because according to Gimble et al. "the hypothesis that transplanted allogeneic ASCs will not elicit a robust immune response and subsequent rejection needs independent and comprehensive testing.” See Gimble et al. at pg. 1253, right column, last paragraph- pg. 1254, left column, first paragraph. Further, Gimble et al. teach that such findings will have a profound impact on the application of ASCs in regenerative medicine and will reduce the cost of cell therapies. See Gimble et al. at pg. 1254, left column, first paragraph. Thus, given that Chai et al. teach stem cells are amplified and differentiated directly in the scaffold before implantation (e.g., interpreted to mean not cultured prior to contacting the implant scaffold), Kang et al. teach that stromal cells growing on the surface or embedded within macroporous microspheres, and that Kang et al., Gimble et al., and Shepherd et al. all teach compositions that are transplantable cells, the combination of the teachings provides an obvious composition. This provides the motivation to make a composition a tissue or cell transplant and a population of cells comprising stromal vascular fraction cells, wherein the population of cells comprising SVF cells coats at least a portion of the outer surface of the tissue or cell transplant, and wherein the SVF cells present on the surface of, or embedded within a three-dimensional matric comprises microvessel fragments, and a considerable expectation of success upon doing so. Regarding claims 1, Kang et al. teach methods for transplanting and making macroporous microcarriers provide a large surface area for cell attachment and growth and makes feasible 3D suspension cultures (e.g., substantially covers the outer surface including the interfacial surface). See Kang et al. at pg. 25, right column, 1st full paragraph. Regarding claim 10, Gimble et al. teach ASCs derived from human, where autologous ASCs offer advantages from regulatory, histocompatibility, and infectious perspectives. See Regarding claim 11, Gimble et al. teach ASCs derived from multiple donors, and from both human and monkeys. See Gimble et al. at pg. 1253, left column, second paragraph. Regarding claims 12, 16-17, and 42-44, Kang et al. teach methods of implantation and genetically engineering tissue cell transplants. See Kang et al. at pg. 27, Implantation, and at pg. 32, 1st full paragraph; Fig. 7-8. Moreover, Kang et al. teach that neovascularization (e.g., enhanced vascularization) occurs after implantation in the developing tissue. See Kang et al. at pg. 32, right column, third paragraph. Gimble et al. teach employing biophysical stimuli to control cell differentiation and tissue metabolism in vitro and in vivo. See Gimble et al. at pg. 1254, left column third paragraph. Additionally, Shepherd et al. teach the capability of cultured microvascular construct to interface with an existing vasculature and subsequently remodel into a functional perfusion circuit can comprise a full spectrum of microvascular elements. See Shepherd et al. at pg. 901, right column, last paragraph. It would have been obvious for a person of ordinary skill in the art to have been able to establish a functional response to a glucose challenge given the teachings of Kang et al., Shepherd et al., and Gimble et al., because the combination of all three references would give a fully functional perfusion circuit having a full spectrum of elements, at least as taught in Shepherd et al. Regarding claim 19, given the interpretation of the term “attaching,” as above, Chai et al. teach polycaprolactone mediates MSC attachment primarily via adsorbed vitronectin, whereas PLGA does so via adsorbed type-I collagen (e.g., interpreted as “glue”). See Chai et al. at pg. 473, right column, third paragraph. Further, regarding an interpretation of claim 19 wherein the entire structure (not the just the SVF cells) is attached, Shepherd et al. teach implantation may involve sutures. See Shepherd et al. at pg. 899, left column, second paragraph. See Gimble et al. at pg. 1251, left column, last paragraph. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary. Response to Arguments Applicant's arguments filed 5/10/2021 have been fully considered but they are not persuasive. Applicant alleges that none of the references teach the use of “immediately isolated” SVF cells coated on the surface of an implant to enhance vascularization. As an initial matter, applicant should note that the claims are not directed to the use of “immediately isolated” SVF cells. Furthermore, as stated above, Chai and Kang utilized adipose-derived stem or stromal cells for enhanced vascularization. Therefore this argument is not persuasive. Applicant summarizes the references and highlights portions of the specification that support the use of the claimed method. Applicant then alleges that none of the references recognize that SVF cells cause enhancements in vascularization of tissue or cell transplant. As an initial matter, it is noted that the claimed method is not limited to transplanting SVF cells alone, but rather a combination of SVF cells, microvessel fragments and a matrix to increase enhance vascularization. Furthermore, as stated above, Chai and Kang utilized adipose-derived stem or stromal cells for enhanced vascularization and Shepherd with Gimble teach microvessel fragments can form vessels and a perfusion-competent vascular tree. Therefore the combination of references teach that the components in the composition can function to enhance vascularization. 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 on 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 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.
/STEPHANIE A MCNEIL/Examiner, Art Unit 1653 | 2021-08-08T11:04:10 | [
"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 5/10/2021 has been entered. Response to Amendments Applicant's amendments filed 5/10/2021 to claims 1, 3-4 and 18-19 have been entered. Claims 2 and 8 have been canceled. Claims 1, 3-5, 10-21, and 41-45 remain pending and are being considered on their merits. 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. Claim Interpretation Independent claim 1 limits to a method using a composition comprising SVF cells, microvessel fragments and a matrix. The claim also limits to the composition not being “pre-vascularized” during a coating step using the composition prior to implantation of the composition. Since the claim specifically limits to the presence of microvessel fragments in the composition that is not pre-vascularized, the term “pre-vascularized” is broadly interpreted to include compositions which do not contain vessels that are fully connected to the entire vascular source. In other words, a composition that comprises vessels prior to implantation (as is required by the claim), but that connects with the subjects vasculature following implantation reads on the limitation of a composition that is not pre-vascularized.",
"Applicant should note that there is not a special definition in the specification to provide any specific inclusion/exclusion in vivo source can be considered a vessel fragment. 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, 3-5, 10-21, and 41-45 remain rejected under 35 U.S.C. 103(a) as being unpatentable over Chai et al. (Molecular Therapy- 2007), in view of Kang et al. (Tissue Engineering- 2008), Shepherd et al. (Arterioscler Thromb Vasc Biol- 2003), and Gimble et al. (Circulation Research- 2007). Regarding claim 1, Chai et al. teach biomaterials approach to expand and direct differentiation of stem cells on scaffolds. See Chai et al. at Abstract. Further, Chai et al. teach that scaffolds may include microspheres. See Chai et al.",
"at pg. 468, right column, last paragraph. Chai et al. also teach that the natural stem cell niches may include ECM molecules secreted by stromal cells. See Chai et al. at pg. 469, right column, second paragraph. Moreover, Chai et al. teach that one strategy includes stem cells are amplified and differentiated directly in the scaffold before implantation (e.g., interpreted to mean not cultured prior to contacting the implant scaffold). See Chai et al. at pg. 469, right column, first paragraph. Chai et al. teach that the constructs may be utilized for vasculogenesis. See Chai et al. at pg. 471, right column, third paragraph. Chai et al.",
"also teach that artificial grafts were seeded with differentiated endothelial cells in combination with other cell types such as smooth muscle cells (relevant to claim 3). See Chai et al. at pg. 475, left column, second paragraph. Chai et al. further teach that the capacity of adipose tissue-derived stem cells (ADSCs) to differentiate in vivo and in vitro. See Chai et al. at pg. 475, right column, third and fourth paragraphs. It is noted that ADSCs are a type of cell found in the SVF.",
"However, Chai et al. do not teach SVF cells, or cells comprising microvessel fragments, embedded in a three-dimensional matrix, or that SVF cells expressly enhance vascularization of the tissue, or the cell transplantation. Regarding claims 1, 3, 11, 13, 15, 18, 21, and 41, Kang et al. teach implantation methods and compositions comprising a cell transplant including adipose-derived stromal cells (also known as stromal vascular fraction cells (SFV cells)) after adipocytes are removed from the stromal-vascular fraction, taken to enzymatic digestion, and then placed in contact with macroporous microspheres. See Kang et al. at pg. 26, Isolation of human ASCs; and pg. 27, Implantation. Kang et al. teach that Human ASCs (e.g., mammalian) may be cultured in DMEM and macroporous PLGA microspheres (e.g., the microspheres are the “cell transplant”). See Kang et al. at pg. 26, right column, ASC culture on macroporous PLGA microspheres.",
"Kang et al. teach stromal cells growing on the surface (e.g., at least one layer) or embedded within macroporous microspheres (i.e., “encapsulating”)(i.e., “three-dimensional matrix). See Kang et al. at pg. 28, Fig. 1. Kang et al. teach stromal cells have high-density cell expansion on the microsphere (i.e., interpreted to mean the entire microsphere, or 100% coverage). See Kang et al. at pg. 31, right column, 2nd paragraph. Kang et al teach adhesion to PLGA microsphere surfaces. See Kang et al. at pg.",
"445, left column, last paragraph. Kang et al. also teach implanting human ASCs into mice (relevant to different species). See Kang et al. at pg. 27, right column, last paragraph. Shepherd et al. teach methods of microvascular constructs that are implantable by isolating fat pads, mincing and digesting with collagenase, and filtering out tissue debris and large vessels. See Shepherd et al. at pg. 899, left column, Microvascular Constructs. Further, See Shepherd et al. at pg. 903, left column, second to last paragraph. Shepherd et al. also teach that the cultured microvasculature can subsequently be remodeled into a functional perfusion circuit, where once implanted the microvasculature inosculates with the host circulation and remodels to contain morphologically identifiable arteries, arterioles, capillaries, venules and veins assembled into a perfused, vascular bed (relevant to claims 43-44). See Shepherd et al. at pg.",
"902, first paragraph; and Fig. 5. Gimble et al. teach methods in isolating cells from adipose tissue by mincing fat pads, washing extensively to remove hematopoietic cells, incubating the tissue fragments with collagenase, and centrifuging the digest. See Gimble et al. at pg. 1251, left column, Cell Isolation and Mechanical Devices. Further, Gimble et al. teach that after centrifuging the digest a separated stromal vascular fraction (SVF) is pelleted and a population of mature adipocytes is floating. See Gimble et al. at pg. 1251, left column, Cell Isolation and Mechanical Devices. Thus, Gimble et al. do not filter tissue fragments. It would have been obvious to one of ordinary skill in the art at the time the claimed invention was made to combine the teachings of Chai et al., Kang et al., Shepherd et al., and Gimble et al., to achieve a method comprising encapsulating and implanting a tissue or cell transplant and a population of cells comprising stromal vascular fraction cells, wherein the population of cells comprising SVF cells coats at least a portion of the outer surface of the tissue or cell transplant, and wherein the SVF cells present on the surface of, or embedded within a three-dimensional matric comprises microvessel fragments, because Kang et al.",
"teach SVF cells, where Chai et al. states it would be beneficial in some cases to have ECM molecules secreted by stromal cells. See Chai et al. at pg. 469, right column, second paragraph. It also would have been obvious to a person of ordinary skill in the art to have additionally included See Kang et al. at pg. 28, Fig. 1; Gimble et al. at pg. 1251, left column, Cell Isolation and Mechanical Devices; and Shepherd et al. at pg. 901, right column, first paragraph. A person of ordinary skill in the art would have had motivation and a reasonable expectation of success in utilizing the SVF cells, microvessel fragments, and freshly isolated SVF cells for enhancing vascularization, at least because Shepherd et al. teach that each vessel in the model (i.e., freshly isolated microvessel fragment)(e.g., as taught in Gimble et al.) begins as a differentiated vessel element, dedifferentiates into a “generic appearing” vessel during/after angiogenesis and subsequently redifferentiates into a specific element of a perfusion-competent vascular tree, where the scaffolds from Chai et al.",
"also are utilized for vasculogenesis. See Chai et al. at pg. 471, right column, third paragraph; and Sherpherd et al. at pg. 902, left column, first paragraph. As such, the methods, as taught by Chai et al., Kang et al., Gimble et al., and Shepherd et al. would be obvious choices to combine and employ, because known compositions, methods, and improvements for making a composition comprising a tissue or cell transplant and a population of cells comprising stromal vascular fraction cells, wherein the population of cells comprising SVF cells coats at least a portion of the outer surface of the tissue or cell transplant, and wherein the SVF cells present on the surface of, or embedded within a three-dimensional matric comprises microvessel fragments, are desirable. A person of ordinary skill in the art would have had a reasonable expectation of success in doing so because combining known methods and compositions taught by Chai et al., Kang et al., Gimble et al., and Shepherd et al. which are compositions that are transplantable cells (taught by Chai et al., Kang et al., Gimble et al., and Shepherd et al.) which may be cultured on One skilled in the art would have been further motivated to combine the teachings of Chai et al., Kang et al., Gimble et al., and Shepherd et al., because according to Gimble et al.",
"\"the hypothesis that transplanted allogeneic ASCs will not elicit a robust immune response and subsequent rejection needs independent and comprehensive testing.” See Gimble et al. at pg. 1253, right column, last paragraph- pg. 1254, left column, first paragraph. Further, Gimble et al. teach that such findings will have a profound impact on the application of ASCs in regenerative medicine and will reduce the cost of cell therapies. See Gimble et al. at pg.",
"1254, left column, first paragraph. Thus, given that Chai et al. teach stem cells are amplified and differentiated directly in the scaffold before implantation (e.g., interpreted to mean not cultured prior to contacting the implant scaffold), Kang et al. teach that stromal cells growing on the surface or embedded within macroporous microspheres, and that Kang et al., Gimble et al., and Shepherd et al. all teach compositions that are transplantable cells, the combination of the teachings provides an obvious composition. This provides the motivation to make a composition a tissue or cell transplant and a population of cells comprising stromal vascular fraction cells, wherein the population of cells comprising SVF cells coats at least a portion of the outer surface of the tissue or cell transplant, and wherein the SVF cells present on the surface of, or embedded within a three-dimensional matric comprises microvessel fragments, and a considerable expectation of success upon doing so. Regarding claims 1, Kang et al. teach methods for transplanting and making macroporous microcarriers provide a large surface area for cell attachment and growth and makes feasible 3D suspension cultures (e.g., substantially covers the outer surface including the interfacial surface). See Kang et al.",
"at pg. 25, right column, 1st full paragraph. Regarding claim 10, Gimble et al. teach ASCs derived from human, where autologous ASCs offer advantages from regulatory, histocompatibility, and infectious perspectives. See Regarding claim 11, Gimble et al. teach ASCs derived from multiple donors, and from both human and monkeys. See Gimble et al. at pg. 1253, left column, second paragraph. Regarding claims 12, 16-17, and 42-44, Kang et al. teach methods of implantation and genetically engineering tissue cell transplants. See Kang et al. at pg. 27, Implantation, and at pg. 32, 1st full paragraph; Fig. 7-8. Moreover, Kang et al. teach that neovascularization (e.g., enhanced vascularization) occurs after implantation in the developing tissue. See Kang et al. at pg. 32, right column, third paragraph. Gimble et al.",
"teach employing biophysical stimuli to control cell differentiation and tissue metabolism in vitro and in vivo. See Gimble et al. at pg. 1254, left column third paragraph. Additionally, Shepherd et al. teach the capability of cultured microvascular construct to interface with an existing vasculature and subsequently remodel into a functional perfusion circuit can comprise a full spectrum of microvascular elements. See Shepherd et al. at pg. 901, right column, last paragraph. It would have been obvious for a person of ordinary skill in the art to have been able to establish a functional response to a glucose challenge given the teachings of Kang et al., Shepherd et al., and Gimble et al., because the combination of all three references would give a fully functional perfusion circuit having a full spectrum of elements, at least as taught in Shepherd et al.",
"Regarding claim 19, given the interpretation of the term “attaching,” as above, Chai et al. teach polycaprolactone mediates MSC attachment primarily via adsorbed vitronectin, whereas PLGA does so via adsorbed type-I collagen (e.g., interpreted as “glue”). See Chai et al. at pg. 473, right column, third paragraph. Further, regarding an interpretation of claim 19 wherein the entire structure (not the just the SVF cells) is attached, Shepherd et al. teach implantation may involve sutures. See Shepherd et al. at pg. 899, left column, second paragraph.",
"See Gimble et al. at pg. 1251, left column, last paragraph. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary. Response to Arguments Applicant's arguments filed 5/10/2021 have been fully considered but they are not persuasive. Applicant alleges that none of the references teach the use of “immediately isolated” SVF cells coated on the surface of an implant to enhance vascularization. As an initial matter, applicant should note that the claims are not directed to the use of “immediately isolated” SVF cells. Furthermore, as stated above, Chai and Kang utilized adipose-derived stem or stromal cells for enhanced vascularization. Therefore this argument is not persuasive. Applicant summarizes the references and highlights portions of the specification that support the use of the claimed method. Applicant then alleges that none of the references recognize that SVF cells cause enhancements in vascularization of tissue or cell transplant.",
"As an initial matter, it is noted that the claimed method is not limited to transplanting SVF cells alone, but rather a combination of SVF cells, microvessel fragments and a matrix to increase enhance vascularization. Furthermore, as stated above, Chai and Kang utilized adipose-derived stem or stromal cells for enhanced vascularization and Shepherd with Gimble teach microvessel fragments can form vessels and a perfusion-competent vascular tree. Therefore the combination of references teach that the components in the composition can function to enhance vascularization. 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 on 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 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.",
"/STEPHANIE A MCNEIL/Examiner, Art Unit 1653"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-08-08.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION This action is in response to the correspondence filed on May 17, 2021.
Notice of 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.
Response to Arguments 1. Applicant’s arguments with respect to USC 103 rejection of claims 1-13 and 15-20 have been considered and are found to be persuasive. Applicant argues that “Applicant respectfully submits the outstanding Office Action is mainly based on the Balakrishnan reference as one of the major references to reject the pending claims 1-13 and 15-20 of the present application. However, the applicants of Balakrishnan and the present application are both “American Megatrends, Inc.”. Balakrishnan and the present application were, not later than the effective filing date of the present application, commonly owned by American Megatrends, Inc. In other words, Balakrishnan should be considered an exception to the prior art definition under AIA 35 U.S.C. 102(a) (2) and thus is not eligible prior art for the present application.”
Examiner has added the Raju reference to address the claim limitations argued. The office action below provides the detailed mapping to relevant sections of the Raju reference. Raju teaches in [0017] and in FIG. 3, which is a flow chart relating to preparation of the client for redirection of a USB device. The proxy client registers with the operating system at the client for USB device arrival notification. The client, via proxy client, polls to determine if a USB device is connected to client. Proxy client may determine if a USB
Note: Examiner cites particular paragraphs and line numbers in the references as applied to the claims for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in its entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
Claim Rejections - 35 USC § 103 2. 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 of this title, 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.
3. Claim 14 is cancelled. 1-13 and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lisiecki et al. (US 2002/0143798 A1) in view of Maity (US 2014/0280756 A1) and further in view of Raju et al. (2017/0111455 A1.)
4. Regarding claim 1, Lisiecki discloses “A system, comprising: a computing device for performing a test of a virtual media redirection process, the computing device comprising a processor and a storage device storing computer executable code, wherein the computer executable code, when executed at the processor, is configured to:” (See Fig. 1-6 and [0035]) (The managed storage site
“obtain, from a media storage device, a media file to be redirected;” (See [0008]) (It is a primary object of the invention to provide persistent, replicated, networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.)
“calculate a first checksum value for the media file being obtained; perform the virtual media redirection process;” (See [0033], [0137]) (The replication may check a computed checksum (e.g., an MD5) for the file so fetched against the checksum that was communicated in the log entry.)
“calculate a second checksum value for the media file at the local path of the computing device; and validate the media file by matching the second checksum value with the first checksum value, wherein the media file is validated when the second checksum value matches with the first checksum value.” (See [0137]) (The replication engine may check a computed checksum for the file fetched against the checksum that was communicated in the log entry. If this fails, the operation is retried. Preferably, all remote files are fetched using a cookie or other authentication mechanism and are retrieved using the wvfn directory path and the odfn filename. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism.)
“perform the virtual media redirection process; and copy the media file to the local path of the computing device” (See Fig. 7 and [0016], (FIG. 7 shows how the content storage system uses storage site redirection if given content is not available at a particular storage site. A given storage site has the capability of redirecting to another storage site a request for a given piece of content. If an edge server is directed to a site that has yet to receive the replica, that site issues a redirect (e.g., an HTTP 302) to another storage site that may have the content. The content is replicated from the given storage site to at least one other storage site. A replication engine, is used to retrieve content to be replicated from a site that has the content. Preferably a pull model for actually copying of the data from site to site is used. A push model may be implemented as well.)
But, Lisiecki does not explicitly disclose “a universal USB interface”; “emulating a virtual media at a local path of the computing device via the USB interface” However, Maity teaches “a universal USB interface” “emulating a virtual media at a local path of the computing device via the USB interface” (See Fig. 4A-5B and [0036]) (The CPU 112, the memory 113, and the BMC 120 may be may be connected to the baseboard 111 through an interface. The interface may be physical hardware interface such as electrical connectors, buses, ports, cables, terminals, or other I/O devices. Redirection module configured to emulate a virtual media to the host computer; receive a read command from the host computer and directed to the emulated virtual media, the read command specifying a first file; and in response to the read command, send a request for the first file according to the read command to the browser program through the Web Socket connection. FIGS. 4A and 4B show features of a web-based virtual media redirection according to certain embodiments of the present disclosure. As shown in FIG. 4A, the host computer 110 may include a USB port 115 as the I/O device. The BMC 120 may have a virtual media module 122 that communicates with the host computer 110 through a USB connection 121 established with the USB port 115 and that emulates a media storage to the host computer 110 through the USB connection 121. The USB connection allows the BMC 120 to emulate USB mass storage devices, such as a floppy, CD-ROM, or hard disk drive, to the host computer 110.)
But, Lisiecki does not explicitly disclose “prior to performing the virtual media redirection process, determine whether a USB redirection connection exists for the computing device using the USB interface, and in response to determining that the USB redirections connection exists, disconnect the USB redirection connection prior to performing the virtual media redirection process:” However, Raju teaches ““prior to performing the virtual media redirection process, determine whether a USB redirection connection exists for the computing device using the USB interface, and in response to determining that the USB redirections connection exists, disconnect the USB redirection connection prior to performing the virtual media redirection process:” (See [0017]) (Remote desktop protocols (RDP) may allow redirection of USB devices. The invention provides an intelligent way to actively monitor the session of a user and to dynamically disconnect the USB device from a current active session and redirect the USB device to a different active session when the user moves or switches between sessions. A user may also use virtual applications between different sessions and may seek to use the same USB devices between the virtual applications even though the applications may be running in different sessions. Dynamically disconnecting and redirecting the USB devices between active sessions and between different virtual applications running in multiple remote desktop sessions enables the user to access the redirected USB device in all remote desktop sessions and from all applications seamlessly. FIG. 3 is a flow chart, shown at 300, relating to preparation of the client 120 for redirection of a USB device 130. The proxy client 206 registers with the operating system at the client 120 at step 302 for USB device 130 arrival notification. At step 304, the client 120, via proxy client 206, polls to determine if a USB device 130 is connected to client 120. Proxy client 206 may determine if a USB device 130 is connected or if a previously connected USB device 130 has been reset which causes the USB device to essentially simulate a plug-in/plug-out, a software simulation of a disconnect/re-connect. The user may use a GUI interface to inform the client that a USB device has been connected or the client may automatically detect without user intervention the connection of a USB device. The USB device driver may also inform an agent of the client that USB device has been connected.)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine Lisiecki (Distributed storage system for internet content with storage site redirection) in view of Maity (Method of performing a virtual media redirection) and further in view of Raju (Session aware USB redirection for multi-server applications), in order to improve the virtual media redirection speed in a baseboard management controller and to dynamically disconnect and redirect the USB devices to enable the user to access the redirected USB device in all remote desktop sessions and from all applications seamlessly.) Raju [0017]
Regarding claim 2, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, wherein the media file is an ISO image file.” (See [0008]) (Media files include networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.)
Regarding claim 3, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, wherein the media file is a specific file in an ISO image file.” (See [0008]) (Media files include networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.)
Regarding claim 4, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, wherein the computer executable code comprises: a virtual media redirection module, configured to perform the virtual media redirection process for the computing device by emulating the virtual media at the local path of the computing device, and to copy the media file to the local path; and a validation module configured to: obtain the media file to be redirected; (See [0012]) (Content providers upload their content, preferably using conventional client software (e.g., a file transfer protocol (FTP) client, the Rsync file transfer utility, or the like) to a given one of the storage locations that is optimal for the upload. The system may include an API (application programming interface) to support the addition of other upload protocols.)
“calculate the first checksum value for the media file being obtained; calculate the second checksum value for the media file at the local path of the computing device; and validate the media file by matching the second checksum value with the first checksum value.” (See [0137]) (The replication engine may check a computed checksum for the file fetched against the checksum that was communicated in the log entry. If this fails, the operation is retried. Preferably, all remote files are fetched using a cookie or other authentication mechanism and are retrieved using the wvfn directory path and the odfn filename. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism.)
Regarding claim 5, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 4, wherein the validation module is an automated script module.” (See [0137], [0144]) (Preferably, all remote files are fetched using a cookie or other authentication mechanism. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism. Redundancy and fault tolerance are built into the components of the storage infrastructure. This is achieved by having redundant servers and network configurations with automatic failover, connectivity to multiple ISPs, high-availability storage hardware, content mirrored to multiple locations, and global traffic management.)
Regarding claim 6, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 4, wherein the virtual media redirection module is a virtual media command line interface (VMCLI) module, configured to emulate the virtual media at the local path of the computing device via the (USB) interface.” (See [0012]) (The system may include an API (application programming interface) to support the addition of other upload protocols. Data is collected by the network agents and the web server agents and delivered to the map generation servers. The map generation servers analyze the data, and at least one map server produces a map that assigns name server IP address/blocks to regions.)
Regarding claim 7, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 6, further comprising: an evaluation board communicatively connected to the computing device via the USB interface for the test of the virtual media redirection process.” (See [0055]) (The web server agents 504 do test downloads to either all the web server IP addresses or to the local load balancing devices to test for availability or "aliveness" of the mirrored storage sites (i.e., per-datacenter mirror or web server). Typically, a web server agent tests an object, e.g., a twenty (20) byte file available on the web server via an HTTP GET request, and checks for errors and download times.)
Regarding claim 8, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 6, wherein the validation module is further configured to: prior to performing the virtual media redirection process, determine whether the USB redirection connection exists for the computing device; and in response to determining that the USB redirection connection exists, disconnect the USB redirection connection; prior to performing the virtual media redirection process.” (See Fig. 4A-5B [0010], [0056]) (Redirection module configured to emulate a virtual media to the host computer; receive a read command from the host computer and directed to the emulated virtual media.)
Regarding claim 9, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 4, wherein the validation module is further configured to: generate a validation report based on a test result of the virtual media redirection process, wherein: the test result comprises information indicating the virtual media redirection process to be successful when the media file is validated; and the test result comprises information indicating the virtual media redirection process to be unsuccessful when the media file is not validated.” (See [0073]) (Apache can run on any (and indeed every) client machine in a storage region. It is augmented preferably by two (2) plug-ins: one is for managing the download process, and the other for reporting monitoring information into an online monitoring function. The download plug-in preferably implements per-directory configuration and security. This information preferably includes: path prefix within which to locate the content for this directory on the NFS filesystem (i.e. the directory in the configuration is relative to this prefix); various security attributes (refer field checking, "green-cookie" authentication); other storage sites on which this content is replicated (i.e. which other domain to redirect request for content).
Regarding claim 10, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, further comprising: a client computing device communicatively connected to the computing device, wherein the media storage device is located at the client computing device.” (See Fig. 1-6)
As per claim 11, this claim is rejected based on rationale given above for rejected claim 1 and is similarly rejected. As per claim 12, this claim is rejected based on rationale given above for rejected claim 5 and is similarly rejected. As per claim 13, this claim is rejected based on rationale given above for rejected claim 6 and is similarly rejected. As per claim 15, this claim is rejected based on rationale given above for rejected claim 9 and is similarly rejected. As per claim 16, this claim is rejected based on rationale given above for rejected claim 1 and is similarly rejected, including “A non-transitory computer readable medium storing computer executable code, wherein the computer executable code, when executed at a processor of a computing device for performing a test of a virtual media redirection process, is configured to:” (See Fig. 1-6)
Regarding claim 17, Lisiecki in view of Maity and further in view of Raju discloses “The non-transitory computer readable medium as claimed in claim 16, wherein the computer executable code comprises: a virtual media redirection module, configured to perform the virtual media redirection process for the computing device by emulating a virtual media at the local path of the computing device, and to copy the media file to the local path; and a validation module configured to: obtain the media file to be redirected; calculate the first checksum value for the media file being obtained;” (See (Fig. 1-6) [0008]) (It is a primary object of the invention to provide persistent, replicated, networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.) “calculate the second checksum value for the media file at the local path of the computing device; and validate the media file by matching the second checksum value with the first checksum value;” (See [0033], [0137]) (Servers that copy files to multiple storage locations, servers that export the network filesystem to the front-end servers, and dual Internet Service Provider (ISP) connectivity. The replication may check a computed checksum (e.g., an MD5) for the file so fetched against the checksum that was communicated in the log entry. (See [0137]) (The replication engine may check a computed checksum for the file fetched against the checksum that was communicated in the log entry. If this fails, the operation is retried. Preferably, all remote files are fetched using a cookie or other authentication mechanism and are retrieved using the wvfn directory path and the odfn filename. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism.)
“wherein the validation module is an automated script module.” (See [0137], [0144]) (Preferably, all remote files are fetched using a cookie or other authentication mechanism. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism. Redundancy and fault tolerance are built into the components of the storage infrastructure.)
As per claim 18, this claim is rejected based on rationale given above for rejected claim 6 and is similarly rejected.
As per claim 19, this claim is rejected based on rationale given above for rejected claim 8 and is similarly rejected.
As per claim 20, this claim is rejected based on rationale given above for rejected claim 9 and is similarly rejected.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRACY M MCGHEE whose telephone number is (313)446-6581. 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. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hosain Alam can be reached on 571 272-3978. 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.
/TRACY M MCGHEE/Examiner, Art Unit 2154 /HOSAIN T ALAM/Supervisory Patent Examiner, Art Unit 2154 | 2021-09-02T12:51:50 | [
"DETAILED ACTION This action is in response to the correspondence filed on May 17, 2021. Notice of 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. Response to Arguments 1. Applicant’s arguments with respect to USC 103 rejection of claims 1-13 and 15-20 have been considered and are found to be persuasive. Applicant argues that “Applicant respectfully submits the outstanding Office Action is mainly based on the Balakrishnan reference as one of the major references to reject the pending claims 1-13 and 15-20 of the present application.",
"However, the applicants of Balakrishnan and the present application are both “American Megatrends, Inc.”. Balakrishnan and the present application were, not later than the effective filing date of the present application, commonly owned by American Megatrends, Inc. In other words, Balakrishnan should be considered an exception to the prior art definition under AIA 35 U.S.C. 102(a) (2) and thus is not eligible prior art for the present application.” Examiner has added the Raju reference to address the claim limitations argued. The office action below provides the detailed mapping to relevant sections of the Raju reference. Raju teaches in [0017] and in FIG. 3, which is a flow chart relating to preparation of the client for redirection of a USB device. The proxy client registers with the operating system at the client for USB device arrival notification. The client, via proxy client, polls to determine if a USB device is connected to client. Proxy client may determine if a USB Note: Examiner cites particular paragraphs and line numbers in the references as applied to the claims for the convenience of the applicant.",
"Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in its entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. Claim Rejections - 35 USC § 103 2. 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 of this title, 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. 3. Claim 14 is cancelled. 1-13 and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lisiecki et al. (US 2002/0143798 A1) in view of Maity (US 2014/0280756 A1) and further in view of Raju et al. (2017/0111455 A1.) 4. Regarding claim 1, Lisiecki discloses “A system, comprising: a computing device for performing a test of a virtual media redirection process, the computing device comprising a processor and a storage device storing computer executable code, wherein the computer executable code, when executed at the processor, is configured to:” (See Fig.",
"1-6 and [0035]) (The managed storage site “obtain, from a media storage device, a media file to be redirected;” (See [0008]) (It is a primary object of the invention to provide persistent, replicated, networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.) “calculate a first checksum value for the media file being obtained; perform the virtual media redirection process;” (See [0033], [0137]) (The replication may check a computed checksum (e.g., an MD5) for the file so fetched against the checksum that was communicated in the log entry.) “calculate a second checksum value for the media file at the local path of the computing device; and validate the media file by matching the second checksum value with the first checksum value, wherein the media file is validated when the second checksum value matches with the first checksum value.” (See [0137]) (The replication engine may check a computed checksum for the file fetched against the checksum that was communicated in the log entry.",
"If this fails, the operation is retried. Preferably, all remote files are fetched using a cookie or other authentication mechanism and are retrieved using the wvfn directory path and the odfn filename. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism.) “perform the virtual media redirection process; and copy the media file to the local path of the computing device” (See Fig. 7 and [0016], (FIG. 7 shows how the content storage system uses storage site redirection if given content is not available at a particular storage site.",
"A given storage site has the capability of redirecting to another storage site a request for a given piece of content. If an edge server is directed to a site that has yet to receive the replica, that site issues a redirect (e.g., an HTTP 302) to another storage site that may have the content. The content is replicated from the given storage site to at least one other storage site. A replication engine, is used to retrieve content to be replicated from a site that has the content. Preferably a pull model for actually copying of the data from site to site is used. A push model may be implemented as well.) But, Lisiecki does not explicitly disclose “a universal USB interface”; “emulating a virtual media at a local path of the computing device via the USB interface” However, Maity teaches “a universal USB interface” “emulating a virtual media at a local path of the computing device via the USB interface” (See Fig. 4A-5B and [0036]) (The CPU 112, the memory 113, and the BMC 120 may be may be connected to the baseboard 111 through an interface.",
"The interface may be physical hardware interface such as electrical connectors, buses, ports, cables, terminals, or other I/O devices. Redirection module configured to emulate a virtual media to the host computer; receive a read command from the host computer and directed to the emulated virtual media, the read command specifying a first file; and in response to the read command, send a request for the first file according to the read command to the browser program through the Web Socket connection. FIGS.",
"4A and 4B show features of a web-based virtual media redirection according to certain embodiments of the present disclosure. As shown in FIG. 4A, the host computer 110 may include a USB port 115 as the I/O device. The BMC 120 may have a virtual media module 122 that communicates with the host computer 110 through a USB connection 121 established with the USB port 115 and that emulates a media storage to the host computer 110 through the USB connection 121. The USB connection allows the BMC 120 to emulate USB mass storage devices, such as a floppy, CD-ROM, or hard disk drive, to the host computer 110.) But, Lisiecki does not explicitly disclose “prior to performing the virtual media redirection process, determine whether a USB redirection connection exists for the computing device using the USB interface, and in response to determining that the USB redirections connection exists, disconnect the USB redirection connection prior to performing the virtual media redirection process:” However, Raju teaches ““prior to performing the virtual media redirection process, determine whether a USB redirection connection exists for the computing device using the USB interface, and in response to determining that the USB redirections connection exists, disconnect the USB redirection connection prior to performing the virtual media redirection process:” (See [0017]) (Remote desktop protocols (RDP) may allow redirection of USB devices. The invention provides an intelligent way to actively monitor the session of a user and to dynamically disconnect the USB device from a current active session and redirect the USB device to a different active session when the user moves or switches between sessions.",
"A user may also use virtual applications between different sessions and may seek to use the same USB devices between the virtual applications even though the applications may be running in different sessions. Dynamically disconnecting and redirecting the USB devices between active sessions and between different virtual applications running in multiple remote desktop sessions enables the user to access the redirected USB device in all remote desktop sessions and from all applications seamlessly. FIG. 3 is a flow chart, shown at 300, relating to preparation of the client 120 for redirection of a USB device 130.",
"The proxy client 206 registers with the operating system at the client 120 at step 302 for USB device 130 arrival notification. At step 304, the client 120, via proxy client 206, polls to determine if a USB device 130 is connected to client 120. Proxy client 206 may determine if a USB device 130 is connected or if a previously connected USB device 130 has been reset which causes the USB device to essentially simulate a plug-in/plug-out, a software simulation of a disconnect/re-connect. The user may use a GUI interface to inform the client that a USB device has been connected or the client may automatically detect without user intervention the connection of a USB device. The USB device driver may also inform an agent of the client that USB device has been connected.)",
"It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine Lisiecki (Distributed storage system for internet content with storage site redirection) in view of Maity (Method of performing a virtual media redirection) and further in view of Raju (Session aware USB redirection for multi-server applications), in order to improve the virtual media redirection speed in a baseboard management controller and to dynamically disconnect and redirect the USB devices to enable the user to access the redirected USB device in all remote desktop sessions and from all applications seamlessly.) Raju [0017] Regarding claim 2, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, wherein the media file is an ISO image file.” (See [0008]) (Media files include networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.)",
"Regarding claim 3, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, wherein the media file is a specific file in an ISO image file.” (See [0008]) (Media files include networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.) Regarding claim 4, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, wherein the computer executable code comprises: a virtual media redirection module, configured to perform the virtual media redirection process for the computing device by emulating the virtual media at the local path of the computing device, and to copy the media file to the local path; and a validation module configured to: obtain the media file to be redirected; (See [0012]) (Content providers upload their content, preferably using conventional client software (e.g., a file transfer protocol (FTP) client, the Rsync file transfer utility, or the like) to a given one of the storage locations that is optimal for the upload. The system may include an API (application programming interface) to support the addition of other upload protocols.)",
"“calculate the first checksum value for the media file being obtained; calculate the second checksum value for the media file at the local path of the computing device; and validate the media file by matching the second checksum value with the first checksum value.” (See [0137]) (The replication engine may check a computed checksum for the file fetched against the checksum that was communicated in the log entry. If this fails, the operation is retried. Preferably, all remote files are fetched using a cookie or other authentication mechanism and are retrieved using the wvfn directory path and the odfn filename. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism.) Regarding claim 5, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 4, wherein the validation module is an automated script module.” (See [0137], [0144]) (Preferably, all remote files are fetched using a cookie or other authentication mechanism.",
"The fetch engine preferably is authenticated with the local storage site using an authentication mechanism. Redundancy and fault tolerance are built into the components of the storage infrastructure. This is achieved by having redundant servers and network configurations with automatic failover, connectivity to multiple ISPs, high-availability storage hardware, content mirrored to multiple locations, and global traffic management.) Regarding claim 6, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 4, wherein the virtual media redirection module is a virtual media command line interface (VMCLI) module, configured to emulate the virtual media at the local path of the computing device via the (USB) interface.” (See [0012]) (The system may include an API (application programming interface) to support the addition of other upload protocols. Data is collected by the network agents and the web server agents and delivered to the map generation servers. The map generation servers analyze the data, and at least one map server produces a map that assigns name server IP address/blocks to regions.)",
"Regarding claim 7, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 6, further comprising: an evaluation board communicatively connected to the computing device via the USB interface for the test of the virtual media redirection process.” (See [0055]) (The web server agents 504 do test downloads to either all the web server IP addresses or to the local load balancing devices to test for availability or \"aliveness\" of the mirrored storage sites (i.e., per-datacenter mirror or web server). Typically, a web server agent tests an object, e.g., a twenty (20) byte file available on the web server via an HTTP GET request, and checks for errors and download times.)",
"Regarding claim 8, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 6, wherein the validation module is further configured to: prior to performing the virtual media redirection process, determine whether the USB redirection connection exists for the computing device; and in response to determining that the USB redirection connection exists, disconnect the USB redirection connection; prior to performing the virtual media redirection process.” (See Fig. 4A-5B [0010], [0056]) (Redirection module configured to emulate a virtual media to the host computer; receive a read command from the host computer and directed to the emulated virtual media.) Regarding claim 9, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 4, wherein the validation module is further configured to: generate a validation report based on a test result of the virtual media redirection process, wherein: the test result comprises information indicating the virtual media redirection process to be successful when the media file is validated; and the test result comprises information indicating the virtual media redirection process to be unsuccessful when the media file is not validated.” (See [0073]) (Apache can run on any (and indeed every) client machine in a storage region.",
"It is augmented preferably by two (2) plug-ins: one is for managing the download process, and the other for reporting monitoring information into an online monitoring function. The download plug-in preferably implements per-directory configuration and security. This information preferably includes: path prefix within which to locate the content for this directory on the NFS filesystem (i.e. the directory in the configuration is relative to this prefix); various security attributes (refer field checking, \"green-cookie\" authentication); other storage sites on which this content is replicated (i.e. which other domain to redirect request for content).",
"Regarding claim 10, Lisiecki in view of Maity and further in view of Raju discloses “The system as claimed in claim 1, further comprising: a client computing device communicatively connected to the computing device, wherein the media storage device is located at the client computing device.” (See Fig. 1-6) As per claim 11, this claim is rejected based on rationale given above for rejected claim 1 and is similarly rejected. As per claim 12, this claim is rejected based on rationale given above for rejected claim 5 and is similarly rejected. As per claim 13, this claim is rejected based on rationale given above for rejected claim 6 and is similarly rejected. As per claim 15, this claim is rejected based on rationale given above for rejected claim 9 and is similarly rejected. As per claim 16, this claim is rejected based on rationale given above for rejected claim 1 and is similarly rejected, including “A non-transitory computer readable medium storing computer executable code, wherein the computer executable code, when executed at a processor of a computing device for performing a test of a virtual media redirection process, is configured to:” (See Fig. 1-6) Regarding claim 17, Lisiecki in view of Maity and further in view of Raju discloses “The non-transitory computer readable medium as claimed in claim 16, wherein the computer executable code comprises: a virtual media redirection module, configured to perform the virtual media redirection process for the computing device by emulating a virtual media at the local path of the computing device, and to copy the media file to the local path; and a validation module configured to: obtain the media file to be redirected; calculate the first checksum value for the media file being obtained;” (See (Fig.",
"1-6) [0008]) (It is a primary object of the invention to provide persistent, replicated, networked storage of Internet content, e.g., graphics, images, HTML, streaming media files, software, and other digital objects.) “calculate the second checksum value for the media file at the local path of the computing device; and validate the media file by matching the second checksum value with the first checksum value;” (See [0033], [0137]) (Servers that copy files to multiple storage locations, servers that export the network filesystem to the front-end servers, and dual Internet Service Provider (ISP) connectivity.",
"The replication may check a computed checksum (e.g., an MD5) for the file so fetched against the checksum that was communicated in the log entry. (See [0137]) (The replication engine may check a computed checksum for the file fetched against the checksum that was communicated in the log entry. If this fails, the operation is retried. Preferably, all remote files are fetched using a cookie or other authentication mechanism and are retrieved using the wvfn directory path and the odfn filename. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism.)",
"“wherein the validation module is an automated script module.” (See [0137], [0144]) (Preferably, all remote files are fetched using a cookie or other authentication mechanism. The fetch engine preferably is authenticated with the local storage site using an authentication mechanism. Redundancy and fault tolerance are built into the components of the storage infrastructure.) As per claim 18, this claim is rejected based on rationale given above for rejected claim 6 and is similarly rejected. As per claim 19, this claim is rejected based on rationale given above for rejected claim 8 and is similarly rejected. As per claim 20, this claim is rejected based on rationale given above for rejected claim 9 and is similarly rejected. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRACY M MCGHEE whose telephone number is (313)446-6581. 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. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hosain Alam can be reached on 571 272-3978. 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. /TRACY M MCGHEE/Examiner, Art Unit 2154 /HOSAIN T ALAM/Supervisory Patent Examiner, Art Unit 2154"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-09-05.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments The Examiner acknowledges Applicant’s amendments and remarks filed on June 27, 2022. They have been fully considered but they are not sufficient to place the claims in condition for allowance. With respect to the rejection based on 35 U.S.C. 101, the amendments are not sufficient to overcome the rejection. The addition of “…receiving data associated with data processing operations that backup data stored in the data processing enterprise from one or more agents… that obtain energy consumption associated with the data processing operations…” merely indicates a source and type of data in the data gathering operation, and therefore fails to amount to anything more than insignificant extra-solution activity. The addition of a power conservation action “to adjust usage of electrical components within the data processing enterprise” also fails to overcome the rejection because it further describes the intent of the power conservation action without applying it. The final step of the method remains a step to generate a power conservation action. As indicated in the original Office Action, a person could “…evaluate criteria related to the power or performance of the system and make a judgment that a specified power conservation action ought to be taken. Without application of the power conservation action to the system, it remains a mere mental designation.” The addition of an “agent” and a power conservation “component” also fails to overcome the rejection because they merely indicate that a computer is used as a tool to perform an abstract idea (MPEP 2106.05(f)). With respect to the rejection based on 35 U.S.C. 112(b), the amendments are sufficient to overcome the rejection. However, Applicant’s amendments have necessitated new grounds for rejection due to new issues caused by the new language. With respect to the double patenting rejection, the Terminal Disclaimer filed on March 25, 2022 is sufficient to overcome the rejection. The double patenting rejection is therefore withdrawn. The Examiner reserves the right to apply additional double patenting rejections in the future if new amendments cause the claims to overlap in scope with claims of other references not included in the Terminal Disclaimer. With respect to the rejection based on prior art, the amendments are not sufficient to overcome the rejection. The addition of an “agent” and “components” are not sufficient to overcome the prior art because they are recited at such a high level of generality that the broadest reasonable interpretation includes anything and everything that is capable of performing the claimed functions (i.e., if a prior art reference teaches the functions, then it also teaches an “agent” or “component” that performs those functions). In addition, Belady also teaches that a power conservation action may include adjusting usage of electrical components within the data processing enterprise. Belady also teaches that the utilization of system resource may include monitoring the utilization of data storage devices [para. 0002]. Based on this teaching, it would have been obvious to one of ordinary skill in the art to monitor the backup of data stored in the data processing enterprise as part of the monitoring of the system utilization.
Information Disclosure Statement The information disclosure statement filed March 25, 2022 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered. Reference 76 and 77 (the European Search Report dated March 21, 2016 and the Chinese Office Action dated November 18, 2015) were not considered as copies of the references were not provided. Additionally, Reference 84 (International Search Report and Written Opinion) was listed with an incorrect date. The IDS indicated a date of March 2, 2010, whereas the copy provided indicated a date of June 22, 2009.
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, 3-8, and 21-32 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) an abstract idea comprising a step of generating a power conservation action. Generating a power conservation action, in and of itself, may be construed as a process that can be performed entirely in the human mind. A person could evaluate criteria related to the power or performance of the system and make a judgment that a specified power conservation action ought to be taken. Without application of the power conservation action to the system, it remains a mere mental designation. This judicial exception is not integrated into a practical application because the remaining limitations are either additional steps that may be performed mentally, or they represent insignificant extra-solution activity. The additional steps of receiving data associated with data processing operations and power requirements data (claim 1) amount to mere data gathering, which has been recognized by the courts as insignificant extra-solution activity (MPEP 2106.05(g)). Similar reasoning may be applied to claims 7 and 8, which further limit the data gathered. Claims 3-6 are additional steps that may be performed mentally because they are directed towards steps of scheduling operations, defining policies, or assigning operations to data processing components. Without specific application of the steps to the system, they may be construed as mental designations – e.g., mentally determining a schedule for an operation, mentally determining that an operation is assigned to a data processing component, etc. Similar reasoning may be applied to the determination as to whether the claims include additional elements that are sufficient to amount to significantly more than the judicial exception. The additional elements do not amount to significantly more than an abstract idea because they represent the insignificant extra-solution activity of data gathering. Additionally, the steps of receiving data associated with data processing operations and receiving power requirements data represent the court-recognized well-understood, routine, and conventional activity of receiving or transmitting data over a network (MPEP 2106.05(d)(II)). The amendments introduced to claim 1 and the new dependent claims also do integrate the judicial exception into a practical application because they merely recite further details about the type of data received or power conservation actions generated, thereby failing to recite anything beyond a mental process. As previously stated, merely generating a power conservation action does not apply it or make it effective, as “generating” may be interpreted as a decision or designation without application.
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 1-8 and 21-32 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 recites “one or more power conservation components executing on one or more computer processors” in lines 16-17. Claim 1 previously recited “one or more agents executing on one or more computer processors” in line 7. Both instances appear to be an original recitation of “one or more computer processors”. Therefore, it is unclear whether the agents and power conservation components are executing on the same or different one or more processors. If the same processors are in view, appropriate language should be employed to reference the earlier recitation (e.g., “said one or more processors”, “the one or more processors”). Otherwise, appropriate differentiating language should be employed (e.g., a first and second group of one or more processors, etc.). Claims 22 and 23 recite “the information” in line 4 and line 1, respectively. The Examiner notes several previous instances of information recited in claims 1 and 22. Therefore, it is unclear which information is being referenced by “the information” in claim 22, line 4 and claim 23, line 1. Claim 24 is rejected as being indefinite for reciting “similar” classes of devices and “similar” power consumption curves. “Similar” implies an indefinite range of variability, and the claims do not provide a frame of reference to limit when similarity no longer exists.
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 and 8 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Belady et al., U.S. Patent Application Publication No. 2006/0184287, in view of Ali et al., U.S. Patent No. 8,091,087. Regarding claim 1, Belady discloses a method comprising: receiving data associated with data processing operations of the data processing enterprise [Fig. 5: data center 500] from one or more agents executing on one or more computer processors that obtain energy consumption associated with the data processing operations within the data processing enterprise [Fig. 1, para. 0048, 0049: utilization monitor 105 and/or power management system 103], wherein the information related to data processing operations comprises information related to data processing operations to be performed, and information related to data processing operations completed [Fig. 6, 7, steps 602 and 702: future utilization data predicted based on collected utilization data], and receiving power requirements data, wherein the power requirements data includes a power threshold, or a redistribution of data processing operations to components to reduce power consumption [steps 703 and 704: desired capacity requirement dictates that excess resources are placed in a reduced power consumption mode, leaving remaining resource to execute processing, i.e., redistributing data processing operations to reduce power consumption]; and generating, with one or more power conservation components executing on one or more computer processors [Fig. 1: power management resource 103], at least one power conservation action based at least in part on the received data associated with the data processing operation and the received power requirements data [steps 703 and 704: reduced power consumption mode] to adjust usage of electrical components within the data processing enterprise to reduce power consumption associated with the data processing operations [para. 0053: processors placed into a reduced power consumption mode, i.e., processors are “electrical components”]. Belady does not teach that the data processing operations include backing up data stored in the data processing enterprise. Ali teaches that data processing operations include backing up data [col. 2, lines 47-52: “The backup server 108 is configured with instructions for calculating a current load of the media resource 106 as a function of the previously scheduled backup jobs 110 and the media resource 106. Additionally, the backup server 108 predicts a load value for the new backup job 102 as a function of job parameters associated with the new backup job 102.”]. It would have been obvious to one of ordinary skill in the art to combine the teachings of Belady and Ali by modifying Belady to include data backup operations in the data processing operations that of the data center. Belady discloses a process that determines utilization within a data center, and also teaches that utilization of system resources includes monitoring data storage devices [para. 0002]. Ali teaches that a load/utilization of a “media resource” [i.e., data storage devices, col. 1, lines 9-17], may include backup operations, and that such backup operations have a major impact on performance. Therefore, it would have been obvious to one of ordinary skill in the art to include backup operations as part of the utilization monitoring steps of Belady, based on Belady’s teaching that data storage devices are monitored, and Ali’s teaching that backup operations have a major impact on data storage utilization. Regarding claim 8, Belady teaches that the data associated with data processing operations comprises data related to performance of hardware components of the data processing enterprise [para. 0002: “Examples of resources typically found in computer systems include processors, input/output (I/O) devices, data storage devices, communication ports, displays, peripheral devices (e.g., printers, scanners, etc.), and so on.”].
Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JI H BAE whose telephone number is (571)272-7181. The examiner can normally be reached Tuesday to Friday and every other Monday, 9 am to 6 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, Jaweed Abbaszadeh can be reached on 571-270-1640. 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.
/JI H BAE/Primary Examiner, Art Unit 2187 U.S. Patent and Trademark Office Phone: 571-272-7181 Fax: 571-273-7181 ji.bae@uspto.gov | 2022-07-13T12:27:07 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Response to Arguments The Examiner acknowledges Applicant’s amendments and remarks filed on June 27, 2022. They have been fully considered but they are not sufficient to place the claims in condition for allowance. With respect to the rejection based on 35 U.S.C. 101, the amendments are not sufficient to overcome the rejection. The addition of “…receiving data associated with data processing operations that backup data stored in the data processing enterprise from one or more agents… that obtain energy consumption associated with the data processing operations…” merely indicates a source and type of data in the data gathering operation, and therefore fails to amount to anything more than insignificant extra-solution activity. The addition of a power conservation action “to adjust usage of electrical components within the data processing enterprise” also fails to overcome the rejection because it further describes the intent of the power conservation action without applying it. The final step of the method remains a step to generate a power conservation action. As indicated in the original Office Action, a person could “…evaluate criteria related to the power or performance of the system and make a judgment that a specified power conservation action ought to be taken. Without application of the power conservation action to the system, it remains a mere mental designation.” The addition of an “agent” and a power conservation “component” also fails to overcome the rejection because they merely indicate that a computer is used as a tool to perform an abstract idea (MPEP 2106.05(f)).",
"With respect to the rejection based on 35 U.S.C. 112(b), the amendments are sufficient to overcome the rejection. However, Applicant’s amendments have necessitated new grounds for rejection due to new issues caused by the new language. With respect to the double patenting rejection, the Terminal Disclaimer filed on March 25, 2022 is sufficient to overcome the rejection. The double patenting rejection is therefore withdrawn. The Examiner reserves the right to apply additional double patenting rejections in the future if new amendments cause the claims to overlap in scope with claims of other references not included in the Terminal Disclaimer.",
"With respect to the rejection based on prior art, the amendments are not sufficient to overcome the rejection. The addition of an “agent” and “components” are not sufficient to overcome the prior art because they are recited at such a high level of generality that the broadest reasonable interpretation includes anything and everything that is capable of performing the claimed functions (i.e., if a prior art reference teaches the functions, then it also teaches an “agent” or “component” that performs those functions).",
"In addition, Belady also teaches that a power conservation action may include adjusting usage of electrical components within the data processing enterprise. Belady also teaches that the utilization of system resource may include monitoring the utilization of data storage devices [para. 0002]. Based on this teaching, it would have been obvious to one of ordinary skill in the art to monitor the backup of data stored in the data processing enterprise as part of the monitoring of the system utilization. Information Disclosure Statement The information disclosure statement filed March 25, 2022 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered. Reference 76 and 77 (the European Search Report dated March 21, 2016 and the Chinese Office Action dated November 18, 2015) were not considered as copies of the references were not provided. Additionally, Reference 84 (International Search Report and Written Opinion) was listed with an incorrect date. The IDS indicated a date of March 2, 2010, whereas the copy provided indicated a date of June 22, 2009.",
"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, 3-8, and 21-32 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) an abstract idea comprising a step of generating a power conservation action. Generating a power conservation action, in and of itself, may be construed as a process that can be performed entirely in the human mind. A person could evaluate criteria related to the power or performance of the system and make a judgment that a specified power conservation action ought to be taken.",
"Without application of the power conservation action to the system, it remains a mere mental designation. This judicial exception is not integrated into a practical application because the remaining limitations are either additional steps that may be performed mentally, or they represent insignificant extra-solution activity. The additional steps of receiving data associated with data processing operations and power requirements data (claim 1) amount to mere data gathering, which has been recognized by the courts as insignificant extra-solution activity (MPEP 2106.05(g)). Similar reasoning may be applied to claims 7 and 8, which further limit the data gathered. Claims 3-6 are additional steps that may be performed mentally because they are directed towards steps of scheduling operations, defining policies, or assigning operations to data processing components. Without specific application of the steps to the system, they may be construed as mental designations – e.g., mentally determining a schedule for an operation, mentally determining that an operation is assigned to a data processing component, etc.",
"Similar reasoning may be applied to the determination as to whether the claims include additional elements that are sufficient to amount to significantly more than the judicial exception. The additional elements do not amount to significantly more than an abstract idea because they represent the insignificant extra-solution activity of data gathering. Additionally, the steps of receiving data associated with data processing operations and receiving power requirements data represent the court-recognized well-understood, routine, and conventional activity of receiving or transmitting data over a network (MPEP 2106.05(d)(II)). The amendments introduced to claim 1 and the new dependent claims also do integrate the judicial exception into a practical application because they merely recite further details about the type of data received or power conservation actions generated, thereby failing to recite anything beyond a mental process. As previously stated, merely generating a power conservation action does not apply it or make it effective, as “generating” may be interpreted as a decision or designation without application.",
"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 1-8 and 21-32 are rejected under 35 U.S.C.",
"112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 1 recites “one or more power conservation components executing on one or more computer processors” in lines 16-17. Claim 1 previously recited “one or more agents executing on one or more computer processors” in line 7. Both instances appear to be an original recitation of “one or more computer processors”.",
"Therefore, it is unclear whether the agents and power conservation components are executing on the same or different one or more processors. If the same processors are in view, appropriate language should be employed to reference the earlier recitation (e.g., “said one or more processors”, “the one or more processors”). Otherwise, appropriate differentiating language should be employed (e.g., a first and second group of one or more processors, etc.). Claims 22 and 23 recite “the information” in line 4 and line 1, respectively. The Examiner notes several previous instances of information recited in claims 1 and 22. Therefore, it is unclear which information is being referenced by “the information” in claim 22, line 4 and claim 23, line 1. Claim 24 is rejected as being indefinite for reciting “similar” classes of devices and “similar” power consumption curves.",
"“Similar” implies an indefinite range of variability, and the claims do not provide a frame of reference to limit when similarity no longer exists. 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 and 8 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Belady et al., U.S. Patent Application Publication No. 2006/0184287, in view of Ali et al., U.S. Patent No.",
"8,091,087. Regarding claim 1, Belady discloses a method comprising: receiving data associated with data processing operations of the data processing enterprise [Fig. 5: data center 500] from one or more agents executing on one or more computer processors that obtain energy consumption associated with the data processing operations within the data processing enterprise [Fig. 1, para. 0048, 0049: utilization monitor 105 and/or power management system 103], wherein the information related to data processing operations comprises information related to data processing operations to be performed, and information related to data processing operations completed [Fig.",
"6, 7, steps 602 and 702: future utilization data predicted based on collected utilization data], and receiving power requirements data, wherein the power requirements data includes a power threshold, or a redistribution of data processing operations to components to reduce power consumption [steps 703 and 704: desired capacity requirement dictates that excess resources are placed in a reduced power consumption mode, leaving remaining resource to execute processing, i.e., redistributing data processing operations to reduce power consumption]; and generating, with one or more power conservation components executing on one or more computer processors [Fig. 1: power management resource 103], at least one power conservation action based at least in part on the received data associated with the data processing operation and the received power requirements data [steps 703 and 704: reduced power consumption mode] to adjust usage of electrical components within the data processing enterprise to reduce power consumption associated with the data processing operations [para. 0053: processors placed into a reduced power consumption mode, i.e., processors are “electrical components”].",
"Belady does not teach that the data processing operations include backing up data stored in the data processing enterprise. Ali teaches that data processing operations include backing up data [col. 2, lines 47-52: “The backup server 108 is configured with instructions for calculating a current load of the media resource 106 as a function of the previously scheduled backup jobs 110 and the media resource 106. Additionally, the backup server 108 predicts a load value for the new backup job 102 as a function of job parameters associated with the new backup job 102.”]. It would have been obvious to one of ordinary skill in the art to combine the teachings of Belady and Ali by modifying Belady to include data backup operations in the data processing operations that of the data center. Belady discloses a process that determines utilization within a data center, and also teaches that utilization of system resources includes monitoring data storage devices [para. 0002]. Ali teaches that a load/utilization of a “media resource” [i.e., data storage devices, col. 1, lines 9-17], may include backup operations, and that such backup operations have a major impact on performance. Therefore, it would have been obvious to one of ordinary skill in the art to include backup operations as part of the utilization monitoring steps of Belady, based on Belady’s teaching that data storage devices are monitored, and Ali’s teaching that backup operations have a major impact on data storage utilization. Regarding claim 8, Belady teaches that the data associated with data processing operations comprises data related to performance of hardware components of the data processing enterprise [para.",
"0002: “Examples of resources typically found in computer systems include processors, input/output (I/O) devices, data storage devices, communication ports, displays, peripheral devices (e.g., printers, scanners, etc. ), and so on.”]. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to JI H BAE whose telephone number is (571)272-7181. The examiner can normally be reached Tuesday to Friday and every other Monday, 9 am to 6 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, Jaweed Abbaszadeh can be reached on 571-270-1640. 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. /JI H BAE/Primary Examiner, Art Unit 2187 U.S. Patent and Trademark Office Phone: 571-272-7181 Fax: 571-273-7181 ji.bae@uspto.gov"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-17.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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 . Claim Objections Claim 20 is objected to because of the following informalities: claim 20 refers to the second minimum angle but the second minimum angle was not previously introduced. Appropriate correction is required.
Claim Interpretation 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 unit in claims 12-18 and 23 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
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1-3,12 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Snyder et al (9,793,869), hereinafter, Snyder in view of Hanes (2019/0104365) hereinafter, Hanes further in view of Jacobsen et al (2011/0084900) hereinafter, Jacobsen.
In regards to claim 1, Snyder teaches (Currently Amended) a method for controlling a portable object comprising (abstract)
PNG media_image1.png 470 788 media_image1.png Greyscale
-increasing the strength of a signal emitted by the object in response to a clockwise, or respectively anti-clockwise, rotation of the object with respect to a first axis of rotation passing through the object,: (col. 3, lines 1-18) In FIG. 1A, a cylindrical top portion 106, comprising a top surface 101 and a top sidewall 102, encloses a base portion 104 and is continuously rotatable about base portion 104 in both the clockwise and counter-clockwise directions. Cylindrical top portion 106 is of a greater diameter than base portion 104, such that the top portion may rotate freely. Rotation of the cylindrical top portion about the base portion is configured to adjust the volume of a speaker, which is typically contained in the base station. For example, rotation of cylindrical top portion 106 in a clockwise direction may cause the volume of the speaker to be increased, while rotation of cylindrical top portion 106 in a counter-clockwise direction may cause the volume of the speaker to be decreased. A volume indicator 140 is further provided in order to indicate the current or user-selected volume level of the speaker, and in some embodiments, may be provided as one or more LEDs or other lighting elements.(col. 3, lines 1-18)
and said reduction of the strength of the signal being achieved through a reversal of the motion of the object which resulted in the increase of the signal. .(col. 3, lines 1-18) Snyder fails to teach: passage of the object from a standby state to an activated state is initiated in response to: • a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or • an agitation of the object in a back and forth motion. However, Hanes teaches -passage of the object from a standby state to an activated state is initiated in response to: • a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or [0026, 0038, 0043-0044] • an agitation of the object in a back and forth motion. [0043] First, the portable unit (130) can be shaken, for example, side to side, in any directions to trigger a wake or other signal to the host computer. Second, the portable unit (130) may also be tapped. Impacts to the exterior of the portable unit (130) will cause vibrations detectable by the motion sensor.
PNG media_image2.png 483 587 media_image2.png Greyscale
Synder fails to teach rotation of object as a unit. However, Jacobsen teaches rotation of object as a unit.(fig. 1c rotation about axis)[0015] set volume). Examiner notes [0046] which includes multiple sensors for detecting motion.
PNG media_image3.png 541 491 media_image3.png Greyscale
It would have been obvious to one of ordinary skill in the art to modify the teachings of Synder to further include rotation of object as a unit as taught by Jacobsen in order to a handheld, high-resolution, microdisplay device provides greater convenience and mobility and avoids the problems of wired and wireless video headsets [013]
In regards to claim 12, Snyder teaches (Currently Amended) a portable object having one or more faces, said object comprising (abstract): -a module for detecting displacements of the object comprising an accelerometer (fig. 7 (714)) -a loud-speaker and/or a screen and/or a vibration source : and -a processing unit configured and/or programmed to: (col. 3, lines 30-45) (fig. 7 (716)) • increase the strength of a signal emitted by the object in response to the detection, by the detection module, of a clockwise, or respectively anticlockwise, rotation of the object with respect to a first axis of rotation passing through the object, (col. 3, lines 1-18): • reduce the strength of a signal emitted by the object in response to the detection, by the detection module, of an anti-clockwise, or respectively clockwise, rotation of the object with respect to the first axis of rotation, (col. 3, lines 1-18): Snyder fails to teach: -initiate passage of the object from a standby state to an activated state in response to: - a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or - an agitation of the object in a back and forth motion. However, Hanes teaches and a gyrometer [0033] -passage of the object from a standby state to an activated state is initiated in response to: • a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or [0026, 0038, 0043-0044] Hanes • an agitation of the object in a back and forth motion. [0043] First, the portable unit (130) can be shaken, for example, side to side, in any directions to trigger a wake or other signal to the host computer. Second, the portable unit (130) It would have been obvious to one of ordinary skill in the art to modify the teachings of Snyder as taught by Hanes to further include a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or an agitation of the object in a back and forth motion as taught by Hanes in order to save power. Synder fails to teach rotation of object as a unit. However, Jacobsen teaches rotation of object as a unit.(fig. 1c rotation about axis)[0015] set volume) an energy storage unity (fig. 5 (524)). It would have been obvious to one of ordinary skill in the art to modify the teachings of Synder to further include rotation of object as a unit as taught by Jacobsen in order to a handheld, high-resolution, microdisplay device provides greater convenience and mobility and avoids the problems of wired and wireless video headsets [013]
In regards to claim 2, Synder in views of Hanes and Jacobsen teaches (Currently Amended) method according to claim 1, characterized in that the signal emitted by the object is: -a sound signal, or -an optical signal, or -a vibration signal, or -an olfactory signal, or -a radio signal. (col. 3, lines 1-18 volume) Synder In regards to claim 3, Synder in views of Hanes and Jacobsen teaches (Currently Amended) claim 1 characterized in that passage of the object from an activated state to a standby state is initiated in response to a rotation of the object by an angle greater than or equal to a second minimum angle value with respect to a second axis of rotation passing through the object.[0034-0038] Any angle Hanes
2. In regards to claim 19, Synder in views of Hanes and Jacobsen teaches (New) The object of claim 12, wherein said object is a cube, and said first axis of rotation passes through the cube and is oriented vertically.(fig. 1c vertical) Jacobson
Claims 4-5, 13-14 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Snyder et al (9,793,869), hereinafter, Snyder in view of Hanes (2019/0104365) hereinafter, Hanes and Jacobson further in view of Arlinsky et al (2003/0148700) hereinafter, Arlinsky.
In regards to claim 4, Synder and Hanes as modified by Jacobnsen in views of Arlinsky teaches characterized in that reading of an item of media content by the object is initiated in response to an agitation of the object,. [0026, 0038, 0043-0044] Hanes Synder and Hanes fail to teach the item of media content read being associated with a face of the object oriented upwards [006-0018]. It would have been obvious to one of ordinary skill in the art to modify the teachings of Snyder and Hanes to further include the item of media content read being associated with a face of the object oriented upwards as taught by Arlinsky in order teach toddlers. In regards to claim 5, Synder and Hanes as modified by Jacobnsen in views of Arlinsky in views of Hanes teaches method according to claim 4, characterized in that an item of media content being read is indexed in a dedicated folder in response to a displacement of the object according to a particular predefined trajectory.[006, 0014, 0023-0024] Arlinsky In regards to claim 13, Synder and Hanes as modified by Jacobnsen in views of Arlinsky in views of Hanes teaches object according to claim 12 see rational of claim 4, characterized in In regards to claim 14, Synder and Hanes as modified by Jacobnsen in views of Arlinsky see rational of claim 4, in views of Hanes teaches characterized in that the face of the object oriented upwards is parallel to a horizontal plane, and in that the first axis of rotation is perpendicular to said face oriented upwards [0014, 0023] Arlinsky. In regards to claim 18, Synder and Hanes as modified by Jacobnsen in views of Arlinsky see rational of claim 4, (Currently Amended) -a transceiver arranged to be connected to a remote emitter of an external device, (fig. 1 104) Hanes-an electronic memory ; and the processing unit being configured and/or programmed to read items of media content from data emitted by the remote emitter and/or from the electronic memory. [0014, 0023] Arlinsky.
Claim 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arlinsky et al (2003/0148700) hereinafter Arlinsky in view of Lyons (2018/0188831) hereinafter, Lyons and Jacobsen et al (2011/0084900) hereinafter, Jacobsen.
In regards to claim 23, Arlinsky teaches (New) a portable object having one or more faces, said object comprising: -an energy storage unit;(fig. 2 (9))
PNG media_image4.png 304 590 media_image4.png Greyscale
-a module for detecting displacements of the object comprising an accelerometer [0057] -a loud-speaker (fig. 2 (13)) and/or a screen and/or a vibration source; and -a processing unit configured (fig. 2 (8)) and/or programmed to: Arlinsky fails to teach • increase the strength of a signal emitted by the object in response to the detection, by the detection module, of a clockwise, or respectively anti-clockwise, rotation of the object as a unit with respect to a first axis of rotation passing through the object, • reduce the strength of a signal emitted by the object in response to the detection, by the detection module, of an anti-clockwise, or respectively clockwise, rotation of the object as a unit with respect to the first axis of rotation, such reduction of the strength of the signal being achieved by a reverse motion of the object compared to the motion resulting in the increase in strength of the signal, However, Lyons teaches increase the strength of a signal emitted by the object in response to the detection, by the detection module, of a clockwise, or respectively anti-clockwise, rotation of the object as a unit with respect to a first axis of rotation passing through the object,[107]
PNG media_image5.png 703 777 media_image5.png Greyscale
• [0107] In other cases, the association may be manually-selected (e.g. through interaction with a menu on the display of the computing device) or may be enabled through interaction with the three-dimensional object itself. For example, clicking, squeezing, or moving the object in a particular fashion (e.g. to spell a "Z" in the air) may cause the object to take control over a "zoom" function within the interface or to take control over the audio volume of the associated application, or to select a paintbrush within an application. The actions and or movement may be previously-determined by the application itself or may be user-programmable. In this way, the object may act as a "mouse" or as some other interactive element for any number of applications. For example, a click, and a twist (rotation around a Y axis) may cause the object to act (and to visually appear in the display of the associated application) as a volume knob. As it is turned to the right, audio volume may increase. As it is turned to the left, volume may decrease, in much the same fashion as a typical volume knob, all the while the user is actually merely holding a cube with six-faces including different fiducial markers.
reduce the strength of a signal emitted by the object in response to the detection, by the detection module, of an anti-clockwise, or respectively clockwise, rotation of the object as a unit with respect to the first axis of rotation, such reduction of the strength of the signal being achieved by a reverse motion of the object compared to the motion resulting in the increase in strength of the signal,[107]. It would have been obvious to one of ordinary skill in the art to modify the teachings of Arlinsky to further include the signal control as taught by Lyons in order to give the feel of a tradition volume knob [0107]. Arlinsky and Lyons fails to teach a gyroscope and • initiate passage of the object from a standby state to an activated state in response to: a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or an agitation of the object in a back and forth motion; and the face of the object oriented upwards is parallel to a horizontal plane, and in that the first axis of rotation is perpendicular to said face oriented upwards. However, Hanes teaches a gyroscope and • initiate passage of the object from a standby state to an activated state in response to:a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or an agitation of the object in a back and forth motion; and the face of the object oriented upwards is parallel to a horizontal plane, and in that the first axis of rotation is perpendicular to said face oriented upwards. [0026, 0038, 0043-0044] [0043] It would have been obvious to one of ordinary skill in the art to modify the teachings of Snyder as taught by Hanes to further include a rotation of the object by an angle greater than .
Response to Arguments Applicant’s arguments with respect to claim(s) 1-5, 12-18 have been considered but are moot because the new ground of rejection does not rely on any combination of reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. With respect to Applicant’s comments to using an accelerometer and a gyrometer. Examiner believes it is well within the purview to combine the teachings of the respective references to bring in their respective sensor however, [0046] Jacobsen teaches using multiple sensors. Examiner believes these comments are also relevant to the disabling of Synder and the accelerometer. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Allowable Subject Matter Claims 6-11,20, 21 and 22 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. 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 GRANT SITTA whose telephone number is (571)270-1542. The examiner can normally be reached on M-F 7:30-4:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Patrick Edouard can be reached on 571-272-7603. 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
/GRANT SITTA/Primary Examiner, Art Unit 2694 | 2021-03-26T06:44:58 | [
"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 . Claim Objections Claim 20 is objected to because of the following informalities: claim 20 refers to the second minimum angle but the second minimum angle was not previously introduced. Appropriate correction is required. Claim Interpretation 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 unit in claims 12-18 and 23 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 Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1-3,12 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Snyder et al (9,793,869), hereinafter, Snyder in view of Hanes (2019/0104365) hereinafter, Hanes further in view of Jacobsen et al (2011/0084900) hereinafter, Jacobsen. In regards to claim 1, Snyder teaches (Currently Amended) a method for controlling a portable object comprising (abstract) PNG media_image1.png 470 788 media_image1.png Greyscale -increasing the strength of a signal emitted by the object in response to a clockwise, or respectively anti-clockwise, rotation of the object with respect to a first axis of rotation passing through the object,: (col. 3, lines 1-18) In FIG.",
"1A, a cylindrical top portion 106, comprising a top surface 101 and a top sidewall 102, encloses a base portion 104 and is continuously rotatable about base portion 104 in both the clockwise and counter-clockwise directions. Cylindrical top portion 106 is of a greater diameter than base portion 104, such that the top portion may rotate freely. Rotation of the cylindrical top portion about the base portion is configured to adjust the volume of a speaker, which is typically contained in the base station. For example, rotation of cylindrical top portion 106 in a clockwise direction may cause the volume of the speaker to be increased, while rotation of cylindrical top portion 106 in a counter-clockwise direction may cause the volume of the speaker to be decreased.",
"A volume indicator 140 is further provided in order to indicate the current or user-selected volume level of the speaker, and in some embodiments, may be provided as one or more LEDs or other lighting elements.(col. 3, lines 1-18) and said reduction of the strength of the signal being achieved through a reversal of the motion of the object which resulted in the increase of the signal. . (col. 3, lines 1-18) Snyder fails to teach: passage of the object from a standby state to an activated state is initiated in response to: • a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or • an agitation of the object in a back and forth motion. However, Hanes teaches -passage of the object from a standby state to an activated state is initiated in response to: • a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or [0026, 0038, 0043-0044] • an agitation of the object in a back and forth motion.",
"[0043] First, the portable unit (130) can be shaken, for example, side to side, in any directions to trigger a wake or other signal to the host computer. Second, the portable unit (130) may also be tapped. Impacts to the exterior of the portable unit (130) will cause vibrations detectable by the motion sensor. PNG media_image2.png 483 587 media_image2.png Greyscale Synder fails to teach rotation of object as a unit. However, Jacobsen teaches rotation of object as a unit.(fig. 1c rotation about axis)[0015] set volume). Examiner notes [0046] which includes multiple sensors for detecting motion. PNG media_image3.png 541 491 media_image3.png Greyscale It would have been obvious to one of ordinary skill in the art to modify the teachings of Synder to further include rotation of object as a unit as taught by Jacobsen in order to a handheld, high-resolution, microdisplay device provides greater convenience and mobility and avoids the problems of wired and wireless video headsets [013] In regards to claim 12, Snyder teaches (Currently Amended) a portable object having one or more faces, said object comprising (abstract): -a module for detecting displacements of the object comprising an accelerometer (fig. 7 (714)) -a loud-speaker and/or a screen and/or a vibration source : and -a processing unit configured and/or programmed to: (col. 3, lines 30-45) (fig.",
"7 (716)) • increase the strength of a signal emitted by the object in response to the detection, by the detection module, of a clockwise, or respectively anticlockwise, rotation of the object with respect to a first axis of rotation passing through the object, (col. 3, lines 1-18): • reduce the strength of a signal emitted by the object in response to the detection, by the detection module, of an anti-clockwise, or respectively clockwise, rotation of the object with respect to the first axis of rotation, (col. 3, lines 1-18): Snyder fails to teach: -initiate passage of the object from a standby state to an activated state in response to: - a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or - an agitation of the object in a back and forth motion. However, Hanes teaches and a gyrometer [0033] -passage of the object from a standby state to an activated state is initiated in response to: • a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or [0026, 0038, 0043-0044] Hanes • an agitation of the object in a back and forth motion. [0043] First, the portable unit (130) can be shaken, for example, side to side, in any directions to trigger a wake or other signal to the host computer. Second, the portable unit (130) It would have been obvious to one of ordinary skill in the art to modify the teachings of Snyder as taught by Hanes to further include a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or an agitation of the object in a back and forth motion as taught by Hanes in order to save power.",
"Synder fails to teach rotation of object as a unit. However, Jacobsen teaches rotation of object as a unit.(fig. 1c rotation about axis)[0015] set volume) an energy storage unity (fig. 5 (524)). It would have been obvious to one of ordinary skill in the art to modify the teachings of Synder to further include rotation of object as a unit as taught by Jacobsen in order to a handheld, high-resolution, microdisplay device provides greater convenience and mobility and avoids the problems of wired and wireless video headsets [013] In regards to claim 2, Synder in views of Hanes and Jacobsen teaches (Currently Amended) method according to claim 1, characterized in that the signal emitted by the object is: -a sound signal, or -an optical signal, or -a vibration signal, or -an olfactory signal, or -a radio signal.",
"(col. 3, lines 1-18 volume) Synder In regards to claim 3, Synder in views of Hanes and Jacobsen teaches (Currently Amended) claim 1 characterized in that passage of the object from an activated state to a standby state is initiated in response to a rotation of the object by an angle greater than or equal to a second minimum angle value with respect to a second axis of rotation passing through the object. [0034-0038] Any angle Hanes 2. In regards to claim 19, Synder in views of Hanes and Jacobsen teaches (New) The object of claim 12, wherein said object is a cube, and said first axis of rotation passes through the cube and is oriented vertically.(fig. 1c vertical) Jacobson Claims 4-5, 13-14 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Snyder et al (9,793,869), hereinafter, Snyder in view of Hanes (2019/0104365) hereinafter, Hanes and Jacobson further in view of Arlinsky et al (2003/0148700) hereinafter, Arlinsky. In regards to claim 4, Synder and Hanes as modified by Jacobnsen in views of Arlinsky teaches characterized in that reading of an item of media content by the object is initiated in response to an agitation of the object,. [0026, 0038, 0043-0044] Hanes Synder and Hanes fail to teach the item of media content read being associated with a face of the object oriented upwards [006-0018].",
"It would have been obvious to one of ordinary skill in the art to modify the teachings of Snyder and Hanes to further include the item of media content read being associated with a face of the object oriented upwards as taught by Arlinsky in order teach toddlers. In regards to claim 5, Synder and Hanes as modified by Jacobnsen in views of Arlinsky in views of Hanes teaches method according to claim 4, characterized in that an item of media content being read is indexed in a dedicated folder in response to a displacement of the object according to a particular predefined trajectory. [006, 0014, 0023-0024] Arlinsky In regards to claim 13, Synder and Hanes as modified by Jacobnsen in views of Arlinsky in views of Hanes teaches object according to claim 12 see rational of claim 4, characterized in In regards to claim 14, Synder and Hanes as modified by Jacobnsen in views of Arlinsky see rational of claim 4, in views of Hanes teaches characterized in that the face of the object oriented upwards is parallel to a horizontal plane, and in that the first axis of rotation is perpendicular to said face oriented upwards [0014, 0023] Arlinsky.",
"In regards to claim 18, Synder and Hanes as modified by Jacobnsen in views of Arlinsky see rational of claim 4, (Currently Amended) -a transceiver arranged to be connected to a remote emitter of an external device, (fig. 1 104) Hanes-an electronic memory ; and the processing unit being configured and/or programmed to read items of media content from data emitted by the remote emitter and/or from the electronic memory. [0014, 0023] Arlinsky. Claim 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arlinsky et al (2003/0148700) hereinafter Arlinsky in view of Lyons (2018/0188831) hereinafter, Lyons and Jacobsen et al (2011/0084900) hereinafter, Jacobsen.",
"In regards to claim 23, Arlinsky teaches (New) a portable object having one or more faces, said object comprising: -an energy storage unit;(fig. 2 (9)) PNG media_image4.png 304 590 media_image4.png Greyscale -a module for detecting displacements of the object comprising an accelerometer [0057] -a loud-speaker (fig. 2 (13)) and/or a screen and/or a vibration source; and -a processing unit configured (fig. 2 (8)) and/or programmed to: Arlinsky fails to teach • increase the strength of a signal emitted by the object in response to the detection, by the detection module, of a clockwise, or respectively anti-clockwise, rotation of the object as a unit with respect to a first axis of rotation passing through the object, • reduce the strength of a signal emitted by the object in response to the detection, by the detection module, of an anti-clockwise, or respectively clockwise, rotation of the object as a unit with respect to the first axis of rotation, such reduction of the strength of the signal being achieved by a reverse motion of the object compared to the motion resulting in the increase in strength of the signal, However, Lyons teaches increase the strength of a signal emitted by the object in response to the detection, by the detection module, of a clockwise, or respectively anti-clockwise, rotation of the object as a unit with respect to a first axis of rotation passing through the object,[107] PNG media_image5.png 703 777 media_image5.png Greyscale • [0107] In other cases, the association may be manually-selected (e.g.",
"through interaction with a menu on the display of the computing device) or may be enabled through interaction with the three-dimensional object itself. For example, clicking, squeezing, or moving the object in a particular fashion (e.g. to spell a \"Z\" in the air) may cause the object to take control over a \"zoom\" function within the interface or to take control over the audio volume of the associated application, or to select a paintbrush within an application. The actions and or movement may be previously-determined by the application itself or may be user-programmable. In this way, the object may act as a \"mouse\" or as some other interactive element for any number of applications.",
"For example, a click, and a twist (rotation around a Y axis) may cause the object to act (and to visually appear in the display of the associated application) as a volume knob. As it is turned to the right, audio volume may increase. As it is turned to the left, volume may decrease, in much the same fashion as a typical volume knob, all the while the user is actually merely holding a cube with six-faces including different fiducial markers. reduce the strength of a signal emitted by the object in response to the detection, by the detection module, of an anti-clockwise, or respectively clockwise, rotation of the object as a unit with respect to the first axis of rotation, such reduction of the strength of the signal being achieved by a reverse motion of the object compared to the motion resulting in the increase in strength of the signal,[107]. It would have been obvious to one of ordinary skill in the art to modify the teachings of Arlinsky to further include the signal control as taught by Lyons in order to give the feel of a tradition volume knob [0107].",
"Arlinsky and Lyons fails to teach a gyroscope and • initiate passage of the object from a standby state to an activated state in response to: a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or an agitation of the object in a back and forth motion; and the face of the object oriented upwards is parallel to a horizontal plane, and in that the first axis of rotation is perpendicular to said face oriented upwards. However, Hanes teaches a gyroscope and • initiate passage of the object from a standby state to an activated state in response to:a rotation of the object by an angle greater than or equal to a first minimum angle value with respect to an axis of rotation passing through the object, and/or an agitation of the object in a back and forth motion; and the face of the object oriented upwards is parallel to a horizontal plane, and in that the first axis of rotation is perpendicular to said face oriented upwards.",
"[0026, 0038, 0043-0044] [0043] It would have been obvious to one of ordinary skill in the art to modify the teachings of Snyder as taught by Hanes to further include a rotation of the object by an angle greater than . Response to Arguments Applicant’s arguments with respect to claim(s) 1-5, 12-18 have been considered but are moot because the new ground of rejection does not rely on any combination of reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. With respect to Applicant’s comments to using an accelerometer and a gyrometer. Examiner believes it is well within the purview to combine the teachings of the respective references to bring in their respective sensor however, [0046] Jacobsen teaches using multiple sensors. Examiner believes these comments are also relevant to the disabling of Synder and the accelerometer. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references.",
"Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Allowable Subject Matter Claims 6-11,20, 21 and 22 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. 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 GRANT SITTA whose telephone number is (571)270-1542. The examiner can normally be reached on M-F 7:30-4:00.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Patrick Edouard can be reached on 571-272-7603. 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 /GRANT SITTA/Primary Examiner, Art Unit 2694"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1736516
Decision Date: 08/31/17 Archive Date: 09/06/17
DOCKET NO. 13-28 671 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for major depressive disorder (MDD) from June 3, 2010, to July 21, 2015, and in excess of 50 percent thereafter.
2. Entitlement to total disability due to individual unemployability based on service-connected disabilities on an extra-schedular basis under 38 C.F.R. § 4.16(b) (2016).
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Leifert, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1966 to September 1968, and from November 1990 to May 1991.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the San Juan, Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded an increased rating of 30 percent, but no higher, for MDD, effective June 3, 2010.
In September 2015, the RO increased the disability rating to 50 percent for MDD, effective July 21, 2015, creating a staged rating as indicated on the title page. The Veteran did not indicate satisfaction with the grant of this rating, and the issue therefore remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise).
In November 2016, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file.
The Veteran has alleged an inability to retain employment due, in part, to his service-connected MDD. See, e.g., the VA Form 21-8940 dated November 2015 and November 2016 Hearing. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans' Claim (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In a February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to a TDIU. However, regardless of the adjudication of the formal TDIU claim, the issue of entitlement to a TDIU is part and parcel of the claim for an increased rating for MDD that is before the Board. See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).
The issue of a TDIU on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.
FINDING OF FACT
From June 3, 2010, the symptoms and overall impairment from his MDD have more nearly approximated occupational and social impairment with reduced reliability and productivity, but have not more nearly approximated occupational and social impairment with deficiencies in most areas.
CONCLUSIONS OF LAW
1. The criteria for a rating of 50 percent, but not higher, for MDD, from June 3, 2010, to July 21, 2015, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 (2016).
2. The criteria for a rating in excess of 50 percent for MDD, from July 21, 2015, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014 and Supp. 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. In this case, VA provided adequate notifications about the information and evidence necessary to substantiate the claim in a June 2010 letter.
VA's duty to assist the Veteran in the development of his claim includes assisting him in the procurement of service treatment records (STRs) and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records.
VA provided adequate medical examinations and opinions for the Veteran's claim adjudicated herein. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In June 2010, August 2013, and July 2015, the Veteran was afforded VA examinations for his psychiatric disorder. As indicated by the discussion below, these examination reports include responsive medical opinions and clinical findings and are therefore adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).
Accordingly, the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) are satisfied.
II. Analysis
Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155.
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran is currently rated as 30 percent disabling from June 3, 2010, to July 21, 2015, and as 50 percent disabling from July 21, 2015, under 38 C.F.R. § 4.130, DC 9434.
Under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).
A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411.
A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a work like setting); and inability to establish and maintain effective relationships. Id.
A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).
The Board has considered the GAF scores assigned during the claim period. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DSM-IV at 32). The Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders, including 38 C.F.R. § 4.130, to remove outdated references to the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See Final Rule, Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). As the provisions of this amendment were not intended to apply to claims that had been certified for appeal to the Board on or before August 4, 2014, see id., and this case was certified in February 2014, the Board will not consider them in this decision.
GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Further, GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
The GAF score assigned in a case, however, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a).
VA treatment records in 2010 reflect that the Veteran was divorced, childless and lived with his sister and mother. The Veteran reported that he had been sleeping and eating well. He denied any acute depression, anxiety, or psychosis. He denied suicidal or homicidal ideation, intention or plan; auditory or visual hallucinations; delusions; or mania symptoms. His appearance, grooming, and hygiene were adequate; he was appropriately dressed; he had good eye contact; and he was cooperative. He showed no retardation, tics, or abnormal involuntary movements. His speech was spontaneous with adequate volume and production, his mood was euthymic, his affect constricted, and his thought process coherent. He had no auditory or visual hallucinations, and no illusions or delusions. He was alert and oriented, and his insight and judgment were good. He had a diagnosis of recurrent severe MDD with psychotic features, and was assigned a GAF score of 60.
An August 2010 VA examination report indicates that the Veteran had moderately severe sad moods every day since he was discharge from service, with episodes of irritability and anger two to three times per week. He was clean and casually dressed, restless and tense, and his speech was rapid but clear. He was cooperative, attentive, his affect was constricted, his mood anxious and depressed, and he was easily distracted. He was unable to do the serial sevens and spell a word forward and backward. He was oriented and alert, his thought content had an overabundance of ideas and circumstantiality, and he was preoccupied with one or two topics. He experienced sleeping impairment, and he felt ill-humored and tired the next day. He did not have any hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, suicidal or homicidal ideation, or episodes of violence. His impulse control was good, his remote memory was normal, but his immediate memory was mildly impaired. He had a diagnosis of recurrent moderate to severe MDD with anxiety, controlled by continuous medication, and with a GAF score of 60.
VA treatment records from 2010 to 2013 document that the Veteran was unemployed, divorced, childless, and lived with his mother and sister. The Veteran experienced stressors due to his mother's and sister's illnesses and economic difficulties. He occasionally had anxiety and low mood. He complained of memory difficulties, and his psychiatrist noted he had difficulties with orientation and recent memory. He had a friend who was supportive and he attended the Veteran Center, which he found to be helpful. He denied suicidal or homicidal ideation, auditory or visual hallucinations, delusions, and mania symptoms. His grooming and hygiene were adequate, he had good eye contact, he was cooperative, he had no psychomotor retardation or abnormal involuntary movements, his speech was spontaneous with adequate volume and production, his affect was appropriate, and he was worried. His thought process was coherent, goal directed, relevant, and with no racing thoughts. He was alert, his insight was good, and his judgment was fair. He had a diagnosis of recurrent severe MDD with psychotic features and generalized anxiety disorder. He was assigned GAF scores of 50, 55, and 60.
An August 2013 VA examination report reflects a diagnosis of MDD. The Veteran still lived with his mother and sister, and currently exhibited symptoms of depressed mood. The examiner noted that the Veteran was coherent, logical, and relevant during the interview; and that he had not experienced a significant decrease in functionality, been hospitalized, or had a psychological crisis since his last examination. There had been no changes in medication or hospitalization in the past year. The examiner assigned a GAF score of 60, which was compatible with a mild to moderate condition.
VA treatment records in 2014 and 2015 document that the Veteran was unemployed, divorced, childless, and lived with his mother and sister. The Veteran experienced stressors due to his mother's and sister's illnesses and economic difficulties. He occasionally had anxiety and low mood. He continued to complain of memory problems. He had a friend who was supportive and he attended the Veteran Center, which he found to be helpful. He denied suicidal or homicidal ideation, auditory or visual hallucinations, delusions, and mania symptoms. His grooming and hygiene were adequate, he had good eye contact, he was cooperative, he had no psychomotor retardation or abnormal involuntary movements, his speech was spontaneous, his affect was appropriate, and he was worried. His thought process was coherent, goal directed, and relevant. He was alert, his insight was good, and his judgment was fair. He had a diagnosis of recurrent severe MDD with psychotic features and generalized anxiety disorder. He was assigned a GAF score of 50.
A July 2015 VA examination report reflects a diagnosis of MDD with occupational and social impairment due to mild or transient symptoms. The Veteran reported that he lived with his sister, whom he described as very supportive. He also stated that he had no significant interpersonal relationships, and that he was divorced and childless. The Veteran stated that he had been very active in his church activities. He reported that his mother had passed away four months ago, that he had been feeling sad, and had had problems sleeping. He endorsed low motivation since a long time ago. The examiner noted that he was well nourished, had adequate hygiene, was cooperative, and had good eye contact. He was alert, oriented, and aware. There was no evidence of psychomotor abnormalities, his speech was clear with appropriate volume, his mood was mildly depressed, and his affect was appropriate to his mood. The examiner found that he was in full contact with reality; and that there was no evidence of hallucinations, suicidal or homicidal ideations, or delusions. He presented some recent memory difficulties but otherwise his cognitive functions were good; but his insight and judgment were superficial. He exhibited symptoms of depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.
A January 2016 VA examination report indicates a diagnosis of recurrent moderate MDD and unspecified neurocognitive disorder. The examiner noted that while these were distinct diagnoses, depressive disorders were risk factors for neurocognitive disorders and could precipitate and/or exacerbate them. Further, the examiner noted that some symptoms could overlap. The Veteran reported that he was divorced, childless, and lived with his sister with whom he had a good relationship. His current symptoms were depressed mood, mild memory loss, flattened affect, and disturbances of motivation and mood. The Veteran was alert, coherent, and oriented. He denied suicidal and homicidal ideations, hallucinations, and delusions. His insight and judgment were good, his mood depressed, and his affect congruent with his mood.
Upon review of the evidence of record, the Board finds that a disability rating of 50 percent, but no higher, from June 3, 2010, is warranted.
From June 3, 2010, the evidence shows that the Veteran experienced mild memory impairment in August 2010, November 2013, May 2015, July 2015, and January 2016. Further, he exhibited symptoms of depressed mood; anxiety; sleep impairment; and flattened, constricted, or depressed affect. While the August 2010 and August 2013 VA examiners did not find that he had difficulty establishing and maintaining effective work and social relationships, the evidence shows that the Veteran only related to his family and that he had one friend. In addition, the Board notes that the Veteran's diagnosis has remained constant from June 2010, with a diagnosis of moderate to severe MDD with psychotic features and generalized anxiety disorder. These findings reflect that the symptoms and overall impairment caused by the Veteran's MDD more nearly approximates the criteria for a 50 percent rating.
The symptoms and overall impairment did not, however, more nearly approximate the criteria for a rating of 70 percent or higher. As stated above, the Veteran got along well with his sister, had one friend, and was engaged with his church. He also denied panic attacks, and suicidal or homicidal ideations. Further, the VA examiners noted that the Veteran had normal thought process and impulse control, good personal hygiene, was oriented to time and place, and had normal speech. In addition, the VA examiners and VA psychiatrists found that the Veteran's MDD was stable. However, an examiner's characterization of the level of disability is not binding on the Board. 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present"); VA Adjudication Procedures Manual, M21-1, Part III, Subpart iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity"). The above evidence reflects that while the symptoms and overall impairment approximated the criteria for a 50 percent rating, the Veteran did not have the required "sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio, 713 F.3d at 118.
Notably, the assigned GAF scores of 50, 55, and 60 are consistent with a 50 percent rating. Under the DSM-IV, GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job), and scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. As stated above, GAF scores are not dispositive and, rather, must be considered in light of the actual symptoms of the Veteran's disorder. Here, the Veteran exhibited GAF scores ranging between 50 and 60, during which time he endorsed chronic sleep impairment, depression, and memory loss. The GAF scores are therefore consistent with the other evidence, which, for the reasons above, warrants a rating of 50 percent, but no higher.
As such, a disability rating of 50 percent, but not higher, from June 3, 2010, is warranted. 38 C.F.R. § 4.130, DC 9434.
The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the AOJ refer the claim for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2016). Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment or frequent hospitalization. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.
The Board finds that the rating criteria specifically contemplate the Veteran's disabilities. Here, the Veteran's psychiatric disorder is fully contemplated in the rating criteria. The Veteran claims to experience depression, memory loss, difficulty in establishing and maintaining effective relationships, and sleep impairment, which are all explicitly considered in the rating schedule. Moreover, as indicated by the cases cited above, the criteria in the general rating formula for mental disorders include both the symptoms listed as symptoms "such as" those listed, along with the overall impairment caused by these symptoms. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. As the criteria contemplate the Veteran's symptoms, consideration of whether there is marked interference with employment or frequent hospitalization is not required.
Further, in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities.") The Board will therefore not address the issue further.
For the foregoing reasons, a rating of 50 percent, but no higher, for MDD, from June 3, 2010 to July 21, 2015, is warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
ORDER
Entitlement to a rating of 50 percent, but not higher, for MDD, from June 3, 2010, to July 21, 2015, is granted.
Entitlement to a rating in excess of 50 percent for MDD, from July 21, 2015, is denied.
REMAND
After review of the evidence of record, the Board finds that a remand is necessary for further development of the claim for a TDIU.
The Board notes that the Veteran is only service-connected for his MDD, currently rated as 50 percent disabling. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). As such, the Veteran does not meet the schedular criteria for entitlement to a TDIU.
However, the collective evidence of record reflects that the Veteran has been unemployed for more than 20 years and suggests that his service-connected disability may prevent him from securing or following a substantially gainful occupation. Specifically, the January 2016 VA examiner, in addition to MDD, diagnosed the Veteran with a cognitive disorder (characterized as unspecified neurocognitive disorder) and attributed symptoms relating to memory impairment to such disorder. Further, the VA examiner opined that, while the Veteran's MDD was not so severe as to preclude him from obtaining and maintaining gainful employment, the unspecified neurocognitive disorder, which was not service-connected, resulted in mild memory problems and could limit his ability to engage in gainful employment. The VA examiner also stated that depressive disorders were risk factors for neurocognitive disorders and could precipitate and/or exacerbate them; and that some symptoms could overlap. The Court has held that when the Board cannot differentiate between the effects of a service-connected and nonservice-connected disorder, the benefit of the doubt doctrine requires that it attribute the effects to the service-connected disability. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998).
In addition, the Veteran's VA psychiatrist, who has been his attending psychiatrist since 2008, submitted a letter stating that the Veteran could not work due to his MDD, and that he also suffered from multiple conditions that might affect his ability to work.
The Board thus finds that this case meets the criteria for consideration of an extra-schedular rating as there is competent evidence suggesting that the Veteran may be unable to secure or follow a substantially gainful occupation due to his service-connected disability. See 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration).
Therefore, the Board is remanding the matter for additional development, to include referral of the claim to the appropriate first line authority-the Director of Compensation-for a determination as to the Veteran's entitlement to an extra-schedular TDIU from June 3, 2010, the date the Veteran filed his claim for increased rating for MDD.
Accordingly, the issue of entitlement to a TDIU is REMANDED for the following action:
1. Submit to the Director of Compensation the matter of the Veteran's entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) due to his service-connected disability.
2. After completing any additional development deemed necessary, readjudicate the claim remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 08-31-2017 | [
"Citation Nr: 1736516 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 13-28 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 30 percent for major depressive disorder (MDD) from June 3, 2010, to July 21, 2015, and in excess of 50 percent thereafter. 2. Entitlement to total disability due to individual unemployability based on service-connected disabilities on an extra-schedular basis under 38 C.F.R.",
"§ 4.16(b) (2016). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968, and from November 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the San Juan, Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded an increased rating of 30 percent, but no higher, for MDD, effective June 3, 2010. In September 2015, the RO increased the disability rating to 50 percent for MDD, effective July 21, 2015, creating a staged rating as indicated on the title page.",
"The Veteran did not indicate satisfaction with the grant of this rating, and the issue therefore remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In November 2016, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. The Veteran has alleged an inability to retain employment due, in part, to his service-connected MDD. See, e.g., the VA Form 21-8940 dated November 2015 and November 2016 Hearing.",
"In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans' Claim (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In a February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to a TDIU. However, regardless of the adjudication of the formal TDIU claim, the issue of entitlement to a TDIU is part and parcel of the claim for an increased rating for MDD that is before the Board. See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).",
"The issue of a TDIU on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT From June 3, 2010, the symptoms and overall impairment from his MDD have more nearly approximated occupational and social impairment with reduced reliability and productivity, but have not more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1.",
"The criteria for a rating of 50 percent, but not higher, for MDD, from June 3, 2010, to July 21, 2015, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 (2016). 2. The criteria for a rating in excess of 50 percent for MDD, from July 21, 2015, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014 and Supp. 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.",
"In this case, VA provided adequate notifications about the information and evidence necessary to substantiate the claim in a June 2010 letter. VA's duty to assist the Veteran in the development of his claim includes assisting him in the procurement of service treatment records (STRs) and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records. VA provided adequate medical examinations and opinions for the Veteran's claim adjudicated herein. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In June 2010, August 2013, and July 2015, the Veteran was afforded VA examinations for his psychiatric disorder. As indicated by the discussion below, these examination reports include responsive medical opinions and clinical findings and are therefore adequate to decide the claim. Barr v. Nicholson, 21 Vet.",
"App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) are satisfied. II. Analysis Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A.",
"§ 1155. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's entire history is reviewed when making disability evaluations.",
"See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.",
"Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R.",
"§ 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is currently rated as 30 percent disabling from June 3, 2010, to July 21, 2015, and as 50 percent disabling from July 21, 2015, under 38 C.F.R. § 4.130, DC 9434. Under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).",
"A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.",
"Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Board has considered the GAF scores assigned during the claim period.",
"The GAF score is a scale reflecting the \"psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.\" Richard v. Brown, 9 Vet. App. 266, 267 (citing DSM-IV at 32). The Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders, including 38 C.F.R. § 4.130, to remove outdated references to the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See Final Rule, Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). As the provisions of this amendment were not intended to apply to claims that had been certified for appeal to the Board on or before August 4, 2014, see id., and this case was certified in February 2014, the Board will not consider them in this decision. GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Further, GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).",
"The GAF score assigned in a case, however, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). VA treatment records in 2010 reflect that the Veteran was divorced, childless and lived with his sister and mother. The Veteran reported that he had been sleeping and eating well. He denied any acute depression, anxiety, or psychosis. He denied suicidal or homicidal ideation, intention or plan; auditory or visual hallucinations; delusions; or mania symptoms.",
"His appearance, grooming, and hygiene were adequate; he was appropriately dressed; he had good eye contact; and he was cooperative. He showed no retardation, tics, or abnormal involuntary movements. His speech was spontaneous with adequate volume and production, his mood was euthymic, his affect constricted, and his thought process coherent. He had no auditory or visual hallucinations, and no illusions or delusions. He was alert and oriented, and his insight and judgment were good.",
"He had a diagnosis of recurrent severe MDD with psychotic features, and was assigned a GAF score of 60. An August 2010 VA examination report indicates that the Veteran had moderately severe sad moods every day since he was discharge from service, with episodes of irritability and anger two to three times per week. He was clean and casually dressed, restless and tense, and his speech was rapid but clear. He was cooperative, attentive, his affect was constricted, his mood anxious and depressed, and he was easily distracted. He was unable to do the serial sevens and spell a word forward and backward. He was oriented and alert, his thought content had an overabundance of ideas and circumstantiality, and he was preoccupied with one or two topics. He experienced sleeping impairment, and he felt ill-humored and tired the next day. He did not have any hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, suicidal or homicidal ideation, or episodes of violence.",
"His impulse control was good, his remote memory was normal, but his immediate memory was mildly impaired. He had a diagnosis of recurrent moderate to severe MDD with anxiety, controlled by continuous medication, and with a GAF score of 60. VA treatment records from 2010 to 2013 document that the Veteran was unemployed, divorced, childless, and lived with his mother and sister. The Veteran experienced stressors due to his mother's and sister's illnesses and economic difficulties. He occasionally had anxiety and low mood. He complained of memory difficulties, and his psychiatrist noted he had difficulties with orientation and recent memory. He had a friend who was supportive and he attended the Veteran Center, which he found to be helpful. He denied suicidal or homicidal ideation, auditory or visual hallucinations, delusions, and mania symptoms.",
"His grooming and hygiene were adequate, he had good eye contact, he was cooperative, he had no psychomotor retardation or abnormal involuntary movements, his speech was spontaneous with adequate volume and production, his affect was appropriate, and he was worried. His thought process was coherent, goal directed, relevant, and with no racing thoughts. He was alert, his insight was good, and his judgment was fair. He had a diagnosis of recurrent severe MDD with psychotic features and generalized anxiety disorder. He was assigned GAF scores of 50, 55, and 60. An August 2013 VA examination report reflects a diagnosis of MDD. The Veteran still lived with his mother and sister, and currently exhibited symptoms of depressed mood.",
"The examiner noted that the Veteran was coherent, logical, and relevant during the interview; and that he had not experienced a significant decrease in functionality, been hospitalized, or had a psychological crisis since his last examination. There had been no changes in medication or hospitalization in the past year. The examiner assigned a GAF score of 60, which was compatible with a mild to moderate condition. VA treatment records in 2014 and 2015 document that the Veteran was unemployed, divorced, childless, and lived with his mother and sister. The Veteran experienced stressors due to his mother's and sister's illnesses and economic difficulties. He occasionally had anxiety and low mood. He continued to complain of memory problems. He had a friend who was supportive and he attended the Veteran Center, which he found to be helpful. He denied suicidal or homicidal ideation, auditory or visual hallucinations, delusions, and mania symptoms. His grooming and hygiene were adequate, he had good eye contact, he was cooperative, he had no psychomotor retardation or abnormal involuntary movements, his speech was spontaneous, his affect was appropriate, and he was worried.",
"His thought process was coherent, goal directed, and relevant. He was alert, his insight was good, and his judgment was fair. He had a diagnosis of recurrent severe MDD with psychotic features and generalized anxiety disorder. He was assigned a GAF score of 50. A July 2015 VA examination report reflects a diagnosis of MDD with occupational and social impairment due to mild or transient symptoms. The Veteran reported that he lived with his sister, whom he described as very supportive. He also stated that he had no significant interpersonal relationships, and that he was divorced and childless. The Veteran stated that he had been very active in his church activities. He reported that his mother had passed away four months ago, that he had been feeling sad, and had had problems sleeping. He endorsed low motivation since a long time ago.",
"The examiner noted that he was well nourished, had adequate hygiene, was cooperative, and had good eye contact. He was alert, oriented, and aware. There was no evidence of psychomotor abnormalities, his speech was clear with appropriate volume, his mood was mildly depressed, and his affect was appropriate to his mood. The examiner found that he was in full contact with reality; and that there was no evidence of hallucinations, suicidal or homicidal ideations, or delusions. He presented some recent memory difficulties but otherwise his cognitive functions were good; but his insight and judgment were superficial. He exhibited symptoms of depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. A January 2016 VA examination report indicates a diagnosis of recurrent moderate MDD and unspecified neurocognitive disorder.",
"The examiner noted that while these were distinct diagnoses, depressive disorders were risk factors for neurocognitive disorders and could precipitate and/or exacerbate them. Further, the examiner noted that some symptoms could overlap. The Veteran reported that he was divorced, childless, and lived with his sister with whom he had a good relationship. His current symptoms were depressed mood, mild memory loss, flattened affect, and disturbances of motivation and mood. The Veteran was alert, coherent, and oriented.",
"He denied suicidal and homicidal ideations, hallucinations, and delusions. His insight and judgment were good, his mood depressed, and his affect congruent with his mood. Upon review of the evidence of record, the Board finds that a disability rating of 50 percent, but no higher, from June 3, 2010, is warranted. From June 3, 2010, the evidence shows that the Veteran experienced mild memory impairment in August 2010, November 2013, May 2015, July 2015, and January 2016. Further, he exhibited symptoms of depressed mood; anxiety; sleep impairment; and flattened, constricted, or depressed affect. While the August 2010 and August 2013 VA examiners did not find that he had difficulty establishing and maintaining effective work and social relationships, the evidence shows that the Veteran only related to his family and that he had one friend.",
"In addition, the Board notes that the Veteran's diagnosis has remained constant from June 2010, with a diagnosis of moderate to severe MDD with psychotic features and generalized anxiety disorder. These findings reflect that the symptoms and overall impairment caused by the Veteran's MDD more nearly approximates the criteria for a 50 percent rating. The symptoms and overall impairment did not, however, more nearly approximate the criteria for a rating of 70 percent or higher. As stated above, the Veteran got along well with his sister, had one friend, and was engaged with his church. He also denied panic attacks, and suicidal or homicidal ideations.",
"Further, the VA examiners noted that the Veteran had normal thought process and impulse control, good personal hygiene, was oriented to time and place, and had normal speech. In addition, the VA examiners and VA psychiatrists found that the Veteran's MDD was stable. However, an examiner's characterization of the level of disability is not binding on the Board. 38 C.F.R. § 4.2 (\"It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present\"); VA Adjudication Procedures Manual, M21-1, Part III, Subpart iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (\"Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity\"). The above evidence reflects that while the symptoms and overall impairment approximated the criteria for a 50 percent rating, the Veteran did not have the required \"sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation.\"",
"Vazquez-Claudio, 713 F.3d at 118. Notably, the assigned GAF scores of 50, 55, and 60 are consistent with a 50 percent rating. Under the DSM-IV, GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job), and scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. As stated above, GAF scores are not dispositive and, rather, must be considered in light of the actual symptoms of the Veteran's disorder.",
"Here, the Veteran exhibited GAF scores ranging between 50 and 60, during which time he endorsed chronic sleep impairment, depression, and memory loss. The GAF scores are therefore consistent with the other evidence, which, for the reasons above, warrants a rating of 50 percent, but no higher. As such, a disability rating of 50 percent, but not higher, from June 3, 2010, is warranted. 38 C.F.R. § 4.130, DC 9434. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the AOJ refer the claim for consideration of \"an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.\" 38 C.F.R. § 3.321(b)(1) (2016).",
"Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment or frequent hospitalization.",
"If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The Board finds that the rating criteria specifically contemplate the Veteran's disabilities. Here, the Veteran's psychiatric disorder is fully contemplated in the rating criteria. The Veteran claims to experience depression, memory loss, difficulty in establishing and maintaining effective relationships, and sleep impairment, which are all explicitly considered in the rating schedule. Moreover, as indicated by the cases cited above, the criteria in the general rating formula for mental disorders include both the symptoms listed as symptoms \"such as\" those listed, along with the overall impairment caused by these symptoms. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed.",
"As the criteria contemplate the Veteran's symptoms, consideration of whether there is marked interference with employment or frequent hospitalization is not required. Further, in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that \"[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities.\" Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.",
"Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) (\"the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities.\") The Board will therefore not address the issue further. For the foregoing reasons, a rating of 50 percent, but no higher, for MDD, from June 3, 2010 to July 21, 2015, is warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application.",
"38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to a rating of 50 percent, but not higher, for MDD, from June 3, 2010, to July 21, 2015, is granted. Entitlement to a rating in excess of 50 percent for MDD, from July 21, 2015, is denied. REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development of the claim for a TDIU. The Board notes that the Veteran is only service-connected for his MDD, currently rated as 50 percent disabling. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.",
"38 C.F.R. § 4.16(a). As such, the Veteran does not meet the schedular criteria for entitlement to a TDIU. However, the collective evidence of record reflects that the Veteran has been unemployed for more than 20 years and suggests that his service-connected disability may prevent him from securing or following a substantially gainful occupation. Specifically, the January 2016 VA examiner, in addition to MDD, diagnosed the Veteran with a cognitive disorder (characterized as unspecified neurocognitive disorder) and attributed symptoms relating to memory impairment to such disorder. Further, the VA examiner opined that, while the Veteran's MDD was not so severe as to preclude him from obtaining and maintaining gainful employment, the unspecified neurocognitive disorder, which was not service-connected, resulted in mild memory problems and could limit his ability to engage in gainful employment. The VA examiner also stated that depressive disorders were risk factors for neurocognitive disorders and could precipitate and/or exacerbate them; and that some symptoms could overlap. The Court has held that when the Board cannot differentiate between the effects of a service-connected and nonservice-connected disorder, the benefit of the doubt doctrine requires that it attribute the effects to the service-connected disability.",
"See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998). In addition, the Veteran's VA psychiatrist, who has been his attending psychiatrist since 2008, submitted a letter stating that the Veteran could not work due to his MDD, and that he also suffered from multiple conditions that might affect his ability to work. The Board thus finds that this case meets the criteria for consideration of an extra-schedular rating as there is competent evidence suggesting that the Veteran may be unable to secure or follow a substantially gainful occupation due to his service-connected disability. See 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet.",
"App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration). Therefore, the Board is remanding the matter for additional development, to include referral of the claim to the appropriate first line authority-the Director of Compensation-for a determination as to the Veteran's entitlement to an extra-schedular TDIU from June 3, 2010, the date the Veteran filed his claim for increased rating for MDD. Accordingly, the issue of entitlement to a TDIU is REMANDED for the following action: 1. Submit to the Director of Compensation the matter of the Veteran's entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) due to his service-connected disability. 2. After completing any additional development deemed necessary, readjudicate the claim remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.",
"Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Case 1:17-cv-04275-RPK-RML Document 274-28 Filed 07/01/20 Page 1 of 1 PageID #: 8031
Allstate Ins. Co., et al. v. Avetisyan, et al. Exhibit 25 - Total Damages Claim(s) for Relief Treble Total Judgment Compensatory Prejudgment Defaulted Defendant against each Retailer Enterprise Damages Sought Against Damages Interest Defendant (RICO only) Defendant 14th - Fraud N/A $32,635.99 N/A $5,248.81 Almatcare Medical Supply, Inc. 15th - Unjust $37,884.80 N/A $32,635.99 N/A $5,248.81 Enrichment
22nd - Fraud N/A $6,324.38 N/A $1,557.95 AVA Custom Supply, Inc. 23rd- Unjust $7,882.33 N/A $6,324.38 N/A $1,557.95 Enrichment
30th - Fraud N/A $794,690.34 N/A $367,849.62 Daily Medical Equipment 31st - Unjust $1,162,539.96 Distribution Center, Inc. N/A $794,690.34 N/A $367,849.62 Enrichment
Medical Equipments IG & NAT Services, Inc. 57th - RICO $112,281.24 $336,843.72 $71,950.27 $403,793.99 Service, Inc.
Almatcare Medical 13th - RICO $32,112.00 $96,336.00 $5,091.61 Supply, Inc. Alexandra Matlyuk 14th - Fraud N/A $32,635.99 N/A $5,248.81 $101,427.61 15th- Unjust N/A $32,635.99 N/A $5,248.81 Enrichment
21st - RICO AVA Custom Supply, Inc. $5,952.68 $17,858.04 $1,479.89 Arthur Avetisyan 22nd - Fraud N/A $6,324.38 N/A $1,557.95 $19,337.93 23rd- Unjust N/A $6,324.38 N/A $1,557.95 Enricohment
Daily Medical Equipment 29th - RICO $794,690.34 $2,384,071.02 $367,849.62 Distribution Center, Inc. Gregory Miller $2,751,920.64 30th - Fraud N/A $794,690.34 N/A $367,849.62 31st- Unjust N/A $794,690.34 N/A $367,849.62 Enrichment
1 of 1 Exhibit 25 | 2020-07-01 | [
"Case 1:17-cv-04275-RPK-RML Document 274-28 Filed 07/01/20 Page 1 of 1 PageID #: 8031 Allstate Ins. Co., et al. v. Avetisyan, et al. Exhibit 25 - Total Damages Claim(s) for Relief Treble Total Judgment Compensatory Prejudgment Defaulted Defendant against each Retailer Enterprise Damages Sought Against Damages Interest Defendant (RICO only) Defendant 14th - Fraud N/A $32,635.99 N/A $5,248.81 Almatcare Medical Supply, Inc. 15th - Unjust $37,884.80 N/A $32,635.99 N/A $5,248.81 Enrichment 22nd - Fraud N/A $6,324.38 N/A $1,557.95 AVA Custom Supply, Inc. 23rd- Unjust $7,882.33 N/A $6,324.38 N/A $1,557.95 Enrichment 30th - Fraud N/A $794,690.34 N/A $367,849.62 Daily Medical Equipment 31st - Unjust $1,162,539.96 Distribution Center, Inc. N/A $794,690.34 N/A $367,849.62 Enrichment Medical Equipments IG & NAT Services, Inc. 57th - RICO $112,281.24 $336,843.72 $71,950.27 $403,793.99 Service, Inc. Almatcare Medical 13th - RICO $32,112.00 $96,336.00 $5,091.61 Supply, Inc. Alexandra Matlyuk 14th - Fraud N/A $32,635.99 N/A $5,248.81 $101,427.61 15th- Unjust N/A $32,635.99 N/A $5,248.81 Enrichment 21st - RICO AVA Custom Supply, Inc. $5,952.68 $17,858.04 $1,479.89 Arthur Avetisyan 22nd - Fraud N/A $6,324.38 N/A $1,557.95 $19,337.93 23rd- Unjust N/A $6,324.38 N/A $1,557.95 Enricohment Daily Medical Equipment 29th - RICO $794,690.34 $2,384,071.02 $367,849.62 Distribution Center, Inc. Gregory Miller $2,751,920.64 30th - Fraud N/A $794,690.34 N/A $367,849.62 31st- Unjust N/A $794,690.34 N/A $367,849.62 Enrichment 1 of 1 Exhibit 25"
]
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The writ of certiorari brings before us for review the conviction of the prosecutor, N.J. Good Humor, Inc., by the recorder of the borough of Bradley Beach for a violation of a municipal ordinance prohibiting peddling. The facts are not in dispute. The prosecutor is engaged in selling ice cream and confections. Its method of doing business is to sell wares from automobiles throughout the state. It furnishes the vehicles to its salesmen under certain conditions as to furnishing oil and gasoline for their operation and pays the salesmen for their services certain commissions based upon the sales made. One William E. Knoblock was so employed by prosecutor and on August 18th, 1938, and on other occasions, made sales from the automobile within the municipality in question. The prosecutor was charged with violating the ordinance and the facts not being challenged by it the recorder found it guilty and imposed a fine of fifty dollars. The recorder found that the prosecutor was engaged in peddling its wares from its automobile by its agent Knoblock. With that conclusion we are in accord. Its method of selling from its automobiles is peddling within the well known and generally accepted meaning of that term, and as denounced by the ordinance. The pertinent question presented is whether or not the ordinance is valid and enforceable. The argument of the prosecutor is that it is not enforceable for the reasons that it is unreasonable, arbitrary, capricious and discriminatory, and further, that it violates its constitutional rights by the denial of equal protection of the law. The *Page 23 ordinance makes it unlawful for any person, firm or corporation to hawk, peddle or vend any goods, wares or merchandise within the municipality, or to carry the same from place to place, or house to house, or to expose them for sale in a push cart, wagon, automobile or otherwise. The respondents contend that its authority to enact the ordinance was delegated to it by the legislature in the so-called Home Rule act, R.S. 40:48-2. The language of that provision is very comprehensive and it seems to us clear that it was the legislative intent to vest such power in the municipalities, as was done in the instant case, as a proper exercise of the police power. This section reads as follows: "Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by laws not contrary to the laws of this state, or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law." We conclude that the ordinance is not arbitrary nor discriminatory because it applies to everyone who seeks to sell his goods in the manner indicated. Is it unreasonable, arbitrary or capricious? To answer that question consideration must be given to the local conditions and requirements. It must be assumed that the municipality acted in good faith and with discretion. Silvester v. Princeton, 104 N.J.L. 18. What would be reasonable in one place might not be in another. Here we have a summer resort at the seashore with numerous cottages for summer occupancy. The population is, of course, much greater during the summer months. The business done there is therefore largely seasonal. It may be that because of this situation the local resident-merchants are unequal to the task of serving the needs of this influx of summer residents and that the economic law of supply and demand is met by itinerant vendors or peddlers from other places. If that be so it cannot be said that the municipality *Page 24 is without power to regulate the method used by these venders in selling their wares. But be that as it may, and irrespective of the reasons why itinerant dealers come into the municipality, it is our conclusion that it is within the delegated police power of the municipality to regulate the method by which its residents may be served. It may decide that its streets shall not be used as places of sale because of traffic conditions; and that the needs of the people seeking rest and quiet at such a resort must be met by prohibiting the noises of hawkers in crying their wares by the use of the human voice, bells, horns or other mechanical devices. It is to be noted that the ordinance is not a prohibition of the sale of goods, but rather a restriction in the manner or method of sale. The ordinance is not, in our view, unreasonable, arbitrary or capricious. Our attention has not been called to any decision of the courts of this state on the constitutionality of an ordinance which prohibits peddling. While decisions in other jurisdictions are not uniform the general rule seems to be that such prohibition does not invade any constitutional rights. The cases are collected in a footnote in 105 A.L.R. 1051. See, also, note in88 Id. 183. Commonwealth of Pennsylvania v. Gardner, 133 Pa. 284;19 Atl. Rep. 550, is widely cited and seems to be a leading case. It held that "Our laws relating to peddling are directed, not against the right of acquisition, but the manner in which some people exercise that right; not to the right of an owner to sell his goods, but to the manner in which he may sell them. Our peddling laws are, therefore, not in violation of the constitutional rights of the owner of goods, but are a wise exercise of the police power over the manner in which goods, wares and merchandise shall be sold." Cf. Green River v.Fuller Brush Co., 65 Fed. Rep. (2d) 112, and cases therein cited. Williams v. Arkansas, 217 U.S. 79; Emert v.Missouri, 156 Id. 296; Commonwealth v. Ober,66 Mass. 493 (at p. 495). Another argument advanced by the prosecutor is that the ordinance is ineffective as against a corporation for the reason that to peddle is a personal act of which a corporation is incapable. *Page 25 We think there is no merit to that contention. Corporations may, through their agents, carry on the usual affairs of business and even may be indicted under the criminal law. State v.Passaic County Agricultural Society, 54 N.J.L. 262; State v. Lehigh Valley Railroad Co., 90 Id. 372; United Dining CarCo. v. Camden, 103 Id. 232. There remains for consideration the fact that Knoblock, the agent of prosecutor who was in charge of the automobile and who actually did the peddling, was an honorably discharged veteran holding a license to peddle in the state. Knoblock was personally immune from the provisions of the ordinance. Strauss v.Bradley Beach, 117 N.J.L. 45. Indeed no charge was prosecuted against him, but clearly his personal immunity did not extend to his employer for whom he was acting. The conviction is affirmed. *Page 26 | 07-05-2016 | [
"The writ of certiorari brings before us for review the conviction of the prosecutor, N.J. Good Humor, Inc., by the recorder of the borough of Bradley Beach for a violation of a municipal ordinance prohibiting peddling. The facts are not in dispute. The prosecutor is engaged in selling ice cream and confections. Its method of doing business is to sell wares from automobiles throughout the state. It furnishes the vehicles to its salesmen under certain conditions as to furnishing oil and gasoline for their operation and pays the salesmen for their services certain commissions based upon the sales made.",
"One William E. Knoblock was so employed by prosecutor and on August 18th, 1938, and on other occasions, made sales from the automobile within the municipality in question. The prosecutor was charged with violating the ordinance and the facts not being challenged by it the recorder found it guilty and imposed a fine of fifty dollars. The recorder found that the prosecutor was engaged in peddling its wares from its automobile by its agent Knoblock. With that conclusion we are in accord. Its method of selling from its automobiles is peddling within the well known and generally accepted meaning of that term, and as denounced by the ordinance.",
"The pertinent question presented is whether or not the ordinance is valid and enforceable. The argument of the prosecutor is that it is not enforceable for the reasons that it is unreasonable, arbitrary, capricious and discriminatory, and further, that it violates its constitutional rights by the denial of equal protection of the law. The *Page 23 ordinance makes it unlawful for any person, firm or corporation to hawk, peddle or vend any goods, wares or merchandise within the municipality, or to carry the same from place to place, or house to house, or to expose them for sale in a push cart, wagon, automobile or otherwise. The respondents contend that its authority to enact the ordinance was delegated to it by the legislature in the so-called Home Rule act, R.S.",
"40:48-2. The language of that provision is very comprehensive and it seems to us clear that it was the legislative intent to vest such power in the municipalities, as was done in the instant case, as a proper exercise of the police power. This section reads as follows: \"Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by laws not contrary to the laws of this state, or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.\"",
"We conclude that the ordinance is not arbitrary nor discriminatory because it applies to everyone who seeks to sell his goods in the manner indicated. Is it unreasonable, arbitrary or capricious? To answer that question consideration must be given to the local conditions and requirements. It must be assumed that the municipality acted in good faith and with discretion. Silvester v. Princeton, 104 N.J.L. 18. What would be reasonable in one place might not be in another. Here we have a summer resort at the seashore with numerous cottages for summer occupancy. The population is, of course, much greater during the summer months. The business done there is therefore largely seasonal.",
"It may be that because of this situation the local resident-merchants are unequal to the task of serving the needs of this influx of summer residents and that the economic law of supply and demand is met by itinerant vendors or peddlers from other places. If that be so it cannot be said that the municipality *Page 24 is without power to regulate the method used by these venders in selling their wares. But be that as it may, and irrespective of the reasons why itinerant dealers come into the municipality, it is our conclusion that it is within the delegated police power of the municipality to regulate the method by which its residents may be served. It may decide that its streets shall not be used as places of sale because of traffic conditions; and that the needs of the people seeking rest and quiet at such a resort must be met by prohibiting the noises of hawkers in crying their wares by the use of the human voice, bells, horns or other mechanical devices.",
"It is to be noted that the ordinance is not a prohibition of the sale of goods, but rather a restriction in the manner or method of sale. The ordinance is not, in our view, unreasonable, arbitrary or capricious. Our attention has not been called to any decision of the courts of this state on the constitutionality of an ordinance which prohibits peddling. While decisions in other jurisdictions are not uniform the general rule seems to be that such prohibition does not invade any constitutional rights. The cases are collected in a footnote in 105 A.L.R.",
"1051. See, also, note in88 Id. 183. Commonwealth of Pennsylvania v. Gardner, 133 Pa. 284;19 Atl. Rep. 550, is widely cited and seems to be a leading case. It held that \"Our laws relating to peddling are directed, not against the right of acquisition, but the manner in which some people exercise that right; not to the right of an owner to sell his goods, but to the manner in which he may sell them. Our peddling laws are, therefore, not in violation of the constitutional rights of the owner of goods, but are a wise exercise of the police power over the manner in which goods, wares and merchandise shall be sold.\" Cf. Green River v.Fuller Brush Co., 65 Fed.",
"Rep. (2d) 112, and cases therein cited. Williams v. Arkansas, 217 U.S. 79; Emert v.Missouri, 156 Id. 296; Commonwealth v. Ober,66 Mass. 493 (at p. 495). Another argument advanced by the prosecutor is that the ordinance is ineffective as against a corporation for the reason that to peddle is a personal act of which a corporation is incapable. *Page 25 We think there is no merit to that contention. Corporations may, through their agents, carry on the usual affairs of business and even may be indicted under the criminal law.",
"State v.Passaic County Agricultural Society, 54 N.J.L. 262; State v. Lehigh Valley Railroad Co., 90 Id. 372; United Dining CarCo. v. Camden, 103 Id. 232. There remains for consideration the fact that Knoblock, the agent of prosecutor who was in charge of the automobile and who actually did the peddling, was an honorably discharged veteran holding a license to peddle in the state. Knoblock was personally immune from the provisions of the ordinance. Strauss v.Bradley Beach, 117 N.J.L. 45. Indeed no charge was prosecuted against him, but clearly his personal immunity did not extend to his employer for whom he was acting.",
"The conviction is affirmed. *Page 26"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3568423/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
WISS, Judge (dissenting): As the majority opinion demonstrates, this providence inquiry is a model of inadequacy. The absolutely critical element of this offense was occurrence of “sexual intercourse,” which legally is accomplished only if there is “[p]enetration, however slight,” of a woman’s sexual genitalia by a man’s penis. Art. 120(c), Uniform Code of Military Justice, 10 USC § 920; see para. 45c(2), Part IV, Manual for Courts-Martial, United States, 1984. Yet, the military judge did not advise appellant that the requirement by which to measure whether sexual intercourse occurred was penetration, so there is no basis at all to infer that appellant himself had any knowledge of this key criterion. Otherwise, I might be able to accept a conclusion, in the context of an actual reflection of that knowledge, that the required factual basis for appellant’s pleas was adequately established by appellant’s abbreviated explanation of events that is quoted in the majority opinion. 40 MJ at 363. As it is, however, appellant’s explanation is woefully inconclusive as to whether intercourse occurred. He revealed only that he “attempted intercourse,” that he “touched [his] penis to her vagina,” that she “said that it hurt,” and that he “stopped.” Unless I accept, in an instance of a 14-year-old girl, that “hurt” always equals “penetrated,” there is nothing in this explanation that factually supports a plea to more than attempted carnal knowledge. I am unwilling to draw that equation, so I would reduce the finding to one of attempt. | 11-24-2022 | [
"WISS, Judge (dissenting): As the majority opinion demonstrates, this providence inquiry is a model of inadequacy. The absolutely critical element of this offense was occurrence of “sexual intercourse,” which legally is accomplished only if there is “[p]enetration, however slight,” of a woman’s sexual genitalia by a man’s penis. Art. 120(c), Uniform Code of Military Justice, 10 USC § 920; see para. 45c(2), Part IV, Manual for Courts-Martial, United States, 1984. Yet, the military judge did not advise appellant that the requirement by which to measure whether sexual intercourse occurred was penetration, so there is no basis at all to infer that appellant himself had any knowledge of this key criterion. Otherwise, I might be able to accept a conclusion, in the context of an actual reflection of that knowledge, that the required factual basis for appellant’s pleas was adequately established by appellant’s abbreviated explanation of events that is quoted in the majority opinion. 40 MJ at 363. As it is, however, appellant’s explanation is woefully inconclusive as to whether intercourse occurred. He revealed only that he “attempted intercourse,” that he “touched [his] penis to her vagina,” that she “said that it hurt,” and that he “stopped.” Unless I accept, in an instance of a 14-year-old girl, that “hurt” always equals “penetrated,” there is nothing in this explanation that factually supports a plea to more than attempted carnal knowledge.",
"I am unwilling to draw that equation, so I would reduce the finding to one of attempt."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8651202/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION OF THE COURT Beatrice S. Burstein, J. Defendants’ motion and cross motion for summary judgment raise the following issue: whether an allegedly libelous petition presented by a group of parents to their board of education and released to the press is protected by either an absolute or a qualified privilege. Defendants Ajamion also seek leave to amend their answer to include the defense of privilege. Plaintiffs do not oppose this request. Leave to amend an answer shall be freely given, absent a showing of surprise or prejudice (Fahey v County of Ontario, 44 NY2d 934, 935). As plaintiff has not made such showing, defendants Ajamions’ request is granted. Plaintiff, a tenured teacher in the Oyster Bay — East Norwich Central School District, alleges defendants maliciously, intentionally and with knowledge of falsity, pre*912pared and distributed a libelous petition to members of the board of education, and to a reporter for the Oyster Bay Enterprise-Pilot, a newspaper, thereby causing damage to his reputation and standing, and possible loss of income. He seeks compensatory and punitive damages. Plaintiff asserts that, following publication of the petition, he met with the superintendent of schools and others, to discuss the charges against him. At that time the allegations were found to be unsubstantiated and it was agreed that no formal action would be taken against him. However, he claims that despite this resolution, he was wrongfully excessed, less than two months later. He further claims that he was not rehired as he should have been, when new openings arose. In response, the defendants (parents and one brother of children then attending school in the district) assert, without contradiction, that after seeking assistance from school supervisory personnel, they were advised by a member of the board of education that the board would not consider their complaints about plaintiff unless they were set forth in writing. Defendants allege that it was as a result of this advice that the petition at issue here was prepared and filed with the board. Defendants relate a different version as to why no formal hearing was ever held upon their petition. However, for purposes of this determination, plaintiff’s recounting of the facts must be deemed accurate. (Karaduman v Newsday, Inc., 51 NY2d 531, 539.) Additionally, for present purposes, the court assumes the petition is defamatory, and treats the two publications (to the board and to the reporter) separately. The petition states: “To: Members of the School Board “We, the undersigned, parents and voters in the E. Norwich Oyster Bay School District petition the school board for redress of our grievances. “We are aggrieved in that we find the conduct and the performance of a teacher Steven Weisman unsatisfactory both in the classroom and in extracurricular affairs. This teacher *913“1. Has not been in class teaching during the times he is expected to be present. “2. Has struck a student “3. Has insulted various parents “4. Has threatened bodily harm to a female parent “5. Has publicly accused a student of being a liar and a thief without justification “6. Has insulted a student using an ethnic slur, and otherwise engaged in incidents which we feel creates an unhealthy atmosphere for our children. “We, as individual parents have brought incidents relating to our individual children to the attention of Dr. Shields, Dr. Toner, Mr. Ferrara and Mr. Berry and in some cases to Dr. Stevens. In each case the school authorities have chosen to have endless meetings with the involved parents, have not returned phone calls or to use a phrase * * * ‘we have been given the run around’. No action has been taken which in any manner has altered the behavior of this teacher * * * in no manner have his duties been changed or monitored. “We are further aggrieved the [sic] the failure of the administration, considering the number of complaints, the length of time they have persisted and the number of students involved to take corrective action. “In considering the seriousness of this petition members of the school board should take into account the natural reluctance of any parent to complain about a teacher, because of the ill effects it may have on the child. However, our patience has been exhausted. You will further realize that none of the incidents that have led to this petition are connected to each other except for the single common element Steven Weisman. “We petition the board to relieve Steven Weisman of all extra curricular activities and that his classroom performance be monitored on a frequent and continuing basis by other than the present immediate supervision to insure that he is in his classroom and teaching when he is expected to do so. *914“In view of the past run arounds that each of us has been subject to, we feel that we must request the board respond to our petition within a week. “Failure on the part of the board to take prompt and effective measures to address our grievances will result in the efforts of the undersigned to convince as many voters as possible to frustrate the efforts of the school board at the polls.” Public policy considerations require that certain defamatory communications be cloaked with an immunity, denominated “absolute privilege”. Such communications cannot form the basis for a cause of action. (Toker v Pollack, 44 NY2d 211, 218-219.) Other communications receive a lesser degree of protection, known as “qualified privilege”. This latter privilege negates any presumption of implied malice flowing from a defamatory statement, and places the burden on the plaintiff to prove actual malice in order to recover damages. (Supra, at p 219.) The determination of whether a defamatory statement is protected by either an absolute or a qualified privilege requires weighing, on the one hand society’s need for free disclosure without fear of civil suit, and, on the other hand, an individual’s right to recover for damage to his reputation, his means of earning a livelihood, etc. In resolving these competing interests, the protection of absolute privilege has been afforded defamatory statements made during the course of judicial proceedings, because participants in a trial must be able to “ ‘speak with that free and open mind which the administration of justice demands.’ ” (Youmans v Smith, 153 NY 214, 223.) For the same reason, absolute privilege has been extended to communications made in the course of proceedings which may be characterized as quasi-judicial, including certain administrative proceedings. (Park Knoll Assoc. v Schmidt, 89 AD2d 164, 170.) The types of administrative agencies to which this concept has been applied in this State are varied. (See, e.g., Park Knoll Assoc. v Schmidt, supra [NY State Div of Housing & Community Renewal]; Campo v Rega, 79 AD2d 626 [Internal Affairs Div of Nassau County Police Dept]; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, affd on other grounds 41 NY2d 881 [NY Dept of State]; *915Marino v Wallace, 65 AD2d 946 [Public Serv Comm]; Loudin v Mohawk Airlines, 44 Misc 2d 926, mod on other grounds 24 AD2d 447 [Civ Aeronautics Bd]; Hanzimanolis v City of New York, 88 Misc 2d 681 [Fein, J.] [NY City Police Dept]; Alagna v New York & Cuba Mail S. S. Co., 155 Misc 796 [Fed Radio Comm].) Furthermore, one authority has stated that “when * * * voluntary action by [a], citizen is a preliminary to a statutory proceeding * * * the shield of absolute privilege protects.” (1 Seelman, Libel and Slander [rev ed], 1968 Cum Supp, par 195.) The courts of this State are in agreement on this point and have held the following to be absolutely privileged: complaint to grievance committee of a Bar Association (Wiener v Weintraub, 22 NY2d 330); “tenants’ statements of complaint”, drawn by defendant as scrivenor and/or advisor, and filed with the New York State Division of Housing and Community Renewal (Park Knoll Assoc. v Schmidt, supra); affidavit filed with Department of State in support of complaint against real estate brokers’ acts (Julien J. Studley, Inc. v Lefrak, supra)) petition to State Commissioner of Education seeking removal of school trustees (Morah v Steele, 157 App Div 109); letter of complaint to Federal Radio Commission regarding acts of commissioned radio operations (Alagna v New York & Cuba Mail S. S. Co., supra). Nonetheless, there are no reported decisions in this State dealing with parents’ petitions to a board of education. Accordingly, the court must now consider the particular characteristics of the proceeding involved here and the particular policy considerations attendant upon the granting of absolute immunity in these circumstances. (Park Knoll Assoc. v Schmidt, supra, at pp 174-175.) The procedure for handling a complaint against a tenured teacher is set forth in section 3020-a of the Education Law. All charges made must be in writing. Upon receipt of such charges,.. the board of education must determine whether probable cause for the charges exists. If the board’s decision is in the affirmative, a hearing must be held, absent a waiver of this right by the teacher. The primary purpose of such a hearing is to determine the fitness of the teacher against whom charges have been *916promulgated. (Matter of Bott v Board of Educ., 41 NY2d 265, 268.) In fact, such a hearing is the exclusive method for dismissal of a tenured teacher. (Matter of Lynch v Nyquist, 34 NY2d 588.) Notice to the teacher and the board of education is mandated by the above-mentioned statute. At the hearing the teacher has the right to be heard; each party has the right to be represented by counsel, and to subpoena and cross-examine witnesses. The hearing, held under oath, is conducted by a panel of persons with expertise, whose names are selected from a State-wide list, and a stenographic record of the hearing is made. The panel may recommend a reprimand, a fine, suspension without pay, or dismissal. Either party possesses the right to appeal the hearing panel’s findings to the Commissioner of Education or by special proceeding pursuant to CPLR article 78. Thus, the proceeding mandated by the statute is adversarial in nature and presumably impartial. The prescribed procedure and the right to judicial review make it clear that such hearings are quasi-judicial in nature. The policy considerations attendant in such circumstances all point to a strong need to keep lines of communication open. Absent special circumstances not relevant here, all parents are required by law to send their children to school. (See Education Law, § 3205, subd 1, par a.) Teachers, who act in loco parentis (Hoose v Drumm, 281 NY 54, 57-58; People v Jackson, 65 Misc 2d 909, 912 [App Term, 1st Dept]) have great power to affect the lives of the many children with whom they have contact for a major part of the day. The children, being considerably younger and less sophisticated, may not be intellectually capable of protecting themselves from unjust, unreasonable, or improper treatment; they may be afraid to do so; or they may not even recognize such treatment (e.g., children left in an unattended classroom may consider the occasion an opportunity for a romp). A teacher’s failure in such circumstances may result in findings of liability against the school district, the cost of which will ultimately be borne by its taxpayers. Further, parents may be loath to complain for fear that speaking out will result in reprisals against their child. Oral complaints to supervisory personnel may not even be *917effective. “The reluctance of administrators to act vigorously * * * has long been the bane of government institutions.” (Kilcoin v Wolansky, 75 AD2d 1, 11, affd 52 NY2d 995.) Additionally, as noted, supra, parents who wish to seek the assistance of the board are required by statute to put their complaints in writing. To tell lay persons that the governing body which has ultimate responsibility for the well-being of their children will not even hear their claim unless they publish a statement containing their complaint, and then subject these parents to liability for making the statement is counterproductive. Protecting the well-being of its young people and providing them with a proper education are two of society’s greatest priorities. Because of this, a teacher’s alleged mistreatment of a student, during the course of the teacher’s performance of his duties as a public employee, is a matter of significant public concern (cf. Chapadeau v Utica Observer-Dispatch, 38 NY2d 196), rather than just a parent-teacher issue. It is for these reasons, not to protect parents as a group, that the lines of communication between parents and school authorities must be kept free and open. Ever mindful that “[t]he threat of being put to the defense of a lawsuit * * * may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself” (Washington Post Co. v Keogh, 365 F2d 965, 968), this court holds that defendants’ petition to the board of education is absolutely privileged. The courts of California have reached the same conclusion. So holding, the court in Brody v Montalbano (87 Cal App 3d 725), relied upon the fact that the parents’ communications were intended to prompt official action, and had a logical connection to any resultant proceeding. In reaching its conclusion, the court placed emphasis on the importance of providing utmost freedom of communication between citizens and those public authorities whose responsibility it is to investigate wrongdoings. These concerns are equally applicable here. (See, also, Martin v Kearney, 51 Cal App 3d 309 [holding parents’ letters to school principal questioning teacher’s fitness were absolutely privileged, as designed to prompt official action].) *918The fact that no proceeding was actually commenced in this case has no significance. If such a distinction were to be drawn, it would require lay persons who wished to petition their board of education to make an initial determination, or more likely, an initial guess, as to whether the board will find probable cause to commence a proceeding. If they were wrong, they would be subject to damages for libel. This would have a severe chilling effect upon any petition, virtually vitiating the salutary purpose upon which the privilege is posited. As defendants noted in their petition, just the act of bringing charges, standing alone, is fraught with grave concerns of retaliation, tending in itself to promote self-restraint. In view of society’s need to facilitate communication in these matters, more restraint should not be added. Furthermore, the board might find that charges presented to it set forth probable cause warranting a hearing, but then determine, as a matter of policy, that another, more informal approach, could achieve an equally satisfactory result. Yet, if the privilege were to apply only if a hearing were held, this less formal action by the board would expose even petitioners who had a valid claim to liability for libel. Finally, assuming the truth of plaintiff’s claim that he was wrongfully excessed from his position and should have been rehired, plaintiff has other avenues for relief. (See, e.g., Education Law, § 2510.) The court now turns its attention to the defendants’ publication of the petition to the reporter for the local newspaper. Relying upon section 74 of the Civil Rights Law, defendants would have the court hold that this publication is also absolutely privileged. That cited statute provides, in pertinent part, that “[a] civil action cannot be maintained against any person * * * for the publication of a fair and true report of any * * * official proceeding”. However, this protection is not without qualification. (See, e.g., Shiles v News Syndicate Co., 27 NY2d 9 [holding the privilege does not extend to the publication of reports of matrimonial proceedings].) In Williams v Williams (23 NY2d 592), the Court of Appeals held that the absolute *919privilege afforded litigants in a lawsuit does not extend to parties who maliciously institute a proceeding alleging false and defamatory charges and then publicize them in the press. In his complaint, plaintiff has set forth specific allegations which he asserts show defendants’ malice was the basis for the petition. However, because this action is still in its early stages and discovery proceedings have not yet been conducted, there is simply not enough information available to the court. For example, the court has not been advised how the reporter came to be present at the time the petition was presented to the board of education. This may be relevant. (See Savage is Loose Co. v United Artists Theatre Circuit, 413 F Supp 555 [US DC SONY].) Accordingly, any determination of whether the rule enunciated in Williams applies in this case would be - premature, as all parties are entitled to the opportunity to develop facts to support their contentions in this regard. Therefore, the court will not at this time rule with respect to whether the publication to the reporter was absolutely privileged. Defendants also contend that this publication was at least protected by a qualified privilege. A qualified privilege arises when a person makes a bona fide communication upon a subject in which he has an interest, or in connection with which he has a legal, moral or social duty to speak, and the communication is made to a person having a corresponding interest or duty. (Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56.) Defendants, as movants on a motion for summary judgment, bore the burden of showing that to be the case here. Yet, there has been no showing that the newspaper reporter had an interest or duty corresponding to that of defendants, or that any mutuality of interest in the subject matter of the statement existed. Merely providing a copy of a defamatory statement to the press does not give rise to any privilege. (See Dattner v Pokoik, 81 AD2d 572.) However, as noted supra, full disclosure has not been had. Accordingly, a ruling on this issue as a matter of law would also be premature. *920For these reasons, defendants’ motion and cross motion seeking dismissal of this action on the ground of absolute or qualified privilege are disposed of as follows. So much of the complaint as is based upon publication to the board of education is dismissed, on the ground this publication was absolutely privileged. In all other respects, the motion and cross motion are denied. | 02-05-2022 | [
"OPINION OF THE COURT Beatrice S. Burstein, J. Defendants’ motion and cross motion for summary judgment raise the following issue: whether an allegedly libelous petition presented by a group of parents to their board of education and released to the press is protected by either an absolute or a qualified privilege. Defendants Ajamion also seek leave to amend their answer to include the defense of privilege. Plaintiffs do not oppose this request. Leave to amend an answer shall be freely given, absent a showing of surprise or prejudice (Fahey v County of Ontario, 44 NY2d 934, 935). As plaintiff has not made such showing, defendants Ajamions’ request is granted.",
"Plaintiff, a tenured teacher in the Oyster Bay — East Norwich Central School District, alleges defendants maliciously, intentionally and with knowledge of falsity, pre*912pared and distributed a libelous petition to members of the board of education, and to a reporter for the Oyster Bay Enterprise-Pilot, a newspaper, thereby causing damage to his reputation and standing, and possible loss of income. He seeks compensatory and punitive damages. Plaintiff asserts that, following publication of the petition, he met with the superintendent of schools and others, to discuss the charges against him. At that time the allegations were found to be unsubstantiated and it was agreed that no formal action would be taken against him.",
"However, he claims that despite this resolution, he was wrongfully excessed, less than two months later. He further claims that he was not rehired as he should have been, when new openings arose. In response, the defendants (parents and one brother of children then attending school in the district) assert, without contradiction, that after seeking assistance from school supervisory personnel, they were advised by a member of the board of education that the board would not consider their complaints about plaintiff unless they were set forth in writing. Defendants allege that it was as a result of this advice that the petition at issue here was prepared and filed with the board. Defendants relate a different version as to why no formal hearing was ever held upon their petition. However, for purposes of this determination, plaintiff’s recounting of the facts must be deemed accurate.",
"(Karaduman v Newsday, Inc., 51 NY2d 531, 539.) Additionally, for present purposes, the court assumes the petition is defamatory, and treats the two publications (to the board and to the reporter) separately. The petition states: “To: Members of the School Board “We, the undersigned, parents and voters in the E. Norwich Oyster Bay School District petition the school board for redress of our grievances. “We are aggrieved in that we find the conduct and the performance of a teacher Steven Weisman unsatisfactory both in the classroom and in extracurricular affairs. This teacher *913“1. Has not been in class teaching during the times he is expected to be present. “2. Has struck a student “3. Has insulted various parents “4. Has threatened bodily harm to a female parent “5.",
"Has publicly accused a student of being a liar and a thief without justification “6. Has insulted a student using an ethnic slur, and otherwise engaged in incidents which we feel creates an unhealthy atmosphere for our children. “We, as individual parents have brought incidents relating to our individual children to the attention of Dr. Shields, Dr. Toner, Mr. Ferrara and Mr. Berry and in some cases to Dr. Stevens. In each case the school authorities have chosen to have endless meetings with the involved parents, have not returned phone calls or to use a phrase * * * ‘we have been given the run around’. No action has been taken which in any manner has altered the behavior of this teacher * * * in no manner have his duties been changed or monitored. “We are further aggrieved the [sic] the failure of the administration, considering the number of complaints, the length of time they have persisted and the number of students involved to take corrective action.",
"“In considering the seriousness of this petition members of the school board should take into account the natural reluctance of any parent to complain about a teacher, because of the ill effects it may have on the child. However, our patience has been exhausted. You will further realize that none of the incidents that have led to this petition are connected to each other except for the single common element Steven Weisman. “We petition the board to relieve Steven Weisman of all extra curricular activities and that his classroom performance be monitored on a frequent and continuing basis by other than the present immediate supervision to insure that he is in his classroom and teaching when he is expected to do so. *914“In view of the past run arounds that each of us has been subject to, we feel that we must request the board respond to our petition within a week.",
"“Failure on the part of the board to take prompt and effective measures to address our grievances will result in the efforts of the undersigned to convince as many voters as possible to frustrate the efforts of the school board at the polls.” Public policy considerations require that certain defamatory communications be cloaked with an immunity, denominated “absolute privilege”. Such communications cannot form the basis for a cause of action. (Toker v Pollack, 44 NY2d 211, 218-219.) Other communications receive a lesser degree of protection, known as “qualified privilege”. This latter privilege negates any presumption of implied malice flowing from a defamatory statement, and places the burden on the plaintiff to prove actual malice in order to recover damages. (Supra, at p 219.)",
"The determination of whether a defamatory statement is protected by either an absolute or a qualified privilege requires weighing, on the one hand society’s need for free disclosure without fear of civil suit, and, on the other hand, an individual’s right to recover for damage to his reputation, his means of earning a livelihood, etc. In resolving these competing interests, the protection of absolute privilege has been afforded defamatory statements made during the course of judicial proceedings, because participants in a trial must be able to “ ‘speak with that free and open mind which the administration of justice demands.’ ” (Youmans v Smith, 153 NY 214, 223.) For the same reason, absolute privilege has been extended to communications made in the course of proceedings which may be characterized as quasi-judicial, including certain administrative proceedings.",
"(Park Knoll Assoc. v Schmidt, 89 AD2d 164, 170.) The types of administrative agencies to which this concept has been applied in this State are varied. (See, e.g., Park Knoll Assoc. v Schmidt, supra [NY State Div of Housing & Community Renewal]; Campo v Rega, 79 AD2d 626 [Internal Affairs Div of Nassau County Police Dept]; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, affd on other grounds 41 NY2d 881 [NY Dept of State]; *915Marino v Wallace, 65 AD2d 946 [Public Serv Comm]; Loudin v Mohawk Airlines, 44 Misc 2d 926, mod on other grounds 24 AD2d 447 [Civ Aeronautics Bd]; Hanzimanolis v City of New York, 88 Misc 2d 681 [Fein, J.] [NY City Police Dept]; Alagna v New York & Cuba Mail S. S. Co., 155 Misc 796 [Fed Radio Comm].) Furthermore, one authority has stated that “when * * * voluntary action by [a], citizen is a preliminary to a statutory proceeding * * * the shield of absolute privilege protects.” (1 Seelman, Libel and Slander [rev ed], 1968 Cum Supp, par 195.) The courts of this State are in agreement on this point and have held the following to be absolutely privileged: complaint to grievance committee of a Bar Association (Wiener v Weintraub, 22 NY2d 330); “tenants’ statements of complaint”, drawn by defendant as scrivenor and/or advisor, and filed with the New York State Division of Housing and Community Renewal (Park Knoll Assoc.",
"v Schmidt, supra); affidavit filed with Department of State in support of complaint against real estate brokers’ acts (Julien J. Studley, Inc. v Lefrak, supra)) petition to State Commissioner of Education seeking removal of school trustees (Morah v Steele, 157 App Div 109); letter of complaint to Federal Radio Commission regarding acts of commissioned radio operations (Alagna v New York & Cuba Mail S. S. Co., supra). Nonetheless, there are no reported decisions in this State dealing with parents’ petitions to a board of education.",
"Accordingly, the court must now consider the particular characteristics of the proceeding involved here and the particular policy considerations attendant upon the granting of absolute immunity in these circumstances. (Park Knoll Assoc. v Schmidt, supra, at pp 174-175.) The procedure for handling a complaint against a tenured teacher is set forth in section 3020-a of the Education Law. All charges made must be in writing. Upon receipt of such charges,.. the board of education must determine whether probable cause for the charges exists. If the board’s decision is in the affirmative, a hearing must be held, absent a waiver of this right by the teacher. The primary purpose of such a hearing is to determine the fitness of the teacher against whom charges have been *916promulgated. (Matter of Bott v Board of Educ., 41 NY2d 265, 268.)",
"In fact, such a hearing is the exclusive method for dismissal of a tenured teacher. (Matter of Lynch v Nyquist, 34 NY2d 588.) Notice to the teacher and the board of education is mandated by the above-mentioned statute. At the hearing the teacher has the right to be heard; each party has the right to be represented by counsel, and to subpoena and cross-examine witnesses. The hearing, held under oath, is conducted by a panel of persons with expertise, whose names are selected from a State-wide list, and a stenographic record of the hearing is made.",
"The panel may recommend a reprimand, a fine, suspension without pay, or dismissal. Either party possesses the right to appeal the hearing panel’s findings to the Commissioner of Education or by special proceeding pursuant to CPLR article 78. Thus, the proceeding mandated by the statute is adversarial in nature and presumably impartial. The prescribed procedure and the right to judicial review make it clear that such hearings are quasi-judicial in nature. The policy considerations attendant in such circumstances all point to a strong need to keep lines of communication open. Absent special circumstances not relevant here, all parents are required by law to send their children to school. (See Education Law, § 3205, subd 1, par a.) Teachers, who act in loco parentis (Hoose v Drumm, 281 NY 54, 57-58; People v Jackson, 65 Misc 2d 909, 912 [App Term, 1st Dept]) have great power to affect the lives of the many children with whom they have contact for a major part of the day.",
"The children, being considerably younger and less sophisticated, may not be intellectually capable of protecting themselves from unjust, unreasonable, or improper treatment; they may be afraid to do so; or they may not even recognize such treatment (e.g., children left in an unattended classroom may consider the occasion an opportunity for a romp). A teacher’s failure in such circumstances may result in findings of liability against the school district, the cost of which will ultimately be borne by its taxpayers. Further, parents may be loath to complain for fear that speaking out will result in reprisals against their child. Oral complaints to supervisory personnel may not even be *917effective. “The reluctance of administrators to act vigorously * * * has long been the bane of government institutions.” (Kilcoin v Wolansky, 75 AD2d 1, 11, affd 52 NY2d 995.)",
"Additionally, as noted, supra, parents who wish to seek the assistance of the board are required by statute to put their complaints in writing. To tell lay persons that the governing body which has ultimate responsibility for the well-being of their children will not even hear their claim unless they publish a statement containing their complaint, and then subject these parents to liability for making the statement is counterproductive. Protecting the well-being of its young people and providing them with a proper education are two of society’s greatest priorities. Because of this, a teacher’s alleged mistreatment of a student, during the course of the teacher’s performance of his duties as a public employee, is a matter of significant public concern (cf. Chapadeau v Utica Observer-Dispatch, 38 NY2d 196), rather than just a parent-teacher issue. It is for these reasons, not to protect parents as a group, that the lines of communication between parents and school authorities must be kept free and open.",
"Ever mindful that “[t]he threat of being put to the defense of a lawsuit * * * may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself” (Washington Post Co. v Keogh, 365 F2d 965, 968), this court holds that defendants’ petition to the board of education is absolutely privileged. The courts of California have reached the same conclusion. So holding, the court in Brody v Montalbano (87 Cal App 3d 725), relied upon the fact that the parents’ communications were intended to prompt official action, and had a logical connection to any resultant proceeding. In reaching its conclusion, the court placed emphasis on the importance of providing utmost freedom of communication between citizens and those public authorities whose responsibility it is to investigate wrongdoings.",
"These concerns are equally applicable here. (See, also, Martin v Kearney, 51 Cal App 3d 309 [holding parents’ letters to school principal questioning teacher’s fitness were absolutely privileged, as designed to prompt official action].) *918The fact that no proceeding was actually commenced in this case has no significance. If such a distinction were to be drawn, it would require lay persons who wished to petition their board of education to make an initial determination, or more likely, an initial guess, as to whether the board will find probable cause to commence a proceeding. If they were wrong, they would be subject to damages for libel. This would have a severe chilling effect upon any petition, virtually vitiating the salutary purpose upon which the privilege is posited. As defendants noted in their petition, just the act of bringing charges, standing alone, is fraught with grave concerns of retaliation, tending in itself to promote self-restraint. In view of society’s need to facilitate communication in these matters, more restraint should not be added. Furthermore, the board might find that charges presented to it set forth probable cause warranting a hearing, but then determine, as a matter of policy, that another, more informal approach, could achieve an equally satisfactory result. Yet, if the privilege were to apply only if a hearing were held, this less formal action by the board would expose even petitioners who had a valid claim to liability for libel.",
"Finally, assuming the truth of plaintiff’s claim that he was wrongfully excessed from his position and should have been rehired, plaintiff has other avenues for relief. (See, e.g., Education Law, § 2510.) The court now turns its attention to the defendants’ publication of the petition to the reporter for the local newspaper. Relying upon section 74 of the Civil Rights Law, defendants would have the court hold that this publication is also absolutely privileged. That cited statute provides, in pertinent part, that “[a] civil action cannot be maintained against any person * * * for the publication of a fair and true report of any * * * official proceeding”. However, this protection is not without qualification. (See, e.g., Shiles v News Syndicate Co., 27 NY2d 9 [holding the privilege does not extend to the publication of reports of matrimonial proceedings].) In Williams v Williams (23 NY2d 592), the Court of Appeals held that the absolute *919privilege afforded litigants in a lawsuit does not extend to parties who maliciously institute a proceeding alleging false and defamatory charges and then publicize them in the press. In his complaint, plaintiff has set forth specific allegations which he asserts show defendants’ malice was the basis for the petition. However, because this action is still in its early stages and discovery proceedings have not yet been conducted, there is simply not enough information available to the court. For example, the court has not been advised how the reporter came to be present at the time the petition was presented to the board of education.",
"This may be relevant. (See Savage is Loose Co. v United Artists Theatre Circuit, 413 F Supp 555 [US DC SONY].) Accordingly, any determination of whether the rule enunciated in Williams applies in this case would be - premature, as all parties are entitled to the opportunity to develop facts to support their contentions in this regard. Therefore, the court will not at this time rule with respect to whether the publication to the reporter was absolutely privileged. Defendants also contend that this publication was at least protected by a qualified privilege.",
"A qualified privilege arises when a person makes a bona fide communication upon a subject in which he has an interest, or in connection with which he has a legal, moral or social duty to speak, and the communication is made to a person having a corresponding interest or duty. (Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56.) Defendants, as movants on a motion for summary judgment, bore the burden of showing that to be the case here. Yet, there has been no showing that the newspaper reporter had an interest or duty corresponding to that of defendants, or that any mutuality of interest in the subject matter of the statement existed. Merely providing a copy of a defamatory statement to the press does not give rise to any privilege.",
"(See Dattner v Pokoik, 81 AD2d 572.) However, as noted supra, full disclosure has not been had. Accordingly, a ruling on this issue as a matter of law would also be premature. *920For these reasons, defendants’ motion and cross motion seeking dismissal of this action on the ground of absolute or qualified privilege are disposed of as follows. So much of the complaint as is based upon publication to the board of education is dismissed, on the ground this publication was absolutely privileged. In all other respects, the motion and cross motion are denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6203427/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported):March 12, 2012 WESTMORELAND COAL COMPANY (Exact Name of Registrant as Specified in Charter) Delaware 001-11155 23-1128670 (State or Other Jurisdiction of Incorporation) (Commission File Number) (I.R.S. Employer Identification No.) 9540 South Maroon Circle, Suite 200, Englewood, CO (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code:(855) 922-6463 (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02.Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. Retirement of Director On March 12, 2012, Thomas J. Coffey notified the Board of Directors of his desire to retire from the Board after 12 years of service to the Company and, accordingly, that he will not stand for re-election as a director at the 2012 Annual Meeting of Stockholders. Mr. Coffey’s retirement will be effective at the 2012 Annual Meeting of Stockholders. - 2 - SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. WESTMORELAND COAL COMPANY Date:March 16, 2012 By: /s/ Jennifer S. Grafton Jennifer S. Grafton General Counsel and Secretary -3 - | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported):March 12, 2012 WESTMORELAND COAL COMPANY (Exact Name of Registrant as Specified in Charter) Delaware 001-11155 23-1128670 (State or Other Jurisdiction of Incorporation) (Commission File Number) (I.R.S. Employer Identification No.) 9540 South Maroon Circle, Suite 200, Englewood, CO (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code:(855) 922-6463 (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02.Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. Retirement of Director On March 12, 2012, Thomas J. Coffey notified the Board of Directors of his desire to retire from the Board after 12 years of service to the Company and, accordingly, that he will not stand for re-election as a director at the 2012 Annual Meeting of Stockholders.",
"Mr. Coffey’s retirement will be effective at the 2012 Annual Meeting of Stockholders. - 2 - SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. WESTMORELAND COAL COMPANY Date:March 16, 2012 By: /s/ Jennifer S. Grafton Jennifer S. Grafton General Counsel and Secretary -3 -"
]
| 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 |
|
Decree unanimously affirmed, with costs. No opinion. | 01-06-2022 | [
"Decree unanimously affirmed, with costs. No opinion."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5203909/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Filed 12/9/20 P. v. Villegas CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300146
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA032022) v.
HECTOR RODOLFO VILLEGAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed. Jin H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, and Idan Ivri and Nancy L. Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________ INTRODUCTION
Hector Rodolfo Villegas appeals from the superior court’s order denying his petition under Penal Code section 1170.95,1 which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Villegas contends the court erred by applying an incorrect standard of proof. We conclude that, although the court initially applied an incorrect standard, the court also applied, in the alternative, the correct standard and that substantial evidence supported the court’s ruling under that standard. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Villegas of Murder, and This Court Affirms At 2:30 a.m. on April 14, 1997, 20-year-old Villegas, in a stolen car, led police officers on a 10-mile high-speed chase, driving 85 miles per hour on residential neighborhoods through several cities. During the chase Villegas drove on the wrong side of the road, ran at least two stop signs and two red lights, and nearly collided with a city bus. The chase ended when he skidded across seven lanes of traffic and crashed into a telephone pole, killing his passenger, 57-year-old Todd Cassick. The People charged Villegas with second degree murder (§ 187, subd. (a); count 1), willfully fleeing or attempting to elude a pursuing peace officer proximately causing death (Veh. Code,
1 Undesignated statutory references are to the Penal Code.
2 § 2800.3, subd. (b); count 2), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 3). At trial Villegas sought to establish he fled from police only because he was afraid of and pressured by the much older Cassick. Villegas admitted that during the chase he knew what he was doing “was very dangerous” and that he “knew [he] might hurt people by driving this quick.” The trial court instructed the jury on two theories of murder: second degree felony murder and implied malice murder.2 The jury convicted Villegas on all counts. The court sentenced Villegas on count 1 to a prison term of 15 years to life, on count 2 to four years (stayed under section 654), and on count 3 to a term of two years (concurrent with the sentence on count 1). On direct appeal this court affirmed the judgment. It also dismissed a petition by Villegas for writ of habeas corpus in which he contended he received ineffective assistance of counsel.
B. The Legislature Enacts Senate Bill No. 1437 In 2018 the Legislature enacted Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective January 1, 2019, which amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder by amending sections 188 and 189. New section 188, subdivision (a)(3), provides, “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be
2 The predicate felony for the felony murder theory was fleeing or attempting to elude a pursuing peace officer while driving with a willful or wanton disregard for the safety of persons or property, in violation of Vehicle Code section 2800.2.
3 imputed to a person based solely on his or her participation in a crime.” New section 189, subdivision (e), provides that a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs (that is, those crimes that provide the basis for first degree felony murder) “is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” Senate Bill No. 1437, through new section 1170.95, also authorizes an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill No. 1437’s changes to the definition of the crime. (§ 1170.95, subd. (a).) The petition must include a declaration by the petitioner that he or she is eligible for relief under this section, the superior court case number and year of the petitioner’s conviction, and a statement whether the petitioner requests the appointment of counsel. (§ 1170.95, subd. (b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted Mar. 18, 2020, S260493 (Verdugo).) If the petition contains all required information, and the court determines the petition is facially sufficient, section 1170.95, subdivision (c), prescribes a two-step procedure for the
4 court to determine whether to issue an order to show cause: “‘The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response . . . and the petitioner may file and serve a reply . . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.’” (Verdugo, supra, 44 Cal.App.5th at p. 327.) If the court determines the petitioner has made a prima facie showing and the court issues an order to show cause, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the prosecution has the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence. (See People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020, S263219; People v. Lewis (2020) 43 Cal.App.5th 1128, 1136 & fn. 7 [“The record of conviction includes a reviewing court’s opinion.”], review granted Mar. 18, 2020, S260598.)
5 C. Villegas Files a Petition Under Section 1170.95, Which the Superior Court Denies After Issuing an Order To Show Cause and Holding a Hearing In January 2019 Villegas filed a petition for resentencing under section 1170.95. After the People conceded he had made a prima facie showing he was entitled to relief because “there were multiple theories of [murder] liability available to the jury, including felony murder,” the superior court issued an order to show cause. In the ensuing briefing, the People argued Villegas was not entitled to relief because, among other reasons, under current law Villegas “could still be convicted of second degree murder beyond a reasonable doubt” on an implied malice theory. As we will discuss more fully below, “second degree murder based on implied malice has been committed when a person does ‘“‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’”’” (People v. Watson (1981) 30 Cal.3d 290, 300; accord, Zemek v. Superior Court (2020) 44 Cal.App.5th 535, 548.) In June 2019 the superior court held a hearing, at which the court stated it had reviewed the file, including the entire reporter’s transcript of the 1997 trial, the jury instructions, and this court’s opinion resolving Villegas’s direct appeal and habeas petition. And after observing that, as a result of Senate Bill No. 1437, Villegas could no longer be convicted of murder based on the felony murder theory presented at his trial, the court stated: “I view my role here as a limited one. I view my role as one of making a determination not of guilt beyond a reasonable doubt, but whether the People can prove that the defendant is
6 ineligible under 1170.95 because he could not be convicted under the present state of the law. So the way I view the question is, Can the People demonstrate beyond a reasonable doubt that the defendant could be convicted under the implied malice theory of murder?” Agreeing that the court had accurately described its role and the dispositive question, the People argued Villegas “could still be convicted beyond a reasonable doubt of implied malice murder given the evidence that was presented during the trial.” Counsel for Villegas, however, argued Villegas was entitled to have a jury determine whether “the People can prove beyond a reasonable doubt that [Villegas] is ineligible for relief” under section 1170.95. After the court rejected that argument, counsel for Villegas expressed concern about “the court’s emphasi[s] on the word ‘could’” when stating the People’s burden was to demonstrate beyond a reasonable doubt the defendant could be convicted of murder on an implied malice theory. The court responded, in relevant part: “I don’t know that my role here is to say, Is the defendant guilty? Have the People proven him guilty beyond a reasonable doubt of second degree implied malice murder? I don’t know that that’s my role here. Because the question is could he be, not would he be.” Counsel for Villegas answered: “And that’s why I go back to asking for a jury.” The court indicated it understood Villegas’s argument and again outlined what the court viewed its role was. “So I don’t view my role as the trier of fact here. I don’t view my role as the 13th juror. And if I’m wrong, we’ll be back, right, depending on the outcome.” After hearing further argument on the evidence at trial, the superior court found the People had met their burden of proving
7 Villegas was ineligible for relief under section 1170.95. The court stated: “There is more than enough evidence to prove beyond a reasonable doubt that the way this . . . evading was committed does rise to the level of proving that the defendant committed an implied malice murder. . . . The natural consequences of that conduct . . . were dangerous to human life. And I don’t think there could be any dispute but that . . . the duration of the chase, the location of the chase, the speeds, the manner in which [Villegas] was driving—all of that was dangerous to human life. And it’s clear just by the testimony of the officers, without the defendant’s admissions, it’s clear he was deliberately engaging in this conduct knowing the danger to human life and acting in conscious disregard for that human life. . . . So while I’m aware . . . that one theory was presented that was legally incorrect, the manner in which the evading was committed . . . does support the implied malice second degree theory of liability here. And as such, I think if Mr. Villegas were tried today, . . . there would be proof beyond a reasonable doubt.” The court continued: “Now, I will extend and enlarge the scope of what I view my role is because I do think it’s what I said earlier. But since I don’t know what the court of appeal is going to do, I can comfortably say that the evidence today would prove beyond a reasonable doubt implied malice murder given these facts that I have from the testimony from the transcript and from the description by the court of appeal. And then on top of that, if I were to add Mr. Villegas’s testimony, that was kind of icing on the cake for the prosecution. I don’t know if the prosecution really needed that testimony, but they got it. And it was devastating. . . . But I think the evidence, even without it, is substantial and constitutes proof beyond a reasonable doubt.”
8 The court concluded: “So even assuming my role is to be a trier of fact—which I don’t assume it to be—but even if it were and the courts were to say that that’s what it is to be, I believe the People have demonstrated beyond a reasonable doubt that the defendant not only could be convicted under the present state of the law, but most likely would be convicted under the present state of the law given those facts. And so given the uncertainty as to how this is going to be construed, the statute, I think there is really more than enough evidence here no matter how I look at it to support this conviction . . . .” Villegas timely appealed.
DISCUSSION
Villegas contends that the superior court, in finding the People met their burden of proving beyond a reasonable doubt he was ineligible for relief under section 1170.95, erroneously required the People “to prove only that, based on the record of conviction, Villegas could have been convicted of implied malice murder, i.e., there was substantial evidence to support such a conviction.” He argues that, properly interpreted, section 1170.95, subdivision (d)(3), instead “requires the prosecution to prove beyond a reasonable doubt that the jury would have convicted Villegas of implied malice murder despite the now- erroneous jury instruction on second-degree felony murder.”3 He maintains the People did not meet that burden here.
3 Villegas argues that, “construed in light of the legislative purpose of” Senate Bill No. 1437, section 1170.95, subdivision (d)(3), “requires the trial court . . . to conduct a Chapman [v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705]-like analysis used in cases where the jury was
9 The proper interpretation of section 1170.95, subdivision (d)(3)—“that is, the correct standard to be applied by the superior court in evaluating eligibility for resentencing—is a question of law that we determine de novo.” (People v. Rodriguez (Dec. 7, 2020, B303099) ___ Cal.App.5th ___, ___ [2020 WL 7137040, p. 6] (Rodriguez); see People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Drayton (2020) 47 Cal.App.5th 965, 981.) We review for substantial evidence the superior court’s factual determination under section 1170.95, subdivision (d)(3), that the prosecution proved beyond a reasonable doubt the petitioner was ineligible for resentencing. (People v. Lopez (2020) 56 Cal.App.5th 936, 951-952, petn. for review pending, petn. filed Dec. 7, 2020, S265974; see People v. Prunty, supra, 62 Cal.4th at p. 71; Rodriguez, at p. ___ [p. 6] [“As appellate courts generally do, we apply a deferential standard of review in determining whether the evidence supports any of the superior court’s factual findings.”]; see also People v. Sledge (2017) 7 Cal.App.5th 1089, 1095-1096 [where an appeal involves interpreting a statute, the issue is a legal one we review de novo, and where “‘the trial court applies disputed facts to such a statute, we review the factual findings for substantial evidence’”]; see generally People v. Penunuri (2018) 5 Cal.5th 126, 142 [describing standard of review for sufficiency of the evidence to support a criminal conviction].) Applying these standards, we conclude the superior court did not err.
instructed on two theories of liability, one of which was erroneous.”
10 A. The Superior Court Applied, in the Alternative, the Correct Standard As we recently held in Rodriguez, supra, ___ Cal.App.5th ___, “section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner’s ineligibility for relief under that statute.” (Rodriguez, at p. ___ [p. 1]; accord, People v. Lopez, supra, 56 Cal.App.5th at p. 951.) We explained that, in evaluating whether the prosecutor has met this burden, “it is the court’s responsibility to act as independent factfinder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 . . . .” (Rodriguez, at p. ___ [p. 11].) Although the prosecutor did not take that position in the superior court, the Attorney General takes that position on appeal. In Rodriguez we rejected both the standard Villegas urges us to adopt and the standard the superior court initially applied here. (See Rodriguez, supra, ___ Cal.App.5th at pp. ___ [pp. 6-11].) We characterized the latter incorrect standard as “would the evidence permit a reasonable jury to find the petitioner guilty of murder with the requisite mental state beyond a reasonable doubt—essentially substantial evidence standard for appellate review.” (Rodriguez, at p. ___ [p. 6].) And we concluded the superior court in that case erroneously applied that incorrect standard, as reflected, for example, in its statement that “it was required to review the record to determine ‘whether or not there is evidence in the record beyond a reasonable doubt that could support a murder conviction.’” (Rodriguez, at p. ___ [p. 11], italics added; see ibid. [superior court’s “formulations of the standard used the phrase ‘could
11 support’—the appellate standard of review—not ‘does support beyond a reasonable doubt’ or equivalent language”].) The superior court here described the standard it initially applied in almost identical language and stated it did not view its role as that of the trier of fact concerning whether Villegas would be guilty of murder on an implied malice theory. The court stated, “I think they [the legislators] are telling us to act somewhat as a reviewing court.” And had the superior court here proceeded on that basis only, its ruling would have been, like that of the superior court in Rodriguez, error. But acknowledging it might be mistaken that its role was to act as a reviewing court, rather than as the trier of fact, the superior court here “extend[ed] and enlarge[d]” its view of its role and found it could “comfortably say that the evidence today would prove beyond a reasonable doubt implied malice murder.” The court added that, even without Villegas’s trial testimony—which the court called “icing on the cake” and “devastating”—“I think the evidence . . . is substantial and constitutes proof beyond a reasonable doubt.” These statements show the superior court applied, in the alternative, the correct standard in determining the People proved beyond a reasonable doubt Villegas was ineligible for relief under section 1170.95. Of course, at the conclusion of the hearing, when repeating the alternative basis for its ruling, the superior court misstated the correct standard, stating the People had demonstrated beyond a reasonable doubt Villegas not only could be, but “most likely would be,” convicted of implied malice murder. It is not clear what the court meant by that statement. Viewed in isolation, the phrase “most likely would be” might suggest, as
12 Villegas contends, the court was applying something “akin to a preponderance [of the evidence] standard.” But nothing about the court’s and the parties’ discussion of the issue at the hearing, when viewed as a whole, suggests the court ever considered or applied a preponderance of the evidence standard. Rather, the court considered two standards: that of a reviewing court applying a substantial evidence standard and that of the independent factfinder, a “13th juror,” applying the standard of beyond a reasonable doubt. Believing the former was correct, the court nevertheless applied the latter in the alternative, finding the evidence proved beyond a reasonable doubt Villegas committed implied malice murder. The court’s first statement of that alternative ruling, applying the correct standard, was clear. And viewing its later statement in context, we are satisfied the court merely misspoke in using the phrase “most likely would be.” (See People v. Carrington (2009) 47 Cal.4th 145, 201 [although the trial court’s statement of the standard for determining whether to modify a verdict of death to life imprisonment without parole was “difficult to interpret,” it apparently “misspoke,” and the “court’s ruling, when considered in its entirety,” indicated it applied the correct standard]; People v. Wilson (2008) 44 Cal.4th 758, 809, fn. 12 [trial court “apparently misspoke” in identifying the controlling statutory provision because other statements made clear it relied on the correct provision]; People v. Griffin (2004) 33 Cal.4th 536, 570 [it was “reasonable to conclude” the trial court applied the correct standard, “even if it did not quote it exactly,” when its words were viewed “in context”], disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32; People v. Deere (1991) 53 Cal.3d 705, 725 [“it is readily apparent, from the
13 context of the remark itself, that the court simply misspoke itself”].) Villegas also isolates other individual words used by the superior court to argue that, even in the alternative, the court applied an incorrect standard. Specifically, he cites the court’s statements that “I can comfortably say that the evidence today would prove beyond a reasonable doubt implied malice murder given these facts” and “I think there is more than enough evidence here no matter how I look at it to support this conviction.” Villegas argues that, “in both instances,” the superior court “was equivocal, stating that the prosecution’s evidence would prove beyond a reasonable [doubt] Villegas’s guilt and that the evidence supported a conviction for implied malice murder. It did not state that the evidence proved Villegas’s guilt beyond a reasonable doubt, as the standard advocated by respondent requires.” These arguments are not persuasive. Concerning the first statement Villegas cites, the superior court’s use of the conditional verb “would” was, as we explained in Rodriguez, “a normal grammatical construct to express the hypothetical situation an inmate . . . faces when filing the petition—what would happen today if he or she were tried under the new provisions of the Penal Code?” (Rodriguez, supra, ___ Cal.App.5th at p. ___ [p. 9].) And the superior court had already made clear how it was using the word “would,” in this context, when earlier explaining it believed its role was to act as a reviewing court, not an independent factfinder, “[b]ecause the question is, could [Villegas] be, not would he be” guilty of implied malice murder. The superior court thus was using the word “would” exactly as we did when articulating the proper standard
14 in Rodriguez: “[I]t is the court’s responsibility to . . . determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189.” (Rodriguez, at p. ___ [p. 11].) Moreover, Villegas is presumably suggesting the court’s use of “would” in the statement in question indicates it was applying, even in the alternative, a substantial evidence standard. That interpretation is not reasonable, however, given the court had already applied that standard and was now, alternatively, applying a different one. The same is true of Villegas’s argument concerning the court’s use, in the other statement he cites, of the word “supported.” Finally, to the extent the court’s use of these two words in these two statements was equivocal—and it wasn’t—we presume the court was using the words correctly. (See People v. Kareem A. (2020) 46 Cal.App.5th 58, 77 [“‘A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’”]; People v. Chubbuck (2019) 43 Cal.App.5th 1, 12 [“‘“‘[w]e must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error[;] it will not be presumed,’” [and] any uncertainty in the record must be resolved against the defendant’”].)
B. Substantial Evidence Supported the Superior Court’s Ruling “The Supreme Court has ‘“interpreted implied malice as having ‘both a physical and a mental component. The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The
15 mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.”’”’” (People v. Jones (2018) 26 Cal.App.5th 420, 442; see People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358 [the defendant must have “‘actually appreciated the risk of his or her actions’”].) “‘It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant’s mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.’” (Jimenez, at p. 1358.) Ample evidence supported the superior court’s finding the People proved beyond a reasonable doubt Villegas was guilty of implied malice murder. In evading officers for 10 miles, Villegas drove 85 miles per hour through residential neighborhoods, drove on the wrong side of the road, ran through stop signs and red lights, nearly hit a bus, and finally skidded across multiple lanes of traffic before crashing into a telephone pole violently enough to kill his passenger. He admitted he knew what he was doing was very dangerous and might hurt people. That admission, as the superior court observed, was icing on a substantial cake of circumstantial evidence showing that the natural consequences of the way Villegas drove while evading police were dangerous to life, that he knew his driving endangered human life, and that he drove with conscious disregard for life. (See People v. Watson, supra, 30 Cal.3d at pp. 300-301 [evidence supported a finding the defendant committed implied malice murder where, while intoxicated, he “drove at highly excessive speeds through city streets” and “nearly collided with a vehicle after running a red light” before crashing into the victims’ car]; People v. Moore (2010) 187 Cal.App.4th 937, 941 [substantial evidence supported
16 a conviction for implied malice murder where the defendant “drove 70 miles per hour in a 35-mile-per-hour zone, crossed into the opposing traffic lane, caused oncoming drivers to avoid him, ran a red light and struck a car in the intersection”].)
DISPOSITION
The order denying Villegas’s petition under section 1170.95 is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
17 | 12-09-2020 | [
"Filed 12/9/20 P. v. Villegas CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B300146 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA032022) v. HECTOR RODOLFO VILLEGAS, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed. Jin H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.",
"Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, and Idan Ivri and Nancy L. Ladner, Deputy Attorneys General, for Plaintiff and Respondent. _____________________________ INTRODUCTION Hector Rodolfo Villegas appeals from the superior court’s order denying his petition under Penal Code section 1170.95,1 which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Villegas contends the court erred by applying an incorrect standard of proof.",
"We conclude that, although the court initially applied an incorrect standard, the court also applied, in the alternative, the correct standard and that substantial evidence supported the court’s ruling under that standard. Therefore, we affirm. FACTUAL AND PROCEDURAL BACKGROUND A. A Jury Convicts Villegas of Murder, and This Court Affirms At 2:30 a.m. on April 14, 1997, 20-year-old Villegas, in a stolen car, led police officers on a 10-mile high-speed chase, driving 85 miles per hour on residential neighborhoods through several cities.",
"During the chase Villegas drove on the wrong side of the road, ran at least two stop signs and two red lights, and nearly collided with a city bus. The chase ended when he skidded across seven lanes of traffic and crashed into a telephone pole, killing his passenger, 57-year-old Todd Cassick. The People charged Villegas with second degree murder (§ 187, subd. (a); count 1), willfully fleeing or attempting to elude a pursuing peace officer proximately causing death (Veh. Code, 1 Undesignated statutory references are to the Penal Code. 2 § 2800.3, subd. (b); count 2), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 3).",
"At trial Villegas sought to establish he fled from police only because he was afraid of and pressured by the much older Cassick. Villegas admitted that during the chase he knew what he was doing “was very dangerous” and that he “knew [he] might hurt people by driving this quick.” The trial court instructed the jury on two theories of murder: second degree felony murder and implied malice murder.2 The jury convicted Villegas on all counts. The court sentenced Villegas on count 1 to a prison term of 15 years to life, on count 2 to four years (stayed under section 654), and on count 3 to a term of two years (concurrent with the sentence on count 1). On direct appeal this court affirmed the judgment.",
"It also dismissed a petition by Villegas for writ of habeas corpus in which he contended he received ineffective assistance of counsel. B. The Legislature Enacts Senate Bill No. 1437 In 2018 the Legislature enacted Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective January 1, 2019, which amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder by amending sections 188 and 189. New section 188, subdivision (a)(3), provides, “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.",
"Malice shall not be 2 The predicate felony for the felony murder theory was fleeing or attempting to elude a pursuing peace officer while driving with a willful or wanton disregard for the safety of persons or property, in violation of Vehicle Code section 2800.2. 3 imputed to a person based solely on his or her participation in a crime.” New section 189, subdivision (e), provides that a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs (that is, those crimes that provide the basis for first degree felony murder) “is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.",
"[¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” Senate Bill No. 1437, through new section 1170.95, also authorizes an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill No. 1437’s changes to the definition of the crime. (§ 1170.95, subd.",
"(a).) The petition must include a declaration by the petitioner that he or she is eligible for relief under this section, the superior court case number and year of the petitioner’s conviction, and a statement whether the petitioner requests the appointment of counsel. (§ 1170.95, subd. (b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted Mar. 18, 2020, S260493 (Verdugo).) If the petition contains all required information, and the court determines the petition is facially sufficient, section 1170.95, subdivision (c), prescribes a two-step procedure for the 4 court to determine whether to issue an order to show cause: “‘The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.",
"The prosecutor shall file and serve a response . . . and the petitioner may file and serve a reply . . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.’” (Verdugo, supra, 44 Cal.App.5th at p. 327.) If the court determines the petitioner has made a prima facie showing and the court issues an order to show cause, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the prosecution has the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence. (See People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020, S263219; People v. Lewis (2020) 43 Cal.App.5th 1128, 1136 & fn. 7 [“The record of conviction includes a reviewing court’s opinion.”], review granted Mar. 18, 2020, S260598.)",
"5 C. Villegas Files a Petition Under Section 1170.95, Which the Superior Court Denies After Issuing an Order To Show Cause and Holding a Hearing In January 2019 Villegas filed a petition for resentencing under section 1170.95. After the People conceded he had made a prima facie showing he was entitled to relief because “there were multiple theories of [murder] liability available to the jury, including felony murder,” the superior court issued an order to show cause. In the ensuing briefing, the People argued Villegas was not entitled to relief because, among other reasons, under current law Villegas “could still be convicted of second degree murder beyond a reasonable doubt” on an implied malice theory. As we will discuss more fully below, “second degree murder based on implied malice has been committed when a person does ‘“‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’”’” (People v. Watson (1981) 30 Cal.3d 290, 300; accord, Zemek v. Superior Court (2020) 44 Cal.App.5th 535, 548.)",
"In June 2019 the superior court held a hearing, at which the court stated it had reviewed the file, including the entire reporter’s transcript of the 1997 trial, the jury instructions, and this court’s opinion resolving Villegas’s direct appeal and habeas petition. And after observing that, as a result of Senate Bill No. 1437, Villegas could no longer be convicted of murder based on the felony murder theory presented at his trial, the court stated: “I view my role here as a limited one. I view my role as one of making a determination not of guilt beyond a reasonable doubt, but whether the People can prove that the defendant is 6 ineligible under 1170.95 because he could not be convicted under the present state of the law. So the way I view the question is, Can the People demonstrate beyond a reasonable doubt that the defendant could be convicted under the implied malice theory of murder?” Agreeing that the court had accurately described its role and the dispositive question, the People argued Villegas “could still be convicted beyond a reasonable doubt of implied malice murder given the evidence that was presented during the trial.” Counsel for Villegas, however, argued Villegas was entitled to have a jury determine whether “the People can prove beyond a reasonable doubt that [Villegas] is ineligible for relief” under section 1170.95.",
"After the court rejected that argument, counsel for Villegas expressed concern about “the court’s emphasi[s] on the word ‘could’” when stating the People’s burden was to demonstrate beyond a reasonable doubt the defendant could be convicted of murder on an implied malice theory. The court responded, in relevant part: “I don’t know that my role here is to say, Is the defendant guilty? Have the People proven him guilty beyond a reasonable doubt of second degree implied malice murder? I don’t know that that’s my role here. Because the question is could he be, not would he be.” Counsel for Villegas answered: “And that’s why I go back to asking for a jury.” The court indicated it understood Villegas’s argument and again outlined what the court viewed its role was. “So I don’t view my role as the trier of fact here.",
"I don’t view my role as the 13th juror. And if I’m wrong, we’ll be back, right, depending on the outcome.” After hearing further argument on the evidence at trial, the superior court found the People had met their burden of proving 7 Villegas was ineligible for relief under section 1170.95. The court stated: “There is more than enough evidence to prove beyond a reasonable doubt that the way this . . . evading was committed does rise to the level of proving that the defendant committed an implied malice murder. . . . The natural consequences of that conduct .",
". . were dangerous to human life. And I don’t think there could be any dispute but that . . . the duration of the chase, the location of the chase, the speeds, the manner in which [Villegas] was driving—all of that was dangerous to human life. And it’s clear just by the testimony of the officers, without the defendant’s admissions, it’s clear he was deliberately engaging in this conduct knowing the danger to human life and acting in conscious disregard for that human life. .",
". . So while I’m aware . . . that one theory was presented that was legally incorrect, the manner in which the evading was committed . . . does support the implied malice second degree theory of liability here. And as such, I think if Mr. Villegas were tried today, . . . there would be proof beyond a reasonable doubt.” The court continued: “Now, I will extend and enlarge the scope of what I view my role is because I do think it’s what I said earlier. But since I don’t know what the court of appeal is going to do, I can comfortably say that the evidence today would prove beyond a reasonable doubt implied malice murder given these facts that I have from the testimony from the transcript and from the description by the court of appeal.",
"And then on top of that, if I were to add Mr. Villegas’s testimony, that was kind of icing on the cake for the prosecution. I don’t know if the prosecution really needed that testimony, but they got it. And it was devastating. . . . But I think the evidence, even without it, is substantial and constitutes proof beyond a reasonable doubt.” 8 The court concluded: “So even assuming my role is to be a trier of fact—which I don’t assume it to be—but even if it were and the courts were to say that that’s what it is to be, I believe the People have demonstrated beyond a reasonable doubt that the defendant not only could be convicted under the present state of the law, but most likely would be convicted under the present state of the law given those facts. And so given the uncertainty as to how this is going to be construed, the statute, I think there is really more than enough evidence here no matter how I look at it to support this conviction .",
". . .” Villegas timely appealed. DISCUSSION Villegas contends that the superior court, in finding the People met their burden of proving beyond a reasonable doubt he was ineligible for relief under section 1170.95, erroneously required the People “to prove only that, based on the record of conviction, Villegas could have been convicted of implied malice murder, i.e., there was substantial evidence to support such a conviction.” He argues that, properly interpreted, section 1170.95, subdivision (d)(3), instead “requires the prosecution to prove beyond a reasonable doubt that the jury would have convicted Villegas of implied malice murder despite the now- erroneous jury instruction on second-degree felony murder.”3 He maintains the People did not meet that burden here. 3 Villegas argues that, “construed in light of the legislative purpose of” Senate Bill No.",
"1437, section 1170.95, subdivision (d)(3), “requires the trial court . . . to conduct a Chapman [v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705]-like analysis used in cases where the jury was 9 The proper interpretation of section 1170.95, subdivision (d)(3)—“that is, the correct standard to be applied by the superior court in evaluating eligibility for resentencing—is a question of law that we determine de novo.” (People v. Rodriguez (Dec. 7, 2020, B303099) ___ Cal.App.5th ___, ___ [2020 WL 7137040, p. 6] (Rodriguez); see People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Drayton (2020) 47 Cal.App.5th 965, 981.) We review for substantial evidence the superior court’s factual determination under section 1170.95, subdivision (d)(3), that the prosecution proved beyond a reasonable doubt the petitioner was ineligible for resentencing. (People v. Lopez (2020) 56 Cal.App.5th 936, 951-952, petn.",
"for review pending, petn. filed Dec. 7, 2020, S265974; see People v. Prunty, supra, 62 Cal.4th at p. 71; Rodriguez, at p. ___ [p. 6] [“As appellate courts generally do, we apply a deferential standard of review in determining whether the evidence supports any of the superior court’s factual findings.”]; see also People v. Sledge (2017) 7 Cal.App.5th 1089, 1095-1096 [where an appeal involves interpreting a statute, the issue is a legal one we review de novo, and where “‘the trial court applies disputed facts to such a statute, we review the factual findings for substantial evidence’”]; see generally People v. Penunuri (2018) 5 Cal.5th 126, 142 [describing standard of review for sufficiency of the evidence to support a criminal conviction].) Applying these standards, we conclude the superior court did not err. instructed on two theories of liability, one of which was erroneous.” 10 A.",
"The Superior Court Applied, in the Alternative, the Correct Standard As we recently held in Rodriguez, supra, ___ Cal.App.5th ___, “section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner’s ineligibility for relief under that statute.” (Rodriguez, at p. ___ [p. 1]; accord, People v. Lopez, supra, 56 Cal.App.5th at p. 951.) We explained that, in evaluating whether the prosecutor has met this burden, “it is the court’s responsibility to act as independent factfinder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 . . .",
".” (Rodriguez, at p. ___ [p. 11].) Although the prosecutor did not take that position in the superior court, the Attorney General takes that position on appeal. In Rodriguez we rejected both the standard Villegas urges us to adopt and the standard the superior court initially applied here. (See Rodriguez, supra, ___ Cal.App.5th at pp. ___ [pp. 6-11].) We characterized the latter incorrect standard as “would the evidence permit a reasonable jury to find the petitioner guilty of murder with the requisite mental state beyond a reasonable doubt—essentially substantial evidence standard for appellate review.” (Rodriguez, at p. ___ [p. 6].) And we concluded the superior court in that case erroneously applied that incorrect standard, as reflected, for example, in its statement that “it was required to review the record to determine ‘whether or not there is evidence in the record beyond a reasonable doubt that could support a murder conviction.’” (Rodriguez, at p. ___ [p. 11], italics added; see ibid. [superior court’s “formulations of the standard used the phrase ‘could 11 support’—the appellate standard of review—not ‘does support beyond a reasonable doubt’ or equivalent language”].)",
"The superior court here described the standard it initially applied in almost identical language and stated it did not view its role as that of the trier of fact concerning whether Villegas would be guilty of murder on an implied malice theory. The court stated, “I think they [the legislators] are telling us to act somewhat as a reviewing court.” And had the superior court here proceeded on that basis only, its ruling would have been, like that of the superior court in Rodriguez, error. But acknowledging it might be mistaken that its role was to act as a reviewing court, rather than as the trier of fact, the superior court here “extend[ed] and enlarge[d]” its view of its role and found it could “comfortably say that the evidence today would prove beyond a reasonable doubt implied malice murder.” The court added that, even without Villegas’s trial testimony—which the court called “icing on the cake” and “devastating”—“I think the evidence .",
". . is substantial and constitutes proof beyond a reasonable doubt.” These statements show the superior court applied, in the alternative, the correct standard in determining the People proved beyond a reasonable doubt Villegas was ineligible for relief under section 1170.95. Of course, at the conclusion of the hearing, when repeating the alternative basis for its ruling, the superior court misstated the correct standard, stating the People had demonstrated beyond a reasonable doubt Villegas not only could be, but “most likely would be,” convicted of implied malice murder. It is not clear what the court meant by that statement. Viewed in isolation, the phrase “most likely would be” might suggest, as 12 Villegas contends, the court was applying something “akin to a preponderance [of the evidence] standard.” But nothing about the court’s and the parties’ discussion of the issue at the hearing, when viewed as a whole, suggests the court ever considered or applied a preponderance of the evidence standard.",
"Rather, the court considered two standards: that of a reviewing court applying a substantial evidence standard and that of the independent factfinder, a “13th juror,” applying the standard of beyond a reasonable doubt. Believing the former was correct, the court nevertheless applied the latter in the alternative, finding the evidence proved beyond a reasonable doubt Villegas committed implied malice murder. The court’s first statement of that alternative ruling, applying the correct standard, was clear. And viewing its later statement in context, we are satisfied the court merely misspoke in using the phrase “most likely would be.” (See People v. Carrington (2009) 47 Cal.4th 145, 201 [although the trial court’s statement of the standard for determining whether to modify a verdict of death to life imprisonment without parole was “difficult to interpret,” it apparently “misspoke,” and the “court’s ruling, when considered in its entirety,” indicated it applied the correct standard]; People v. Wilson (2008) 44 Cal.4th 758, 809, fn. 12 [trial court “apparently misspoke” in identifying the controlling statutory provision because other statements made clear it relied on the correct provision]; People v. Griffin (2004) 33 Cal.4th 536, 570 [it was “reasonable to conclude” the trial court applied the correct standard, “even if it did not quote it exactly,” when its words were viewed “in context”], disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn.",
"32; People v. Deere (1991) 53 Cal.3d 705, 725 [“it is readily apparent, from the 13 context of the remark itself, that the court simply misspoke itself”].) Villegas also isolates other individual words used by the superior court to argue that, even in the alternative, the court applied an incorrect standard. Specifically, he cites the court’s statements that “I can comfortably say that the evidence today would prove beyond a reasonable doubt implied malice murder given these facts” and “I think there is more than enough evidence here no matter how I look at it to support this conviction.” Villegas argues that, “in both instances,” the superior court “was equivocal, stating that the prosecution’s evidence would prove beyond a reasonable [doubt] Villegas’s guilt and that the evidence supported a conviction for implied malice murder. It did not state that the evidence proved Villegas’s guilt beyond a reasonable doubt, as the standard advocated by respondent requires.” These arguments are not persuasive.",
"Concerning the first statement Villegas cites, the superior court’s use of the conditional verb “would” was, as we explained in Rodriguez, “a normal grammatical construct to express the hypothetical situation an inmate . . . faces when filing the petition—what would happen today if he or she were tried under the new provisions of the Penal Code?” (Rodriguez, supra, ___ Cal.App.5th at p. ___ [p. 9].) And the superior court had already made clear how it was using the word “would,” in this context, when earlier explaining it believed its role was to act as a reviewing court, not an independent factfinder, “[b]ecause the question is, could [Villegas] be, not would he be” guilty of implied malice murder.",
"The superior court thus was using the word “would” exactly as we did when articulating the proper standard 14 in Rodriguez: “[I]t is the court’s responsibility to . . . determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189.” (Rodriguez, at p. ___ [p. 11].) Moreover, Villegas is presumably suggesting the court’s use of “would” in the statement in question indicates it was applying, even in the alternative, a substantial evidence standard. That interpretation is not reasonable, however, given the court had already applied that standard and was now, alternatively, applying a different one. The same is true of Villegas’s argument concerning the court’s use, in the other statement he cites, of the word “supported.” Finally, to the extent the court’s use of these two words in these two statements was equivocal—and it wasn’t—we presume the court was using the words correctly. (See People v. Kareem A. (2020) 46 Cal.App.5th 58, 77 [“‘A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’”]; People v. Chubbuck (2019) 43 Cal.App.5th 1, 12 [“‘“‘[w]e must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error[;] it will not be presumed,’” [and] any uncertainty in the record must be resolved against the defendant’”].) B. Substantial Evidence Supported the Superior Court’s Ruling “The Supreme Court has ‘“interpreted implied malice as having ‘both a physical and a mental component.",
"The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The 15 mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.”’”’” (People v. Jones (2018) 26 Cal.App.5th 420, 442; see People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358 [the defendant must have “‘actually appreciated the risk of his or her actions’”].) “‘It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant’s mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.’” (Jimenez, at p. 1358.) Ample evidence supported the superior court’s finding the People proved beyond a reasonable doubt Villegas was guilty of implied malice murder.",
"In evading officers for 10 miles, Villegas drove 85 miles per hour through residential neighborhoods, drove on the wrong side of the road, ran through stop signs and red lights, nearly hit a bus, and finally skidded across multiple lanes of traffic before crashing into a telephone pole violently enough to kill his passenger. He admitted he knew what he was doing was very dangerous and might hurt people. That admission, as the superior court observed, was icing on a substantial cake of circumstantial evidence showing that the natural consequences of the way Villegas drove while evading police were dangerous to life, that he knew his driving endangered human life, and that he drove with conscious disregard for life. (See People v. Watson, supra, 30 Cal.3d at pp. 300-301 [evidence supported a finding the defendant committed implied malice murder where, while intoxicated, he “drove at highly excessive speeds through city streets” and “nearly collided with a vehicle after running a red light” before crashing into the victims’ car]; People v. Moore (2010) 187 Cal.App.4th 937, 941 [substantial evidence supported 16 a conviction for implied malice murder where the defendant “drove 70 miles per hour in a 35-mile-per-hour zone, crossed into the opposing traffic lane, caused oncoming drivers to avoid him, ran a red light and struck a car in the intersection”].)",
"DISPOSITION The order denying Villegas’s petition under section 1170.95 is affirmed. SEGAL, J. We concur: PERLUSS, P. J. FEUER, J. 17"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4641088/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 02-2228
ROSARIO PRIOLA,
Petitioner,
versus
JOHN ASHCROFT, United States Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. (A20-841-434)
Submitted: October 1, 2003 Decided: October 17, 2003
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Thomas A. Elliot, Fabienne Chatain, ELLIOT & MAYOCK, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, David M. McConnell, Deputy Director, Francesco Isgro, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:
Rosario Priola, a native and citizen of Italy, petitions for
review of a final order of the Board of Immigration Appeals denying
his motion to reopen and reconsider. This case is governed by the
transitional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009. Upon our review, we conclude that we do not have jurisdiction
to consider Priola’s appeal. See IIRIRA § 309(c)(4)(E), (G); Hall
v. INS, 167 F.3d 852, 854-56 (4th Cir. 1999).
Priola nevertheless raises two constitutional challenges on
the grounds of procedural due process and equal protection,
contending that they constitute substantial constitutional
questions not subject to the jurisdictional bar. Assuming, without
deciding, that substantial constitutional questions are indeed
reviewable in the context of a petition for review that is
otherwise barred, we find that Priola’s challenges do not qualify
as such. See Ramtulla v. Ashcroft, 301 F.3d 202, 203-04 (4th Cir.
2002), cert. denied, U.S. , 123 S. Ct. 2577 (2003).
We accordingly dismiss the petition for review for lack of
jurisdiction. We deny Priola’s request to transfer this petition
to the district court for consideration as a petition under 28
U.S.C. § 2241 (2000), and dispense with oral argument because the
facts and legal contentions are adequately presented in the
2 materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED
3 | 07-04-2013 | [
"UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-2228 ROSARIO PRIOLA, Petitioner, versus JOHN ASHCROFT, United States Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A20-841-434) Submitted: October 1, 2003 Decided: October 17, 2003 Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges. Petition dismissed by unpublished per curiam opinion. Thomas A. Elliot, Fabienne Chatain, ELLIOT & MAYOCK, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, David M. McConnell, Deputy Director, Francesco Isgro, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rosario Priola, a native and citizen of Italy, petitions for review of a final order of the Board of Immigration Appeals denying his motion to reopen and reconsider.",
"This case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009. Upon our review, we conclude that we do not have jurisdiction to consider Priola’s appeal. See IIRIRA § 309(c)(4)(E), (G); Hall v. INS, 167 F.3d 852, 854-56 (4th Cir. 1999). Priola nevertheless raises two constitutional challenges on the grounds of procedural due process and equal protection, contending that they constitute substantial constitutional questions not subject to the jurisdictional bar. Assuming, without deciding, that substantial constitutional questions are indeed reviewable in the context of a petition for review that is otherwise barred, we find that Priola’s challenges do not qualify as such. See Ramtulla v. Ashcroft, 301 F.3d 202, 203-04 (4th Cir. 2002), cert.",
"denied, U.S. , 123 S. Ct. 2577 (2003). We accordingly dismiss the petition for review for lack of jurisdiction. We deny Priola’s request to transfer this petition to the district court for consideration as a petition under 28 U.S.C. § 2241 (2000), and dispense with oral argument because the facts and legal contentions are adequately presented in the 2 materials before the court and argument would not aid the decisional process. PETITION DISMISSED 3"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1011683/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
474 F.2d 1345 *dU. S.v.Burton 72-3439 UNITED STATES COURT OF APPEALS Fifth Circuit March 26, 1973
1 W.D.Tex.
* Summary Calendar cases; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of | 08-23-2011 | [
"474 F.2d 1345 *dU. S.v.Burton 72-3439 UNITED STATES COURT OF APPEALS Fifth Circuit March 26, 1973 1 W.D.Tex. * Summary Calendar cases; Rule 18, 5 Cir. ; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of"
]
| https://www.courtlistener.com/api/rest/v3/opinions/309242/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Cert, denied. | 08-23-2021 | [
"Cert, denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4847326/ | 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 . 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 Mr. Corey Hawse, Reg. No. 66,849 on June 8, 2022.
The application has been amended as follows:
In the Claims: Claim 20, line 1, the dependency has been changed from cancelled claim “18” to amended independent claim --16--. Claim 16 is allowable. Claim 25, previously withdrawn from consideration as a result of a restriction requirement, includes all of the allowable limitations of allowable claim 16. Pursuant to the procedures set forth in MPEP § 821.04(a), the restriction requirement between inventions I and II, as set forth in the Office action mailed on September 30, 2021, is hereby withdrawn and claims 25-30 hereby rejoined and fully examined for patentability under 37 CFR 1.104. In view of the withdrawal of the restriction requirement, 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. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Independent claim 16, which is drawn to a humidifier including a humidifier wick, has been amended to include the limitations of previously noted allowable claim 19, i.e., “wherein the first plurality of fibres are positioned closer to the heating element than the second plurality of fibres, and the second plurality of fibres are positioned closer to the pressurized flow of air than the first plurality of fibres”, as well as the limitations of intervening claim 18, i.e., “wherein the first plurality of fibres are each greater in thickness than each of the second plurality of fibres, which combination of limitations relevant to the humidifier wick structure are not taught or suggested by the prior art of record. Claim 25, which has been rejoined and fully examined herein, has been amended to include the specific combination of wick element limitations as noted above with regard to independent claim 16. As such, claims 25-30 have been rejoined and allowed for the same reasons as set forth above with regard to independent claim 16. 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 4. Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES S BUSHEY whose telephone number is (571)272-1153. The examiner can normally be reached M-Th 6:30-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Michener can be reached on 571-272-1424. 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.
/C.S.B/6-12-22 /CHARLES S BUSHEY/ Primary Examiner, Art Unit 1776 | 2022-06-18T22:33:49 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Mr. Corey Hawse, Reg. No. 66,849 on June 8, 2022. The application has been amended as follows: In the Claims: Claim 20, line 1, the dependency has been changed from cancelled claim “18” to amended independent claim --16--. Claim 16 is allowable. Claim 25, previously withdrawn from consideration as a result of a restriction requirement, includes all of the allowable limitations of allowable claim 16. Pursuant to the procedures set forth in MPEP § 821.04(a), the restriction requirement between inventions I and II, as set forth in the Office action mailed on September 30, 2021, is hereby withdrawn and claims 25-30 hereby rejoined and fully examined for patentability under 37 CFR 1.104.",
"In view of the withdrawal of the restriction requirement, 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. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Independent claim 16, which is drawn to a humidifier including a humidifier wick, has been amended to include the limitations of previously noted allowable claim 19, i.e., “wherein the first plurality of fibres are positioned closer to the heating element than the second plurality of fibres, and the second plurality of fibres are positioned closer to the pressurized flow of air than the first plurality of fibres”, as well as the limitations of intervening claim 18, i.e., “wherein the first plurality of fibres are each greater in thickness than each of the second plurality of fibres, which combination of limitations relevant to the humidifier wick structure are not taught or suggested by the prior art of record.",
"Claim 25, which has been rejoined and fully examined herein, has been amended to include the specific combination of wick element limitations as noted above with regard to independent claim 16. As such, claims 25-30 have been rejoined and allowed for the same reasons as set forth above with regard to independent claim 16. 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 4.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES S BUSHEY whose telephone number is (571)272-1153. The examiner can normally be reached M-Th 6:30-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Michener can be reached on 571-272-1424. 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. /C.S.B/6-12-22 /CHARLES S BUSHEY/ Primary Examiner, Art Unit 1776"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-26.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: Under what legal authority do firefighters operate? Question:Just something I was thinking about. Even if your house is on fire, it's still your house and doesn't just magically become open to the public by virtue of catching fire. Kicking in a door and entering it to remove people, or spraying a high powered firehose through the window into the house, would both be highly illegal if the house was not on fire. But clearly firefighters do not get arrested for breaking and entering or kidnapping or vandalism, so there must be some law making such actions legal for them to do when there *is* a fire. So what exactly does make it legal for firefighters (especially volunteer firefighters) to do things that would otherwise be criminal? Answer #1: Its an exigent circumstance. Danger invites a rescue. | 09-24-2021 | [
"Title: Under what legal authority do firefighters operate? Question:Just something I was thinking about. Even if your house is on fire, it's still your house and doesn't just magically become open to the public by virtue of catching fire. Kicking in a door and entering it to remove people, or spraying a high powered firehose through the window into the house, would both be highly illegal if the house was not on fire. But clearly firefighters do not get arrested for breaking and entering or kidnapping or vandalism, so there must be some law making such actions legal for them to do when there *is* a fire. So what exactly does make it legal for firefighters (especially volunteer firefighters) to do things that would otherwise be criminal? Answer #1: Its an exigent circumstance. Danger invites a rescue."
]
| https://www.reddit.com/r/legaladviceofftopic/comments/pum7v9/under_what_legal_authority_do_firefighters_operate/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-02437-PGG Document 22 Filed 01/06/21 Page 1 of 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ROBERT BARBERA,
Plaintiff, ORDER -against- 20 Civ. 2437 (PGG) FOO AND FOO LLC,
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff is directed to either move for default or dismissal as to Defendant Foo
and Foo LLC by February 5, 2021.
Dated: New York, New York January 6, 2021 | 2021-01-06 | [
"Case 1:20-cv-02437-PGG Document 22 Filed 01/06/21 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT BARBERA, Plaintiff, ORDER -against- 20 Civ. 2437 (PGG) FOO AND FOO LLC, Defendant. PAUL G. GARDEPHE, U.S.D.J. : Plaintiff is directed to either move for default or dismissal as to Defendant Foo and Foo LLC by February 5, 2021. Dated: New York, New York January 6, 2021"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/156394775/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 1 of 106
EXHIBIT H Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 2 of 106 1
1 UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE 2
3 IN RE: . Chapter 11 . 4 WOODBRIDGE GROUP OF COMPANIES, . Case No. 17-12560 (KJC) LLC, et al., . 5 . . Courtroom No. 5 6 . 824 Market Street . Wilmington, Delaware 19801 7 . . Wednesday, October 24, 2018 8 Debtors. . 10:00 A.M. . . . . . . . . . . . . . . . . . 9
10 TRANSCRIPT OF HEARING BEFORE HONORABLE KEVIN J. CAREY 11 UNITED STATES BANKRUPTCY JUDGE
12 APPEARANCES:
13 For the Debtors: Edmon Morton, Esquire 14 YOUNG CONAWAY STARGATT & TAYLOR LLP Rodney Square 15 1000 North King Street Wilmington, Delaware 19801 16 - and - 17 Michael Tuchin, Esquire 18 Whitman Holt, Esquire KLEE TUCHIN BOGDANOFF & STERN 19 1999 Avenue of the Stars Los Angeles, California 90067 20 ECRO: AL LUGANO 21 Transcription Service: Reliable 22 1007 N. Orange Street Wilmington, Delaware 19801 23 Telephone: (302) 654-8080 E-Mail: gmatthews@reliable-co.com 24 Proceedings recorded by electronic sound recording: 25 transcript produced by transcription service. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 3 of 106 2
1 APPEARANCES (Continued):
2 For the Committee: Richard Pachulski, Esquire PACHULSKI STANG ZIEHL & JONES LLP 3 10100 California State Route 2 Los Angeles, California 90067 4 For La Rochelle Joseph Sarachek, Esquire 5 Noteholders: SARACHEK LAW FIRM 62 Harbor Drive 6 Stamford, Connecticut 06902
7 For Unitholders Jeffrey Sabin, Esquire Committee: VENABLE LLP 8 1270 Avenue of the Americas New York, New York 10020 9 For Ad Hoc Noteholder Steven Kortanek, Esquire 10 Group: DRINKER BIDDLE & REATH 191 North Wacker Street 11 Chicago, Illinois 60606
12 For U.S. Trustee: Timothy Fox, Esquire OFFICE OF U.S. TRUSTEE 13 844 King Street Wilmington, Delaware 19801 14 For the SEC: David Baddley, Esquire 15 U.S. SECURITIES & EXCHANGE COMMISSION 16 950 East Paces Ferry Road NE Atlanta, Georgia 30326 17
18
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23
24
25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 4 of 106 3
1 INDEX
2 PAGE
3 DEBTORS’ WITNESS(s) 4 SONEET KAPILA 5 Cross Examination by Mr. Sarachek 32 6 Redirect Examination by Mr. Tuchin 39 7
8 BRADLEY SHARP
9 Cross Examination by Mr. Sarachek 43
10 Redirect Examination by Mr. Tuchin 50
11 Recross Examination by Mr. Sarachek 54
12 EMILY YOUNG 13 Cross Examination by Mr. Sarachek 56 14
15 #23) Second Interim Fee Applications. 16 #25) Debtors’ Motion for Entry of an Order Authorizing the 17 Debtors’ to File Under Seal Exhibit 1 to the Declaration of Frederick Chin in Support of Confirmation of the First 18 Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and Its Affiliated Debtors [D.I. 19 2830, 10/19/18]. 20 RULING: 13 21 #26) First Amended Joint Chapter 11 Plan of Liquidation of 22 Woodbridge Group of Companies, LLC and Its Affiliated Debtors [D.I. 2397, 8/22/18]. 23 #27) Debtors’ Motion for Approval of Certain Compromises and 24 Settlements, Partial Substantive Consolidation, and Related Relief with Respect to the Plan [D.I. 2721, 10/3/18]. 25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 5 of 106 4
1 EXHIBITS I.D. REC’D
2 Declaration of Bradley Sharp 29 3 Declaration of Frederick Chin 29 4 Declaration of Soneet Kapila (2) 30 5
6
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25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 6 of 106 5
1 (Proceedings commence at 10:01 a.m.)
2 (Call to order of the Court)
3 THE COURT: Good morning, all.
4 (A Chorus of “Good Morning, Your Honor”)
5 MR. MORTON: For the record, Edmon Morton from
6 Young Conaway Stargatt & Taylor on behalf of the debtors.
7 As we get underway, Your Honor, obviously, the
8 main event today is confirmation and we wanted to highlight
9 in addition to my colleagues from Klee Tuchin and Young
10 Conaway, we also have in the courtroom with us today the four
11 declarants that have submitted declarations.
12 We’ll introduce those at the appropriate time, but
13 just so that Your Honor is familiar, we have Emily Young from
14 Epiq who submitted the voting declaration; Soneet Kapila who
15 is the SEC’s expert that submitted evidence at both hearing
16 the trustee trial and then also in support of confirmation;
17 Bradley Sharp who is the company’s CRO and also Fred Chin who
18 is the company’s CEO.
19 If I may, turning to the amended agenda that we
20 filed yesterday, Your Honor, thankfully, to the work of your
21 staff, we can flip straight through to item 23. Everything
22 else has either been consensually adjourned or disposed of by
23 the court.
24 Item 23, Your Honor, the only two outstanding
25 matters. Ultimately, Your Honor did enter the order on the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 7 of 106 6
1 committee’s professionals. However, items (k) and (l) from
2 the exhibit, attached to the agenda, were the quarterly
3 applications of Conway & MacKenzie and also Dundon.
4 A CNO was filed just this morning. Counsel gave
5 me orders to hand up, if Your Honor is prepared to entertain
6 them, if you need to simply review the CNO and those
7 applications later, that’s acceptable as well.
8 THE COURT: I’ll take the orders, but will address
9 it after the hearing.
10 MR. MORTON: Thank you, Your Honor. If I may
11 approach?
12 THE COURT: You may. Thank you.
13 MR. MORTON: Your Honor, the next item on the
14 agenda, Your Honor has entered an order. Since it was
15 submitted, that is the final fee application of Gibson Dunn &
16 Crutcher who were initially counsel to the debtors.
17 The next item on the agenda was listed as
18 uncontested going forward. It’s item number 25. And that is
19 the motion to file Mr. Chin’s declaration in a redacted form.
20 As Your Honor no doubt is aware from having
21 reviewed both the motion and the declaration in support of
22 this hearing, the declaration itself sets forth an aggregate
23 estimated value for the debtors’ real property holdings at
24 $620 million dollars.
25 The schedule provides the support for that number. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 8 of 106 7
1 And, obviously, since the primary activity of the debtors
2 going forward is going to market and sell those properties,
3 we believe that’s commercially sensitive information.
4 It was not the subject of an objection until about
5 fifteen minutes ago when Mr. Sarachek’s group of dissenting
6 creditors, I believe, he denotes them filed an objection. It
7 was well past the deadline that Your Honor set, pursuant to
8 the motion to shorten. And we haven’t had a chance even
9 converse with Mr. Sarachek about it.
10 So, certainly, our view, initially, would be that
11 the objection simply be overruled as untimely, you know,
12 given where we are in the hearing.
13 We will, of course, present arguments on the
14 merits if Your Honor chooses to hear it, but our initial
15 inclination would be that he did not comply with the order
16 and it should be disallowed.
17 THE COURT: But I thought because it was set on
18 shortened notice that the time to object was now?
19 MR. MORTON: Your Honor’s order set yesterday as
20 10:00 a.m. as the time. And to give Your Honor credit for
21 having done so, this is, obviously, a very sensitive matter.
22 It would have taken time for us to have evaluated and tried
23 to respond.
24 To put it bluntly, we simply don’t believe he’s
25 entitled to the information. It hasn’t been -- his objection Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 9 of 106 8
1 doesn’t raise valuation. It raises allocation of valuation
2 relative to his view of the different types of claims that
3 his clients hold. But it doesn’t raise valuation as a whole.
4 And we believe that it would be inappropriate to see the
5 exhibit and we certainly have concerns, in particular, with
6 him seeing the exhibit.
7 THE COURT: I’ll hear from the objectors.
8 MR. MORTON: Thank you, Your Honor.
9 MR. SARACHEK: Good morning, Your Honor, Joe
10 Sarachek for the dissenting creditors.
11 THE COURT: Good morning. Would you first address
12 the timeliness of the objection?
13 MR. SARACHEK: Sure.
14 Your Honor, we thought that the timeliness was --
15 well, we thought we had until ten o’clock this morning,
16 unless I’m mistaken, and we were looking for the order. We
17 thought it was ten o’clock this morning at the hearing given
18 the shortened --
19 MR. MORTON: Your Honor, if I may; my apologies.
20 I did misread the date, so I apologize on this.
21 THE COURT: All right, thank you.
22 MR. SARACHEK: Your Honor, again, we’re prepared -
23 - a lot of paperwork has been filed since Friday. We’re
24 prepared to enter into confidentiality, but we do think it’s
25 very relevant particularly since we have an appeal on Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 10 of 106 9
1 Owlwood, which is a significant property. And it does go to
2 the -- you know, to one of our bases for objection, which is
3 that there should be a reserve set aside or some mechanism
4 that, in the event, you know, it’s determined that our
5 clients are secured, and we do believe that that property, in
6 particular, is significant that there’s a mechanism set aside
7 to pay our clients.
8 THE COURT: Well then, certainly, you must have
9 your own view of what that property is worth?
10 MR. SARACHEK: I do. I think it’s relevant to
11 see, you know, especially since it’s such a significant
12 amount of the six hundred some odd million dollars. I think
13 it is relevant to see what Mr. Chin has in there and we’d ask
14 the court let us see it under, you know -- we’re prepared to
15 sign confidentiality or tell the court that we’ll maintain
16 confidentiality, but it is relevant and that’s our position.
17 THE COURT: All right, does anyone else wish to be
18 heard?
19 MR. TUCHIN: Good morning, it’s a pleasure to be
20 back in Your Honor’s court.
21 Michael Tuchin of Klee Tuchin Bogdanoff & Stern.
22 Your Honor, this is the single most confidential
23 document being filed in this case or these cases. Were this
24 document to leak, it would give every buyer or potential
25 buyer of the debtors’ properties the opportunity to know the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 11 of 106 10
1 debtors’ internal valuation. And I think we could be assured
2 that the prices would, therefore, be adjusted accordingly.
3 As a result, we are extremely reluctant to share
4 this information with anyone who does not have an absolute
5 need to know. And Mr. Sarachek has not demonstrated, in any
6 way, an absolute need to know.
7 Should this court at the end of the hearing order
8 that an escrow be necessary under the plan, then, I suppose,
9 we could address it at that time. But it seems to us, at
10 this time, having taken no discovery, having no evidence of
11 his own to establish value, having declined the court’s
12 invitation extended months ago to take discovery if he felt
13 he needed it, to show up today and say that he needs to know
14 the values of the properties for undisclosed reasons does not
15 justify sharing the most confidential information with him at
16 this time.
17 Thank you, Your Honor.
18 THE COURT: Thank you.
19 Anyone else wish to be heard?
20 MR. PACHULSKI: Just a moment, Your Honor.
21 Thank you, Your Honor.
22 Richard Pachulski of Pachulski Stang Ziehl & Jones
23 on behalf of the official creditors committee.
24 I echo what Mr. Tuchin said about the sensitivity
25 of the document, Your Honor. And, in fact, while I’ve agreed Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 12 of 106 11
1 with Mr. Sarachek that we are not at all raising the pro hac
2 today that it’s going to be at an omnibus hearing, if I had
3 any idea that this would be an issue, the committee would
4 have instructed me to go forward today with it.
5 But we are where we are. But I do need to explain
6 and, again, reaffirm what Mr. Tuchin said this is basically
7 telling buyers what they should probably bid for a piece of
8 property.
9 Now, factually, Owlwood is a good example. If Mr.
10 Sarachek wants an idea of what these properties are worth,
11 most of them have been put up for sale. Owlwood has been
12 listed, from my understanding, for a $115 million dollars.
13 That’s a matter of public record.
14 Now, I still am struggling to understand why Mr.
15 Sarachek wants to see this because here’s the reality.
16 Let’s assume Owlwood sells and let’s assume there
17 has to be a reserve. Then, we would all come back and say
18 this is what Owlwood sold for. We don’t have the money to
19 reserve right now, and I think it’s based on a security
20 interest, so, again, we’re not going to put money aside from
21 Stradella for Owlwood even if -- and we’ll argue that it’s
22 not the case, that the money has to be set aside.
23 So, other than Mr. Sarachek’s curiosity, there’s
24 no basis of anything that he’s raised in his objection to
25 plan confirmation that would require the necessity of his Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 13 of 106 12
1 seeing those numbers. It’s not that case. We’re not doing a
2 traditional reorganization where some of the properties will
3 sell to fund an ongoing basis.
4 They’re going to be sold and distributed to
5 creditors including Mr. Sarachek’s clients. So, I’m
6 somewhat, to be honest, perplexed as to what he’s really
7 trying to achieve in this case when most of these he can
8 either figure out, talk to a broker, or actually look at the
9 listings that have taken place today.
10 THE COURT: Thank you.
11 MR. PACHULSKI: Thank you, Your Honor.
12 MR. SABIN: Good morning, Your Honor. Jeff Sabin
13 on behalf of the unitholders committee.
14 I echo and concur with the statements made by Mr.
15 Tuchin and Mr. Pachulski. And, for the record, I would ask
16 you to take judicial notice of the listing that was actually
17 in last Friday’s Wall Street Journal, a picture of the
18 property, a $115 million dollars listing price.
19 And if all that he wants is to understand what the
20 debtors’ view is right now in the process of seeking to
21 market the property, best evidence you can take judicial
22 notice of.
23 Number two, I would reserve comments about any
24 reserve at all since, as I understand it, the plan, if it is
25 confirmed, would, number one, eliminate any liens that he, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 14 of 106 13
1 otherwise, is asserting, directly or indirectly.
2 And, number two, to my knowledge, there is, while
3 there is an appeal pending, there is no stay pending appeal
4 of your decision on the motion to dismiss his adversary
5 proceeding.
6 Thank you, Your Honor.
7 THE COURT: Thank you.
8 Does anyone else wish to be heard?
9 Mr. Sarachek, I’ll give you the last word, if you
10 like it?
11 MR. SARACHEK: Thank you, Your Honor. I’m fine.
12 THE COURT: All right.
13 I’m going to grant the request for relief with
14 respect to filing under seal and overrule the objection.
15 Frankly, two major reasons for it is, one, the dissenting
16 creditors could have either conducted discovery in connection
17 with confirmation and, of course, it’s apparently undisputed.
18 I missed it myself but the property was listed for sale at a
19 $115 million dollars in the Wall Street Journal. And,
20 secondly, I think that it’s apparent that it would not work
21 in the debtors’ favor but would probably be harmful to the
22 debtor and the creditor body were the prices of the various
23 properties that are contained as attachments to the Chin
24 declaration would be disclosed.
25 So, I will grant that relief. Do you have a form Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 15 of 106 14
1 of order for me?
2 MR. MORTON: I do, Your Honor. May I approach?
3 THE COURT: Yes. Thank you.
4 That order has been signed.
5 MR. MORTON: Thank you, Your Honor.
6 Skipping briefly to the end of the agenda, for a
7 moment. As Mr. Pachulski just noted, item 28 has been
8 adjourned to the November 20 hearing and won’t be undertaken
9 today. That’s the motion dealing with Mr. Sarachek’s pro hac
10 vice admission.
11 That leaves us with items 27 and 26, Your Honor.
12 Item 27 is the plan settlement motion that we filed. You’ll
13 note that we filed a certificate of no objection, but did not
14 submit a proposed form of order with it. And that was on
15 purpose, Your Honor. It was always intended that the plan
16 settlement motion would be approved as part of and in the
17 confirmation order itself, and that’s how it’s been treated.
18 THE COURT: So that any record that would be made
19 today would be made jointly in connection with confirmation
20 and that motion?
21 MR. MORTON: That is the intent, Your Honor.
22 We should point out that, you know, several days
23 after the objection deadline, a reservation of rights was
24 filed by Mr. Sarachek --
25 THE COURT: I read it. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 16 of 106 15
1 MR. MORTON: -- and, so from our perspective,
2 we’ll deal with his objection at confirmation and we believe
3 that that’s also untimely and also wasn’t necessary in
4 opposition to the motion in any event.
5 THE COURT: I understand.
6 MR. MORTON: With that, Your Honor, I would cede
7 the podium to Mr. Tuchin to walk us through confirmation.
8 THE COURT: All right, thank you.
9 MR. TUCHIN: Thank you, Your Honor.
10 It’s a pleasure to be here today seeking
11 confirmation of a plan in these very significant cases. I
12 cannot think of a case of this magnitude and size where we’ve
13 had such active creditor participation and support of the
14 plan.
15 As you’ve seen from the ballot’s summary, these
16 plans or this plan for these debtors was overwhelmingly
17 approved in these cases. And I would note that of the
18 thousand of creditors, we had approximately 85 percent
19 participation in the plan by noteholders and unitholders,
20 which, in my experience, is simply remarkable.
21 As the court probably recalls, in late January
22 following extensive heated litigation, the court entered an
23 order which set the cases on a different course. A new board
24 was appointed and two additional committees were added to the
25 general unsecured creditors committee: the official Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 17 of 106 16
1 noteholders committee and the official unitholders committee;
2 each fiduciaries representing the interest of the underlying
3 holders.
4 The board met and the board retained Mr. Chin, who
5 is in court, as the debtors’ CEO, and Mr. Sharp, who is also
6 in court, as the debtors’ CRO.
7 We were welcomed to the case by all involved. Mr.
8 Sabin, on behalf of the unitholders, immediately flew out to
9 Los Angeles with Ms. Edmonson (ph), another of their
10 colleague, to brief us on the cases, Mr. Klee and me. We met
11 with Mr. Pachulski, similarly; Mr. Kortanek briefed us by
12 telephone; and we spoke frequently with the SEC as well, as
13 we endeavored to get up to speed on these cases, which was
14 more of a drinking from a firehose than I ever experienced in
15 my career and I think Mr. Klee would say the same.
16 Obviously, there was a massive history already in
17 the cases and a lot going on in the cases.
18 While we were seeking to get up to speed on the
19 legal issues involved, Mr. Chin began work on understanding
20 the properties and working to develop a business plan, which
21 we knew early on was going to be a cornerstone of any
22 consensual resolution of these cases, without an
23 understanding of the properties and what they could yield,
24 and the path to maximizing value, it wasn’t going to be
25 possible to resolve the many legal issues. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 18 of 106 17
1 And Mr. Sharp, at the same time, and his team
2 began working on a forensic analysis to understand where the
3 money went, how it flowed, whether the business records
4 reflected reality or not. They were aided initially by Mr.
5 Kapila report and Mr. Kapila is generously in court today as
6 well. But they needed to do their own due diligence,
7 obviously.
8 And as Mr. Kapila has indicated and his colleague
9 indicated in testimony before the court in this case, they
10 were hamstrung in their efforts by the lack of cooperation
11 and information. The debtors, obviously, had much greater
12 access to information for a greater period of time.
13 And so, Mr. Sharp and his team, while they had a
14 good start from Mr. Kapila’s report, started from scratch and
15 looked at all the business records themselves, did their own
16 forensic analysis with experts in the area, again, to
17 determine another critical component to cutting the deal.
18 Was this a Ponzi scheme? Were you able to unscramble the
19 eggs or was substantive consolidation going to be necessary?
20 Through our meetings with the various
21 professionals and weekly calls with financial advisors, the
22 business people, and the attorneys, it became clear to us
23 that there were many complicated and interesting issues in
24 these cases. Some of which, candidly, we thought could end
25 up in the Supreme Court. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 19 of 106 18
1 There were either splits in the circuit or
2 untested fascinating areas of law, some of which are the
3 subject of the sole remaining objection to confirmation, some
4 of which are not covered by the objection. But, as I recall,
5 there were about 20, 25 issues that we identified as a result
6 of the initial meetings which could have resulted in years of
7 litigation and tens of millions of dollars of costs.
8 It was also clear to us, and to the other
9 professionals, that there was quite a bit of dissention in
10 the case following what had been extensive litigation. And
11 without a change in approach, these cases were headed towards
12 years of litigation.
13 We convened all of the attorneys at Klee Tuchin
14 Bogdanoff & Stern to go through the issues and to start
15 framing what the issues were. We were joined by Young
16 Conaway and counsel for all three committees. And, in
17 advance, we heard from the SEC through a number of calls and
18 Mr. Baddley, in particular, who’s been extraordinary
19 constructive in these cases.
20 The tone we set was that we needed to remember
21 that this was an unusual case with thousands of victims and
22 that one thing was clear. Every dollar spent on professional
23 fees in the cases was a dollar that would not be available to
24 the victims in these cases.
25 And I would note, and I’m appreciative that we do Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 20 of 106 19
1 have a number of the investors in court today and I’m sure
2 their counsel will introduce them at the appropriate time.
3 But they’re to be applauded for playing such an active role
4 in these cases.
5 As a result of the view that we had reached and
6 our board’s mandate to get these cases resolved as quickly as
7 possible and as economically as possible, not only to reduce
8 the burn, which came directly out of the investors’ pockets,
9 but to return money to the investors as quickly as possible.
10 Another very important thing in these cases given that a
11 number of these investors invested significant portions of
12 their life savings and needed not just money but money sooner
13 rather than late.
14 We charged everyone in the case with coming to an
15 amicable resolution.
16 THE COURT: Let me ask you to pause for a moment
17 as a matter of curiosity.
18 MR. TUCHIN: Of course.
19 THE COURT: How many took advantage of the
20 financing program which I approved?
21 MR. TUCHIN: The financing program did not end up
22 going forward, Your Honor, as I’ll let either committee
23 counsel or noteholder counsel describe.
24 THE COURT: Thank you.
25 MR. TUCHIN: And by all means, obviously, it’s Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 21 of 106 20
1 your courtroom. Feel free to interrupt at any time.
2 THE COURT: Why I thank you.
3 (Laughter)
4 MR. TUCHIN: So, Your Honor, I would indicate
5 that, you know, Gibson Dunn & Crutcher, Young Conaway and all
6 of the other parties I mentioned, Mr. Baddley, Mr. Kortanek,
7 Mr. Pachulski, Mr. Sabin all played an extraordinarily
8 helpful role in allowing us to transition into these cases.
9 And all of them demonstrated, candidly notwithstanding, you
10 know, the personal gain that would have accompanied a multi-
11 year case with lots of litigation, they all committed to
12 trying to get these cases resolved quickly, economically so
13 that the most amount of money possible could be returned to
14 the victims.
15 And everyone understood and has appreciated
16 throughout these cases that they are unusual, that we do have
17 victims here, and that we need to try to return as much money
18 as quickly as possible to them.
19 Following our initial retention in the case, we
20 received white papers, which we encouraged, from the
21 committees which set forth their briefing on a number of
22 issues of interest in the case.
23 I mentioned that we sat down in my offices, just
24 attorneys, and went through the issues. It was like a law
25 school exam day. Literally, we got out cases. We read Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 22 of 106 21
1 through cases, as people tried to make their points about
2 various cases. You’ll hear about, you know, some of those
3 issues as we address the sole objection that remains.
4 But it was clear, again, that there were not
5 winners and losers. There was lots of nuance, lots of
6 issues that could have gone either way in trying to resolve
7 some of these issues.
8 In particular, I think of the treatment of the
9 units which was an area where we did get out cases and look
10 through to see if there was any binding precedent in terms of
11 how you would treat different investors in a Ponzi scheme.
12 And lots of great arguments but, ultimately, I think the
13 parties would agree the Supreme Court would have to resolve
14 whether you have a situation in a Ponzi scheme where everyone
15 is treated equally or whether a unit, if it’s truly an equity
16 interest, would be treated on a junior basis.
17 I don’t know the answer. And, candidly, the
18 debtors didn’t try to reach answers to a lot of these issues
19 because the case law was uncertain and we viewed our role as
20 a mediator trying to bring the parties together, ably
21 represented to try to reach a resolution.
22 We then had the advisors, the financial advisors,
23 meet for a full day at our offices. And then we had two days
24 of meetings, at which the business people, the financial
25 advisors, and the lawyers for the three committees and the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 23 of 106 22
1 debtors were present in our offices.
2 These were highly contentious meetings, much like
3 in mediation. We had everyone together. We broke people
4 apart. We went room to room trying to compromise. And
5 following two days of very intense good faith negotiations,
6 we reached agreement on the term sheet for a plan which we
7 promptly filed with the court.
8 And, again, there are three main components to
9 reaching that agreement. One was the work that Mr. Sharp did
10 to be able to present the committees with information
11 regarding what accounting and forensic analysis was
12 available. And, number two, Mr. Chin’s draft business plan
13 which presented alternatives for maximizing the value of the
14 assets. And then a whole host of legal issues that had to be
15 resolved, one way or another in order, to avoid significant
16 litigation.
17 And those were all built into the term sheet
18 which, ultimately, formed the basis of the plan and the
19 disclosure statement.
20 We then worked with the three committees and the
21 SEC to prepare a plan or reorganization or plan of
22 liquidation and the disclosure statement which were, as you
23 know, filed with the court. And this court approved the
24 disclosure statement.
25 Following the solicitation efforts commencing, we Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 24 of 106 23
1 received a number of inquiries as did the three committees
2 from investors who were confused about what we were trying to
3 accomplish in these cases. And, in part, that confusion
4 arose because of unauthorized communications from a number of
5 different people to the holders recommending certain courses
6 of action, one versus the other.
7 And, again, by some people who were not before,
8 had never, to my knowledge, been before the court;
9 nonetheless, recommending that they do certain things or not
10 do certain things which, I think, had the effect of confusing
11 a number of holders.
12 And so, we held, in concert with the three
13 committees, five conference calls available for all investors
14 in the company. We did two call dedicated to unitholders,
15 three calls dedicated to noteholders, and all of the
16 professionals, again, all of the attorneys and Mr. Sharp
17 participated in those calls.
18 And we explained to people the process that we had
19 gone through to reach the agreement, why we thought the
20 agreement was appropriate, and what they were being asked to
21 do. Almost entirely information that was in the disclosure
22 statement, but understandably most people are not able to
23 make their way through a lengthy disclosure statement and
24 understand all of the nuances, and there was confusion, as I
25 indicated, when they were being approached by other people. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 25 of 106 24
1 We had unbelievable participation, by our count;
2 over a third of the investors participated in these phone
3 calls. And we received, as did the committees, very, very
4 positive feedback following the calls for having had these
5 calls.
6 And we believe that they resulted in the
7 overwhelming support that we received for the plan. As I
8 indicated, approximately 85 percent of investors voted on the
9 plan which is a huge number in cases like this. And of those
10 who voted, as the court saw, 95 percent approximately of the
11 noteholders and unitholders voted in favor of the plan and 97
12 percent, all but one creditor holding general unsecured
13 claims, voted in favor of the plan.
14 The objections to the plan were three. Two of
15 them had been resolved. The objection by Contrarian and the
16 objection by the IRS. Both have confirmed that the changes
17 made to the confirmation order addressed their objections.
18 We also had three objections regarding cure
19 claims. With respect to the assignment of contracts, all of
20 those have been addressed as well. I noticed one formally
21 withdrew the objection on the docket yesterday. But all
22 three have been resolved.
23 That leaves us, as we sit here today, with only
24 one objection to confirmation. That being from Mr.
25 Sarachek’s group. In addition, the U.S. Trustee had raised Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 26 of 106 25
1 an informal concern that we not seek to avoid our burden of
2 proof in confirming the plan.
3 I believe their concern, although they can
4 certainly address it better than I can, was that we not seek
5 to use a lower burden of proof for approving a settlement in
6 order to get around the burdens of proof that may be required
7 to confirm a plan.
8 And, certainly, we are in agreement with them.
9 We’re not seeking to get around any burdens of proof in our
10 confirmation order to confirm a plan. And so, I think we’ll
11 be able to address their concern, if we haven’t already, by
12 virtue of the evidence that’s been provided, the separate
13 motion to settle that was filed, and the form of the
14 confirmation order.
15 And in terms of Mr. Sarachek’s objections, we did
16 reach out to him over the weekend to see if our pleadings,
17 our ballot summary and the other evidence had reduced the
18 issues. He was not willing to respond substantively, so
19 we’ll have to find out what is still being pressed.
20 But, broadly speaking, he objects to the Ponzi
21 scheme determination. He erroneously claims that there has
22 been no evidence in the record of a Ponzi scheme when, in
23 fact, in the very early stages, Mr. Kapila’s colleague
24 testified and Mr. Kapila’s report was admitted into the
25 record, which I think very clearly lays the groundwork for Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 27 of 106 26
1 this being a Ponzi scheme.
2 He claims that notwithstanding this court’s order
3 dismissing the complaint with prejudice, to the extent that
4 his clients are determined to be secured creditors on appeal,
5 there are no funds reserved to pay him. We will address all
6 of these arguments.
7 He challenges substantive consolidation. He
8 challenges the elimination of intercompany liens and claims
9 saying that a plan cannot settle such issues, which we
10 believe, obviously, is incorrect. He challenges certain of
11 the voting determinations, although, in fairness, he had not
12 yet seen the ballot report, so I do not know if those remain.
13 And he challenges the treatment of the units versus the
14 notes, if substantive consolidation is approved.
15 I believe he conflates certain issues, Ponzi,
16 substantive consolidation, the lien issues. But I think it
17 probably makes the most sense to hear from him first as to
18 what he is pressing and then the debtors can respond.
19 At this time, again, it’s your courtroom and we’ll
20 defer to you, but, at this time, we think it makes sense to
21 admit the declarations of our declarants: Mr. Chin, Mr.
22 Sharp, Ms. Young, and Mr. Kapila. They are all in court and
23 available for cross-examination, should anyone wish to cross-
24 examine them.
25 And then we would submit that after examination, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 28 of 106 27
1 we can give Mr. Sarachek the opportunity to argue what he
2 wishes to argue and then the debtors and the committees can
3 respond and put on an affirmative case, if the court wishes.
4 THE COURT: Okay. Let me just first ask, Mr.
5 Sarachek, whether any grounds for objection are no longer
6 being pressed or whether you’re still pressing them all?
7 MR. SARACHEK: We’re still pressing our objection
8 and with respect to Mr. Tuchin’s statement, I don’t have any
9 record of being contacted by the debtors in an effort to
10 resolve our objection.
11 I did -- our objection -- I’m sorry. Thank you,
12 Your Honor.
13 Our objection, as you know, had to be filed before
14 the declarations were filed on Friday. We’ve been doing an
15 enormous amount of reading and research. We would like to
16 hear from a couple of the declarants, specifically Mr. Sharp
17 and Mr. Kapila on the Ponzi scheme issue.
18 And as far as our objection that basically the
19 requirements are that each debtor -- that with respect to
20 voting and each debtor, the tabulation, it was unclear from
21 what was filed whether the debtors, in fact, did that.
22 Looked at every specific debtor and it was unclear to us.
23 So, with respect to that declaration, if Mr. Tuchin can clear
24 that up, perhaps, we don’t press forward on that specific
25 element of our objection. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 29 of 106 28
1 THE COURT: All right, thank you.
2 MR. TUCHIN: Your Honor, on October 21st, I wrote
3 to Mr. Sarachek and his colleague,
4 “Dear Joe & Jonathan,
5 I hope all is well. In order to streamline the
6 confirmation hearing as much as possible, in
7 effort to reduce costs, it would be helpful to
8 know which objections you intend to pursue and
9 whether you intend to cross-examine any of our
10 witnesses. We’re hoping that the declarations,
11 including especially the balloting declaration,
12 will narrow the issues somewhat.”
13 Mr. Sarachek responded,
14 “Michael,
15 Richard and Catherine are copied here. We need to
16 discuss with them, given the pending motion to
17 disqualify, we will get back to you tomorrow.”
18 I will represent to the court that they never got
19 back to me.
20 Thank you, Your Honor.
21 THE COURT: All right. So, let’s go down the list
22 of declarations that have been offered for admission.
23 First is the Sharp declaration at docket number
24 2829, which includes the Kapila report along with it.
25 Is there any objection to the admission of that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 30 of 106 29
1 declaration?
2 (No verbal response)
3 THE COURT: I hear none. It’s admitted without
4 objection.
5 (Declaration of Bradley Sharp admitted in evidence)
6 THE COURT: The Chin declaration -- well, I guess,
7 you had offered the redacted declaration which is at docket
8 number 2833. Does anyone have any objection to that --
9 admission of that declaration?
10 (No verbal response)
11 THE COURT: I hear none. It’s admitted without
12 objection.
13 (Declaration of Frederick Chin admitted into evidence)
14 THE COURT: Next is another Kapila declaration
15 which is at docket 2834 which confirms, he says basically
16 what I said I stand by.
17 Anyone have an objection to the admission of that
18 declaration?
19 (No verbal response)
20 THE COURT: I hear none. It’s admitted without
21 objection.
22 (Declaration of Soneet Kapila admitted in evidence)
23 THE COURT: Now, there are two Young declarations;
24 one is at docket 2836 and one at 2855. The second one
25 corrects the tabulation with respect to voting in classes Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 31 of 106 30
1 three and five.
2 Does anyone have any objection to the admission of
3 those two declarations?
4 MR. SARACHEK: Your Honor, is it possible to ask
5 Ms. Young whether, in fact, the tabulation was done?
6 THE COURT: You’ll have the opportunity to cross-
7 examine, if you like.
8 MR. SARACHEK: Okay. That’s the only question.
9 And, by the way, let me apologize to Mr. Tuchin.
10 I thought he said he called me. I misheard but, yes, in
11 fact, he did send me that email. As you know, there was this
12 --
13 THE COURT: I understand.
14 MR. SARACHEK: -- other situation that the
15 committee brought upon us that we were dealing with.
16 THE COURT: Okay.
17 MR. SARACHEK: So, I apologize to Mr. Tuchin.
18 Yes, you did send us that email.
19 THE COURT: Is there any objection to the
20 admission of the two Young declarations?
21 MR. SARACHEK: Can we -- can I ask her
22 specifically -- can I cross-examine here or not?
23 THE COURT: You can cross-examine her.
24 MR. SARACHEK: Okay.
25 THE COURT: But I’ll admit them, subject to your Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 32 of 106 31
1 cross-examination.
2 MR. SARACHEK: Okay. Thank you, Your Honor.
3 THE COURT: All right.
4 MR. TUCHIN: Thank you, Your Honor. My suggestion
5 would be that we allow Mr. Sarachek to cross-examine the
6 witnesses he wishes to cross-examine. We reserve our right
7 to redirect. We’ll rely on their testimony in chief and only
8 reserve the right to redirect should it be necessary.
9 THE COURT: Certainly.
10 Mr. Sarachek, who would you like to cross-examine,
11 beside Ms. Young, if anyone?
12 MR. SARACHEK: Yeah, so I would like to cross-
13 examine Mr. Kapila. I’d like to ask him a couple of
14 questions.
15 THE COURT: All right.
16 MR. SARACHEK: With respect to the Ponzi scheme
17 issue.
18 THE COURT: Very well. Mr. Kapila, will you come
19 forward and be sworn in, please?
20 SONEET KAPILA, DEBTORS WITNESS, SWORN
21 THE CLERK: Please be seated. State your full
22 name for the record and spell your last name.
23 THE WITNESS: My name is Soneet Kapila; K-A-P-I-L-
24 A.
25 CROSS EXAMINATION Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 33 of 106 32
1 BY MR. SARACHEK:
2 Q Good morning, Mr. Kapila.
3 A Good morning.
4 Q How are you?
5 With respect to your declaration, in particular, the
6 report that you did in relation to the SEC complaint, can you
7 -- first of all, did you do any work for this bankruptcy
8 estate?
9 A I have not done any work for the bankruptcy estate.
10 Q Okay. So, other than speaking with Mr. Sharp and
11 representatives, you’re not a retained professional in the
12 bankruptcy estate nor have you done any professional work on
13 behalf of the estate?
14 A I have not rendered any services, professional services
15 to this bankruptcy estate. I think my office and I, from my
16 recollection, one call in which I sat in with Mr. Sharp. I
17 can’t remember if Mr. Sharp was on that call or not, just to
18 facilitate some transitional information.
19 Q So, how did it come to pass that you on October 18th
20 submitted this declaration, you know, in support of the
21 debtors’ premise that this case is a Ponzi scheme?
22 A What did you mention, counsel, I apologize?
23 Q You signed the declaration on October 18th.
24 A Okay.
25 THE COURT: Are you speaking, Mr. Sarachek, of the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 34 of 106 33
1 second Kapila declaration that’s at docket 2834 that we just
2 admitted?
3 MR. SARACHEK: Yes, I am.
4 THE COURT: All right, thank you.
5 BY MR. SARACHEK:
6 A Okay. How did it come about that I did -- I was
7 serving as the consultant and expert to the Securities and
8 Exchange Commission. They’re the ones who got my
9 declaration.
10 Q This declaration that’s submitted to the bankruptcy
11 court?
12 A May I have a look at it?
13 Q Sure.
14 MR. SARACHEK: Can I --
15 THE COURT: Yes, you may.
16 BY MR. SARACHEK:
17 A Oh, I see. My apology. This is the declaration I just
18 signed on October 18. I was confused with the main
19 declaration which was signed last -- in December. That’s why
20 I was confused about the date. I now understand the
21 declaration you’re referring to.
22 I signed this declaration in the context of, I guess,
23 of adopting my words, my original declaration which was
24 filed, dated, I think, December of last year.
25 Q Can you just tell me with respect to your original Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 35 of 106 34
1 declaration in December of 2017 and the work behind it, how
2 many months of work was it -- can you give us some background
3 about your work product there, your declaration?
4 A Sure. We were retained by the Securities & Exchange
5 Commission sometime in the -- I don’t have the precise date,
6 but it was in the earlier part of 2017. Perhaps in the first
7 quarter or thereabouts.
8 And our work extended over all the months that past by
9 during the year in stages because we did the work, then we
10 needed more information. We conferred with the SEC. They
11 needed a subpoena or however they obtained additional
12 information, so it came in spurts.
13 And as the information came, my office, my
14 professionals and myself analyzed that information and it
15 kept developing over the stages and culminating in the
16 reconstructions that were done and the analyses that were
17 performed. And, ultimately, the December 2017 declaration.
18 Q Sure. Where’s your office located?
19 A Fort Lauderdale, Florida.
20 Q And did the SEC give you all of the information or did
21 you travel to California and other places to gather the
22 information?
23 A I did not travel anywhere. Our entire communication
24 line was with the SEC.
25 Q So, whatever the SEC gave you, you analyzed, is that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 36 of 106 35
1 accurate?
2 A That is correct, yes.
3 Q Okay. With respect to, and you have a statement in
4 your declaration that you give the SEC definition of a Ponzi
5 scheme -- with respect to -- did you do a chronology of this
6 business? Did you look at the inception of the business and
7 then bring it forward to current?
8 A I believe the answer to your question would be yes. In
9 the context of the reconstruction we did which started from
10 early 2012 onwards or it was July 2012. So, if you call that
11 the chronology, the reconstruction was from that period
12 onwards through September of 2017.
13 Q Did you look at the business on a debtor-by-debtor
14 basis?
15 A Well, when we did the work, there was no debtor in
16 existence.
17 Q I’m sorry; entity by entity basis?
18 A We had the bank records for each of the entities. The
19 bank accounts which are listed actually by an exhibit in my
20 declaration. So as to -- if there was a bank account for any
21 entity that was produced to us, yes in that context it was on
22 an entity by entity basis.
23 Q When you were doing this study, did you ask the SEC for
24 more information? Did you indicate to them that you didn’t
25 have the full amount of information that you might ordinarily Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 37 of 106 36
1 need?
2 A I don’t know if I said to them, we don’t have the full
3 information that we don’t ordinarily need. But every time,
4 as I indicated earlier, in spurts we were noticed. We are
5 identifying any additional bank accounts because sometimes
6 the traces of money would help you do that.
7 If we wanted to connect the dots, we would go back to
8 the SEC and advise them of that and they would make every
9 effort they can to try and obtain the information and provide
10 it to us.
11 Q Were you -- in your analysis, did you see elements of a
12 legitimate real estate business with respect to the
13 Woodbridge cases as a whole?
14 A The book value of the real estate which we noted was
15 recorded in the records was about $11 million of real estate
16 on that was apparent. There was no real estate being shown
17 in the reconstruction or in the record that we saw as owned
18 real estate because the primary business model was to loan
19 money to borrowers for the purpose of financing real estate.
20 So, real estate ownership, per se, was not the key element in
21 the business model.
22 Q So, for the purposes of your analysis, what you are
23 really looking at is a lending business, not a real estate
24 company that owns significant real estate?
25 A Well, we were looking at anything and everything that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 38 of 106 37
1 the cash flow transactions would demonstrate. And we were
2 looking at the memorandums that were used for the borrowing.
3 We were looking at the websites. We were looking at the
4 model that they were allegedly promoting which, essentially,
5 was to create income by way of the margin the business would
6 get if it was a business. Between the interest they paid to
7 investors and the interest they were going to get from
8 borrowers, and that would be their source of income, if they
9 made any income.
10 Q did you ever speak to anyone at the company?
11 A No, sir.
12 Q You never spoke to anyone, any finance person at the
13 company?
14 A No, that would not be in the cards because I was
15 retained by the Securities & Exchange Commission and my
16 contact would be directive of the SEC. I don’t think I would
17 have the ability to pick up the phone and cavalierly call the
18 company’s management.
19 Q So, you really had no way of knowing whether the
20 business, at one point, was “legitimate” or whether it was
21 never -- it never had a valid purpose for being?
22 A Well, I do know because the reconstruction tells me
23 what the business actually did versus what it may have
24 proposed to do. That’s the reality is the cash transactions
25 for that period of time and they are clearly demonstrative of Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 39 of 106 38
1 the fact that this company was not earning income or profits
2 sufficient to meet the obligations it was promising to the
3 investors.
4 Q How many hours did you spend on this project, if you
5 know?
6 A It was well over a thousand billed hours during that
7 period of time. I don’t have a precise number.
8 Q And was it you and several associates or primarily?
9 A No, it’s a team effort. I mean it’s a large enough
10 project that it’s not a single person project and we had
11 professionals at different skill levels. And that involved
12 myself, my partner, Melissa Davis who testified here during
13 the early bankruptcy hearing, and some professional staff
14 below her at the analytical level.
15 Q At the outset of your engagement, did the SEC tell you
16 this is a Ponzi scheme or a fraud and here’s what we want you
17 to prove?
18 A No, they did not. The scope was simply to try and
19 analyze the records and the banking transactions.
20 Q Okay.
21 MR. SARACHEK: Your Honor, can I have one moment?
22 THE COURT: Yes.
23 MR. SARACHEK: Thank you, Your Honor.
24 THE COURT: Thank you.
25 Would anyone else like to cross-examine Mr. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 40 of 106 39
1 Kapila?
2 (No verbal response)
3 THE COURT: Is there any redirect?
4 MR. TUCHIN: I’ll be very brief, Your Honor.
5 BY MR. TUCHIN:
6 Q Thank you for being here, Mr. Kapila, and thank you to
7 the SEC for making Mr. Kapila available to us.
8 Mr. Kapila, could you briefly describe your experience
9 analyzing Ponzi schemes?
10 A I would say it’s very extensive. There is an exhibit
11 to my original declaration which expounds on it. I’m a
12 federal bankruptcy trustee. I’ve handled cases as a trustee
13 which have been Ponzi scheme cases. One of the landmark
14 cases I handled was the Louis Pearlman case in Orlando in the
15 Middle District of Florida and the Transcontinental which is
16 about a half million-dollar Ponzi scheme. And then I had
17 several others I’m involved in, I was.
18 I was involved in representing a very large major
19 creditor group in the Rothstein bankruptcy case in Florida.
20 And aside of that, my firm and I have represented numerous
21 fiduciaries, regularly receivers, in SEC or FDC and CFTC
22 cases as the forensic accountants.
23 I’ve also served as an expert witness for the, I guess,
24 the U.S. Government of the Department of Justice in some
25 Ponzi cases. So, I think that’s the best way to capture it. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 41 of 106 40
1 Q Thank you. And it is your professional opinion that
2 this was as Ponzi scheme?
3 A It is my professional opinion. As I said in my
4 declaration, it has numerous of the attributes of a Ponzi
5 scheme. I normally leave the decision to the trial of fact
6 as to, but, in my view, that’s what it is.
7 Q Thank you. And do you recall the date as to which you
8 opine the Ponzi scheme initiated?
9 A It would be no later than the date I signed the
10 declaration which was, I believe, December 17 or 18 of 2017.
11 Q But the date that the Ponzi scheme began?
12 A It began a lot sooner than that in my view because I
13 analyzed the impact of the transactions and the cash flows
14 going back to July of 2012 and I could see where they
15 indicate in the reconstruction that they went on a quarter by
16 quarter basis. This entity or these entities were not
17 generating sufficient cash flows by way of working capital or
18 income to be able to support the obligations they were
19 incurring. And all the records were showing they were
20 accursing book entry item but there was no cash transaction
21 to support them.
22 Q So, I guess, what I’m saying the cash did not match the
23 book entries the way the cash --
24 A Clearly not.
25 Q Thank you. And so, from inception of Fund I which was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 42 of 106 41
1 in the June/July period, you believe since the inception this
2 was a Ponzi scheme?
3 A That’s my belief, sir.
4 Q Thank you. And then I take it you continued to believe
5 as you stated in your findings that while there was a real
6 estate portfolio, the business enterprise did not generate
7 sufficient profits to pay the promised return to investors?
8 A That is correct.
9 Q And that the business activities were not consistent
10 with the model that you indicated was promoted and materials
11 you reviewed?
12 A That is correct, sir.
13 Q And that investor money was, in fact, used to pay the
14 large percentage of the returns promised to the earlier
15 investors?
16 A Yes, sir.
17 Q Thank you.
18 MR. TUCHIN: Nothing further.
19 THE COURT: Any recross?
20 MR. SARACHEK: Nothing.
21 THE COURT: Thank you, sir. You may step down.
22 THE WITNESS: Thank you, Judge.
23 (Witness excused)
24 THE COURT: Mr. Sarachek, who else would you like
25 to cross-examine? Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 43 of 106 42
1 MR. SARACHEK: Mr. Sharp.
2 THE COURT: Mr. Sharp, will you come forward and
3 be sworn in, please?
4 BRADLEY SHARP, DEBTORS’ WITNESS, SWORN
5 THE CLERK: Please be seated. State your full name
6 for the record and spell your last name?
7 THE WITNESS: I’m Bradley Sharp. Last name is
8 Sharp; S-H-A-R-P.
9 THE CLERK: Thank you, sir.
10 CROSS-EXAMINATION
11 BY MR. SARACHEK:
12 Q Good morning, Mr. Sharp.
13 A Good morning.
14 Q So, in referring to your declaration which is document
15 2829 in the docket, you attach Mr. Kapila’s declaration and
16 you attach his study. Did you do any independent forensic
17 investigation yourself?
18 A My firm did, yes.
19 Q And what was that? Can you describe what you did?
20 A Certainly. We utilized the work that Mr. Kapila and
21 his firm had done and the SEC was quite helpful in providing
22 data to us. But Mr. Kapila’s data, you know, ended in
23 September of 2017, so we had to complete it for the rest of
24 the prepetition period.
25 We also had much greater access to the books and Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 44 of 106 43
1 records of the debtors because, obviously, we were in
2 possession of the books and records of the debtor. So, we
3 could take what Mr. Kapila had done and then add to it from
4 the existing books and records, you know, the QuickBooks
5 files we had, additional bank statements, conversations with
6 the remaining employees at Woodbridge. And so, we could then
7 take that what had already been done and then build from it
8 to reach our own conclusions.
9 Q Did you in the course of having conversations with
10 Woodbridge employees, also speak to Mr. Shapiro?
11 A No, I have not.
12 Q Okay. How about anyone in their legal department?
13 A Yes.
14 Q And were you aware that security documents were filed
15 relating to various properties, whether their collateral
16 assignment of security interest, various documents were filed
17 in the -- certainly in the LA accounting recorder’s office,
18 were you aware of that?
19 A I reviewed the documents that were given to investors
20 and the documents that Woodbridge has and some that were
21 filed with the county.
22 Q And in reviewing those documents, did you find any
23 valid perfected secured interest in Los Angeles?
24 MR. TUCHIN: Objection.
25 THE COURT: Sustained. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 45 of 106 44
1 BY MR. SARACHEK:
2 Q In reviewing those documents, were part of those
3 documents that you reviewed filed in the LA County Recorder’s
4 Office?
5 A I believe so.
6 Q Were there -- I understand that you’re not a lawyer.
7 A That’s correct.
8 Q But you did speak to the legal department, correct?
9 A Yes.
10 Q And what did they say the purpose of filing those
11 documents were?
12 MR. TUCHIN: Objection, Your Honor. Any
13 communications with counsel would be privileged.
14 THE COURT: Any response?
15 MR. SARACHEK: Look, Your Honor, I’m trying to
16 show that there was a legitimate -- there was a procedure
17 that was followed by the Woodbridge Group of Companies. And
18 I’m asking Mr. Sharp whether he was -- he clearly testified
19 that he spoke to people in the legal department who filed
20 these documents.
21 So, what I’m inquiring of Mr. Sharp is, you know
22 his opinion as to why that was done.
23 THE COURT: Well, you can ask him that question if
24 you like.
25 BY MR. SARACHECK: Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 46 of 106 45
1 Q Why do you think the legal department filed documents
2 with the LA County Recorder’s office?
3 A To make the investors happy. To show -- to give the
4 impression that there was collateral.
5 Q So, it’s your belief that the legal department
6 perpetrated a fraud?
7 A I think it’s certainly my belief that a fraud was
8 perpetrated. You know, had I sat down and said that certain
9 people are responsible for certain pieces of it, no I have
10 not done that part. There certainly was a fraud that was
11 perpetrated.
12 Q When you were hired, you reviewed the collective
13 balance sheets of the debtors, correct?
14 A I guess, I’m going to have to have you be more
15 specific, which debtors?
16 Q Well, I’m talking when -- the 306 debtors, you know.
17 You in your declaration talk about asset values and so, and
18 you also talk about liabilities. So, if you would, what do
19 you believe today the aggregate asset value -- what do you
20 believe the aggregate asset value was at the time that you
21 were retained?
22 A Well, I guess, let me answer it several ways. When we
23 came on, there were no financial statements that had been
24 prepared. The property-owning debtors did not have their own
25 separate books and records. There was not a -- they utilized Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 47 of 106 46
1 QuickBooks for the entire operation.
2 The individual operating debtors did not have their
3 QuickBooks. So, everything was comingled and mixed. And as
4 near as we could tell, there really wasn’t a -- there
5 certainly wasn’t a balance sheet for each debtor. There was
6 some sporadic financial information, but there really wasn’t
7 financial statements prepared for the debtors.
8 So, at the time we came onboard, there really wasn’t a
9 lot of information about the value of the properties.
10 Fortunately, the debtor at the same time I was employed, Mr.
11 Fred Chin who had done some valuation work before as a part
12 of the DIP, and then he continued to update that data on the
13 value of the properties.
14 We even had trouble digging through the books and
15 records to find out the costs of each particular property.
16 You know, what was the cost? What had been spent on it? The
17 date -- that was something that was developed over time
18 through our forensic accounting analysis.
19 Q Okay.
20 MR. SARACHEK: Can I, Your Honor, approach him
21 with this declaration?
22 BY MR. SARACHEK:
23 Q I’m turning to page 9 where you basically say in 2013
24 no properties were sold and approximately $3.4 million was
25 paid to investors in principal and interest. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 48 of 106 47
1 On page 10, you say in 2014 no properties were sold and
2 approximately $17.6 million was paid to investors in
3 principal and interest.
4 In 2015, ten properties with approximately net proceeds
5 of 18.5 and approximately $84.1 million. So, clearly, you
6 did do a chronology here. Were there elements of this
7 business that were legitimate? Were there elements of this
8 business that were legitimate?
9 A No.
10 Q So, what are these transactions?
11 A Exactly what it says; they were asset sales. You’re
12 missing there is the investments that were made by the
13 investors required monthly payments. These sporadic asset
14 sales were not at all sufficient to cover the interest carry
15 and this was the only source of cash-flow.
16 I think as Mr. Kapila said the public business model
17 where Woodbridge was going to be making loans to developers,
18 those loans would then generate cash-flow which would pay the
19 interest to the investors. Well, we have since learned there
20 were no loans. These were just funding two related party
21 entities. So, there wasn’t a structure in place that could
22 service the investors and the asset sales were nowhere near
23 sufficient in order to do that.
24 Q Today, what are the aggregate assets and liabilities of
25 the debtors? Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 49 of 106 48
1 A I think if you look at the disclosure statement and you
2 look at the values from the business plan and then the
3 various estimates of liabilities those are pretty consistent
4 with what we see right now.
5 Q Well, what’s the number?
6 A I don’t have that disclosure statement in front of me.
7 Q Was the number something like 800 million and 1.2
8 billion of liabilities; 800 million of assets and 1.2 billion
9 of liabilities?
10 A I think if you look at the schedule to the disclosure
11 statement that shows what the value is.
12 Q Okay. So --
13 A So, if you put that in front of me we can walk through
14 that.
15 MR. SARACHEK: Okay. Your Honor, do you mind if I
16 grab the disclosure statement?
17 THE COURT: Go right ahead.
18 BY MR. SARACHEK:
19 Q So, if you look at the projected analysis that’s
20 attached to the disclosure statement, which this is docket
21 2398, this is Page 216 of 576, it shows the total assets of
22 $601.8 million dollars. And then on the total claims, again
23 this was the estimate of claims, close to a billion dollars’
24 worth of claims.
25 A Okay. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 50 of 106 49
1 Q And to date how much -- in the aggregate how much real
2 estate has been sold if you recall?
3 A I don’t recall.
4 Q A couple hundred million?
5 A Probably. I don’t recall. I’m focused, obviously, on
6 the forensic accounting and the bankruptcy piece.
7 Q Okay. So, even if the stated purpose of this business,
8 which was a real estate lending business wasn’t valid. In
9 fact, if noteholders had a lien on properties wouldn’t they
10 have an interest in the assets which, you know, at the time
11 that this bankruptcy commenced it was approximately $800
12 million dollars?
13 A Again, I don’t know the value at the time the
14 bankruptcy was commenced. That’s a pretty broad brush
15 dealing with the investors because they were investors that
16 were theoretically invested at particular properties. There
17 were investors that were invested at the mezzanine level. So
18 they really didn’t have a particular property, so they were
19 not even theoretically secured. Then there were investors
20 that were theoretically at a property that Woodbridge didn’t
21 even own. So, they, obviously, didn’t have an interest in
22 that property because none of the Woodbridge debtors actually
23 owned that property; that was still just in the planning
24 stage.
25 So, that would be -- I would hesitate to paint that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 51 of 106 50
1 broad of a brush because it’s got to be much more detailed
2 then that.
3 MR. SARACHEK: Okay. Thank you. Thank you, Your
4 Honor.
5 THE COURT: Does anyone else like to cross-examine
6 this witness?
7 (No verbal response)
8 THE COURT: Any redirect?
9 MR. TUCHIN: Thank you. Again, I will be very
10 brief, Your Honor.
11 REDIRECT EXAMINATION
12 BY MR. TUCHIN:
13 Q Mr. Sharp, I take it you still stand by everything
14 that’s in your declaration?
15 A I do.
16 Q I take it -- well, let me just ask you; you’ve reviewed
17 the notes and the units, the form of the notes and the units?
18 A I have.
19 Q And the notes, what do they provide in terms of
20 interest payments?
21 A Monthly interest payments.
22 Q So, from the very first day a note was issued what was
23 the source to make that first interest payment?
24 A The only source that Woodbridge had was the sale of
25 assets. There was no third-party borrower. So, that’s all Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 52 of 106 51
1 they had or, unfortunately, new investor money.
2 Q Right. And as you’ve testified there were no sales in
3 the first two years?
4 A That’s correct. The only cash they had was from new
5 investors.
6 Q Thank you. That was not was described to investors,
7 was it?
8 A No.
9 Q As you sit here today can you track an individual
10 investor’s contribution to a fund to any specific piece of
11 property?
12 A No. That’s not possible.
13 Q And do you believe with additional time you could track
14 an individual investor’s investment to a specific piece of
15 property?
16 A No. That is not possible.
17 Q And why is that not possible?
18 A The way Woodbridge manages business the money from the
19 investors came into a fund bank account and was left there
20 and comingled with other investors. So, that’s the first
21 comingling. Periodically, round numbers were transferred
22 from the fund to Woodbridge Group or to structure in the
23 early days. Then, round money was transferred from either
24 group or structured to typically an attorney trust account
25 and that trust account then money was sent to escrow to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 53 of 106 52
1 purchase property.
2 So, the investor money was first comingled at the fund,
3 then the fund money was comingled at Woodbridge Group and
4 then Woodbridge Group money was comingled further at the
5 attorney trust account level. So, there is -- it is
6 impossible to trace the money from the investor to the
7 property because there are three different places where it’s
8 comingled.
9 Q And, again, I just want to follow-up. There are
10 circumstances where an investor thought they were getting an
11 assignment of a lien for a piece of property that the debtor
12 never acquired?
13 A That’s correct. The documents that were sent to the
14 investor referenced a specific property and the collateral
15 documents referenced a specific property. The debtor or its
16 related entities did not own that property. The purchase had
17 never gone through.
18 Q So, as you sit here today can you establish that the
19 notes given by a Propco debtor a fund represent a fair
20 portrayal if it was actually loaned to that fund?
21 A No, not at all.
22 Q You can’t, as you sit here today, say whether it, in
23 fact, bears any semblance to reality?
24 A Well, I can say there is not any semblance to reality.
25 The money did not go from the fund to the property-owning Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 54 of 106 53
1 debtor where the note is reflected. The money stayed at the
2 fund and was used to pay other investors. Some of it went to
3 group and some of it went to -- you know, and on, and on, and
4 on as I was previously describing. Only a very minor amount
5 went from a fund to a property-owning debtor.
6 So, the note between the property-owning debtor and the
7 fund no consideration as exchanged for that note. It’s a
8 fictitious piece of paper.
9 Q Thank you.
10 In fact, I believe you testified with regard to the
11 Owlwood property that the face amount of the note exceeds the
12 amount that was spent on that property, is that correct?
13 A Correct. More was borrowed from investors then the
14 purchase price for the property. It oversubscribed
15 producers.
16 Q Right. And when you say more was borrowed you don’t
17 actually know what was borrowed, correct?
18 A No.
19 Q You just know that the note exceeds the amount that was
20 spent to purchase the property?
21 A Well, I guess when I say what was borrowed what the
22 funds borrowed for investors that they said was for Owlwood.
23 MR. TUCHIN: Thank you. Nothing further, Your
24 Honor.
25 THE COURT: Thank you. Any re-cross? Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 55 of 106 54
1 RECROSS EXAMINATION
2 BY MR. SARACHEK:
3 Q Mr. Sharp, are you aware of how the Hankey Capital, the
4 debtor-in-possession lender, chose certain properties to
5 obtain security on and didn’t choose others? Are you aware
6 of that?
7 A I am.
8 Q How did they come to that?
9 A Obviously, I was not there at the time and after the
10 fact, but in my conversations with the Hankey Capital people
11 they represented to me that they were just given a list by
12 the debtor of here are the properties that we want to provide
13 collateral to you. So, it was the debtor that chose them and
14 selected those properties for them?
15 Q And are you aware that various noteholders were served
16 with notice that property which they had an interest in was,
17 you know, being -- that the debtor-in-possession loan was
18 actually coming on top of them on that property. Are you
19 aware of that?
20 A I guess I characterize that differently. I was aware
21 that investors received notice as they should have, that a
22 property that they claimed an interest in was being pledged
23 as collateral. So, I am aware of that notice to the
24 investors.
25 Q Are you aware of how much due diligence Hankey Capital Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 56 of 106 55
1 did prior to entering into the debtor-in-possession loan?
2 A I don’t. I wasn’t there at the time.
3 Q Are you aware that they were planning with Mr. Shapiro
4 to recapitalize the entire company?
5 A I have not had that conversation with him.
6 MR. SARACHEK: Okay. Thank you.
7 MR. TUCHIN: Nothing further, Your Honor.
8 THE COURT: Thank you, sir. You may step down.
9 THE WITNESS: Thank you.
10 (Witness excused)
11 THE COURT: Mr. Sarachek, would you like to cross-
12 examine anyone else?
13 MR. SARACHEK: With respect to the -- I’m sorry.
14 What’s her name, Michael?
15 MR. TUCHIN: Ms. Young.
16 MR. SARACHEK: Yes. Ms. Young.
17 THE COURT: Very well. Thank you. Ms. Young,
18 will you please come forward and be sworn in.
19 EMILY YOUNG, WITNESS, SWORN
20 THE CLERK: Please be seated and state your full
21 name for the record and spell your last.
22 THE WITNESS: Emily Young, Y-O-U-N-G.
23 CROSS EXAMINATION
24 BY MR. SARACHEK:
25 Q Good morning, Ms. Young. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 57 of 106 56
1 A Good morning.
2 Q I really only have question which goes to, sort of,
3 methodology in the tabulation of the ballots. Did you
4 tabulate ballots for each of the 306 debtors?
5 A We did not receive valid ballots for all debtors.
6 There is attached to the declaration an exhibit showing a
7 debtor by debtor analysis of the ballots received.
8 Q So, you didn’t receive ballots for every debtor?
9 A Correct.
10 MR. SARACHEK: Okay. Thank you.
11 THE COURT: Any redirect?
12 MR. TUCHIN: No.
13 THE COURT: Thank you. You may step down.
14 (Witness excused)
15 THE COURT: Mr. Sarachek, do you want to cross-
16 examine Mr. Chin?
17 MR. SARACHEK: No thank you, Your Honor.
18 THE COURT: All right. Do you have any of your
19 own evidence to present?
20 MR. SARACHEK: I do not. We filed an objection,
21 Your Honor. I am not going to repeat all that’s in the
22 objection. It’s before the court. I understand that Mr.
23 Tuchin may want to, you know, refute some of our legal
24 arguments.
25 THE COURT: I get that feeling too. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 58 of 106 57
1 (Laughter)
2 MR. SARACHEK: Mr. Pachulski might say a word or
3 too, but no. Thank you, Your Honor.
4 THE COURT: All right. Thank you.
5 So, I guess at this point I guess there’s
6 agreement that the evidentiary record has closed. All right.
7 It would now normally be time for argument. Would anybody
8 like a short break before we do that or shall we just jump
9 right in?
10 UNIDENTIFIED SPEAKER: We’re prepared to continue,
11 Your Honor.
12 THE COURT: All right. I’ll hear first from the
13 debtor and then anyone else who wishes to speak. I’ll give
14 Mr. Sarachek the last word.
15 MR. HOLT: Thank you, Your Honor. Good morning.
16 Whitman Holt from Klee Tuchin Bogdanoff & Stern on behalf of
17 the debtors and debtors-in-possession.
18 Your Honor, with regards to the statutory elements
19 for confirmation under Bankruptcy Code Section 1129, of
20 course, the debtor bears the burden of proof. We filed a
21 detailed memorandum of law that’s at docket number 2828 that
22 outlines the statutory elements.
23 I’m going to save the court unless the court would
24 prefer the oral checking the box on all of the elements,
25 particularly the ones that are uncontested. I’ll focus on Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 59 of 106 58
1 the points raised by Mr. Sarachek on behalf of his clients
2 which, I think, he appears to be pressing all of them.
3 THE COURT: I’ve read the submissions including
4 the memorandum of law. So, I don’t need the dramatic reading
5 from the podium.
6 (Laughter)
7 MR. HOLT: Thank you, Your Honor.
8 Before I get to the specific points I do want to
9 note for the record, particularly the liquidation analysis
10 prepared by DSI and included with the disclosure statement at
11 Exhibit B, as well as the Sharp declaration at Paragraphs 34
12 to 39 readily establishes the best interest of creditors test
13 under Section 1129(a)(7), Your Honor. Importantly, that
14 analysis included multiple scenarios.
15 DSI prepared a noteholder high-case that assumed
16 that the noteholders received all distributable value that’s
17 available in a Chapter 7 scenario. They also prepared a
18 unitholder high-case that made a pari passu assumption.
19 Neither of those results would obtain absent very long and
20 hard-fought litigation, but they prepared the analysis to see
21 what those numbers showed.
22 What the results showed, Your Honor, is that in
23 all possible scenarios noteholders and unitholders do better
24 under the plan then they do in Chapter 7. This satisfies
25 Section 1129(a)(7) and there’s no contrary argument let alone Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 60 of 106 59
1 any contrary evidence from Mr. Sarachek or anyone else.
2 The reason I’m mentioning this, Your Honor, is
3 that the bankruptcy code contains two provisions that protect
4 parties that are similarly situated to Mr. Sarachek’s
5 clients; parties that are descending minority holders and a
6 class that’s overwhelmingly accepted the plan. Those two
7 statutory protections, Your Honor, are first 1123(a)(4). The
8 bankruptcy code does not allow parties to be classified
9 within the same class and allow a majority or members of the
10 class to receive special treatment that the minority is not
11 receiving. Your Honor, that’s not happening here.
12 Everyone that is in Class 3, Class 4, Class 5 and
13 Class 6 is receiving the same treatment or with respect to
14 elections and options that were available under the plan had
15 a full and equal opportunity to receive and make their choice
16 about what they wanted to receive under the plan. So,
17 1123(a)(4) satisfied, and there’s really no dispute about
18 that.
19 The second bedrock protection, Your Honor, is
20 Section 1129(a)(7). Again, as I just noted the evidence re-
21 soundly shows that the best interest of creditors test is
22 satisfied.
23 So, those are the two primary protections for Mr.
24 Sarachek’s clients. They’re not disputed and they’re
25 satisfied. The rest of his issues, Your Honor, largely go to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 61 of 106 60
1 issues that can be addressed on a class by class basis and as
2 the ballot tabulation shows, and I’ll summarize briefly in a
3 moment, all the classes in which his clients are situated
4 have overwhelmingly accepted the plan. What that means, Your
5 Honor, as a basic principal of bankruptcy law is that his
6 clients are bound whether they like it or not to the
7 overwhelming majority vote in acceptance of the plan by the
8 classes in which they were classified.
9 Just so the record is clear, Your Honor, there has
10 been no argument, nor could there be one, that there’s been
11 any improper classification or that the classes that were
12 constructed and solicited under the plan were improperly
13 formulated.
14 So, Your Honor, I would like to briefly go through
15 what I think are the six points we tried to distill out of
16 Mr. Sarachek’s responses. We noted it was not structured in
17 a systematic way. So, we tried to reformulate the arguments
18 as best we could to address them.
19 The first argument which we heard briefly this
20 morning, Your Honor, is that the Sarachek parties contend
21 that they’re secured. They also contend that there needs to
22 be a reserve or other mechanism established for them under
23 the plan in order to deal with the contingent probability
24 that Your Honor reverse on appeal.
25 THE COURT: So, other than Owlwood what are the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 62 of 106 61
1 properties that are subject to alleged liens?
2 MR. HOLT: Your Honor, I don’t have a detailed
3 listing, but there are additional properties that are out
4 there. Mr. Sarachek’s client group seems to be shifting and
5 every moving. There was a recent adversarial proceeding
6 filed earlier this month that includes a broader plaintiff
7 group then the group that was -- the plaintiff group in the
8 Owlwood proceeding that your court determined.
9 From the debtors’ perspective, Your Honor, we
10 don’t think the analysis is going to be substantially
11 different, but there are other properties in which there are
12 asserted intercompany security interest that will be
13 eliminated under the plan settlement and also that Mr.
14 Sarachek may be asserting direct interest in the same theory
15 that he lost earlier this month.
16 THE COURT: Ballpark, any idea how many?
17 MR. HOLT: There are quite a few. None as
18 valuable as Owlwood, Your Honor, but I mean there are 10 or
19 more individual properties in which a similar argument could
20 be made that hasn’t been made.
21 THE COURT: Thank you.
22 MR. HOLT: So, Your Honor, with respect to what
23 should happen pending appeal during the pendency of his
24 appeal Mr. Sarachek offers zero analysis in his response as
25 to why Your Honor is likely to get reverse. We, obviously, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 63 of 106 62
1 don’t think Your Honor is likely to be reverse. There is
2 some theoretical non-zero chance that could happen. Mr.
3 Sarachek certainly made no case or made any explanation.
4 THE COURT: I never develop any odds myself on
5 that.
6 (Laughter)
7 MR. HOLT: That’s fair enough, Your Honor.
8 So, no stay was sought in the language of a stay
9 pending appeal. There certainly has been no substantial
10 grounds or any grounds, really, for reversal that have been
11 shown. Your Honor, what happens in the meantime is not a new
12 issue. This is an issue that is dealt with in the case law
13 including case law in this district.
14 I’d point Your Honor, District Judge Sleet wrote
15 an opinion in the Washington Mutual case where Bankruptcy
16 Judge Walrath had made certain decisions during the middle
17 part of the case. There was a pending appeal. The parties
18 who had lost objected to confirmation of the Washington
19 Mutual plan. They also tried to get District Judge Sleet to
20 stop confirmation from going forward. District Judge Sleet
21 said there’s an un-stayed ruling of the Bankruptcy Court;
22 although, there’s a pending appeal that does not prevent the
23 Bankruptcy Court from going forward with plan confirmation
24 predicated on the correctness of Judge Walrath’s earlier
25 decision. Judge Walrath can give effect to her decision Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 64 of 106 63
1 notwithstanding the pendency of the appeal.
2 Similarly, in the Oakwood Homes case, Your Honor,
3 District Judge Farnan dealt with a similar issue arising out
4 of an appeal from a case before Bankruptcy Judge Walsh. The
5 debtors had objected to a claim, Judge Walsh had disallowed
6 the claim, there was a pending appeal by the losing party,
7 the losing party objected to confirmation and said I need a
8 reserve established under the plan. Bankruptcy Judge Walsh
9 said no, I disallowed the claim notwithstanding your appeal;
10 that’s my ruling, I believe it was correct. He established a
11 zero dollar reserve under the plan. The losing party
12 appealed and District Judge Farnan wrote an opinion,
13 published opinion, saying, no, that’s correct. The
14 Bankruptcy Court can give effect to its prior ruling. It
15 does not need to establish any reserve for a claim that’s
16 been disallowed notwithstanding the pendency of the appeal.
17 With regard to the theory that we’re hearing from
18 Mr. Sarachek, Your Honor, we cited in our papers a decision
19 from Bankruptcy Judge John Hoffman, Jr., in Ohio dealing with
20 very, very similar facts in which a party asserted it had a
21 security interest in property of the debtor. Judge Hoffman
22 said, no, you’re wrong. The party appealed to the back. The
23 back appeal was pending when the debtor’s plan was before
24 Judge Hoffman. The losing party said well, Your Honor, the
25 plan’s not confirmable because I’m asserting a security Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 65 of 106 64
1 interest. Even though I lost I’m pursuing an appeal. Judge
2 Hoffman said, no, that’s not correct. I ruled that your
3 unsecured, the debtor’s plan gives effect to my ruling, the
4 pendency of your appeal is out there, but you haven’t
5 established any basis for disagreement with my prior ruling.
6 The debtor’s plan can appropriately go forward and give
7 effect to that ruling.
8 So, Your Honor, that’s the case law. That is what
9 the case law teaches us, that Mr. Sarachek is simply wrong
10 about this.
11 THE COURT: Does the plan anticipate that with
12 respect to any post-confirmation property sales that court
13 orders will be sought or does it provide for another process?
14 MR. HOLT: The plan and the wind-down LLC
15 agreement reserve the right of the entities that come to
16 court and seek relief under Section 363 if they believe
17 appropriate. It’s not obligatory, but I suspect there may be
18 buyers who want that relief and the court would see those
19 sorts of motions.
20 The second point, Your Honor, with respect to the
21 secured creditor litigation theory is, again, the collateral
22 in which Mr. Sarachek’s parties are asserting an interest or
23 the intercompany notes and intercompany mortgages between the
24 fund debtors and the Propco debtors. As Mr. Sharp testified
25 moments ago it’s largely a loosery paper. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 66 of 106 65
1 Under the plan, as part of the global settlement,
2 those intercompany notes and liens will be extinguished upon
3 the effective date. We think in large part that moots the
4 issues that Mr. Sarachek has been pursuing and may pursue on
5 appeal because if the underlying asserted collateral, what
6 they assert they have a security interest in is eliminated,
7 which it will be under the plan, it’s purely academic whether
8 they have a security interest in that asset or not because
9 the asset no longer exists. A security interest in nothing
10 is the same thing as no security interest in nothing, Your
11 Honor.
12 I will get to that aspect of the plan in just a
13 moment because they’re challenging that part of the
14 settlement, but we think that moots out and eliminates
15 separately the vast majority of what Mr. Sarachek’s been
16 pursuing and may continue to pursue on appeal. So, Your
17 Honor, we think this objection should be overruled and that
18 there’s no basis, in the case law or otherwise, to require
19 any reserve or other modification to the plan to address
20 their appeal or to address this general issue.
21 The second issue that Mr. Sarachek raises is
22 whether or not there’s a Ponzi scheme, Your Honor, and he
23 claims that there’s been no evidence.
24 THE COURT: You can move on.
25 MR. HOLT: Okay. Thank you, Your Honor. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 67 of 106 66
1 The third issue that Mr. Sarachek raises is the
2 propriety of substantive consolidation, Your Honor. Here,
3 the case law, including Owens Corning, teaches that entities
4 may properly be substantively consolidated with creditor
5 consent. Here, all classes of creditors who are affected by
6 the substantive consolidation, the noteholders, general
7 unsecured creditors, the unitholders have voted by
8 overwhelming margins to accept the plan and we think provided
9 consent to the substantive consolidation.
10 I’d note, Your Honor, at the other debtors’ level,
11 Woodbridge Group and the Property Co.’s, consent to
12 substantive consolidation as unanimous among all creditors
13 who voted. There was no creditor who’s a creditor of
14 Woodbridge Group of Companies, or the Propco’s, or Mezco’s
15 below Woodbridge Group of Companies who objected. So, we
16 have broad based consent at that level, Your Honor.
17 That puts this case into the consent justification
18 and at the fund levels, Your Honor. I’d point the court to -
19 - Mr. Sarachek raised questions about the debtor by debtor
20 voting analysis Ms. Young attached as Exhibit A to her
21 declaration and chart that broke down each class by each
22 debtor. On a debtor by debtor basis every group of
23 unitholders and noteholders that each debtor voted to accept
24 the plan. So, that does two things, Your Honor.
25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 68 of 106 67
1 First, as I’ll touch on in a moment, it provides
2 an impaired accepting class at every one of the fund entities
3 on a stand-alone basis. Second, it provides creditor consent
4 by the parties that are affected by the substantive
5 consolidation of the fund debtors together to that
6 substantive consolidation.
7 So, Your Honor, the consent here and the fact that
8 we don’t have a rejecting effected class that’s going to be
9 adversely impacted by substantive consolidation moves this
10 case out of the New Century model which Mr. Sarachek cited in
11 his opposition. New Century as I’m sure the court recalls --
12 THE COURT: Vividly.
13 MR. HOLT: -- there was an objecting class of
14 creditors effected by substantive consolidation that had
15 rejected the plan. These aren’t the facts before the court
16 today. The facts before the court today put this case in, I
17 think, the much more instructive precedent of the court’s
18 recent opinion in Abisena (phonetic), and I may be
19 pronouncing this wrong, Holding in which, again, substantive
20 consolidation was proposed under the plan, the creditors
21 overwhelmingly voted to accept the plan and there were a few
22 dissident holders who were bound by the consent of the
23 accepting classes.
24 Your Honor, separate and apart from creditor
25 consent the facts here support consolidation of the other Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 69 of 106 68
1 debtors into Woodbridge Group of Companies under the second
2 rational in Owens Corning which is hopeless comingling of
3 assets and liabilities of the entities to be substantively
4 consolidated. Mr. Sharp said that in his declaration at
5 Paragraphs 11 through 19. He reiterated and reaffirmed that
6 testimony and I think made it even stronger here in court
7 today, Your Honor.
8 So, even if we didn’t have creditor consent, which
9 we do, consolidation of those entities is appropriate under
10 the second prong of Owens Corning. The Kapila declaration
11 further supports this conclusion when it similarly testifies
12 about comingling of assets and liabilities as among
13 Woodbridge Group of Companies and the entities that actually
14 own the properties, Your Honor.
15 We followed the plan settlements motion in early
16 October out of an abundance of caution seeking, among other
17 things, to substantively consolidate Woodbridge Group of
18 Companies and all the other debtors based on satisfaction of
19 the second Owens Corning rationale. To the extent the court
20 has any concern about substantively consolidating those
21 entities together under the plan the court could do so
22 independent from the plan pursuant to the plan settlements
23 motion.
24 Regardless, Your Honor, we’ve got a belt, and we
25 have suspenders and we have a piece of chewing gum as well to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 70 of 106 69
1 hold the pants up. There are three different ways to get to
2 substantive consolidation here, Your Honor; all of which are
3 completely appropriate. So, Your Honor, we’d again submit
4 that that aspect of the Sarachek objection should be
5 overruled.
6 The fourth point that Mr. Sarachek raises is he
7 complains that the plan’s “avoiding” what he calls valid
8 intercompany liens. Your Honor, both of those words, the
9 verb and the adjective, are both incorrect. There is no
10 avoiding of anything under the plan. There’s an elimination
11 of asserted intercompany claims as part of a comprehensive
12 settlement under the plan. Nothing is being avoided. There
13 is not an avoidance judgement. We’re not seeking a judgment
14 entered in any of the avoidance powers under the plan;
15 instead, there’s a settlement and compromise that resolves
16 intercompany claims and liabilities.
17 Second, I think almost everyone else in the
18 courtroom would stand-up and disagree with the label of those
19 intercompany liens and claims as valid. As Mr. Sharp
20 testified in court, earlier today, these were fictitious
21 intercompany amounts that had no bearing to what was actually
22 loaned between the fund debtors and the PropCo debtors. In
23 most cases there were no monies advanced from the fund
24 debtors to the PropCo debtors. They went through the
25 comingled pipeline that Mr. Sharp described. They had Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 71 of 106 70
1 virtually no bearing to what the purchase price of the
2 property was either, Your Honor.
3 There is a pending adversary proceeding that the
4 creditors committee sought and obtained standing to pursue
5 and file. That adversary proceeding is on file. It attacks
6 these intercompany liens and claims on a number of different
7 fronts, Your Honor, including that there are actual
8 fraudulent transfers, constructive fraudulent transfers and
9 simply invalid as a matter of non-bankruptcy law because
10 there was an adequate consideration provided to support the
11 purported intercompany loans and liens, Your Honor.
12 These could be appropriately settled under the
13 plan and the creditors committee’s adversary proceeding can
14 be resolved under the plan for all of the reasons Your Honor
15 discussed in the Exide published decision that you wrote back
16 in, I think, 2003; 15 years ago, at this point.
17 THE COURT: It seems like yesterday.
18 (Laughter)
19 MR. HOLT: Plants every day around the country
20 settle intercompany claims, and liens in multi-debtor
21 estates. This is not something new that we’re doing for the
22 first time in this case and there is nothing inappropriate
23 about it.
24 Your Honor, Mr. Sarachek doesn’t like the
25 settlement, but it’s well within the bounds of reasonableness Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 72 of 106 71
1 for all the reasons set forth in the plan settlements motion
2 and, again, in the adversary complaint that the committee’s
3 filed. Here, Your Honor, I think this is an area where the
4 fundamental black letter principal that dissenting creditors
5 within an accepting class are bound by what the class does.
6 The classes, all classes of creditors, particularly the
7 noteholders in Class 3 who are affected by this settlement
8 and voted overwhelmingly to accept it.
9 So, although Mr. Sarachek doesn’t think it’s a
10 fair settlement the class in which his clients are situated
11 have disagreed vehemently. Your Honor, I think that class
12 acceptance of the settlement and its overall reasonableness
13 provides a sufficient basis for the court to approve it.
14 The fifth argument that Mr. Sarachek raises is the
15 Section 1129(a)(10) issues. Mr. Sarachek points to this
16 court’s decision Tribune. Makes the, I think, easy argument
17 that, well, we have 306 debtors here, Your Honor, so the
18 debtors have to have an impaired consenting class at each
19 one.
20 This argument doesn’t work, Your Honor, for at
21 least two reasons. First, at the fund debtors where Mr.
22 Sarachek’s clients actually have claims this is not even a
23 theoretical issue. The voting report shows that at every
24 fund debtor there is either an impaired accepting class of
25 notes or an impaired accepting class of units or both. So, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 73 of 106 72
1 on an entity by entity basis, Your Honor, every fund debtor
2 that has creditors has an impaired accepting class.
3 Your Honor, we noted in a footnote in the brief
4 that there is a seventh fund debtor that’s not shown on the
5 tabulation report as having any creditors voting in favor of
6 the plan because there are no creditors at that fund entity.
7 So, although it’s a debtor that exists as reflected in the
8 schedules that were filed for that entity there aren’t any
9 creditors who needed to be solicited and there were no
10 ballots returned at that entity for or against the plan
11 because there were no creditors to solicit votes on.
12 So, that does not have an impaired accepting class
13 because it doesn’t have a class of creditors that’s impaired
14 under the plan. And because it doesn’t have a class of
15 creditors that’s impaired under the plan, if we’re doing a
16 debtor by debtor analysis and looking at 1129(a)(10) on an
17 entity by entity basis 1129(a)(10) does not need to be
18 satisfied as to that entity, Your Honor, because the plan
19 with respect to that entity does not include an impaired
20 class of creditors as to that entity.
21 Second, Your Honor, Tribune makes clear repeatedly
22 that it was not a case involving substantive consolidation.
23 Your Honor articulated a legal principal that expressly
24 applied, “absent substantive consolidation.” Well, here,
25 Your Honor, we have substantive consolidation. We have it Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 74 of 106 73
1 proposed under the plan as to the fund debtors, as to
2 Woodbridge of Companies and the other debtors. We also have
3 it proposed independently of the plan in the plan
4 settlement’s motion, Your Honor.
5 So, within the teachings of Tribune we’re outside
6 of that problem that Section 1129(a)(10) creates. So, moving
7 down from the fund debtors to the other debtors, Your Honor,
8 every other debtor that had a creditor vote on the plan had a
9 class that accepted. There was unanimous consent at
10 Woodbridge Group of Companies and every other debtor where
11 someone voted.
12 There are, Your Honor, unlike at the fund level,
13 debtor entities that have creditors where no one at that
14 debtor returned a ballot one way or the other. So, there is
15 not a rejecting class and there’s not an accepting class.
16 Your Honor, we’d submit that to the extent that’s an issue at
17 all it’s resolved by the substantive consolidation proposed
18 under the plan which on its face differentiates this case
19 from Tribune.
20 We’d also submit, Your Honor, that if Your Honor
21 is in any way uncomfortable about getting there in that
22 fashion the plan settlement’s motion proposes to
23 substantively consolidate all of those entities independent
24 from the plan. Once that substantive consolidation is done,
25 Your Honor, there’s one entity, consolidated Woodbridge of Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 75 of 106 74
1 Companies, that has one class of creditors, Class 4, and that
2 one class of creditors is the impaired class that is not only
3 consenting, but voted 100 percent to accept the plan, Your
4 Honor. So, that satisfies Section 1129(a)(10).
5 Either way, Your Honor, either through substantive
6 consolidation under the plan or independently through the
7 plan settlements motion this issue goes away as to those
8 entities. So, there is no 1129(a)(10) problem here, Your
9 Honor. It’s satisfied by the fund entities without
10 substantive consolidation and substantive consolidation,
11 under either road, satisfies as it to the other entities.
12 Finally, Your Honor, Mr. Sarachek complains that
13 unitholders should be receiving full pari passu treatment
14 with noteholders if the court’s finding a Ponzi scheme or
15 substantively consolidating entities. Your Honor, this
16 argument just ignores the plan’s comprehensive settlement of
17 the noteholder/unitholder dispute which is intended to
18 resolve this and which is eminently reasonable.
19 First, Your Honor, there are certainly arguments
20 that the units are debt like the notes, but there are many
21 arguments to the contrary. This is a complex fact intensive
22 issue with colorable points to be made on both sides as we
23 detailed at length in the plan settlements motion. In fact,
24 during plan negotiations Mr. Sabin made exactly the argument
25 that Mr. Sarachek articulated which is this is a Ponzi Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 76 of 106 75
1 scheme. In Ponzi schemes everyone was defrauded so everyone
2 should be treated equally.
3 There were responses to that argument including,
4 first, the fact that there’s no case that actually says
5 that’s the principal that applies for Section 1129 or 1123
6 purposes in the context of plan confirmation. There is
7 certainly no opinion from the Supreme Court of the United
8 States, or the Third Circuit Court of Appeals or any court in
9 Delaware that establishes that principal, but it’s an
10 argument one could make.
11 There are also arguments people could make based
12 on the terms of the documents here, Your Honor, that the
13 units repeatedly, there is an example included with Mr.
14 Sharp’s declaration, reference the units as an equity
15 investment with upside returns and things with no equity.
16 There are arguments people could make that there is no
17 bankruptcy code version two with special rules for Ponzi
18 schemes. The bankruptcy code, as congress wrote it, doesn’t
19 even use the word Ponzi scheme, Your Honor.
20 So, if something is debt or equity the same
21 principles that would apply outside the Ponzi scheme context
22 apply equally within the Ponzi scheme context. We don’t have
23 different rules and the statutory text doesn’t give different
24 principals that apply only in Ponzi scheme cases, Your Honor.
25 So, this was something all of the parties took Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 77 of 106 76
1 into account. The parties considered this. They considered
2 all of the competing arguments that all of the very able
3 counsel in the room was able to come up with on each side of
4 this, Your Honor. And there was a negotiated compromise that
5 afforded the unitholders treatment as if they had claims at a
6 72.5 percent ratio relative to noteholders, Your Honor.
7 I think it’s clear, based on the uncertainty, that
8 some level of discount is appropriate here, Your Honor.
9 There has to be some discount because there are arguments
10 that could be made both ways, Your Honor. Whenever arguments
11 could be made both ways pure pari passu or 100 percent
12 treatment is not a settlement; it’s a victory. It’s a
13 victory that would only be obtained through a hard-fought
14 litigation, Your Honor.
15 So, we’d submit, for the reasons detailed in the
16 plan settlements motion, that 72.5 percent is a reasonable
17 point that could be reached within the realm of acceptable
18 outcomes. It was something that was negotiated among
19 stakeholders who had every reason to be fighting on both
20 sides of this, Your Honor.
21 So, Mr. Sarachek doesn’t provide any reason why
22 that’s wrong other than making one of the many, many
23 different arguments that could be made on both sides of this
24 complicated issue.
25 THE COURT: Well, Mr. Sabin made it too you said. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 78 of 106 77
1 MR. HOLT: That’s true.
2 THE COURT: I can’t imagine --
3 MR. HOLT: Along with some other arguments. He
4 had many more.
5 (Laughter)
6 MR. HOLT: These were all fully taken into
7 account.
8 THE COURT: Bankruptcy sometimes does -- well,
9 creates situations with strange bed-fellows and those would
10 be two of them.
11 (Laughter)
12 MR. HOLT: I think that’s fair. I think they both
13 probably would agree with that, Your Honor.
14 Second and even more importantly, Your Honor, is
15 the fact that the settlement’s been overwhelmingly accepted
16 by the people who are affected by it. The class of
17 unitholders voted to accept the plan by more than 97 percent
18 number and nearly 97 percent in amount. So, the people who
19 have every incentive, economic incentive, to fight this if
20 they think it’s worth fighting have overwhelmingly said we
21 don’t want to fight this. In fact, we think 72.5 percent is
22 a great number and we’re happy to accept it.
23 This comes full circle to where I began, Your
24 Honor, which is when you have minority holders in a class
25 that’s voted overwhelmingly to accept the plan they’re bound Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 79 of 106 78
1 by what the class decides unless they can show that two of
2 the foundational protections for minority stakeholders have
3 been violated. Either there is unequal treatment among the
4 unitholder class, which there is not, or the unitholders
5 would do better in a Chapter 7 case which they won’t, Your
6 Honor.
7 So, once those two bedrock aspects of the entire
8 process of the statutory architecture have been satisfied
9 we’re left with the class votes and it binds the minority to
10 the settlement. That is precisely what happened in this
11 case, Your Honor.
12 So, in sum, Your Honor, the debtors are very
13 pleased to present the plan before the court. It’s the end
14 product of a lot of work that achieves a negotiated outcome
15 that’s fully consistent with the code. It’s been
16 overwhelmingly accepted by the classes which we think negates
17 almost every issue that Mr. Sarachek has raised.
18 To the extent the issues are evidentiary issues we
19 think the testimony that the court has before it in the
20 declarations and heard live today amply satisfies the
21 debtors’ burden on these issues, Your Honor. We’d ask that
22 the court confirm the plan.
23 So, I’m happy to answer any questions the court
24 has.
25 THE COURT: No. Thank you very much. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 80 of 106 79
1 MR. HOLT: Thank you, Your Honor.
2 THE COURT: I’ll hear from the unsecured creditors
3 committee if they wish to be heard.
4 MR. PACHULSKI: Was that a rhetorical question.
5 (Laughter)
6 MR. PACHULSKI: Judge Carey knew exactly what to
7 ask.
8 (Laughter)
9 MR. PACHULSKI: Your Honor, again, Richard
10 Pachulski of Pachulski Stang Ziehl & Jones on behalf of the
11 unsecured creditors committee.
12 Your Honor, I think we’re two of a small group
13 that were here from the beginning of this case and I want to
14 explain how the committee got to where it did which I
15 personally am very proud of.
16 As Your Honor knows, right about the time of the
17 trustee hearing or just before that we were dealing with
18 whether the District Court was going to take this away in
19 Florida, which the unsecured creditors committee was
20 vehemently opposed to and ultimately had a trustee fight that
21 we hoped that the SEC would support, which they did.
22 In that success we came to January 23rd of this
23 year and this is what we achieved. The professionals were
24 all gone for the debtor, effectively, other than Young
25 Conaway, but the lead counsel were gone. The financial Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 81 of 106 80
1 advisors were gone. We had no board and we had two new
2 committees. Not a very pretty picture at the time, but one
3 that the unsecured creditors committee felt was in the very
4 best interest of this estate. Based on what where we sit
5 today we’re proud that we ended up in that position.
6 We had a committee, along with the debtor and the
7 other two ad hoc committees, that felt very strongly that
8 because of the 10,000 or so investors that we had to do this
9 quickly. So, we had to deal with two very, very specific
10 general issues. One, get a deal done; and as stated by
11 counsel, Mr. Sabin had very strong views as to what should
12 happen with the unitholders just as Mr. Kortanek had with the
13 noteholders and we did with the unsecured creditors
14 committee, but that would only get us to the stage of a deal.
15 That doesn’t mean we’ll get to confirmation.
16 So, the committee wanted to feel very comfortable
17 that we would end up coming to confirmation with a deal
18 because we could make it and not meet the requirements that
19 counsel has just gone through for the debtor. So, where we
20 wanted to be particularly comfortable was on the Ponzi scheme
21 issue, which we’ve heard a lot about today, the substantive
22 consolidation issue and the intercompany issues because while
23 we can talk about some of the other issues that have been
24 raised by Mr. Sarachek, if we couldn’t get comfortable with
25 that then we were going to have to go in a different Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 82 of 106 81
1 direction. We may to do a plan that related to over 300
2 debtors. We didn’t think that was in the best interest, but
3 we were going to do what was mandated by the bankruptcy code.
4 So, aside from meeting on March 8th and,
5 effectively, having moot court competition between Mr. Sabin,
6 myself, Mr. Tuchin and Mr. Kortanek we then had to have two
7 days of meetings with all of the committee’s business people.
8 During that time Mr. Sharp and Mr. Chin presented their
9 analysis which, frankly, was done in 60-days. As Mr. Tuchin
10 said, they were absolutely drinking from a fire hose. The
11 unsecured creditors committee was vehement about getting it
12 done.
13 We were getting some pushback from the debtors
14 saying this is fundamentally unfair, we just showed up, it’s
15 now beginning of February, mid-February and he wanted a deal
16 by March 23rd. That, frankly, was not just mandated by the
17 committee in general, but the de facto chairman of the
18 committee, which I’ll get to in a moment, Mr. Myrick
19 (phonetic), was insistent that we make that deal, that we get
20 something done and we make sure that we can confirm a plan.
21 So, we met and Mr. Sharp went through his Ponzi
22 scheme analysis or, more significantly, the economics. And
23 what did he explain; that $425 million dollars had been
24 raised for investors that just went to pay other investors.
25 The clearest indicia of a Ponzi scheme that 80 million went Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 83 of 106 82
1 out to brokers, that approximately 30 million went out to the
2 benefit of Mr. Shapiro, and his family and his related
3 entities. He didn’t rely on the Kapila report to come to
4 that or Ms. Davis’s testimony that took place during the
5 trustee hearing. DSI had done their own analysis and came to
6 that conclusion.
7 There was no doubt in our mind that for purposes
8 of a settlement that a Ponzi scheme had occurred in this
9 case. Now, that doesn’t mean that there weren’t assets.
10 I’ve been involved in many Ponzi scheme cases where there are
11 assets; that’s the whole point. If you can’t demonstrate any
12 assets odds are pretty low that you’re going to get money
13 from investors, but if you can show people the Owlwood
14 estate, which is one of the premier estates in the world,
15 you’ll get more money even though your money may not have
16 gone into Owlwood and you were told it would in some
17 respects. In that case it was a loan, it was not intended to
18 be a purchase. So, we felt comfortable in the Ponzi scheme
19 issue.
20 Then we got to the substantive consolidation
21 issue. In the substantive consolidation issue Mr. Sharp,
22 again, giving a presentation just as he did in his
23 declaration, stated that money, effectively, all got
24 comingled in a single account. He states that in Paragraph
25 13 of his declaration and that that money went where it was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 84 of 106 83
1 needed as Mr. Shapiro saw fit. It could go to buy wine, it
2 could go to invest in property, it could go to pay investors
3 if the money hadn’t somehow gone out from the fund, but it
4 all went into a single fund and if that weren’t enough, as he
5 states in Paragraph 17 of his declaration, the books and
6 records were in shambles and there was no documentation of
7 any of the transactions. You could never unscramble the
8 eggs.
9 So, we made the determination that when it came to
10 the consolidation issue, the substantive consolidation issue,
11 that there was no doubt in our mind -- and I assure, Your
12 Honor, this was discussed in incredible detail at the March
13 8th meeting that we knew we had to deal with Owens Corning.
14 So, when we showed up on March 22nd and 23rd we wanted to
15 make absolutely sure that if we were going to make a deal
16 that we were going to be comfortable with the substantive
17 consolidation issue.
18 Because of Mr. Sharp’s presentation during those
19 two days it also became clear that the purported liens
20 between the funds and the Propco’s and MezCo’s were
21 fraudulent conveyances; that not to get at Mr. Sarachek’s
22 clients or to other purported secured creditors, but they
23 were absolute constructive and actual fraudulent conveyances
24 which is why we brought the complaint. So, it doesn’t matter
25 at the end of the day whether Mr. Sarachek wins his appeal or Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 85 of 106 84
1 not. He will not win. I give the odds exactly what counsel
2 for the debtor gave which is about zero, but even if he wins
3 he can’t get around the fact that these were absolute actual
4 and/or constructive fraudulent conveyances. So, it was on
5 those bases that we made the deal. That we were comfortable,
6 but not just the deal was made, but that a deal could be
7 confirmed.
8 The most important thing that we see here today,
9 Your Honor, and I think that counsel has also stated it, it’s
10 not just what has been proven, but because the burden of
11 proof has been met at some point Mr. Sarachek has to present
12 some evidence counter and there’s nothing counter; nothing on
13 the Ponzi scheme, nothing on substantive consolidation,
14 nothing on the settlement. And you would think that there
15 would have been, at least, a deposition, there would have
16 been some discovery to try to refute it, but there is none.
17 The fact is he could have done all that and we would have
18 ended up exactly where we are today confirming a plan that
19 deals with those specific issues.
20 Here is the last part, Your Honor, this is the
21 best possible plan after the time that has gone in this case
22 with people working extremely hard. This is the best we can
23 do. It is not just the best we can do, it is actually an
24 excellent plan in light of the fact that we believe, and
25 we’ll see how it turns out, that noteholders in a Ponzi Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 86 of 106 85
1 scheme, unsecured creditors in a Ponzi scheme may receive 70
2 cents on the dollar. Some cases may be better, but we’re
3 going to have to hear homerun on some litigation, for
4 instance.
5 Mr. Sharp and I were involved in a case, another
6 large Ponzi scheme, at the end of the day I think it was in
7 the neighborhood of five to ten cents. So, what’s unusual?
8 What’s the alternative; the alternative is that the plan
9 won’t be confirmed, we will spend tens and tens of millions
10 of dollars. People who have already been harmed will be
11 greatly harmed in the future as compared to liquidating these
12 assets and paying people as soon as possible.
13 On a final note, Your Honor, and this is
14 particularly important to me, this case -- all cases I take
15 personally. This case I take more personally because not
16 just the 10,000 investors, Your Honor, but we had a committee
17 member, Mr. Myrick, who made this, who drove this deal on
18 March 23rd who died four days later. Whether he knew it or
19 not, because it was a heart attack, he was instrumental in
20 this deal being made. And at the end of the day this plan
21 should be confirmed because of people like him and the other
22 10,000 investors as compared to fighting and at the end of
23 the day doing much worse.
24 Now, I would like to answer your question, Your
25 Honor, on the liquidity facility which is at the end of the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 87 of 106 86
1 day with all the work that was done by lots of people. This
2 was a very complicated facility because, effectively, you
3 needed to be licenses in 50 states. The parties who had
4 agreed to do the transaction were not comfortable, among
5 other things, with all of the licensing requirements.
6 So, at the end of the day the SEC, among other
7 things and unrelated to the liquidity facility, wanted this
8 entity, the ultimate entities to be able to be traded and if
9 people want they’ll be able to trade-out. We think we will
10 do well and we hope that people don’t sell at a discount, but
11 there will now be a mechanism post-confirmation after the
12 entities are formed that if people want to trade out of their
13 positions they can.
14 So, we’re disappointed the liquidity facility
15 didn’t work, but to be honest, Your Honor, it was pulled at
16 the last minute. We were surprised, but there were a lot of
17 things that happened in this case that we were surprised
18 about. So, with that, Your Honor, the official creditors
19 committee it is in deep support of this plan and we would ask
20 that Your Honor confirm it.
21 We thank you for everything you have done to get
22 us in this position today.
23 THE COURT: Thank you.
24 I’ll hear from the ad hoc committees.
25 MR. KORTANEK: Thank you, Your Honor; Steve Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 88 of 106 87
1 Kortanek of Drinker Biddle for the ad hoc noteholder group.
2 Your Honor, this is late in the day, but I did
3 want to introduce Mr. Jay Bainan (ph) who’s in court today.
4 He’s the co-chair of the noteholder group and is in court for
5 confirmation. Mr. Bainan will be the noteholder group’s
6 designee on the supervisory board post-effective date.
7 The noteholder group fully and emphatically
8 supports confirmation of the plan today, Your Honor, and we
9 echo the comments made by Mr. Pachulski, and Mr. Tuchin and
10 as well as, I suspect, what Mr. Sabin will say. The plan is
11 the product of an immense amount of work by the debtors, each
12 of the three committees, all of their professionals and in
13 particular, as Mr. Pachulski noted, our clients, members of
14 the three committees and members of the debtors’ board and
15 management have worked exceptionally hard to get us here
16 today.
17 Like Mr. Pachulski’s comments, the noteholder
18 group firmly believes that this plan represents the best
19 possible outcome under these difficult circumstances for
20 investor victims generally and especially noteholder victims.
21 This global settlement or the global settlement at
22 the core of this plan is truly an outstanding accomplishment
23 given the issues that were presented by the parties,
24 negotiated in a very short timeframe and, indeed, as Mr.
25 Tuchin pointed out, involving several major issues as to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 89 of 106 88
1 which there simply was not binding precedent. So, we echo
2 the view that if these issues weren’t settled we would,
3 indeed, have faced many months, perhaps years of litigation
4 and appeals; all of which would have delayed and deluded
5 victim recoveries in these cases. It was just unacceptable
6 as a proposition.
7 So, if the plan is not confirmed today,
8 unfortunately, that’s the prospect that might very well face
9 investor victims. We also fully agree with Mr. Tuchin’s
10 remarks in terms of the amount of creditor engagement in this
11 process specifically having three committees representing
12 different constituencies in the cases.
13 This was an unusual situation, as Your Honor may
14 recall, where we raised, we started off as our firm had
15 represented an unofficial ad hoc group. Serious
16 representation issues early in the cases about the same time
17 as the trustee motion was being litigated and we’re very
18 grateful that our motion to seek appointment of an official
19 noteholder representative body was settled. As part of that
20 trustee motion settlement created the official noteholder
21 committee or noteholder group as well as Mr. Sabin’s client
22 the unitholder group.
23 That set the stage for a good process and good
24 processes get good outcomes. That is, we think, a major
25 reason why the March settlement process and term sheet was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 90 of 106 89
1 able to happen on such a short basis. We resolved the
2 specific constituency representation issues. That allowed
3 proper engagement, proper advocacy of a great many issue.
4 Noteholders uniformly came to this case when they first
5 learned of the Ponzi fraud and the filing of the bankruptcy
6 case with a great many concerns and issues.
7 Really, I think, at the top of the list for all
8 noteholders was I was promised liens, what about my liens.
9 So, addressing those issues, and those beliefs and what most
10 of the loan documents say in a verifiable, and with a good
11 process and with good fiduciary representing it which has
12 been what our client’s main mission has been was essential, I
13 think, to get us to the point where we had this immense
14 acceptance rate among noteholders.
15 So, we start from all these individual victims
16 believing I had liens, I should be able to fall on my real
17 estate, and follow those proceeds through. We did our best
18 while the settlement was, you know, in process to maintain
19 adequate protection of those lien assertions, I’ll call them,
20 throughout the cases. So, we did those things to protect
21 noteholders claims as best we could under the circumstances,
22 but we believe and our clients strongly believe that
23 noteholders should feel very confident.
24 The settlement here reflects the best arguments
25 that we could put forward on those lien issues. We have Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 91 of 106 90
1 many, many theories to deal with those more so then have been
2 raised in the current plan objection and we think all those
3 issues have been fully and fairly resolved in economic terms
4 and what the plan settlement embodies.
5 Your Honor, I think that with those comments we,
6 again, reiterate our support for confirmation of the plan.
7 We think it’s a phenomenal outcome and confirmation will
8 allow distributions to begin by year-end which will be very
9 important. Noteholders had, as with unitholders, many of
10 them had relied on getting interest payments on a regular
11 basis. So, the urgency of distributions to creditors is
12 extremely high and it’s been something that all of the estate
13 parties have committed to.
14 Thank you, Your Honor. That’s all we have.
15 THE COURT: Thank you.
16 I’ll hear from the unitholders.
17 MR. SABIN: Good morning, Your Honor; Jeff Sabin
18 for the ad hoc group of unitholders.
19 First and foremost, in the courtroom I’d like to
20 introduce again, I know you’ve met him at least once, but I’m
21 going to introduce the two members of our committee; Dr.
22 Raymond Blackburn who will also be our representative on the
23 supervisory board if this case is confirmed and goes
24 effective, and next to him Dr. Chris Pinney.
25 Your Honor, pardon me for a reference to what was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 92 of 106 91
1 a jingle at one time for a cigarette, but we’ve come a long
2 way, baby, if you have and in a short period of time. And
3 maybe more aptly, if one goes to the movies these days and
4 remembers a particular landing on the moon, I view March as
5 one giant step and I view today, hopefully, as the great
6 leap.
7 First and foremost, I join in the debtors’
8 memorandum of law supporting confirmation and seeking
9 confirmation, and in the oral presentation so ably done by
10 Mr. Holt. I join in the comments of Mr. Pachulski and, yes,
11 in all of them, and in the comments of my colleague Mr.
12 Kortanek.
13 The work that was done February and March was
14 extraordinary. Not only was it a sharing of diligence in a
15 very short period of time, thank you to Mr. Sharp, and Mr.
16 Chin and their teams, but in addition it was extraordinary
17 lawyering both from position papers, to responses, to
18 position papers, to mediation sessions and then even after we
19 got to deal with the issues of treatment and subcon the most
20 important thing which is keeping in all of our, front of our
21 brains if you will, the need for speed. By that I mean
22 recognizing that the investors who are hurt here many of them
23 are retirees, many of them had spent their last dollar being
24 defrauded by this Ponzi scheme and many of them were in need
25 of some immediate cash. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 93 of 106 92
1 I think what we’ve come up with, independent of
2 the treatment, and the subcon, and the settlement themselves
3 inside the plan, is a structure, as Mr. Pachulski referred
4 to, that says if they’re still in need and didn’t avail
5 themselves of the facility that never came about we soon hope
6 that post-effective date, assuming confirmation, that the A-
7 certificates will be tradeable and we hope they’re not
8 tradeable at a deep discount, but they will be tradeable.
9 I’m sure people will be looking at a significant asset base
10 that will be in the hands of a wind-down entity.
11 Now, Mr. Sarachek is here and has availed himself
12 at the eleventh hour of trying to, otherwise, upset and
13 challenge various provisions. I submit that he’s had his day
14 in court for quite a while and has not availed himself of all
15 the other things that he could have done to stop this train
16 that, otherwise, is a proper train that investors got on,
17 that committees got on, that the debtors got on. That train
18 has voted and that train has said, look, you had your day in
19 court, it was an opinion issue. You have appealed, you never
20 asked for a stay. Number two, you, otherwise, never
21 challenged classification.
22 So, let’s remember of these 306 some odd debtors
23 that there really are two classifications. One is the seven
24 fund debtors. And you have heard that term referred to.
25 Those are the debtors that, otherwise, solicited or, at Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 94 of 106 93
1 least, arguably solicited the funds from investors. Six of
2 them are the ones who, otherwise, received those funds and
3 immediately comingled it. You have heard the testimony and
4 you’ve read the declaration of Mr. Sharp and of Mr. Kapila.
5 Those are the ones, okay, that are fund debtors; that’s all
6 they have other than their intercompany claims and/or
7 intercompany liens against property owning debtors or Mezco
8 debtors. Mezco debtors I refer to as the ones who own the
9 equity in the PropCo debtors.
10 The claims that were filed and the objection that
11 was filed treats Mr. Sarachek’s clients and the plan itself
12 only as creditors of the fund debtors, not of PropCo debtors,
13 not of Mezco debtors. In fact, there’s never been an
14 assertion anywhere in any document I’ve seen of a mortgage,
15 properly filed or not, against any of the properties
16 themselves.
17 So, when Mr. Pachulski says, gee, let’s remember
18 in this case the Cybergenetics motion that the committee
19 brought which articulated that which was summarized by Mr.
20 Pachulski which says, look, your assertion and your client’s
21 assertion read in its best light is that somehow your clients
22 have perfected lien rights in these intercompany claims and
23 intercompany liens of the fund debtors against Propco and/or
24 Mezco. In particular, his lawsuit, the adversary proceeding
25 with respect to Owlwood, was just one aspect arguing Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 95 of 106 94
1 different theories to get to that conclusion.
2 You may remember that that lawsuit was brought and
3 also then pending was the committee’s Cybergenetics motion
4 and that we put off for another day anything to do with that
5 motion for a while, then it was granted, and then we said,
6 well, committee if you want you can actually commence your
7 adversary, but let’s stay that adversary until we get to
8 confirmation. We, otherwise, are now here.
9 There is no need for any further delay. There is
10 no need for that lawsuit to ever go forward because,
11 effectively, the investors have said we understand, we
12 understand what our professionals and our fiduciary groups
13 did. We understand it and we do it in the right way which is
14 with our vote. We understand it by percentages that are
15 north of 95 percent in each of the classes. That vote, okay,
16 as Mr. Holt so ably argued, was not just for the plan it’s
17 for the settlements in the plan.
18 So, as you heard also I’m not only in support of
19 confirmation, but in support of the form of confirmation
20 order in which you will make findings with respect to the
21 propriety of the global settlement, with respect to which you
22 will, otherwise, subsume in the confirmation order approval
23 of the separate 9019 motion for the global settlement. Why?
24 It’s pretty obvious why, because we don’t need any kind of
25 further challenge if this court were to bless confirmation Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 96 of 106 95
1 based on equitable mootness. The plan is based on, it’s a
2 bedrock. Okay. That settlement is the bedrock of this plan.
3 You can’t take that settlement out, okay, and unscramble the
4 egg that, otherwise, the plan scrambles, rightfully, says all
5 the voters.
6 In addition, you’ve heard references from Mr.
7 Sarachek to a request for some reserve. Now, unless I’ve
8 missed something on the docket he has not filed a Bankruptcy
9 Rule 3020(a) motion. So, it’s inappropriate at this point to
10 even raise the request for some kind of reserve regardless of
11 whether there are funds to put in a reserve. And you’ve
12 heard that the confirmation order itself and when we go
13 effective the liens, the intercompany liens, the intercompany
14 notes will be gone for his clients.
15 So, for all of those reasons, Your Honor, we
16 support and urge you to order confirmation pursuant to the
17 confirmation order and we thank you for, otherwise, herding
18 all the cats and forcing us to get together in a room and,
19 otherwise, spend days trying to get to a very difficult, very
20 arm’s length negotiated settlement. And while there’s a
21 piece of me that would, otherwise, love to be arguing to the
22 Supreme Court with Mr. Pachulski on my left and Mr. Klee on
23 my right some very interesting issues that are in the
24 position papers I’ll save that for another day.
25 Thank you, Your Honor. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 97 of 106 96
1 THE COURT: I’m sure the Supreme Court will be
2 grateful for that.
3 (Laughter)
4 THE COURT: Does the U.S. Trustee wish to be
5 heard?
6 MR. FOX: Good afternoon, Your Honor. I’ll be
7 brief. Tim Fox on behalf of the United States Trustee.
8 May I please the court, my office does not object
9 to confirmation of the plan. And consistent with debtors’
10 counsel’s comments earlier we raise some informal comments
11 with respect to the plan vis-à-vis and the settlement motion.
12 This is an issue that comes up from time to time
13 in cases. Here the facts are so distinct with respect to the
14 need for settlement that we are very happy to have seen the
15 separate settlement motions filed in connection with the plan
16 here. We think it’s important that the debtors satisfy the
17 burden for confirmation under the standards of the bankruptcy
18 code. And based on all the evidence that’s been placed into
19 the record we believe the debtors have satisfied that and as
20 I said before have no objection to confirmation of the plan.
21 I think it’s a meaningful distinction for
22 confirmation of a plan from the settlement of a number of
23 issues and without the apparatus of the bankruptcy code and
24 the confirmation of a plan I don’t think my office would feel
25 comfortable binding every party based solely on a 9019 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 98 of 106 97
1 settlement even among fiduciaries. So, we believe that the
2 plan process was integral to the confirmation of the plan and
3 to effectuating the relief that the plan seeks to implement
4 for all of the victim investors as well as the general
5 unsecured creditors of the debtors’ estates.
6 As I said, Your Honor, we have no objection to
7 confirmation of the plan and to the terms of the plan
8 settlement, and are happy to receive those in a dual track
9 process.
10 THE COURT: Thank you.
11 MR. FOX: Thank you.
12 THE COURT: Anyone else wish to be heard before I
13 go to Mr. Sarachek?
14 MR. BADDLEY: Good afternoon, Your Honor; David
15 Baddley from the Securities & Exchange Commission. It’s nice
16 to be back here in a positive environment such as a plan
17 confirmation hearing.
18 The SEC wholly supports the plan for all the
19 reasons that have been mentioned. Clearly, it resolves very
20 complex and significant issues regarding priority and
21 distribution. The result is that every investor will recover
22 something meaningful here and no one will recover nothing.
23 I also value the balance of the strong business
24 plan with the liquidity. You know, the business plan is
25 designed to maximize the asset values by a control sale Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 99 of 106 98
1 process over several years. Normally the cost of that
2 process would be a loss of liquidity while investors waited
3 for those monies to come in, but not in this case because the
4 plan does create a mechanism for the trust to be registered
5 and to provide a public market with pricing transparency for
6 the investors to sell their interest if they choose if that
7 happens. That is a unique and creative feature of this plan
8 which I know we worked very hard with the debtors to help
9 facilitate and, hopefully, that will provide some value and
10 optionality to the investors.
11 Also, I was very pleased to see the high voter
12 participation that Mr. Tuchin pointed out as well as the
13 overwhelming support. Also, obviously, if the plan is
14 confirmed now then there would be a significant reduction in
15 the ongoing administrative expense accrual for the estates.
16 The only comment that we did have was a clarifying
17 provision in the confirmation order which I believe has been
18 added in Paragraph 43, which makes it clear that nothing in
19 the plan’s release or exculpation provisions will impair the
20 SEC’s investigation or enforcement powers against any of the
21 non-debtors.
22 Since we filed the action against Woodbridge, and
23 Mr. Shapiro and others in December we have filed another
24 action against some of the external agents. Our
25 investigation is still ongoing and our plan is to contribute Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 100 of 106 99
1 whatever recoveries from these and other future actions to
2 the liquidation trust so that it can supplement the
3 distributions to the investors.
4 I saw that recently the court did enter the order
5 approving the settlement between the debtors and the SEC,
6 we’re grateful for that. Thank you.
7 If the plan is confirmed then we will not be
8 filing a proof of claim. I think our deadline right now is
9 this Friday, but if the plan is not confirmed then we would
10 need to file a proof of claim based on the judgement, not
11 necessarily to receive a distribution of assets, but
12 certainly, at least to preserve rights in order to make sure
13 that whatever the outcome may be is something that is fair to
14 the investors.
15 So, I would like to thank all the professionals.
16 I think you all took on a massive responsibility and
17 performed exceptionally. I know the lead attorneys get a lot
18 of the shout-out, but I know you all have a lot of staff, and
19 support behind you and please pass on our appreciation for
20 everything that you all have done. As well as to thank the
21 court. I know you spent a lot of time early in the case to,
22 you know, give up time for the hearing as well as to provide
23 the parties with a lot of meaningful guidance. That really
24 did get the case on a solid footing which has gotten us to a
25 confirmation hearing in roughly nine months. We’re very Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 101 of 106 100
1 grateful.
2 Thank you.
3 THE COURT: So, Mr. Baddley, indulge me for a
4 moment. The participation of the SEC here has -- it’s not
5 only welcomed, it’s been extremely positive. But be honest
6 with me, you didn’t really want to be here, initially, did
7 you?
8 (Laughter)
9 MR. BADDLEY: Well, I could normally say I’m not
10 authorized to make a position on this, but if this is me
11 speaking, you know, I do have a bankruptcy background. And I
12 do think that there is a value to this process and especially
13 in a case like this. And I don’t have a crystal ball to say
14 what would have happened in a receivership or not.
15 But I cannot imagine a result that would have been
16 any better than this in the time that it happened. Because,
17 as I said early when there was pending committee motions,
18 these constituents did need representation and they got it
19 and I think that’s why we’re here. So, we’re very pleased
20 with the outcome of the case.
21 THE COURT: Well thank you for your participation.
22 (Laughter)
23 THE COURT: Would anyone else like to be heard?
24 Mr. Sarachek, you’re up.
25 MR. SARACHEK: Not easy to follow all this Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 102 of 106 101
1 kumbaya.
2 Your Honor, and I’ll be brief, what drives me is
3 Lisa de le Rochelle, an 85-year old lawyer who invested in
4 Owlwood. What drives me is Betty Lou who invested in
5 Owlwood, a California resident. What drives me is Jan
6 Castaneda, a lawyer from California who did an enormous
7 amount of due diligence here and, obviously, was defrauded.
8 Is it a Ponzi scheme? I don’t know.
9 But that’s what drives me, Judge. That those
10 parties all -- they are fairly sophisticated parties who did
11 due diligence here prior to entering into this investment and
12 do believe they’re secured.
13 A lot has been made of the fact that, oh, he
14 didn’t do discovery, this, that the other thing. Well, along
15 the way since February, we’ve taken all the appropriate steps
16 with respect to each property sale to reserve our rights with
17 respect to the proceeds as provided by the Bankruptcy Code.
18 And we filed various objections, most of them, obviously,
19 (indiscernible) obviously, have been denied.
20 But the issue, the one issue that I’m having
21 trouble with is the Gulfco case. And that case basically
22 says that you can’t extinguish existing liens between various
23 entities through a plan. And it requires an adversary
24 proceeding. Now, we started one adversary proceeding, but
25 there are many. If there any valid liens here which, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 103 of 106 102
1 obviously, you know, I believe there are, they can’t do what
2 they’re doing in their plan.
3 It’s nice that they want to do it. But I don’t
4 think that under the Gulfco case, they can do it. And the
5 Gulfco case is a case that’s not just cited in the bankruptcy
6 world. In virtually every corporate borrowing opinion letter
7 from, you know, law firms, from Sullivan to Kirbath (ph) to
8 whoever. I see that case cited over and over again. And I
9 don’t know how that gets reconciled here. I don’t. I don’t
10 have an answer for you. I don’t think it’s the way the
11 debtor is proposing to do it.
12 Thank you, Judge, for your time. I’ll let our
13 papers stand for themselves. Thank you.
14 THE COURT: Thank you.
15 All right, under the circumstances this is a
16 decision when I render it either has to be by a very detailed
17 bench decision or by writing, so I’m not going to decide from
18 the bench today. But I will promise, which I long ago
19 stopped doing because it never worked in my favor, but I will
20 promise a decision within days, not weeks.
21 But as long as you’re here, I think what I’d like
22 you to do is to walk me through the proposed confirmation
23 order just to flush out to see whether either the court or
24 others have any issues with where it now stands.
25 MR. TUCHIN: Thank you, Your Honor. And there was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 104 of 106 103
1 one change made to the form of order that was submitted last
2 week. Actually, ministerial changes. We added in some
3 docket numbers and then one other change at the request of
4 the SEC.
5 We had indicated that the Ponzi scheme was
6 discovered in December 2017 and the SEC requested that we
7 change that to say the Ponzi scheme was discovered no later
8 than December 2017. Certainly, an acceptable change to us.
9 THE COURT: All right.
10 MR. TUCHIN: May I approach with that redline and
11 the form of order?
12 THE COURT: Yes, you may.
13 MR. TUCHIN: Thank you.
14 THE COURT: All right, well I see the changes that
15 have been made. Let me ask for the record, does anyone have
16 any comments with respect to any of the provisions of the
17 proposed order?
18 (No verbal response)
19 THE COURT: I hear no response.
20 Is there anything else that we need to talk about
21 today?
22 MR. TUCHIN: May I just have one minute, Your
23 Honor?
24 THE COURT: Yes, you may. Yes, it would be a good
25 idea to give the SEC a little extension on their time. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 105 of 106 104
1 MR. TUCHIN: Exactly. So, Your Honor, we have
2 agreed that we will extend the SEC’s bar date until two
3 business days following the court’s ruling on confirmation.
4 THE COURT: Very well.
5 Anything else we need to talk about?
6 MR. TUCHIN: No, thank you, Your Honor.
7 THE COURT: All right, thank you, all, very much.
8 I appreciate all of the submissions and arguments and
9 presentations made. That concludes this hearing. Court will
10 stand in recess.
11 MR. TUCHIN: Thank you, Your Honor.
12 MR. SARACHEK: Thank you, Your Honor.
13 (Proceedings conclude at 12:18 p.m.)
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1 CERTIFICATE
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3 I certify that the foregoing is a correct transcript from the 4 electronic sound recording of the proceedings in the above- 5 entitled matter. 6 /s/Mary Zajaczkowski October 24, 2018 7 Mary Zajaczkowski, CET**D-531 8
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"Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 1 of 106 EXHIBIT H Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 2 of 106 1 1 UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE 2 3 IN RE: . Chapter 11 . 4 WOODBRIDGE GROUP OF COMPANIES, . Case No. 17-12560 (KJC) LLC, et al., . 5 . . Courtroom No. 5 6 . 824 Market Street . Wilmington, Delaware 19801 7 . . Wednesday, October 24, 2018 8 Debtors. . 10:00 A.M. . . .",
". . . . . . . . . . . . . . 9 10 TRANSCRIPT OF HEARING BEFORE HONORABLE KEVIN J. CAREY 11 UNITED STATES BANKRUPTCY JUDGE 12 APPEARANCES: 13 For the Debtors: Edmon Morton, Esquire 14 YOUNG CONAWAY STARGATT & TAYLOR LLP Rodney Square 15 1000 North King Street Wilmington, Delaware 19801 16 - and - 17 Michael Tuchin, Esquire 18 Whitman Holt, Esquire KLEE TUCHIN BOGDANOFF & STERN 19 1999 Avenue of the Stars Los Angeles, California 90067 20 ECRO: AL LUGANO 21 Transcription Service: Reliable 22 1007 N. Orange Street Wilmington, Delaware 19801 23 Telephone: (302) 654-8080 E-Mail: gmatthews@reliable-co.com 24 Proceedings recorded by electronic sound recording: 25 transcript produced by transcription service. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 3 of 106 2 1 APPEARANCES (Continued): 2 For the Committee: Richard Pachulski, Esquire PACHULSKI STANG ZIEHL & JONES LLP 3 10100 California State Route 2 Los Angeles, California 90067 4 For La Rochelle Joseph Sarachek, Esquire 5 Noteholders: SARACHEK LAW FIRM 62 Harbor Drive 6 Stamford, Connecticut 06902 7 For Unitholders Jeffrey Sabin, Esquire Committee: VENABLE LLP 8 1270 Avenue of the Americas New York, New York 10020 9 For Ad Hoc Noteholder Steven Kortanek, Esquire 10 Group: DRINKER BIDDLE & REATH 191 North Wacker Street 11 Chicago, Illinois 60606 12 For U.S.",
"Trustee: Timothy Fox, Esquire OFFICE OF U.S. TRUSTEE 13 844 King Street Wilmington, Delaware 19801 14 For the SEC: David Baddley, Esquire 15 U.S. SECURITIES & EXCHANGE COMMISSION 16 950 East Paces Ferry Road NE Atlanta, Georgia 30326 17 18 19 20 21 22 23 24 25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 4 of 106 3 1 INDEX 2 PAGE 3 DEBTORS’ WITNESS(s) 4 SONEET KAPILA 5 Cross Examination by Mr. Sarachek 32 6 Redirect Examination by Mr. Tuchin 39 7 8 BRADLEY SHARP 9 Cross Examination by Mr. Sarachek 43 10 Redirect Examination by Mr. Tuchin 50 11 Recross Examination by Mr. Sarachek 54 12 EMILY YOUNG 13 Cross Examination by Mr. Sarachek 56 14 15 #23) Second Interim Fee Applications.",
"16 #25) Debtors’ Motion for Entry of an Order Authorizing the 17 Debtors’ to File Under Seal Exhibit 1 to the Declaration of Frederick Chin in Support of Confirmation of the First 18 Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and Its Affiliated Debtors [D.I. 19 2830, 10/19/18]. 20 RULING: 13 21 #26) First Amended Joint Chapter 11 Plan of Liquidation of 22 Woodbridge Group of Companies, LLC and Its Affiliated Debtors [D.I. 2397, 8/22/18]. 23 #27) Debtors’ Motion for Approval of Certain Compromises and 24 Settlements, Partial Substantive Consolidation, and Related Relief with Respect to the Plan [D.I. 2721, 10/3/18]. 25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 5 of 106 4 1 EXHIBITS I.D.",
"REC’D 2 Declaration of Bradley Sharp 29 3 Declaration of Frederick Chin 29 4 Declaration of Soneet Kapila (2) 30 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 6 of 106 5 1 (Proceedings commence at 10:01 a.m.) 2 (Call to order of the Court) 3 THE COURT: Good morning, all. 4 (A Chorus of “Good Morning, Your Honor”) 5 MR. MORTON: For the record, Edmon Morton from 6 Young Conaway Stargatt & Taylor on behalf of the debtors. 7 As we get underway, Your Honor, obviously, the 8 main event today is confirmation and we wanted to highlight 9 in addition to my colleagues from Klee Tuchin and Young 10 Conaway, we also have in the courtroom with us today the four 11 declarants that have submitted declarations.",
"12 We’ll introduce those at the appropriate time, but 13 just so that Your Honor is familiar, we have Emily Young from 14 Epiq who submitted the voting declaration; Soneet Kapila who 15 is the SEC’s expert that submitted evidence at both hearing 16 the trustee trial and then also in support of confirmation; 17 Bradley Sharp who is the company’s CRO and also Fred Chin who 18 is the company’s CEO. 19 If I may, turning to the amended agenda that we 20 filed yesterday, Your Honor, thankfully, to the work of your 21 staff, we can flip straight through to item 23. Everything 22 else has either been consensually adjourned or disposed of by 23 the court. 24 Item 23, Your Honor, the only two outstanding 25 matters. Ultimately, Your Honor did enter the order on the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 7 of 106 6 1 committee’s professionals.",
"However, items (k) and (l) from 2 the exhibit, attached to the agenda, were the quarterly 3 applications of Conway & MacKenzie and also Dundon. 4 A CNO was filed just this morning. Counsel gave 5 me orders to hand up, if Your Honor is prepared to entertain 6 them, if you need to simply review the CNO and those 7 applications later, that’s acceptable as well. 8 THE COURT: I’ll take the orders, but will address 9 it after the hearing. 10 MR. MORTON: Thank you, Your Honor.",
"If I may 11 approach? 12 THE COURT: You may. Thank you. 13 MR. MORTON: Your Honor, the next item on the 14 agenda, Your Honor has entered an order. Since it was 15 submitted, that is the final fee application of Gibson Dunn & 16 Crutcher who were initially counsel to the debtors. 17 The next item on the agenda was listed as 18 uncontested going forward. It’s item number 25. And that is 19 the motion to file Mr. Chin’s declaration in a redacted form. 20 As Your Honor no doubt is aware from having 21 reviewed both the motion and the declaration in support of 22 this hearing, the declaration itself sets forth an aggregate 23 estimated value for the debtors’ real property holdings at 24 $620 million dollars. 25 The schedule provides the support for that number. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 8 of 106 7 1 And, obviously, since the primary activity of the debtors 2 going forward is going to market and sell those properties, 3 we believe that’s commercially sensitive information.",
"4 It was not the subject of an objection until about 5 fifteen minutes ago when Mr. Sarachek’s group of dissenting 6 creditors, I believe, he denotes them filed an objection. It 7 was well past the deadline that Your Honor set, pursuant to 8 the motion to shorten. And we haven’t had a chance even 9 converse with Mr. Sarachek about it. 10 So, certainly, our view, initially, would be that 11 the objection simply be overruled as untimely, you know, 12 given where we are in the hearing. 13 We will, of course, present arguments on the 14 merits if Your Honor chooses to hear it, but our initial 15 inclination would be that he did not comply with the order 16 and it should be disallowed. 17 THE COURT: But I thought because it was set on 18 shortened notice that the time to object was now? 19 MR. MORTON: Your Honor’s order set yesterday as 20 10:00 a.m. as the time. And to give Your Honor credit for 21 having done so, this is, obviously, a very sensitive matter.",
"22 It would have taken time for us to have evaluated and tried 23 to respond. 24 To put it bluntly, we simply don’t believe he’s 25 entitled to the information. It hasn’t been -- his objection Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 9 of 106 8 1 doesn’t raise valuation. It raises allocation of valuation 2 relative to his view of the different types of claims that 3 his clients hold. But it doesn’t raise valuation as a whole. 4 And we believe that it would be inappropriate to see the 5 exhibit and we certainly have concerns, in particular, with 6 him seeing the exhibit.",
"7 THE COURT: I’ll hear from the objectors. 8 MR. MORTON: Thank you, Your Honor. 9 MR. SARACHEK: Good morning, Your Honor, Joe 10 Sarachek for the dissenting creditors. 11 THE COURT: Good morning. Would you first address 12 the timeliness of the objection? 13 MR. SARACHEK: Sure. 14 Your Honor, we thought that the timeliness was -- 15 well, we thought we had until ten o’clock this morning, 16 unless I’m mistaken, and we were looking for the order. We 17 thought it was ten o’clock this morning at the hearing given 18 the shortened -- 19 MR. MORTON: Your Honor, if I may; my apologies. 20 I did misread the date, so I apologize on this. 21 THE COURT: All right, thank you. 22 MR. SARACHEK: Your Honor, again, we’re prepared - 23 - a lot of paperwork has been filed since Friday. We’re 24 prepared to enter into confidentiality, but we do think it’s 25 very relevant particularly since we have an appeal on Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 10 of 106 9 1 Owlwood, which is a significant property. And it does go to 2 the -- you know, to one of our bases for objection, which is 3 that there should be a reserve set aside or some mechanism 4 that, in the event, you know, it’s determined that our 5 clients are secured, and we do believe that that property, in 6 particular, is significant that there’s a mechanism set aside 7 to pay our clients. 8 THE COURT: Well then, certainly, you must have 9 your own view of what that property is worth?",
"10 MR. SARACHEK: I do. I think it’s relevant to 11 see, you know, especially since it’s such a significant 12 amount of the six hundred some odd million dollars. I think 13 it is relevant to see what Mr. Chin has in there and we’d ask 14 the court let us see it under, you know -- we’re prepared to 15 sign confidentiality or tell the court that we’ll maintain 16 confidentiality, but it is relevant and that’s our position. 17 THE COURT: All right, does anyone else wish to be 18 heard? 19 MR. TUCHIN: Good morning, it’s a pleasure to be 20 back in Your Honor’s court. 21 Michael Tuchin of Klee Tuchin Bogdanoff & Stern. 22 Your Honor, this is the single most confidential 23 document being filed in this case or these cases. Were this 24 document to leak, it would give every buyer or potential 25 buyer of the debtors’ properties the opportunity to know the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 11 of 106 10 1 debtors’ internal valuation. And I think we could be assured 2 that the prices would, therefore, be adjusted accordingly.",
"3 As a result, we are extremely reluctant to share 4 this information with anyone who does not have an absolute 5 need to know. And Mr. Sarachek has not demonstrated, in any 6 way, an absolute need to know. 7 Should this court at the end of the hearing order 8 that an escrow be necessary under the plan, then, I suppose, 9 we could address it at that time. But it seems to us, at 10 this time, having taken no discovery, having no evidence of 11 his own to establish value, having declined the court’s 12 invitation extended months ago to take discovery if he felt 13 he needed it, to show up today and say that he needs to know 14 the values of the properties for undisclosed reasons does not 15 justify sharing the most confidential information with him at 16 this time. 17 Thank you, Your Honor. 18 THE COURT: Thank you. 19 Anyone else wish to be heard?",
"20 MR. PACHULSKI: Just a moment, Your Honor. 21 Thank you, Your Honor. 22 Richard Pachulski of Pachulski Stang Ziehl & Jones 23 on behalf of the official creditors committee. 24 I echo what Mr. Tuchin said about the sensitivity 25 of the document, Your Honor. And, in fact, while I’ve agreed Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 12 of 106 11 1 with Mr. Sarachek that we are not at all raising the pro hac 2 today that it’s going to be at an omnibus hearing, if I had 3 any idea that this would be an issue, the committee would 4 have instructed me to go forward today with it. 5 But we are where we are. But I do need to explain 6 and, again, reaffirm what Mr. Tuchin said this is basically 7 telling buyers what they should probably bid for a piece of 8 property. 9 Now, factually, Owlwood is a good example.",
"If Mr. 10 Sarachek wants an idea of what these properties are worth, 11 most of them have been put up for sale. Owlwood has been 12 listed, from my understanding, for a $115 million dollars. 13 That’s a matter of public record. 14 Now, I still am struggling to understand why Mr. 15 Sarachek wants to see this because here’s the reality. 16 Let’s assume Owlwood sells and let’s assume there 17 has to be a reserve. Then, we would all come back and say 18 this is what Owlwood sold for. We don’t have the money to 19 reserve right now, and I think it’s based on a security 20 interest, so, again, we’re not going to put money aside from 21 Stradella for Owlwood even if -- and we’ll argue that it’s 22 not the case, that the money has to be set aside. 23 So, other than Mr. Sarachek’s curiosity, there’s 24 no basis of anything that he’s raised in his objection to 25 plan confirmation that would require the necessity of his Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 13 of 106 12 1 seeing those numbers.",
"It’s not that case. We’re not doing a 2 traditional reorganization where some of the properties will 3 sell to fund an ongoing basis. 4 They’re going to be sold and distributed to 5 creditors including Mr. Sarachek’s clients. So, I’m 6 somewhat, to be honest, perplexed as to what he’s really 7 trying to achieve in this case when most of these he can 8 either figure out, talk to a broker, or actually look at the 9 listings that have taken place today. 10 THE COURT: Thank you. 11 MR. PACHULSKI: Thank you, Your Honor.",
"12 MR. SABIN: Good morning, Your Honor. Jeff Sabin 13 on behalf of the unitholders committee. 14 I echo and concur with the statements made by Mr. 15 Tuchin and Mr. Pachulski. And, for the record, I would ask 16 you to take judicial notice of the listing that was actually 17 in last Friday’s Wall Street Journal, a picture of the 18 property, a $115 million dollars listing price. 19 And if all that he wants is to understand what the 20 debtors’ view is right now in the process of seeking to 21 market the property, best evidence you can take judicial 22 notice of. 23 Number two, I would reserve comments about any 24 reserve at all since, as I understand it, the plan, if it is 25 confirmed, would, number one, eliminate any liens that he, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 14 of 106 13 1 otherwise, is asserting, directly or indirectly. 2 And, number two, to my knowledge, there is, while 3 there is an appeal pending, there is no stay pending appeal 4 of your decision on the motion to dismiss his adversary 5 proceeding.",
"6 Thank you, Your Honor. 7 THE COURT: Thank you. 8 Does anyone else wish to be heard? 9 Mr. Sarachek, I’ll give you the last word, if you 10 like it? 11 MR. SARACHEK: Thank you, Your Honor. I’m fine. 12 THE COURT: All right. 13 I’m going to grant the request for relief with 14 respect to filing under seal and overrule the objection. 15 Frankly, two major reasons for it is, one, the dissenting 16 creditors could have either conducted discovery in connection 17 with confirmation and, of course, it’s apparently undisputed. 18 I missed it myself but the property was listed for sale at a 19 $115 million dollars in the Wall Street Journal. And, 20 secondly, I think that it’s apparent that it would not work 21 in the debtors’ favor but would probably be harmful to the 22 debtor and the creditor body were the prices of the various 23 properties that are contained as attachments to the Chin 24 declaration would be disclosed.",
"25 So, I will grant that relief. Do you have a form Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 15 of 106 14 1 of order for me? 2 MR. MORTON: I do, Your Honor. May I approach? 3 THE COURT: Yes. Thank you. 4 That order has been signed. 5 MR. MORTON: Thank you, Your Honor. 6 Skipping briefly to the end of the agenda, for a 7 moment. As Mr. Pachulski just noted, item 28 has been 8 adjourned to the November 20 hearing and won’t be undertaken 9 today. That’s the motion dealing with Mr. Sarachek’s pro hac 10 vice admission.",
"11 That leaves us with items 27 and 26, Your Honor. 12 Item 27 is the plan settlement motion that we filed. You’ll 13 note that we filed a certificate of no objection, but did not 14 submit a proposed form of order with it. And that was on 15 purpose, Your Honor. It was always intended that the plan 16 settlement motion would be approved as part of and in the 17 confirmation order itself, and that’s how it’s been treated. 18 THE COURT: So that any record that would be made 19 today would be made jointly in connection with confirmation 20 and that motion? 21 MR. MORTON: That is the intent, Your Honor. 22 We should point out that, you know, several days 23 after the objection deadline, a reservation of rights was 24 filed by Mr. Sarachek -- 25 THE COURT: I read it. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 16 of 106 15 1 MR. MORTON: -- and, so from our perspective, 2 we’ll deal with his objection at confirmation and we believe 3 that that’s also untimely and also wasn’t necessary in 4 opposition to the motion in any event.",
"5 THE COURT: I understand. 6 MR. MORTON: With that, Your Honor, I would cede 7 the podium to Mr. Tuchin to walk us through confirmation. 8 THE COURT: All right, thank you. 9 MR. TUCHIN: Thank you, Your Honor. 10 It’s a pleasure to be here today seeking 11 confirmation of a plan in these very significant cases. I 12 cannot think of a case of this magnitude and size where we’ve 13 had such active creditor participation and support of the 14 plan. 15 As you’ve seen from the ballot’s summary, these 16 plans or this plan for these debtors was overwhelmingly 17 approved in these cases.",
"And I would note that of the 18 thousand of creditors, we had approximately 85 percent 19 participation in the plan by noteholders and unitholders, 20 which, in my experience, is simply remarkable. 21 As the court probably recalls, in late January 22 following extensive heated litigation, the court entered an 23 order which set the cases on a different course. A new board 24 was appointed and two additional committees were added to the 25 general unsecured creditors committee: the official Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 17 of 106 16 1 noteholders committee and the official unitholders committee; 2 each fiduciaries representing the interest of the underlying 3 holders. 4 The board met and the board retained Mr. Chin, who 5 is in court, as the debtors’ CEO, and Mr. Sharp, who is also 6 in court, as the debtors’ CRO. 7 We were welcomed to the case by all involved. Mr. 8 Sabin, on behalf of the unitholders, immediately flew out to 9 Los Angeles with Ms. Edmonson (ph), another of their 10 colleague, to brief us on the cases, Mr. Klee and me.",
"We met 11 with Mr. Pachulski, similarly; Mr. Kortanek briefed us by 12 telephone; and we spoke frequently with the SEC as well, as 13 we endeavored to get up to speed on these cases, which was 14 more of a drinking from a firehose than I ever experienced in 15 my career and I think Mr. Klee would say the same. 16 Obviously, there was a massive history already in 17 the cases and a lot going on in the cases. 18 While we were seeking to get up to speed on the 19 legal issues involved, Mr. Chin began work on understanding 20 the properties and working to develop a business plan, which 21 we knew early on was going to be a cornerstone of any 22 consensual resolution of these cases, without an 23 understanding of the properties and what they could yield, 24 and the path to maximizing value, it wasn’t going to be 25 possible to resolve the many legal issues. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 18 of 106 17 1 And Mr. Sharp, at the same time, and his team 2 began working on a forensic analysis to understand where the 3 money went, how it flowed, whether the business records 4 reflected reality or not.",
"They were aided initially by Mr. 5 Kapila report and Mr. Kapila is generously in court today as 6 well. But they needed to do their own due diligence, 7 obviously. 8 And as Mr. Kapila has indicated and his colleague 9 indicated in testimony before the court in this case, they 10 were hamstrung in their efforts by the lack of cooperation 11 and information. The debtors, obviously, had much greater 12 access to information for a greater period of time. 13 And so, Mr. Sharp and his team, while they had a 14 good start from Mr. Kapila’s report, started from scratch and 15 looked at all the business records themselves, did their own 16 forensic analysis with experts in the area, again, to 17 determine another critical component to cutting the deal. 18 Was this a Ponzi scheme? Were you able to unscramble the 19 eggs or was substantive consolidation going to be necessary? 20 Through our meetings with the various 21 professionals and weekly calls with financial advisors, the 22 business people, and the attorneys, it became clear to us 23 that there were many complicated and interesting issues in 24 these cases. Some of which, candidly, we thought could end 25 up in the Supreme Court. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 19 of 106 18 1 There were either splits in the circuit or 2 untested fascinating areas of law, some of which are the 3 subject of the sole remaining objection to confirmation, some 4 of which are not covered by the objection.",
"But, as I recall, 5 there were about 20, 25 issues that we identified as a result 6 of the initial meetings which could have resulted in years of 7 litigation and tens of millions of dollars of costs. 8 It was also clear to us, and to the other 9 professionals, that there was quite a bit of dissention in 10 the case following what had been extensive litigation. And 11 without a change in approach, these cases were headed towards 12 years of litigation. 13 We convened all of the attorneys at Klee Tuchin 14 Bogdanoff & Stern to go through the issues and to start 15 framing what the issues were.",
"We were joined by Young 16 Conaway and counsel for all three committees. And, in 17 advance, we heard from the SEC through a number of calls and 18 Mr. Baddley, in particular, who’s been extraordinary 19 constructive in these cases. 20 The tone we set was that we needed to remember 21 that this was an unusual case with thousands of victims and 22 that one thing was clear. Every dollar spent on professional 23 fees in the cases was a dollar that would not be available to 24 the victims in these cases. 25 And I would note, and I’m appreciative that we do Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 20 of 106 19 1 have a number of the investors in court today and I’m sure 2 their counsel will introduce them at the appropriate time. 3 But they’re to be applauded for playing such an active role 4 in these cases.",
"5 As a result of the view that we had reached and 6 our board’s mandate to get these cases resolved as quickly as 7 possible and as economically as possible, not only to reduce 8 the burn, which came directly out of the investors’ pockets, 9 but to return money to the investors as quickly as possible. 10 Another very important thing in these cases given that a 11 number of these investors invested significant portions of 12 their life savings and needed not just money but money sooner 13 rather than late. 14 We charged everyone in the case with coming to an 15 amicable resolution. 16 THE COURT: Let me ask you to pause for a moment 17 as a matter of curiosity.",
"18 MR. TUCHIN: Of course. 19 THE COURT: How many took advantage of the 20 financing program which I approved? 21 MR. TUCHIN: The financing program did not end up 22 going forward, Your Honor, as I’ll let either committee 23 counsel or noteholder counsel describe. 24 THE COURT: Thank you. 25 MR. TUCHIN: And by all means, obviously, it’s Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 21 of 106 20 1 your courtroom. Feel free to interrupt at any time. 2 THE COURT: Why I thank you. 3 (Laughter) 4 MR. TUCHIN: So, Your Honor, I would indicate 5 that, you know, Gibson Dunn & Crutcher, Young Conaway and all 6 of the other parties I mentioned, Mr. Baddley, Mr. Kortanek, 7 Mr. Pachulski, Mr. Sabin all played an extraordinarily 8 helpful role in allowing us to transition into these cases.",
"9 And all of them demonstrated, candidly notwithstanding, you 10 know, the personal gain that would have accompanied a multi- 11 year case with lots of litigation, they all committed to 12 trying to get these cases resolved quickly, economically so 13 that the most amount of money possible could be returned to 14 the victims. 15 And everyone understood and has appreciated 16 throughout these cases that they are unusual, that we do have 17 victims here, and that we need to try to return as much money 18 as quickly as possible to them. 19 Following our initial retention in the case, we 20 received white papers, which we encouraged, from the 21 committees which set forth their briefing on a number of 22 issues of interest in the case. 23 I mentioned that we sat down in my offices, just 24 attorneys, and went through the issues. It was like a law 25 school exam day. Literally, we got out cases. We read Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 22 of 106 21 1 through cases, as people tried to make their points about 2 various cases.",
"You’ll hear about, you know, some of those 3 issues as we address the sole objection that remains. 4 But it was clear, again, that there were not 5 winners and losers. There was lots of nuance, lots of 6 issues that could have gone either way in trying to resolve 7 some of these issues. 8 In particular, I think of the treatment of the 9 units which was an area where we did get out cases and look 10 through to see if there was any binding precedent in terms of 11 how you would treat different investors in a Ponzi scheme. 12 And lots of great arguments but, ultimately, I think the 13 parties would agree the Supreme Court would have to resolve 14 whether you have a situation in a Ponzi scheme where everyone 15 is treated equally or whether a unit, if it’s truly an equity 16 interest, would be treated on a junior basis.",
"17 I don’t know the answer. And, candidly, the 18 debtors didn’t try to reach answers to a lot of these issues 19 because the case law was uncertain and we viewed our role as 20 a mediator trying to bring the parties together, ably 21 represented to try to reach a resolution. 22 We then had the advisors, the financial advisors, 23 meet for a full day at our offices. And then we had two days 24 of meetings, at which the business people, the financial 25 advisors, and the lawyers for the three committees and the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 23 of 106 22 1 debtors were present in our offices. 2 These were highly contentious meetings, much like 3 in mediation. We had everyone together.",
"We broke people 4 apart. We went room to room trying to compromise. And 5 following two days of very intense good faith negotiations, 6 we reached agreement on the term sheet for a plan which we 7 promptly filed with the court. 8 And, again, there are three main components to 9 reaching that agreement. One was the work that Mr. Sharp did 10 to be able to present the committees with information 11 regarding what accounting and forensic analysis was 12 available. And, number two, Mr. Chin’s draft business plan 13 which presented alternatives for maximizing the value of the 14 assets. And then a whole host of legal issues that had to be 15 resolved, one way or another in order, to avoid significant 16 litigation. 17 And those were all built into the term sheet 18 which, ultimately, formed the basis of the plan and the 19 disclosure statement.",
"20 We then worked with the three committees and the 21 SEC to prepare a plan or reorganization or plan of 22 liquidation and the disclosure statement which were, as you 23 know, filed with the court. And this court approved the 24 disclosure statement. 25 Following the solicitation efforts commencing, we Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 24 of 106 23 1 received a number of inquiries as did the three committees 2 from investors who were confused about what we were trying to 3 accomplish in these cases. And, in part, that confusion 4 arose because of unauthorized communications from a number of 5 different people to the holders recommending certain courses 6 of action, one versus the other. 7 And, again, by some people who were not before, 8 had never, to my knowledge, been before the court; 9 nonetheless, recommending that they do certain things or not 10 do certain things which, I think, had the effect of confusing 11 a number of holders.",
"12 And so, we held, in concert with the three 13 committees, five conference calls available for all investors 14 in the company. We did two call dedicated to unitholders, 15 three calls dedicated to noteholders, and all of the 16 professionals, again, all of the attorneys and Mr. Sharp 17 participated in those calls. 18 And we explained to people the process that we had 19 gone through to reach the agreement, why we thought the 20 agreement was appropriate, and what they were being asked to 21 do. Almost entirely information that was in the disclosure 22 statement, but understandably most people are not able to 23 make their way through a lengthy disclosure statement and 24 understand all of the nuances, and there was confusion, as I 25 indicated, when they were being approached by other people.",
"Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 25 of 106 24 1 We had unbelievable participation, by our count; 2 over a third of the investors participated in these phone 3 calls. And we received, as did the committees, very, very 4 positive feedback following the calls for having had these 5 calls. 6 And we believe that they resulted in the 7 overwhelming support that we received for the plan. As I 8 indicated, approximately 85 percent of investors voted on the 9 plan which is a huge number in cases like this. And of those 10 who voted, as the court saw, 95 percent approximately of the 11 noteholders and unitholders voted in favor of the plan and 97 12 percent, all but one creditor holding general unsecured 13 claims, voted in favor of the plan. 14 The objections to the plan were three.",
"Two of 15 them had been resolved. The objection by Contrarian and the 16 objection by the IRS. Both have confirmed that the changes 17 made to the confirmation order addressed their objections. 18 We also had three objections regarding cure 19 claims. With respect to the assignment of contracts, all of 20 those have been addressed as well. I noticed one formally 21 withdrew the objection on the docket yesterday. But all 22 three have been resolved. 23 That leaves us, as we sit here today, with only 24 one objection to confirmation. That being from Mr. 25 Sarachek’s group. In addition, the U.S. Trustee had raised Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 26 of 106 25 1 an informal concern that we not seek to avoid our burden of 2 proof in confirming the plan.",
"3 I believe their concern, although they can 4 certainly address it better than I can, was that we not seek 5 to use a lower burden of proof for approving a settlement in 6 order to get around the burdens of proof that may be required 7 to confirm a plan. 8 And, certainly, we are in agreement with them. 9 We’re not seeking to get around any burdens of proof in our 10 confirmation order to confirm a plan. And so, I think we’ll 11 be able to address their concern, if we haven’t already, by 12 virtue of the evidence that’s been provided, the separate 13 motion to settle that was filed, and the form of the 14 confirmation order. 15 And in terms of Mr. Sarachek’s objections, we did 16 reach out to him over the weekend to see if our pleadings, 17 our ballot summary and the other evidence had reduced the 18 issues. He was not willing to respond substantively, so 19 we’ll have to find out what is still being pressed.",
"20 But, broadly speaking, he objects to the Ponzi 21 scheme determination. He erroneously claims that there has 22 been no evidence in the record of a Ponzi scheme when, in 23 fact, in the very early stages, Mr. Kapila’s colleague 24 testified and Mr. Kapila’s report was admitted into the 25 record, which I think very clearly lays the groundwork for Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 27 of 106 26 1 this being a Ponzi scheme. 2 He claims that notwithstanding this court’s order 3 dismissing the complaint with prejudice, to the extent that 4 his clients are determined to be secured creditors on appeal, 5 there are no funds reserved to pay him. We will address all 6 of these arguments.",
"7 He challenges substantive consolidation. He 8 challenges the elimination of intercompany liens and claims 9 saying that a plan cannot settle such issues, which we 10 believe, obviously, is incorrect. He challenges certain of 11 the voting determinations, although, in fairness, he had not 12 yet seen the ballot report, so I do not know if those remain. 13 And he challenges the treatment of the units versus the 14 notes, if substantive consolidation is approved.",
"15 I believe he conflates certain issues, Ponzi, 16 substantive consolidation, the lien issues. But I think it 17 probably makes the most sense to hear from him first as to 18 what he is pressing and then the debtors can respond. 19 At this time, again, it’s your courtroom and we’ll 20 defer to you, but, at this time, we think it makes sense to 21 admit the declarations of our declarants: Mr. Chin, Mr. 22 Sharp, Ms. Young, and Mr. Kapila. They are all in court and 23 available for cross-examination, should anyone wish to cross- 24 examine them. 25 And then we would submit that after examination, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 28 of 106 27 1 we can give Mr. Sarachek the opportunity to argue what he 2 wishes to argue and then the debtors and the committees can 3 respond and put on an affirmative case, if the court wishes.",
"4 THE COURT: Okay. Let me just first ask, Mr. 5 Sarachek, whether any grounds for objection are no longer 6 being pressed or whether you’re still pressing them all? 7 MR. SARACHEK: We’re still pressing our objection 8 and with respect to Mr. Tuchin’s statement, I don’t have any 9 record of being contacted by the debtors in an effort to 10 resolve our objection. 11 I did -- our objection -- I’m sorry.",
"Thank you, 12 Your Honor. 13 Our objection, as you know, had to be filed before 14 the declarations were filed on Friday. We’ve been doing an 15 enormous amount of reading and research. We would like to 16 hear from a couple of the declarants, specifically Mr. Sharp 17 and Mr. Kapila on the Ponzi scheme issue. 18 And as far as our objection that basically the 19 requirements are that each debtor -- that with respect to 20 voting and each debtor, the tabulation, it was unclear from 21 what was filed whether the debtors, in fact, did that. 22 Looked at every specific debtor and it was unclear to us. 23 So, with respect to that declaration, if Mr. Tuchin can clear 24 that up, perhaps, we don’t press forward on that specific 25 element of our objection. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 29 of 106 28 1 THE COURT: All right, thank you. 2 MR. TUCHIN: Your Honor, on October 21st, I wrote 3 to Mr. Sarachek and his colleague, 4 “Dear Joe & Jonathan, 5 I hope all is well. In order to streamline the 6 confirmation hearing as much as possible, in 7 effort to reduce costs, it would be helpful to 8 know which objections you intend to pursue and 9 whether you intend to cross-examine any of our 10 witnesses. We’re hoping that the declarations, 11 including especially the balloting declaration, 12 will narrow the issues somewhat.” 13 Mr. Sarachek responded, 14 “Michael, 15 Richard and Catherine are copied here.",
"We need to 16 discuss with them, given the pending motion to 17 disqualify, we will get back to you tomorrow.” 18 I will represent to the court that they never got 19 back to me. 20 Thank you, Your Honor. 21 THE COURT: All right. So, let’s go down the list 22 of declarations that have been offered for admission. 23 First is the Sharp declaration at docket number 24 2829, which includes the Kapila report along with it. 25 Is there any objection to the admission of that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 30 of 106 29 1 declaration? 2 (No verbal response) 3 THE COURT: I hear none.",
"It’s admitted without 4 objection. 5 (Declaration of Bradley Sharp admitted in evidence) 6 THE COURT: The Chin declaration -- well, I guess, 7 you had offered the redacted declaration which is at docket 8 number 2833. Does anyone have any objection to that -- 9 admission of that declaration? 10 (No verbal response) 11 THE COURT: I hear none. It’s admitted without 12 objection. 13 (Declaration of Frederick Chin admitted into evidence) 14 THE COURT: Next is another Kapila declaration 15 which is at docket 2834 which confirms, he says basically 16 what I said I stand by. 17 Anyone have an objection to the admission of that 18 declaration? 19 (No verbal response) 20 THE COURT: I hear none. It’s admitted without 21 objection. 22 (Declaration of Soneet Kapila admitted in evidence) 23 THE COURT: Now, there are two Young declarations; 24 one is at docket 2836 and one at 2855. The second one 25 corrects the tabulation with respect to voting in classes Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 31 of 106 30 1 three and five. 2 Does anyone have any objection to the admission of 3 those two declarations? 4 MR. SARACHEK: Your Honor, is it possible to ask 5 Ms. Young whether, in fact, the tabulation was done?",
"6 THE COURT: You’ll have the opportunity to cross- 7 examine, if you like. 8 MR. SARACHEK: Okay. That’s the only question. 9 And, by the way, let me apologize to Mr. Tuchin. 10 I thought he said he called me. I misheard but, yes, in 11 fact, he did send me that email. As you know, there was this 12 -- 13 THE COURT: I understand. 14 MR. SARACHEK: -- other situation that the 15 committee brought upon us that we were dealing with. 16 THE COURT: Okay. 17 MR. SARACHEK: So, I apologize to Mr. Tuchin. 18 Yes, you did send us that email. 19 THE COURT: Is there any objection to the 20 admission of the two Young declarations? 21 MR. SARACHEK: Can we -- can I ask her 22 specifically -- can I cross-examine here or not? 23 THE COURT: You can cross-examine her. 24 MR. SARACHEK: Okay. 25 THE COURT: But I’ll admit them, subject to your Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 32 of 106 31 1 cross-examination. 2 MR. SARACHEK: Okay. Thank you, Your Honor.",
"3 THE COURT: All right. 4 MR. TUCHIN: Thank you, Your Honor. My suggestion 5 would be that we allow Mr. Sarachek to cross-examine the 6 witnesses he wishes to cross-examine. We reserve our right 7 to redirect. We’ll rely on their testimony in chief and only 8 reserve the right to redirect should it be necessary. 9 THE COURT: Certainly. 10 Mr. Sarachek, who would you like to cross-examine, 11 beside Ms. Young, if anyone? 12 MR. SARACHEK: Yeah, so I would like to cross- 13 examine Mr. Kapila. I’d like to ask him a couple of 14 questions. 15 THE COURT: All right. 16 MR. SARACHEK: With respect to the Ponzi scheme 17 issue.",
"18 THE COURT: Very well. Mr. Kapila, will you come 19 forward and be sworn in, please? 20 SONEET KAPILA, DEBTORS WITNESS, SWORN 21 THE CLERK: Please be seated. State your full 22 name for the record and spell your last name. 23 THE WITNESS: My name is Soneet Kapila; K-A-P-I-L- 24 A. 25 CROSS EXAMINATION Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 33 of 106 32 1 BY MR. SARACHEK: 2 Q Good morning, Mr. Kapila. 3 A Good morning. 4 Q How are you?",
"5 With respect to your declaration, in particular, the 6 report that you did in relation to the SEC complaint, can you 7 -- first of all, did you do any work for this bankruptcy 8 estate? 9 A I have not done any work for the bankruptcy estate. 10 Q Okay. So, other than speaking with Mr. Sharp and 11 representatives, you’re not a retained professional in the 12 bankruptcy estate nor have you done any professional work on 13 behalf of the estate? 14 A I have not rendered any services, professional services 15 to this bankruptcy estate. I think my office and I, from my 16 recollection, one call in which I sat in with Mr. Sharp. I 17 can’t remember if Mr. Sharp was on that call or not, just to 18 facilitate some transitional information. 19 Q So, how did it come to pass that you on October 18th 20 submitted this declaration, you know, in support of the 21 debtors’ premise that this case is a Ponzi scheme?",
"22 A What did you mention, counsel, I apologize? 23 Q You signed the declaration on October 18th. 24 A Okay. 25 THE COURT: Are you speaking, Mr. Sarachek, of the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 34 of 106 33 1 second Kapila declaration that’s at docket 2834 that we just 2 admitted? 3 MR. SARACHEK: Yes, I am. 4 THE COURT: All right, thank you. 5 BY MR. SARACHEK: 6 A Okay. How did it come about that I did -- I was 7 serving as the consultant and expert to the Securities and 8 Exchange Commission. They’re the ones who got my 9 declaration. 10 Q This declaration that’s submitted to the bankruptcy 11 court? 12 A May I have a look at it?",
"13 Q Sure. 14 MR. SARACHEK: Can I -- 15 THE COURT: Yes, you may. 16 BY MR. SARACHEK: 17 A Oh, I see. My apology. This is the declaration I just 18 signed on October 18. I was confused with the main 19 declaration which was signed last -- in December. That’s why 20 I was confused about the date. I now understand the 21 declaration you’re referring to.",
"22 I signed this declaration in the context of, I guess, 23 of adopting my words, my original declaration which was 24 filed, dated, I think, December of last year. 25 Q Can you just tell me with respect to your original Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 35 of 106 34 1 declaration in December of 2017 and the work behind it, how 2 many months of work was it -- can you give us some background 3 about your work product there, your declaration? 4 A Sure. We were retained by the Securities & Exchange 5 Commission sometime in the -- I don’t have the precise date, 6 but it was in the earlier part of 2017. Perhaps in the first 7 quarter or thereabouts. 8 And our work extended over all the months that past by 9 during the year in stages because we did the work, then we 10 needed more information. We conferred with the SEC. They 11 needed a subpoena or however they obtained additional 12 information, so it came in spurts. 13 And as the information came, my office, my 14 professionals and myself analyzed that information and it 15 kept developing over the stages and culminating in the 16 reconstructions that were done and the analyses that were 17 performed. And, ultimately, the December 2017 declaration.",
"18 Q Sure. Where’s your office located? 19 A Fort Lauderdale, Florida. 20 Q And did the SEC give you all of the information or did 21 you travel to California and other places to gather the 22 information? 23 A I did not travel anywhere. Our entire communication 24 line was with the SEC. 25 Q So, whatever the SEC gave you, you analyzed, is that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 36 of 106 35 1 accurate? 2 A That is correct, yes. 3 Q Okay. With respect to, and you have a statement in 4 your declaration that you give the SEC definition of a Ponzi 5 scheme -- with respect to -- did you do a chronology of this 6 business? Did you look at the inception of the business and 7 then bring it forward to current? 8 A I believe the answer to your question would be yes. In 9 the context of the reconstruction we did which started from 10 early 2012 onwards or it was July 2012.",
"So, if you call that 11 the chronology, the reconstruction was from that period 12 onwards through September of 2017. 13 Q Did you look at the business on a debtor-by-debtor 14 basis? 15 A Well, when we did the work, there was no debtor in 16 existence. 17 Q I’m sorry; entity by entity basis? 18 A We had the bank records for each of the entities. The 19 bank accounts which are listed actually by an exhibit in my 20 declaration. So as to -- if there was a bank account for any 21 entity that was produced to us, yes in that context it was on 22 an entity by entity basis. 23 Q When you were doing this study, did you ask the SEC for 24 more information?",
"Did you indicate to them that you didn’t 25 have the full amount of information that you might ordinarily Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 37 of 106 36 1 need? 2 A I don’t know if I said to them, we don’t have the full 3 information that we don’t ordinarily need. But every time, 4 as I indicated earlier, in spurts we were noticed. We are 5 identifying any additional bank accounts because sometimes 6 the traces of money would help you do that. 7 If we wanted to connect the dots, we would go back to 8 the SEC and advise them of that and they would make every 9 effort they can to try and obtain the information and provide 10 it to us. 11 Q Were you -- in your analysis, did you see elements of a 12 legitimate real estate business with respect to the 13 Woodbridge cases as a whole?",
"14 A The book value of the real estate which we noted was 15 recorded in the records was about $11 million of real estate 16 on that was apparent. There was no real estate being shown 17 in the reconstruction or in the record that we saw as owned 18 real estate because the primary business model was to loan 19 money to borrowers for the purpose of financing real estate. 20 So, real estate ownership, per se, was not the key element in 21 the business model. 22 Q So, for the purposes of your analysis, what you are 23 really looking at is a lending business, not a real estate 24 company that owns significant real estate? 25 A Well, we were looking at anything and everything that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 38 of 106 37 1 the cash flow transactions would demonstrate.",
"And we were 2 looking at the memorandums that were used for the borrowing. 3 We were looking at the websites. We were looking at the 4 model that they were allegedly promoting which, essentially, 5 was to create income by way of the margin the business would 6 get if it was a business. Between the interest they paid to 7 investors and the interest they were going to get from 8 borrowers, and that would be their source of income, if they 9 made any income. 10 Q did you ever speak to anyone at the company? 11 A No, sir. 12 Q You never spoke to anyone, any finance person at the 13 company? 14 A No, that would not be in the cards because I was 15 retained by the Securities & Exchange Commission and my 16 contact would be directive of the SEC.",
"I don’t think I would 17 have the ability to pick up the phone and cavalierly call the 18 company’s management. 19 Q So, you really had no way of knowing whether the 20 business, at one point, was “legitimate” or whether it was 21 never -- it never had a valid purpose for being? 22 A Well, I do know because the reconstruction tells me 23 what the business actually did versus what it may have 24 proposed to do. That’s the reality is the cash transactions 25 for that period of time and they are clearly demonstrative of Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 39 of 106 38 1 the fact that this company was not earning income or profits 2 sufficient to meet the obligations it was promising to the 3 investors. 4 Q How many hours did you spend on this project, if you 5 know? 6 A It was well over a thousand billed hours during that 7 period of time.",
"I don’t have a precise number. 8 Q And was it you and several associates or primarily? 9 A No, it’s a team effort. I mean it’s a large enough 10 project that it’s not a single person project and we had 11 professionals at different skill levels. And that involved 12 myself, my partner, Melissa Davis who testified here during 13 the early bankruptcy hearing, and some professional staff 14 below her at the analytical level. 15 Q At the outset of your engagement, did the SEC tell you 16 this is a Ponzi scheme or a fraud and here’s what we want you 17 to prove? 18 A No, they did not. The scope was simply to try and 19 analyze the records and the banking transactions. 20 Q Okay. 21 MR. SARACHEK: Your Honor, can I have one moment? 22 THE COURT: Yes.",
"23 MR. SARACHEK: Thank you, Your Honor. 24 THE COURT: Thank you. 25 Would anyone else like to cross-examine Mr. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 40 of 106 39 1 Kapila? 2 (No verbal response) 3 THE COURT: Is there any redirect? 4 MR. TUCHIN: I’ll be very brief, Your Honor. 5 BY MR. TUCHIN: 6 Q Thank you for being here, Mr. Kapila, and thank you to 7 the SEC for making Mr. Kapila available to us.",
"8 Mr. Kapila, could you briefly describe your experience 9 analyzing Ponzi schemes? 10 A I would say it’s very extensive. There is an exhibit 11 to my original declaration which expounds on it. I’m a 12 federal bankruptcy trustee. I’ve handled cases as a trustee 13 which have been Ponzi scheme cases. One of the landmark 14 cases I handled was the Louis Pearlman case in Orlando in the 15 Middle District of Florida and the Transcontinental which is 16 about a half million-dollar Ponzi scheme. And then I had 17 several others I’m involved in, I was. 18 I was involved in representing a very large major 19 creditor group in the Rothstein bankruptcy case in Florida. 20 And aside of that, my firm and I have represented numerous 21 fiduciaries, regularly receivers, in SEC or FDC and CFTC 22 cases as the forensic accountants. 23 I’ve also served as an expert witness for the, I guess, 24 the U.S. Government of the Department of Justice in some 25 Ponzi cases.",
"So, I think that’s the best way to capture it. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 41 of 106 40 1 Q Thank you. And it is your professional opinion that 2 this was as Ponzi scheme? 3 A It is my professional opinion. As I said in my 4 declaration, it has numerous of the attributes of a Ponzi 5 scheme. I normally leave the decision to the trial of fact 6 as to, but, in my view, that’s what it is. 7 Q Thank you. And do you recall the date as to which you 8 opine the Ponzi scheme initiated?",
"9 A It would be no later than the date I signed the 10 declaration which was, I believe, December 17 or 18 of 2017. 11 Q But the date that the Ponzi scheme began? 12 A It began a lot sooner than that in my view because I 13 analyzed the impact of the transactions and the cash flows 14 going back to July of 2012 and I could see where they 15 indicate in the reconstruction that they went on a quarter by 16 quarter basis. This entity or these entities were not 17 generating sufficient cash flows by way of working capital or 18 income to be able to support the obligations they were 19 incurring. And all the records were showing they were 20 accursing book entry item but there was no cash transaction 21 to support them.",
"22 Q So, I guess, what I’m saying the cash did not match the 23 book entries the way the cash -- 24 A Clearly not. 25 Q Thank you. And so, from inception of Fund I which was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 42 of 106 41 1 in the June/July period, you believe since the inception this 2 was a Ponzi scheme? 3 A That’s my belief, sir. 4 Q Thank you. And then I take it you continued to believe 5 as you stated in your findings that while there was a real 6 estate portfolio, the business enterprise did not generate 7 sufficient profits to pay the promised return to investors? 8 A That is correct. 9 Q And that the business activities were not consistent 10 with the model that you indicated was promoted and materials 11 you reviewed? 12 A That is correct, sir. 13 Q And that investor money was, in fact, used to pay the 14 large percentage of the returns promised to the earlier 15 investors?",
"16 A Yes, sir. 17 Q Thank you. 18 MR. TUCHIN: Nothing further. 19 THE COURT: Any recross? 20 MR. SARACHEK: Nothing. 21 THE COURT: Thank you, sir. You may step down. 22 THE WITNESS: Thank you, Judge. 23 (Witness excused) 24 THE COURT: Mr. Sarachek, who else would you like 25 to cross-examine? Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 43 of 106 42 1 MR. SARACHEK: Mr. Sharp. 2 THE COURT: Mr. Sharp, will you come forward and 3 be sworn in, please? 4 BRADLEY SHARP, DEBTORS’ WITNESS, SWORN 5 THE CLERK: Please be seated.",
"State your full name 6 for the record and spell your last name? 7 THE WITNESS: I’m Bradley Sharp. Last name is 8 Sharp; S-H-A-R-P. 9 THE CLERK: Thank you, sir. 10 CROSS-EXAMINATION 11 BY MR. SARACHEK: 12 Q Good morning, Mr. Sharp. 13 A Good morning. 14 Q So, in referring to your declaration which is document 15 2829 in the docket, you attach Mr. Kapila’s declaration and 16 you attach his study. Did you do any independent forensic 17 investigation yourself? 18 A My firm did, yes. 19 Q And what was that? Can you describe what you did? 20 A Certainly. We utilized the work that Mr. Kapila and 21 his firm had done and the SEC was quite helpful in providing 22 data to us. But Mr. Kapila’s data, you know, ended in 23 September of 2017, so we had to complete it for the rest of 24 the prepetition period. 25 We also had much greater access to the books and Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 44 of 106 43 1 records of the debtors because, obviously, we were in 2 possession of the books and records of the debtor.",
"So, we 3 could take what Mr. Kapila had done and then add to it from 4 the existing books and records, you know, the QuickBooks 5 files we had, additional bank statements, conversations with 6 the remaining employees at Woodbridge. And so, we could then 7 take that what had already been done and then build from it 8 to reach our own conclusions. 9 Q Did you in the course of having conversations with 10 Woodbridge employees, also speak to Mr. Shapiro? 11 A No, I have not. 12 Q Okay. How about anyone in their legal department? 13 A Yes.",
"14 Q And were you aware that security documents were filed 15 relating to various properties, whether their collateral 16 assignment of security interest, various documents were filed 17 in the -- certainly in the LA accounting recorder’s office, 18 were you aware of that? 19 A I reviewed the documents that were given to investors 20 and the documents that Woodbridge has and some that were 21 filed with the county. 22 Q And in reviewing those documents, did you find any 23 valid perfected secured interest in Los Angeles? 24 MR. TUCHIN: Objection. 25 THE COURT: Sustained. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 45 of 106 44 1 BY MR. SARACHEK: 2 Q In reviewing those documents, were part of those 3 documents that you reviewed filed in the LA County Recorder’s 4 Office? 5 A I believe so. 6 Q Were there -- I understand that you’re not a lawyer.",
"7 A That’s correct. 8 Q But you did speak to the legal department, correct? 9 A Yes. 10 Q And what did they say the purpose of filing those 11 documents were? 12 MR. TUCHIN: Objection, Your Honor. Any 13 communications with counsel would be privileged. 14 THE COURT: Any response? 15 MR. SARACHEK: Look, Your Honor, I’m trying to 16 show that there was a legitimate -- there was a procedure 17 that was followed by the Woodbridge Group of Companies. And 18 I’m asking Mr. Sharp whether he was -- he clearly testified 19 that he spoke to people in the legal department who filed 20 these documents. 21 So, what I’m inquiring of Mr. Sharp is, you know 22 his opinion as to why that was done. 23 THE COURT: Well, you can ask him that question if 24 you like.",
"25 BY MR. SARACHECK: Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 46 of 106 45 1 Q Why do you think the legal department filed documents 2 with the LA County Recorder’s office? 3 A To make the investors happy. To show -- to give the 4 impression that there was collateral. 5 Q So, it’s your belief that the legal department 6 perpetrated a fraud? 7 A I think it’s certainly my belief that a fraud was 8 perpetrated. You know, had I sat down and said that certain 9 people are responsible for certain pieces of it, no I have 10 not done that part. There certainly was a fraud that was 11 perpetrated. 12 Q When you were hired, you reviewed the collective 13 balance sheets of the debtors, correct? 14 A I guess, I’m going to have to have you be more 15 specific, which debtors? 16 Q Well, I’m talking when -- the 306 debtors, you know. 17 You in your declaration talk about asset values and so, and 18 you also talk about liabilities. So, if you would, what do 19 you believe today the aggregate asset value -- what do you 20 believe the aggregate asset value was at the time that you 21 were retained? 22 A Well, I guess, let me answer it several ways.",
"When we 23 came on, there were no financial statements that had been 24 prepared. The property-owning debtors did not have their own 25 separate books and records. There was not a -- they utilized Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 47 of 106 46 1 QuickBooks for the entire operation. 2 The individual operating debtors did not have their 3 QuickBooks. So, everything was comingled and mixed. And as 4 near as we could tell, there really wasn’t a -- there 5 certainly wasn’t a balance sheet for each debtor.",
"There was 6 some sporadic financial information, but there really wasn’t 7 financial statements prepared for the debtors. 8 So, at the time we came onboard, there really wasn’t a 9 lot of information about the value of the properties. 10 Fortunately, the debtor at the same time I was employed, Mr. 11 Fred Chin who had done some valuation work before as a part 12 of the DIP, and then he continued to update that data on the 13 value of the properties. 14 We even had trouble digging through the books and 15 records to find out the costs of each particular property. 16 You know, what was the cost? What had been spent on it? The 17 date -- that was something that was developed over time 18 through our forensic accounting analysis. 19 Q Okay.",
"20 MR. SARACHEK: Can I, Your Honor, approach him 21 with this declaration? 22 BY MR. SARACHEK: 23 Q I’m turning to page 9 where you basically say in 2013 24 no properties were sold and approximately $3.4 million was 25 paid to investors in principal and interest. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 48 of 106 47 1 On page 10, you say in 2014 no properties were sold and 2 approximately $17.6 million was paid to investors in 3 principal and interest. 4 In 2015, ten properties with approximately net proceeds 5 of 18.5 and approximately $84.1 million. So, clearly, you 6 did do a chronology here. Were there elements of this 7 business that were legitimate?",
"Were there elements of this 8 business that were legitimate? 9 A No. 10 Q So, what are these transactions? 11 A Exactly what it says; they were asset sales. You’re 12 missing there is the investments that were made by the 13 investors required monthly payments. These sporadic asset 14 sales were not at all sufficient to cover the interest carry 15 and this was the only source of cash-flow. 16 I think as Mr. Kapila said the public business model 17 where Woodbridge was going to be making loans to developers, 18 those loans would then generate cash-flow which would pay the 19 interest to the investors.",
"Well, we have since learned there 20 were no loans. These were just funding two related party 21 entities. So, there wasn’t a structure in place that could 22 service the investors and the asset sales were nowhere near 23 sufficient in order to do that. 24 Q Today, what are the aggregate assets and liabilities of 25 the debtors? Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 49 of 106 48 1 A I think if you look at the disclosure statement and you 2 look at the values from the business plan and then the 3 various estimates of liabilities those are pretty consistent 4 with what we see right now. 5 Q Well, what’s the number? 6 A I don’t have that disclosure statement in front of me. 7 Q Was the number something like 800 million and 1.2 8 billion of liabilities; 800 million of assets and 1.2 billion 9 of liabilities?",
"10 A I think if you look at the schedule to the disclosure 11 statement that shows what the value is. 12 Q Okay. So -- 13 A So, if you put that in front of me we can walk through 14 that. 15 MR. SARACHEK: Okay. Your Honor, do you mind if I 16 grab the disclosure statement? 17 THE COURT: Go right ahead. 18 BY MR. SARACHEK: 19 Q So, if you look at the projected analysis that’s 20 attached to the disclosure statement, which this is docket 21 2398, this is Page 216 of 576, it shows the total assets of 22 $601.8 million dollars. And then on the total claims, again 23 this was the estimate of claims, close to a billion dollars’ 24 worth of claims. 25 A Okay. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 50 of 106 49 1 Q And to date how much -- in the aggregate how much real 2 estate has been sold if you recall? 3 A I don’t recall. 4 Q A couple hundred million?",
"5 A Probably. I don’t recall. I’m focused, obviously, on 6 the forensic accounting and the bankruptcy piece. 7 Q Okay. So, even if the stated purpose of this business, 8 which was a real estate lending business wasn’t valid. In 9 fact, if noteholders had a lien on properties wouldn’t they 10 have an interest in the assets which, you know, at the time 11 that this bankruptcy commenced it was approximately $800 12 million dollars? 13 A Again, I don’t know the value at the time the 14 bankruptcy was commenced. That’s a pretty broad brush 15 dealing with the investors because they were investors that 16 were theoretically invested at particular properties. There 17 were investors that were invested at the mezzanine level.",
"So 18 they really didn’t have a particular property, so they were 19 not even theoretically secured. Then there were investors 20 that were theoretically at a property that Woodbridge didn’t 21 even own. So, they, obviously, didn’t have an interest in 22 that property because none of the Woodbridge debtors actually 23 owned that property; that was still just in the planning 24 stage. 25 So, that would be -- I would hesitate to paint that Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 51 of 106 50 1 broad of a brush because it’s got to be much more detailed 2 then that. 3 MR. SARACHEK: Okay. Thank you. Thank you, Your 4 Honor. 5 THE COURT: Does anyone else like to cross-examine 6 this witness? 7 (No verbal response) 8 THE COURT: Any redirect? 9 MR. TUCHIN: Thank you. Again, I will be very 10 brief, Your Honor. 11 REDIRECT EXAMINATION 12 BY MR. TUCHIN: 13 Q Mr. Sharp, I take it you still stand by everything 14 that’s in your declaration? 15 A I do. 16 Q I take it -- well, let me just ask you; you’ve reviewed 17 the notes and the units, the form of the notes and the units? 18 A I have. 19 Q And the notes, what do they provide in terms of 20 interest payments?",
"21 A Monthly interest payments. 22 Q So, from the very first day a note was issued what was 23 the source to make that first interest payment? 24 A The only source that Woodbridge had was the sale of 25 assets. There was no third-party borrower. So, that’s all Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 52 of 106 51 1 they had or, unfortunately, new investor money. 2 Q Right. And as you’ve testified there were no sales in 3 the first two years? 4 A That’s correct. The only cash they had was from new 5 investors. 6 Q Thank you. That was not was described to investors, 7 was it?",
"8 A No. 9 Q As you sit here today can you track an individual 10 investor’s contribution to a fund to any specific piece of 11 property? 12 A No. That’s not possible. 13 Q And do you believe with additional time you could track 14 an individual investor’s investment to a specific piece of 15 property? 16 A No. That is not possible. 17 Q And why is that not possible? 18 A The way Woodbridge manages business the money from the 19 investors came into a fund bank account and was left there 20 and comingled with other investors. So, that’s the first 21 comingling. Periodically, round numbers were transferred 22 from the fund to Woodbridge Group or to structure in the 23 early days.",
"Then, round money was transferred from either 24 group or structured to typically an attorney trust account 25 and that trust account then money was sent to escrow to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 53 of 106 52 1 purchase property. 2 So, the investor money was first comingled at the fund, 3 then the fund money was comingled at Woodbridge Group and 4 then Woodbridge Group money was comingled further at the 5 attorney trust account level. So, there is -- it is 6 impossible to trace the money from the investor to the 7 property because there are three different places where it’s 8 comingled. 9 Q And, again, I just want to follow-up.",
"There are 10 circumstances where an investor thought they were getting an 11 assignment of a lien for a piece of property that the debtor 12 never acquired? 13 A That’s correct. The documents that were sent to the 14 investor referenced a specific property and the collateral 15 documents referenced a specific property. The debtor or its 16 related entities did not own that property. The purchase had 17 never gone through. 18 Q So, as you sit here today can you establish that the 19 notes given by a Propco debtor a fund represent a fair 20 portrayal if it was actually loaned to that fund? 21 A No, not at all. 22 Q You can’t, as you sit here today, say whether it, in 23 fact, bears any semblance to reality? 24 A Well, I can say there is not any semblance to reality.",
"25 The money did not go from the fund to the property-owning Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 54 of 106 53 1 debtor where the note is reflected. The money stayed at the 2 fund and was used to pay other investors. Some of it went to 3 group and some of it went to -- you know, and on, and on, and 4 on as I was previously describing. Only a very minor amount 5 went from a fund to a property-owning debtor. 6 So, the note between the property-owning debtor and the 7 fund no consideration as exchanged for that note.",
"It’s a 8 fictitious piece of paper. 9 Q Thank you. 10 In fact, I believe you testified with regard to the 11 Owlwood property that the face amount of the note exceeds the 12 amount that was spent on that property, is that correct? 13 A Correct. More was borrowed from investors then the 14 purchase price for the property. It oversubscribed 15 producers. 16 Q Right. And when you say more was borrowed you don’t 17 actually know what was borrowed, correct? 18 A No. 19 Q You just know that the note exceeds the amount that was 20 spent to purchase the property? 21 A Well, I guess when I say what was borrowed what the 22 funds borrowed for investors that they said was for Owlwood. 23 MR. TUCHIN: Thank you.",
"Nothing further, Your 24 Honor. 25 THE COURT: Thank you. Any re-cross? Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 55 of 106 54 1 RECROSS EXAMINATION 2 BY MR. SARACHEK: 3 Q Mr. Sharp, are you aware of how the Hankey Capital, the 4 debtor-in-possession lender, chose certain properties to 5 obtain security on and didn’t choose others? Are you aware 6 of that? 7 A I am. 8 Q How did they come to that? 9 A Obviously, I was not there at the time and after the 10 fact, but in my conversations with the Hankey Capital people 11 they represented to me that they were just given a list by 12 the debtor of here are the properties that we want to provide 13 collateral to you.",
"So, it was the debtor that chose them and 14 selected those properties for them? 15 Q And are you aware that various noteholders were served 16 with notice that property which they had an interest in was, 17 you know, being -- that the debtor-in-possession loan was 18 actually coming on top of them on that property. Are you 19 aware of that? 20 A I guess I characterize that differently. I was aware 21 that investors received notice as they should have, that a 22 property that they claimed an interest in was being pledged 23 as collateral. So, I am aware of that notice to the 24 investors.",
"25 Q Are you aware of how much due diligence Hankey Capital Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 56 of 106 55 1 did prior to entering into the debtor-in-possession loan? 2 A I don’t. I wasn’t there at the time. 3 Q Are you aware that they were planning with Mr. Shapiro 4 to recapitalize the entire company? 5 A I have not had that conversation with him.",
"6 MR. SARACHEK: Okay. Thank you. 7 MR. TUCHIN: Nothing further, Your Honor. 8 THE COURT: Thank you, sir. You may step down. 9 THE WITNESS: Thank you. 10 (Witness excused) 11 THE COURT: Mr. Sarachek, would you like to cross- 12 examine anyone else? 13 MR. SARACHEK: With respect to the -- I’m sorry. 14 What’s her name, Michael? 15 MR. TUCHIN: Ms. Young. 16 MR. SARACHEK: Yes. Ms. Young. 17 THE COURT: Very well. Thank you. Ms. Young, 18 will you please come forward and be sworn in.",
"19 EMILY YOUNG, WITNESS, SWORN 20 THE CLERK: Please be seated and state your full 21 name for the record and spell your last. 22 THE WITNESS: Emily Young, Y-O-U-N-G. 23 CROSS EXAMINATION 24 BY MR. SARACHEK: 25 Q Good morning, Ms. Young. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 57 of 106 56 1 A Good morning. 2 Q I really only have question which goes to, sort of, 3 methodology in the tabulation of the ballots. Did you 4 tabulate ballots for each of the 306 debtors? 5 A We did not receive valid ballots for all debtors.",
"6 There is attached to the declaration an exhibit showing a 7 debtor by debtor analysis of the ballots received. 8 Q So, you didn’t receive ballots for every debtor? 9 A Correct. 10 MR. SARACHEK: Okay. Thank you. 11 THE COURT: Any redirect? 12 MR. TUCHIN: No. 13 THE COURT: Thank you. You may step down. 14 (Witness excused) 15 THE COURT: Mr. Sarachek, do you want to cross- 16 examine Mr. Chin? 17 MR. SARACHEK: No thank you, Your Honor. 18 THE COURT: All right. Do you have any of your 19 own evidence to present?",
"20 MR. SARACHEK: I do not. We filed an objection, 21 Your Honor. I am not going to repeat all that’s in the 22 objection. It’s before the court. I understand that Mr. 23 Tuchin may want to, you know, refute some of our legal 24 arguments. 25 THE COURT: I get that feeling too. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 58 of 106 57 1 (Laughter) 2 MR. SARACHEK: Mr. Pachulski might say a word or 3 too, but no. Thank you, Your Honor. 4 THE COURT: All right. Thank you. 5 So, I guess at this point I guess there’s 6 agreement that the evidentiary record has closed.",
"All right. 7 It would now normally be time for argument. Would anybody 8 like a short break before we do that or shall we just jump 9 right in? 10 UNIDENTIFIED SPEAKER: We’re prepared to continue, 11 Your Honor. 12 THE COURT: All right. I’ll hear first from the 13 debtor and then anyone else who wishes to speak. I’ll give 14 Mr. Sarachek the last word. 15 MR. HOLT: Thank you, Your Honor. Good morning. 16 Whitman Holt from Klee Tuchin Bogdanoff & Stern on behalf of 17 the debtors and debtors-in-possession. 18 Your Honor, with regards to the statutory elements 19 for confirmation under Bankruptcy Code Section 1129, of 20 course, the debtor bears the burden of proof. We filed a 21 detailed memorandum of law that’s at docket number 2828 that 22 outlines the statutory elements.",
"23 I’m going to save the court unless the court would 24 prefer the oral checking the box on all of the elements, 25 particularly the ones that are uncontested. I’ll focus on Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 59 of 106 58 1 the points raised by Mr. Sarachek on behalf of his clients 2 which, I think, he appears to be pressing all of them.",
"3 THE COURT: I’ve read the submissions including 4 the memorandum of law. So, I don’t need the dramatic reading 5 from the podium. 6 (Laughter) 7 MR. HOLT: Thank you, Your Honor. 8 Before I get to the specific points I do want to 9 note for the record, particularly the liquidation analysis 10 prepared by DSI and included with the disclosure statement at 11 Exhibit B, as well as the Sharp declaration at Paragraphs 34 12 to 39 readily establishes the best interest of creditors test 13 under Section 1129(a)(7), Your Honor. Importantly, that 14 analysis included multiple scenarios. 15 DSI prepared a noteholder high-case that assumed 16 that the noteholders received all distributable value that’s 17 available in a Chapter 7 scenario. They also prepared a 18 unitholder high-case that made a pari passu assumption.",
"19 Neither of those results would obtain absent very long and 20 hard-fought litigation, but they prepared the analysis to see 21 what those numbers showed. 22 What the results showed, Your Honor, is that in 23 all possible scenarios noteholders and unitholders do better 24 under the plan then they do in Chapter 7. This satisfies 25 Section 1129(a)(7) and there’s no contrary argument let alone Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 60 of 106 59 1 any contrary evidence from Mr. Sarachek or anyone else. 2 The reason I’m mentioning this, Your Honor, is 3 that the bankruptcy code contains two provisions that protect 4 parties that are similarly situated to Mr. Sarachek’s 5 clients; parties that are descending minority holders and a 6 class that’s overwhelmingly accepted the plan. Those two 7 statutory protections, Your Honor, are first 1123(a)(4). The 8 bankruptcy code does not allow parties to be classified 9 within the same class and allow a majority or members of the 10 class to receive special treatment that the minority is not 11 receiving. Your Honor, that’s not happening here. 12 Everyone that is in Class 3, Class 4, Class 5 and 13 Class 6 is receiving the same treatment or with respect to 14 elections and options that were available under the plan had 15 a full and equal opportunity to receive and make their choice 16 about what they wanted to receive under the plan.",
"So, 17 1123(a)(4) satisfied, and there’s really no dispute about 18 that. 19 The second bedrock protection, Your Honor, is 20 Section 1129(a)(7). Again, as I just noted the evidence re- 21 soundly shows that the best interest of creditors test is 22 satisfied. 23 So, those are the two primary protections for Mr. 24 Sarachek’s clients. They’re not disputed and they’re 25 satisfied. The rest of his issues, Your Honor, largely go to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 61 of 106 60 1 issues that can be addressed on a class by class basis and as 2 the ballot tabulation shows, and I’ll summarize briefly in a 3 moment, all the classes in which his clients are situated 4 have overwhelmingly accepted the plan.",
"What that means, Your 5 Honor, as a basic principal of bankruptcy law is that his 6 clients are bound whether they like it or not to the 7 overwhelming majority vote in acceptance of the plan by the 8 classes in which they were classified. 9 Just so the record is clear, Your Honor, there has 10 been no argument, nor could there be one, that there’s been 11 any improper classification or that the classes that were 12 constructed and solicited under the plan were improperly 13 formulated. 14 So, Your Honor, I would like to briefly go through 15 what I think are the six points we tried to distill out of 16 Mr. Sarachek’s responses. We noted it was not structured in 17 a systematic way. So, we tried to reformulate the arguments 18 as best we could to address them. 19 The first argument which we heard briefly this 20 morning, Your Honor, is that the Sarachek parties contend 21 that they’re secured. They also contend that there needs to 22 be a reserve or other mechanism established for them under 23 the plan in order to deal with the contingent probability 24 that Your Honor reverse on appeal. 25 THE COURT: So, other than Owlwood what are the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 62 of 106 61 1 properties that are subject to alleged liens?",
"2 MR. HOLT: Your Honor, I don’t have a detailed 3 listing, but there are additional properties that are out 4 there. Mr. Sarachek’s client group seems to be shifting and 5 every moving. There was a recent adversarial proceeding 6 filed earlier this month that includes a broader plaintiff 7 group then the group that was -- the plaintiff group in the 8 Owlwood proceeding that your court determined. 9 From the debtors’ perspective, Your Honor, we 10 don’t think the analysis is going to be substantially 11 different, but there are other properties in which there are 12 asserted intercompany security interest that will be 13 eliminated under the plan settlement and also that Mr. 14 Sarachek may be asserting direct interest in the same theory 15 that he lost earlier this month. 16 THE COURT: Ballpark, any idea how many?",
"17 MR. HOLT: There are quite a few. None as 18 valuable as Owlwood, Your Honor, but I mean there are 10 or 19 more individual properties in which a similar argument could 20 be made that hasn’t been made. 21 THE COURT: Thank you. 22 MR. HOLT: So, Your Honor, with respect to what 23 should happen pending appeal during the pendency of his 24 appeal Mr. Sarachek offers zero analysis in his response as 25 to why Your Honor is likely to get reverse. We, obviously, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 63 of 106 62 1 don’t think Your Honor is likely to be reverse. There is 2 some theoretical non-zero chance that could happen. Mr. 3 Sarachek certainly made no case or made any explanation.",
"4 THE COURT: I never develop any odds myself on 5 that. 6 (Laughter) 7 MR. HOLT: That’s fair enough, Your Honor. 8 So, no stay was sought in the language of a stay 9 pending appeal. There certainly has been no substantial 10 grounds or any grounds, really, for reversal that have been 11 shown. Your Honor, what happens in the meantime is not a new 12 issue. This is an issue that is dealt with in the case law 13 including case law in this district. 14 I’d point Your Honor, District Judge Sleet wrote 15 an opinion in the Washington Mutual case where Bankruptcy 16 Judge Walrath had made certain decisions during the middle 17 part of the case. There was a pending appeal. The parties 18 who had lost objected to confirmation of the Washington 19 Mutual plan. They also tried to get District Judge Sleet to 20 stop confirmation from going forward. District Judge Sleet 21 said there’s an un-stayed ruling of the Bankruptcy Court; 22 although, there’s a pending appeal that does not prevent the 23 Bankruptcy Court from going forward with plan confirmation 24 predicated on the correctness of Judge Walrath’s earlier 25 decision.",
"Judge Walrath can give effect to her decision Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 64 of 106 63 1 notwithstanding the pendency of the appeal. 2 Similarly, in the Oakwood Homes case, Your Honor, 3 District Judge Farnan dealt with a similar issue arising out 4 of an appeal from a case before Bankruptcy Judge Walsh. The 5 debtors had objected to a claim, Judge Walsh had disallowed 6 the claim, there was a pending appeal by the losing party, 7 the losing party objected to confirmation and said I need a 8 reserve established under the plan. Bankruptcy Judge Walsh 9 said no, I disallowed the claim notwithstanding your appeal; 10 that’s my ruling, I believe it was correct. He established a 11 zero dollar reserve under the plan. The losing party 12 appealed and District Judge Farnan wrote an opinion, 13 published opinion, saying, no, that’s correct.",
"The 14 Bankruptcy Court can give effect to its prior ruling. It 15 does not need to establish any reserve for a claim that’s 16 been disallowed notwithstanding the pendency of the appeal. 17 With regard to the theory that we’re hearing from 18 Mr. Sarachek, Your Honor, we cited in our papers a decision 19 from Bankruptcy Judge John Hoffman, Jr., in Ohio dealing with 20 very, very similar facts in which a party asserted it had a 21 security interest in property of the debtor. Judge Hoffman 22 said, no, you’re wrong. The party appealed to the back.",
"The 23 back appeal was pending when the debtor’s plan was before 24 Judge Hoffman. The losing party said well, Your Honor, the 25 plan’s not confirmable because I’m asserting a security Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 65 of 106 64 1 interest. Even though I lost I’m pursuing an appeal. Judge 2 Hoffman said, no, that’s not correct. I ruled that your 3 unsecured, the debtor’s plan gives effect to my ruling, the 4 pendency of your appeal is out there, but you haven’t 5 established any basis for disagreement with my prior ruling. 6 The debtor’s plan can appropriately go forward and give 7 effect to that ruling. 8 So, Your Honor, that’s the case law.",
"That is what 9 the case law teaches us, that Mr. Sarachek is simply wrong 10 about this. 11 THE COURT: Does the plan anticipate that with 12 respect to any post-confirmation property sales that court 13 orders will be sought or does it provide for another process? 14 MR. HOLT: The plan and the wind-down LLC 15 agreement reserve the right of the entities that come to 16 court and seek relief under Section 363 if they believe 17 appropriate. It’s not obligatory, but I suspect there may be 18 buyers who want that relief and the court would see those 19 sorts of motions. 20 The second point, Your Honor, with respect to the 21 secured creditor litigation theory is, again, the collateral 22 in which Mr. Sarachek’s parties are asserting an interest or 23 the intercompany notes and intercompany mortgages between the 24 fund debtors and the Propco debtors. As Mr. Sharp testified 25 moments ago it’s largely a loosery paper.",
"Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 66 of 106 65 1 Under the plan, as part of the global settlement, 2 those intercompany notes and liens will be extinguished upon 3 the effective date. We think in large part that moots the 4 issues that Mr. Sarachek has been pursuing and may pursue on 5 appeal because if the underlying asserted collateral, what 6 they assert they have a security interest in is eliminated, 7 which it will be under the plan, it’s purely academic whether 8 they have a security interest in that asset or not because 9 the asset no longer exists. A security interest in nothing 10 is the same thing as no security interest in nothing, Your 11 Honor.",
"12 I will get to that aspect of the plan in just a 13 moment because they’re challenging that part of the 14 settlement, but we think that moots out and eliminates 15 separately the vast majority of what Mr. Sarachek’s been 16 pursuing and may continue to pursue on appeal. So, Your 17 Honor, we think this objection should be overruled and that 18 there’s no basis, in the case law or otherwise, to require 19 any reserve or other modification to the plan to address 20 their appeal or to address this general issue. 21 The second issue that Mr. Sarachek raises is 22 whether or not there’s a Ponzi scheme, Your Honor, and he 23 claims that there’s been no evidence.",
"24 THE COURT: You can move on. 25 MR. HOLT: Okay. Thank you, Your Honor. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 67 of 106 66 1 The third issue that Mr. Sarachek raises is the 2 propriety of substantive consolidation, Your Honor. Here, 3 the case law, including Owens Corning, teaches that entities 4 may properly be substantively consolidated with creditor 5 consent. Here, all classes of creditors who are affected by 6 the substantive consolidation, the noteholders, general 7 unsecured creditors, the unitholders have voted by 8 overwhelming margins to accept the plan and we think provided 9 consent to the substantive consolidation.",
"10 I’d note, Your Honor, at the other debtors’ level, 11 Woodbridge Group and the Property Co.’s, consent to 12 substantive consolidation as unanimous among all creditors 13 who voted. There was no creditor who’s a creditor of 14 Woodbridge Group of Companies, or the Propco’s, or Mezco’s 15 below Woodbridge Group of Companies who objected. So, we 16 have broad based consent at that level, Your Honor. 17 That puts this case into the consent justification 18 and at the fund levels, Your Honor. I’d point the court to - 19 - Mr. Sarachek raised questions about the debtor by debtor 20 voting analysis Ms. Young attached as Exhibit A to her 21 declaration and chart that broke down each class by each 22 debtor.",
"On a debtor by debtor basis every group of 23 unitholders and noteholders that each debtor voted to accept 24 the plan. So, that does two things, Your Honor. 25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 68 of 106 67 1 First, as I’ll touch on in a moment, it provides 2 an impaired accepting class at every one of the fund entities 3 on a stand-alone basis. Second, it provides creditor consent 4 by the parties that are affected by the substantive 5 consolidation of the fund debtors together to that 6 substantive consolidation. 7 So, Your Honor, the consent here and the fact that 8 we don’t have a rejecting effected class that’s going to be 9 adversely impacted by substantive consolidation moves this 10 case out of the New Century model which Mr. Sarachek cited in 11 his opposition. New Century as I’m sure the court recalls -- 12 THE COURT: Vividly.",
"13 MR. HOLT: -- there was an objecting class of 14 creditors effected by substantive consolidation that had 15 rejected the plan. These aren’t the facts before the court 16 today. The facts before the court today put this case in, I 17 think, the much more instructive precedent of the court’s 18 recent opinion in Abisena (phonetic), and I may be 19 pronouncing this wrong, Holding in which, again, substantive 20 consolidation was proposed under the plan, the creditors 21 overwhelmingly voted to accept the plan and there were a few 22 dissident holders who were bound by the consent of the 23 accepting classes. 24 Your Honor, separate and apart from creditor 25 consent the facts here support consolidation of the other Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 69 of 106 68 1 debtors into Woodbridge Group of Companies under the second 2 rational in Owens Corning which is hopeless comingling of 3 assets and liabilities of the entities to be substantively 4 consolidated. Mr. Sharp said that in his declaration at 5 Paragraphs 11 through 19.",
"He reiterated and reaffirmed that 6 testimony and I think made it even stronger here in court 7 today, Your Honor. 8 So, even if we didn’t have creditor consent, which 9 we do, consolidation of those entities is appropriate under 10 the second prong of Owens Corning. The Kapila declaration 11 further supports this conclusion when it similarly testifies 12 about comingling of assets and liabilities as among 13 Woodbridge Group of Companies and the entities that actually 14 own the properties, Your Honor. 15 We followed the plan settlements motion in early 16 October out of an abundance of caution seeking, among other 17 things, to substantively consolidate Woodbridge Group of 18 Companies and all the other debtors based on satisfaction of 19 the second Owens Corning rationale.",
"To the extent the court 20 has any concern about substantively consolidating those 21 entities together under the plan the court could do so 22 independent from the plan pursuant to the plan settlements 23 motion. 24 Regardless, Your Honor, we’ve got a belt, and we 25 have suspenders and we have a piece of chewing gum as well to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 70 of 106 69 1 hold the pants up. There are three different ways to get to 2 substantive consolidation here, Your Honor; all of which are 3 completely appropriate. So, Your Honor, we’d again submit 4 that that aspect of the Sarachek objection should be 5 overruled. 6 The fourth point that Mr. Sarachek raises is he 7 complains that the plan’s “avoiding” what he calls valid 8 intercompany liens. Your Honor, both of those words, the 9 verb and the adjective, are both incorrect.",
"There is no 10 avoiding of anything under the plan. There’s an elimination 11 of asserted intercompany claims as part of a comprehensive 12 settlement under the plan. Nothing is being avoided. There 13 is not an avoidance judgement. We’re not seeking a judgment 14 entered in any of the avoidance powers under the plan; 15 instead, there’s a settlement and compromise that resolves 16 intercompany claims and liabilities. 17 Second, I think almost everyone else in the 18 courtroom would stand-up and disagree with the label of those 19 intercompany liens and claims as valid. As Mr. Sharp 20 testified in court, earlier today, these were fictitious 21 intercompany amounts that had no bearing to what was actually 22 loaned between the fund debtors and the PropCo debtors. In 23 most cases there were no monies advanced from the fund 24 debtors to the PropCo debtors.",
"They went through the 25 comingled pipeline that Mr. Sharp described. They had Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 71 of 106 70 1 virtually no bearing to what the purchase price of the 2 property was either, Your Honor. 3 There is a pending adversary proceeding that the 4 creditors committee sought and obtained standing to pursue 5 and file. That adversary proceeding is on file.",
"It attacks 6 these intercompany liens and claims on a number of different 7 fronts, Your Honor, including that there are actual 8 fraudulent transfers, constructive fraudulent transfers and 9 simply invalid as a matter of non-bankruptcy law because 10 there was an adequate consideration provided to support the 11 purported intercompany loans and liens, Your Honor. 12 These could be appropriately settled under the 13 plan and the creditors committee’s adversary proceeding can 14 be resolved under the plan for all of the reasons Your Honor 15 discussed in the Exide published decision that you wrote back 16 in, I think, 2003; 15 years ago, at this point.",
"17 THE COURT: It seems like yesterday. 18 (Laughter) 19 MR. HOLT: Plants every day around the country 20 settle intercompany claims, and liens in multi-debtor 21 estates. This is not something new that we’re doing for the 22 first time in this case and there is nothing inappropriate 23 about it. 24 Your Honor, Mr. Sarachek doesn’t like the 25 settlement, but it’s well within the bounds of reasonableness Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 72 of 106 71 1 for all the reasons set forth in the plan settlements motion 2 and, again, in the adversary complaint that the committee’s 3 filed. Here, Your Honor, I think this is an area where the 4 fundamental black letter principal that dissenting creditors 5 within an accepting class are bound by what the class does.",
"6 The classes, all classes of creditors, particularly the 7 noteholders in Class 3 who are affected by this settlement 8 and voted overwhelmingly to accept it. 9 So, although Mr. Sarachek doesn’t think it’s a 10 fair settlement the class in which his clients are situated 11 have disagreed vehemently. Your Honor, I think that class 12 acceptance of the settlement and its overall reasonableness 13 provides a sufficient basis for the court to approve it. 14 The fifth argument that Mr. Sarachek raises is the 15 Section 1129(a)(10) issues. Mr. Sarachek points to this 16 court’s decision Tribune. Makes the, I think, easy argument 17 that, well, we have 306 debtors here, Your Honor, so the 18 debtors have to have an impaired consenting class at each 19 one. 20 This argument doesn’t work, Your Honor, for at 21 least two reasons. First, at the fund debtors where Mr. 22 Sarachek’s clients actually have claims this is not even a 23 theoretical issue. The voting report shows that at every 24 fund debtor there is either an impaired accepting class of 25 notes or an impaired accepting class of units or both.",
"So, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 73 of 106 72 1 on an entity by entity basis, Your Honor, every fund debtor 2 that has creditors has an impaired accepting class. 3 Your Honor, we noted in a footnote in the brief 4 that there is a seventh fund debtor that’s not shown on the 5 tabulation report as having any creditors voting in favor of 6 the plan because there are no creditors at that fund entity. 7 So, although it’s a debtor that exists as reflected in the 8 schedules that were filed for that entity there aren’t any 9 creditors who needed to be solicited and there were no 10 ballots returned at that entity for or against the plan 11 because there were no creditors to solicit votes on.",
"12 So, that does not have an impaired accepting class 13 because it doesn’t have a class of creditors that’s impaired 14 under the plan. And because it doesn’t have a class of 15 creditors that’s impaired under the plan, if we’re doing a 16 debtor by debtor analysis and looking at 1129(a)(10) on an 17 entity by entity basis 1129(a)(10) does not need to be 18 satisfied as to that entity, Your Honor, because the plan 19 with respect to that entity does not include an impaired 20 class of creditors as to that entity.",
"21 Second, Your Honor, Tribune makes clear repeatedly 22 that it was not a case involving substantive consolidation. 23 Your Honor articulated a legal principal that expressly 24 applied, “absent substantive consolidation.” Well, here, 25 Your Honor, we have substantive consolidation. We have it Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 74 of 106 73 1 proposed under the plan as to the fund debtors, as to 2 Woodbridge of Companies and the other debtors. We also have 3 it proposed independently of the plan in the plan 4 settlement’s motion, Your Honor. 5 So, within the teachings of Tribune we’re outside 6 of that problem that Section 1129(a)(10) creates. So, moving 7 down from the fund debtors to the other debtors, Your Honor, 8 every other debtor that had a creditor vote on the plan had a 9 class that accepted.",
"There was unanimous consent at 10 Woodbridge Group of Companies and every other debtor where 11 someone voted. 12 There are, Your Honor, unlike at the fund level, 13 debtor entities that have creditors where no one at that 14 debtor returned a ballot one way or the other. So, there is 15 not a rejecting class and there’s not an accepting class. 16 Your Honor, we’d submit that to the extent that’s an issue at 17 all it’s resolved by the substantive consolidation proposed 18 under the plan which on its face differentiates this case 19 from Tribune. 20 We’d also submit, Your Honor, that if Your Honor 21 is in any way uncomfortable about getting there in that 22 fashion the plan settlement’s motion proposes to 23 substantively consolidate all of those entities independent 24 from the plan. Once that substantive consolidation is done, 25 Your Honor, there’s one entity, consolidated Woodbridge of Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 75 of 106 74 1 Companies, that has one class of creditors, Class 4, and that 2 one class of creditors is the impaired class that is not only 3 consenting, but voted 100 percent to accept the plan, Your 4 Honor.",
"So, that satisfies Section 1129(a)(10). 5 Either way, Your Honor, either through substantive 6 consolidation under the plan or independently through the 7 plan settlements motion this issue goes away as to those 8 entities. So, there is no 1129(a)(10) problem here, Your 9 Honor. It’s satisfied by the fund entities without 10 substantive consolidation and substantive consolidation, 11 under either road, satisfies as it to the other entities. 12 Finally, Your Honor, Mr. Sarachek complains that 13 unitholders should be receiving full pari passu treatment 14 with noteholders if the court’s finding a Ponzi scheme or 15 substantively consolidating entities.",
"Your Honor, this 16 argument just ignores the plan’s comprehensive settlement of 17 the noteholder/unitholder dispute which is intended to 18 resolve this and which is eminently reasonable. 19 First, Your Honor, there are certainly arguments 20 that the units are debt like the notes, but there are many 21 arguments to the contrary. This is a complex fact intensive 22 issue with colorable points to be made on both sides as we 23 detailed at length in the plan settlements motion. In fact, 24 during plan negotiations Mr. Sabin made exactly the argument 25 that Mr. Sarachek articulated which is this is a Ponzi Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 76 of 106 75 1 scheme. In Ponzi schemes everyone was defrauded so everyone 2 should be treated equally. 3 There were responses to that argument including, 4 first, the fact that there’s no case that actually says 5 that’s the principal that applies for Section 1129 or 1123 6 purposes in the context of plan confirmation.",
"There is 7 certainly no opinion from the Supreme Court of the United 8 States, or the Third Circuit Court of Appeals or any court in 9 Delaware that establishes that principal, but it’s an 10 argument one could make. 11 There are also arguments people could make based 12 on the terms of the documents here, Your Honor, that the 13 units repeatedly, there is an example included with Mr. 14 Sharp’s declaration, reference the units as an equity 15 investment with upside returns and things with no equity. 16 There are arguments people could make that there is no 17 bankruptcy code version two with special rules for Ponzi 18 schemes. The bankruptcy code, as congress wrote it, doesn’t 19 even use the word Ponzi scheme, Your Honor.",
"20 So, if something is debt or equity the same 21 principles that would apply outside the Ponzi scheme context 22 apply equally within the Ponzi scheme context. We don’t have 23 different rules and the statutory text doesn’t give different 24 principals that apply only in Ponzi scheme cases, Your Honor. 25 So, this was something all of the parties took Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 77 of 106 76 1 into account. The parties considered this. They considered 2 all of the competing arguments that all of the very able 3 counsel in the room was able to come up with on each side of 4 this, Your Honor. And there was a negotiated compromise that 5 afforded the unitholders treatment as if they had claims at a 6 72.5 percent ratio relative to noteholders, Your Honor. 7 I think it’s clear, based on the uncertainty, that 8 some level of discount is appropriate here, Your Honor. 9 There has to be some discount because there are arguments 10 that could be made both ways, Your Honor. Whenever arguments 11 could be made both ways pure pari passu or 100 percent 12 treatment is not a settlement; it’s a victory.",
"It’s a 13 victory that would only be obtained through a hard-fought 14 litigation, Your Honor. 15 So, we’d submit, for the reasons detailed in the 16 plan settlements motion, that 72.5 percent is a reasonable 17 point that could be reached within the realm of acceptable 18 outcomes. It was something that was negotiated among 19 stakeholders who had every reason to be fighting on both 20 sides of this, Your Honor. 21 So, Mr. Sarachek doesn’t provide any reason why 22 that’s wrong other than making one of the many, many 23 different arguments that could be made on both sides of this 24 complicated issue. 25 THE COURT: Well, Mr. Sabin made it too you said.",
"Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 78 of 106 77 1 MR. HOLT: That’s true. 2 THE COURT: I can’t imagine -- 3 MR. HOLT: Along with some other arguments. He 4 had many more. 5 (Laughter) 6 MR. HOLT: These were all fully taken into 7 account. 8 THE COURT: Bankruptcy sometimes does -- well, 9 creates situations with strange bed-fellows and those would 10 be two of them. 11 (Laughter) 12 MR. HOLT: I think that’s fair.",
"I think they both 13 probably would agree with that, Your Honor. 14 Second and even more importantly, Your Honor, is 15 the fact that the settlement’s been overwhelmingly accepted 16 by the people who are affected by it. The class of 17 unitholders voted to accept the plan by more than 97 percent 18 number and nearly 97 percent in amount. So, the people who 19 have every incentive, economic incentive, to fight this if 20 they think it’s worth fighting have overwhelmingly said we 21 don’t want to fight this. In fact, we think 72.5 percent is 22 a great number and we’re happy to accept it.",
"23 This comes full circle to where I began, Your 24 Honor, which is when you have minority holders in a class 25 that’s voted overwhelmingly to accept the plan they’re bound Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 79 of 106 78 1 by what the class decides unless they can show that two of 2 the foundational protections for minority stakeholders have 3 been violated. Either there is unequal treatment among the 4 unitholder class, which there is not, or the unitholders 5 would do better in a Chapter 7 case which they won’t, Your 6 Honor. 7 So, once those two bedrock aspects of the entire 8 process of the statutory architecture have been satisfied 9 we’re left with the class votes and it binds the minority to 10 the settlement. That is precisely what happened in this 11 case, Your Honor.",
"12 So, in sum, Your Honor, the debtors are very 13 pleased to present the plan before the court. It’s the end 14 product of a lot of work that achieves a negotiated outcome 15 that’s fully consistent with the code. It’s been 16 overwhelmingly accepted by the classes which we think negates 17 almost every issue that Mr. Sarachek has raised. 18 To the extent the issues are evidentiary issues we 19 think the testimony that the court has before it in the 20 declarations and heard live today amply satisfies the 21 debtors’ burden on these issues, Your Honor. We’d ask that 22 the court confirm the plan. 23 So, I’m happy to answer any questions the court 24 has.",
"25 THE COURT: No. Thank you very much. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 80 of 106 79 1 MR. HOLT: Thank you, Your Honor. 2 THE COURT: I’ll hear from the unsecured creditors 3 committee if they wish to be heard. 4 MR. PACHULSKI: Was that a rhetorical question. 5 (Laughter) 6 MR. PACHULSKI: Judge Carey knew exactly what to 7 ask. 8 (Laughter) 9 MR. PACHULSKI: Your Honor, again, Richard 10 Pachulski of Pachulski Stang Ziehl & Jones on behalf of the 11 unsecured creditors committee.",
"12 Your Honor, I think we’re two of a small group 13 that were here from the beginning of this case and I want to 14 explain how the committee got to where it did which I 15 personally am very proud of. 16 As Your Honor knows, right about the time of the 17 trustee hearing or just before that we were dealing with 18 whether the District Court was going to take this away in 19 Florida, which the unsecured creditors committee was 20 vehemently opposed to and ultimately had a trustee fight that 21 we hoped that the SEC would support, which they did. 22 In that success we came to January 23rd of this 23 year and this is what we achieved. The professionals were 24 all gone for the debtor, effectively, other than Young 25 Conaway, but the lead counsel were gone. The financial Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 81 of 106 80 1 advisors were gone.",
"We had no board and we had two new 2 committees. Not a very pretty picture at the time, but one 3 that the unsecured creditors committee felt was in the very 4 best interest of this estate. Based on what where we sit 5 today we’re proud that we ended up in that position. 6 We had a committee, along with the debtor and the 7 other two ad hoc committees, that felt very strongly that 8 because of the 10,000 or so investors that we had to do this 9 quickly. So, we had to deal with two very, very specific 10 general issues. One, get a deal done; and as stated by 11 counsel, Mr. Sabin had very strong views as to what should 12 happen with the unitholders just as Mr. Kortanek had with the 13 noteholders and we did with the unsecured creditors 14 committee, but that would only get us to the stage of a deal.",
"15 That doesn’t mean we’ll get to confirmation. 16 So, the committee wanted to feel very comfortable 17 that we would end up coming to confirmation with a deal 18 because we could make it and not meet the requirements that 19 counsel has just gone through for the debtor. So, where we 20 wanted to be particularly comfortable was on the Ponzi scheme 21 issue, which we’ve heard a lot about today, the substantive 22 consolidation issue and the intercompany issues because while 23 we can talk about some of the other issues that have been 24 raised by Mr. Sarachek, if we couldn’t get comfortable with 25 that then we were going to have to go in a different Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 82 of 106 81 1 direction. We may to do a plan that related to over 300 2 debtors. We didn’t think that was in the best interest, but 3 we were going to do what was mandated by the bankruptcy code.",
"4 So, aside from meeting on March 8th and, 5 effectively, having moot court competition between Mr. Sabin, 6 myself, Mr. Tuchin and Mr. Kortanek we then had to have two 7 days of meetings with all of the committee’s business people. 8 During that time Mr. Sharp and Mr. Chin presented their 9 analysis which, frankly, was done in 60-days. As Mr. Tuchin 10 said, they were absolutely drinking from a fire hose. The 11 unsecured creditors committee was vehement about getting it 12 done. 13 We were getting some pushback from the debtors 14 saying this is fundamentally unfair, we just showed up, it’s 15 now beginning of February, mid-February and he wanted a deal 16 by March 23rd. That, frankly, was not just mandated by the 17 committee in general, but the de facto chairman of the 18 committee, which I’ll get to in a moment, Mr. Myrick 19 (phonetic), was insistent that we make that deal, that we get 20 something done and we make sure that we can confirm a plan.",
"21 So, we met and Mr. Sharp went through his Ponzi 22 scheme analysis or, more significantly, the economics. And 23 what did he explain; that $425 million dollars had been 24 raised for investors that just went to pay other investors. 25 The clearest indicia of a Ponzi scheme that 80 million went Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 83 of 106 82 1 out to brokers, that approximately 30 million went out to the 2 benefit of Mr. Shapiro, and his family and his related 3 entities. He didn’t rely on the Kapila report to come to 4 that or Ms. Davis’s testimony that took place during the 5 trustee hearing. DSI had done their own analysis and came to 6 that conclusion. 7 There was no doubt in our mind that for purposes 8 of a settlement that a Ponzi scheme had occurred in this 9 case. Now, that doesn’t mean that there weren’t assets.",
"10 I’ve been involved in many Ponzi scheme cases where there are 11 assets; that’s the whole point. If you can’t demonstrate any 12 assets odds are pretty low that you’re going to get money 13 from investors, but if you can show people the Owlwood 14 estate, which is one of the premier estates in the world, 15 you’ll get more money even though your money may not have 16 gone into Owlwood and you were told it would in some 17 respects. In that case it was a loan, it was not intended to 18 be a purchase. So, we felt comfortable in the Ponzi scheme 19 issue.",
"20 Then we got to the substantive consolidation 21 issue. In the substantive consolidation issue Mr. Sharp, 22 again, giving a presentation just as he did in his 23 declaration, stated that money, effectively, all got 24 comingled in a single account. He states that in Paragraph 25 13 of his declaration and that that money went where it was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 84 of 106 83 1 needed as Mr. Shapiro saw fit. It could go to buy wine, it 2 could go to invest in property, it could go to pay investors 3 if the money hadn’t somehow gone out from the fund, but it 4 all went into a single fund and if that weren’t enough, as he 5 states in Paragraph 17 of his declaration, the books and 6 records were in shambles and there was no documentation of 7 any of the transactions. You could never unscramble the 8 eggs.",
"9 So, we made the determination that when it came to 10 the consolidation issue, the substantive consolidation issue, 11 that there was no doubt in our mind -- and I assure, Your 12 Honor, this was discussed in incredible detail at the March 13 8th meeting that we knew we had to deal with Owens Corning. 14 So, when we showed up on March 22nd and 23rd we wanted to 15 make absolutely sure that if we were going to make a deal 16 that we were going to be comfortable with the substantive 17 consolidation issue. 18 Because of Mr. Sharp’s presentation during those 19 two days it also became clear that the purported liens 20 between the funds and the Propco’s and MezCo’s were 21 fraudulent conveyances; that not to get at Mr. Sarachek’s 22 clients or to other purported secured creditors, but they 23 were absolute constructive and actual fraudulent conveyances 24 which is why we brought the complaint. So, it doesn’t matter 25 at the end of the day whether Mr. Sarachek wins his appeal or Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 85 of 106 84 1 not.",
"He will not win. I give the odds exactly what counsel 2 for the debtor gave which is about zero, but even if he wins 3 he can’t get around the fact that these were absolute actual 4 and/or constructive fraudulent conveyances. So, it was on 5 those bases that we made the deal. That we were comfortable, 6 but not just the deal was made, but that a deal could be 7 confirmed. 8 The most important thing that we see here today, 9 Your Honor, and I think that counsel has also stated it, it’s 10 not just what has been proven, but because the burden of 11 proof has been met at some point Mr. Sarachek has to present 12 some evidence counter and there’s nothing counter; nothing on 13 the Ponzi scheme, nothing on substantive consolidation, 14 nothing on the settlement. And you would think that there 15 would have been, at least, a deposition, there would have 16 been some discovery to try to refute it, but there is none. 17 The fact is he could have done all that and we would have 18 ended up exactly where we are today confirming a plan that 19 deals with those specific issues. 20 Here is the last part, Your Honor, this is the 21 best possible plan after the time that has gone in this case 22 with people working extremely hard.",
"This is the best we can 23 do. It is not just the best we can do, it is actually an 24 excellent plan in light of the fact that we believe, and 25 we’ll see how it turns out, that noteholders in a Ponzi Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 86 of 106 85 1 scheme, unsecured creditors in a Ponzi scheme may receive 70 2 cents on the dollar. Some cases may be better, but we’re 3 going to have to hear homerun on some litigation, for 4 instance. 5 Mr. Sharp and I were involved in a case, another 6 large Ponzi scheme, at the end of the day I think it was in 7 the neighborhood of five to ten cents. So, what’s unusual? 8 What’s the alternative; the alternative is that the plan 9 won’t be confirmed, we will spend tens and tens of millions 10 of dollars. People who have already been harmed will be 11 greatly harmed in the future as compared to liquidating these 12 assets and paying people as soon as possible.",
"13 On a final note, Your Honor, and this is 14 particularly important to me, this case -- all cases I take 15 personally. This case I take more personally because not 16 just the 10,000 investors, Your Honor, but we had a committee 17 member, Mr. Myrick, who made this, who drove this deal on 18 March 23rd who died four days later. Whether he knew it or 19 not, because it was a heart attack, he was instrumental in 20 this deal being made. And at the end of the day this plan 21 should be confirmed because of people like him and the other 22 10,000 investors as compared to fighting and at the end of 23 the day doing much worse.",
"24 Now, I would like to answer your question, Your 25 Honor, on the liquidity facility which is at the end of the Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 87 of 106 86 1 day with all the work that was done by lots of people. This 2 was a very complicated facility because, effectively, you 3 needed to be licenses in 50 states. The parties who had 4 agreed to do the transaction were not comfortable, among 5 other things, with all of the licensing requirements. 6 So, at the end of the day the SEC, among other 7 things and unrelated to the liquidity facility, wanted this 8 entity, the ultimate entities to be able to be traded and if 9 people want they’ll be able to trade-out. We think we will 10 do well and we hope that people don’t sell at a discount, but 11 there will now be a mechanism post-confirmation after the 12 entities are formed that if people want to trade out of their 13 positions they can. 14 So, we’re disappointed the liquidity facility 15 didn’t work, but to be honest, Your Honor, it was pulled at 16 the last minute.",
"We were surprised, but there were a lot of 17 things that happened in this case that we were surprised 18 about. So, with that, Your Honor, the official creditors 19 committee it is in deep support of this plan and we would ask 20 that Your Honor confirm it. 21 We thank you for everything you have done to get 22 us in this position today. 23 THE COURT: Thank you. 24 I’ll hear from the ad hoc committees. 25 MR. KORTANEK: Thank you, Your Honor; Steve Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 88 of 106 87 1 Kortanek of Drinker Biddle for the ad hoc noteholder group. 2 Your Honor, this is late in the day, but I did 3 want to introduce Mr. Jay Bainan (ph) who’s in court today. 4 He’s the co-chair of the noteholder group and is in court for 5 confirmation. Mr. Bainan will be the noteholder group’s 6 designee on the supervisory board post-effective date.",
"7 The noteholder group fully and emphatically 8 supports confirmation of the plan today, Your Honor, and we 9 echo the comments made by Mr. Pachulski, and Mr. Tuchin and 10 as well as, I suspect, what Mr. Sabin will say. The plan is 11 the product of an immense amount of work by the debtors, each 12 of the three committees, all of their professionals and in 13 particular, as Mr. Pachulski noted, our clients, members of 14 the three committees and members of the debtors’ board and 15 management have worked exceptionally hard to get us here 16 today. 17 Like Mr. Pachulski’s comments, the noteholder 18 group firmly believes that this plan represents the best 19 possible outcome under these difficult circumstances for 20 investor victims generally and especially noteholder victims.",
"21 This global settlement or the global settlement at 22 the core of this plan is truly an outstanding accomplishment 23 given the issues that were presented by the parties, 24 negotiated in a very short timeframe and, indeed, as Mr. 25 Tuchin pointed out, involving several major issues as to Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 89 of 106 88 1 which there simply was not binding precedent. So, we echo 2 the view that if these issues weren’t settled we would, 3 indeed, have faced many months, perhaps years of litigation 4 and appeals; all of which would have delayed and deluded 5 victim recoveries in these cases.",
"It was just unacceptable 6 as a proposition. 7 So, if the plan is not confirmed today, 8 unfortunately, that’s the prospect that might very well face 9 investor victims. We also fully agree with Mr. Tuchin’s 10 remarks in terms of the amount of creditor engagement in this 11 process specifically having three committees representing 12 different constituencies in the cases.",
"13 This was an unusual situation, as Your Honor may 14 recall, where we raised, we started off as our firm had 15 represented an unofficial ad hoc group. Serious 16 representation issues early in the cases about the same time 17 as the trustee motion was being litigated and we’re very 18 grateful that our motion to seek appointment of an official 19 noteholder representative body was settled. As part of that 20 trustee motion settlement created the official noteholder 21 committee or noteholder group as well as Mr. Sabin’s client 22 the unitholder group. 23 That set the stage for a good process and good 24 processes get good outcomes. That is, we think, a major 25 reason why the March settlement process and term sheet was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 90 of 106 89 1 able to happen on such a short basis. We resolved the 2 specific constituency representation issues.",
"That allowed 3 proper engagement, proper advocacy of a great many issue. 4 Noteholders uniformly came to this case when they first 5 learned of the Ponzi fraud and the filing of the bankruptcy 6 case with a great many concerns and issues. 7 Really, I think, at the top of the list for all 8 noteholders was I was promised liens, what about my liens. 9 So, addressing those issues, and those beliefs and what most 10 of the loan documents say in a verifiable, and with a good 11 process and with good fiduciary representing it which has 12 been what our client’s main mission has been was essential, I 13 think, to get us to the point where we had this immense 14 acceptance rate among noteholders. 15 So, we start from all these individual victims 16 believing I had liens, I should be able to fall on my real 17 estate, and follow those proceeds through. We did our best 18 while the settlement was, you know, in process to maintain 19 adequate protection of those lien assertions, I’ll call them, 20 throughout the cases.",
"So, we did those things to protect 21 noteholders claims as best we could under the circumstances, 22 but we believe and our clients strongly believe that 23 noteholders should feel very confident. 24 The settlement here reflects the best arguments 25 that we could put forward on those lien issues. We have Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 91 of 106 90 1 many, many theories to deal with those more so then have been 2 raised in the current plan objection and we think all those 3 issues have been fully and fairly resolved in economic terms 4 and what the plan settlement embodies. 5 Your Honor, I think that with those comments we, 6 again, reiterate our support for confirmation of the plan.",
"7 We think it’s a phenomenal outcome and confirmation will 8 allow distributions to begin by year-end which will be very 9 important. Noteholders had, as with unitholders, many of 10 them had relied on getting interest payments on a regular 11 basis. So, the urgency of distributions to creditors is 12 extremely high and it’s been something that all of the estate 13 parties have committed to. 14 Thank you, Your Honor. That’s all we have. 15 THE COURT: Thank you. 16 I’ll hear from the unitholders. 17 MR. SABIN: Good morning, Your Honor; Jeff Sabin 18 for the ad hoc group of unitholders. 19 First and foremost, in the courtroom I’d like to 20 introduce again, I know you’ve met him at least once, but I’m 21 going to introduce the two members of our committee; Dr. 22 Raymond Blackburn who will also be our representative on the 23 supervisory board if this case is confirmed and goes 24 effective, and next to him Dr. Chris Pinney. 25 Your Honor, pardon me for a reference to what was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 92 of 106 91 1 a jingle at one time for a cigarette, but we’ve come a long 2 way, baby, if you have and in a short period of time.",
"And 3 maybe more aptly, if one goes to the movies these days and 4 remembers a particular landing on the moon, I view March as 5 one giant step and I view today, hopefully, as the great 6 leap. 7 First and foremost, I join in the debtors’ 8 memorandum of law supporting confirmation and seeking 9 confirmation, and in the oral presentation so ably done by 10 Mr. Holt. I join in the comments of Mr. Pachulski and, yes, 11 in all of them, and in the comments of my colleague Mr. 12 Kortanek. 13 The work that was done February and March was 14 extraordinary. Not only was it a sharing of diligence in a 15 very short period of time, thank you to Mr. Sharp, and Mr. 16 Chin and their teams, but in addition it was extraordinary 17 lawyering both from position papers, to responses, to 18 position papers, to mediation sessions and then even after we 19 got to deal with the issues of treatment and subcon the most 20 important thing which is keeping in all of our, front of our 21 brains if you will, the need for speed.",
"By that I mean 22 recognizing that the investors who are hurt here many of them 23 are retirees, many of them had spent their last dollar being 24 defrauded by this Ponzi scheme and many of them were in need 25 of some immediate cash. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 93 of 106 92 1 I think what we’ve come up with, independent of 2 the treatment, and the subcon, and the settlement themselves 3 inside the plan, is a structure, as Mr. Pachulski referred 4 to, that says if they’re still in need and didn’t avail 5 themselves of the facility that never came about we soon hope 6 that post-effective date, assuming confirmation, that the A- 7 certificates will be tradeable and we hope they’re not 8 tradeable at a deep discount, but they will be tradeable. 9 I’m sure people will be looking at a significant asset base 10 that will be in the hands of a wind-down entity.",
"11 Now, Mr. Sarachek is here and has availed himself 12 at the eleventh hour of trying to, otherwise, upset and 13 challenge various provisions. I submit that he’s had his day 14 in court for quite a while and has not availed himself of all 15 the other things that he could have done to stop this train 16 that, otherwise, is a proper train that investors got on, 17 that committees got on, that the debtors got on. That train 18 has voted and that train has said, look, you had your day in 19 court, it was an opinion issue. You have appealed, you never 20 asked for a stay. Number two, you, otherwise, never 21 challenged classification. 22 So, let’s remember of these 306 some odd debtors 23 that there really are two classifications. One is the seven 24 fund debtors. And you have heard that term referred to. 25 Those are the debtors that, otherwise, solicited or, at Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 94 of 106 93 1 least, arguably solicited the funds from investors.",
"Six of 2 them are the ones who, otherwise, received those funds and 3 immediately comingled it. You have heard the testimony and 4 you’ve read the declaration of Mr. Sharp and of Mr. Kapila. 5 Those are the ones, okay, that are fund debtors; that’s all 6 they have other than their intercompany claims and/or 7 intercompany liens against property owning debtors or Mezco 8 debtors. Mezco debtors I refer to as the ones who own the 9 equity in the PropCo debtors. 10 The claims that were filed and the objection that 11 was filed treats Mr. Sarachek’s clients and the plan itself 12 only as creditors of the fund debtors, not of PropCo debtors, 13 not of Mezco debtors. In fact, there’s never been an 14 assertion anywhere in any document I’ve seen of a mortgage, 15 properly filed or not, against any of the properties 16 themselves. 17 So, when Mr. Pachulski says, gee, let’s remember 18 in this case the Cybergenetics motion that the committee 19 brought which articulated that which was summarized by Mr. 20 Pachulski which says, look, your assertion and your client’s 21 assertion read in its best light is that somehow your clients 22 have perfected lien rights in these intercompany claims and 23 intercompany liens of the fund debtors against Propco and/or 24 Mezco.",
"In particular, his lawsuit, the adversary proceeding 25 with respect to Owlwood, was just one aspect arguing Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 95 of 106 94 1 different theories to get to that conclusion. 2 You may remember that that lawsuit was brought and 3 also then pending was the committee’s Cybergenetics motion 4 and that we put off for another day anything to do with that 5 motion for a while, then it was granted, and then we said, 6 well, committee if you want you can actually commence your 7 adversary, but let’s stay that adversary until we get to 8 confirmation. We, otherwise, are now here. 9 There is no need for any further delay. There is 10 no need for that lawsuit to ever go forward because, 11 effectively, the investors have said we understand, we 12 understand what our professionals and our fiduciary groups 13 did.",
"We understand it and we do it in the right way which is 14 with our vote. We understand it by percentages that are 15 north of 95 percent in each of the classes. That vote, okay, 16 as Mr. Holt so ably argued, was not just for the plan it’s 17 for the settlements in the plan. 18 So, as you heard also I’m not only in support of 19 confirmation, but in support of the form of confirmation 20 order in which you will make findings with respect to the 21 propriety of the global settlement, with respect to which you 22 will, otherwise, subsume in the confirmation order approval 23 of the separate 9019 motion for the global settlement. Why?",
"24 It’s pretty obvious why, because we don’t need any kind of 25 further challenge if this court were to bless confirmation Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 96 of 106 95 1 based on equitable mootness. The plan is based on, it’s a 2 bedrock. Okay. That settlement is the bedrock of this plan. 3 You can’t take that settlement out, okay, and unscramble the 4 egg that, otherwise, the plan scrambles, rightfully, says all 5 the voters. 6 In addition, you’ve heard references from Mr. 7 Sarachek to a request for some reserve. Now, unless I’ve 8 missed something on the docket he has not filed a Bankruptcy 9 Rule 3020(a) motion.",
"So, it’s inappropriate at this point to 10 even raise the request for some kind of reserve regardless of 11 whether there are funds to put in a reserve. And you’ve 12 heard that the confirmation order itself and when we go 13 effective the liens, the intercompany liens, the intercompany 14 notes will be gone for his clients. 15 So, for all of those reasons, Your Honor, we 16 support and urge you to order confirmation pursuant to the 17 confirmation order and we thank you for, otherwise, herding 18 all the cats and forcing us to get together in a room and, 19 otherwise, spend days trying to get to a very difficult, very 20 arm’s length negotiated settlement. And while there’s a 21 piece of me that would, otherwise, love to be arguing to the 22 Supreme Court with Mr. Pachulski on my left and Mr. Klee on 23 my right some very interesting issues that are in the 24 position papers I’ll save that for another day. 25 Thank you, Your Honor.",
"Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 97 of 106 96 1 THE COURT: I’m sure the Supreme Court will be 2 grateful for that. 3 (Laughter) 4 THE COURT: Does the U.S. Trustee wish to be 5 heard? 6 MR. FOX: Good afternoon, Your Honor. I’ll be 7 brief. Tim Fox on behalf of the United States Trustee. 8 May I please the court, my office does not object 9 to confirmation of the plan. And consistent with debtors’ 10 counsel’s comments earlier we raise some informal comments 11 with respect to the plan vis-à-vis and the settlement motion. 12 This is an issue that comes up from time to time 13 in cases.",
"Here the facts are so distinct with respect to the 14 need for settlement that we are very happy to have seen the 15 separate settlement motions filed in connection with the plan 16 here. We think it’s important that the debtors satisfy the 17 burden for confirmation under the standards of the bankruptcy 18 code. And based on all the evidence that’s been placed into 19 the record we believe the debtors have satisfied that and as 20 I said before have no objection to confirmation of the plan. 21 I think it’s a meaningful distinction for 22 confirmation of a plan from the settlement of a number of 23 issues and without the apparatus of the bankruptcy code and 24 the confirmation of a plan I don’t think my office would feel 25 comfortable binding every party based solely on a 9019 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 98 of 106 97 1 settlement even among fiduciaries. So, we believe that the 2 plan process was integral to the confirmation of the plan and 3 to effectuating the relief that the plan seeks to implement 4 for all of the victim investors as well as the general 5 unsecured creditors of the debtors’ estates.",
"6 As I said, Your Honor, we have no objection to 7 confirmation of the plan and to the terms of the plan 8 settlement, and are happy to receive those in a dual track 9 process. 10 THE COURT: Thank you. 11 MR. FOX: Thank you. 12 THE COURT: Anyone else wish to be heard before I 13 go to Mr. Sarachek? 14 MR. BADDLEY: Good afternoon, Your Honor; David 15 Baddley from the Securities & Exchange Commission. It’s nice 16 to be back here in a positive environment such as a plan 17 confirmation hearing. 18 The SEC wholly supports the plan for all the 19 reasons that have been mentioned.",
"Clearly, it resolves very 20 complex and significant issues regarding priority and 21 distribution. The result is that every investor will recover 22 something meaningful here and no one will recover nothing. 23 I also value the balance of the strong business 24 plan with the liquidity. You know, the business plan is 25 designed to maximize the asset values by a control sale Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 99 of 106 98 1 process over several years. Normally the cost of that 2 process would be a loss of liquidity while investors waited 3 for those monies to come in, but not in this case because the 4 plan does create a mechanism for the trust to be registered 5 and to provide a public market with pricing transparency for 6 the investors to sell their interest if they choose if that 7 happens.",
"That is a unique and creative feature of this plan 8 which I know we worked very hard with the debtors to help 9 facilitate and, hopefully, that will provide some value and 10 optionality to the investors. 11 Also, I was very pleased to see the high voter 12 participation that Mr. Tuchin pointed out as well as the 13 overwhelming support. Also, obviously, if the plan is 14 confirmed now then there would be a significant reduction in 15 the ongoing administrative expense accrual for the estates. 16 The only comment that we did have was a clarifying 17 provision in the confirmation order which I believe has been 18 added in Paragraph 43, which makes it clear that nothing in 19 the plan’s release or exculpation provisions will impair the 20 SEC’s investigation or enforcement powers against any of the 21 non-debtors. 22 Since we filed the action against Woodbridge, and 23 Mr. Shapiro and others in December we have filed another 24 action against some of the external agents. Our 25 investigation is still ongoing and our plan is to contribute Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 100 of 106 99 1 whatever recoveries from these and other future actions to 2 the liquidation trust so that it can supplement the 3 distributions to the investors. 4 I saw that recently the court did enter the order 5 approving the settlement between the debtors and the SEC, 6 we’re grateful for that.",
"Thank you. 7 If the plan is confirmed then we will not be 8 filing a proof of claim. I think our deadline right now is 9 this Friday, but if the plan is not confirmed then we would 10 need to file a proof of claim based on the judgement, not 11 necessarily to receive a distribution of assets, but 12 certainly, at least to preserve rights in order to make sure 13 that whatever the outcome may be is something that is fair to 14 the investors. 15 So, I would like to thank all the professionals. 16 I think you all took on a massive responsibility and 17 performed exceptionally. I know the lead attorneys get a lot 18 of the shout-out, but I know you all have a lot of staff, and 19 support behind you and please pass on our appreciation for 20 everything that you all have done.",
"As well as to thank the 21 court. I know you spent a lot of time early in the case to, 22 you know, give up time for the hearing as well as to provide 23 the parties with a lot of meaningful guidance. That really 24 did get the case on a solid footing which has gotten us to a 25 confirmation hearing in roughly nine months. We’re very Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 101 of 106 100 1 grateful. 2 Thank you. 3 THE COURT: So, Mr. Baddley, indulge me for a 4 moment. The participation of the SEC here has -- it’s not 5 only welcomed, it’s been extremely positive. But be honest 6 with me, you didn’t really want to be here, initially, did 7 you?",
"8 (Laughter) 9 MR. BADDLEY: Well, I could normally say I’m not 10 authorized to make a position on this, but if this is me 11 speaking, you know, I do have a bankruptcy background. And I 12 do think that there is a value to this process and especially 13 in a case like this. And I don’t have a crystal ball to say 14 what would have happened in a receivership or not. 15 But I cannot imagine a result that would have been 16 any better than this in the time that it happened. Because, 17 as I said early when there was pending committee motions, 18 these constituents did need representation and they got it 19 and I think that’s why we’re here.",
"So, we’re very pleased 20 with the outcome of the case. 21 THE COURT: Well thank you for your participation. 22 (Laughter) 23 THE COURT: Would anyone else like to be heard? 24 Mr. Sarachek, you’re up. 25 MR. SARACHEK: Not easy to follow all this Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 102 of 106 101 1 kumbaya. 2 Your Honor, and I’ll be brief, what drives me is 3 Lisa de le Rochelle, an 85-year old lawyer who invested in 4 Owlwood. What drives me is Betty Lou who invested in 5 Owlwood, a California resident. What drives me is Jan 6 Castaneda, a lawyer from California who did an enormous 7 amount of due diligence here and, obviously, was defrauded.",
"8 Is it a Ponzi scheme? I don’t know. 9 But that’s what drives me, Judge. That those 10 parties all -- they are fairly sophisticated parties who did 11 due diligence here prior to entering into this investment and 12 do believe they’re secured. 13 A lot has been made of the fact that, oh, he 14 didn’t do discovery, this, that the other thing. Well, along 15 the way since February, we’ve taken all the appropriate steps 16 with respect to each property sale to reserve our rights with 17 respect to the proceeds as provided by the Bankruptcy Code. 18 And we filed various objections, most of them, obviously, 19 (indiscernible) obviously, have been denied.",
"20 But the issue, the one issue that I’m having 21 trouble with is the Gulfco case. And that case basically 22 says that you can’t extinguish existing liens between various 23 entities through a plan. And it requires an adversary 24 proceeding. Now, we started one adversary proceeding, but 25 there are many. If there any valid liens here which, Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 103 of 106 102 1 obviously, you know, I believe there are, they can’t do what 2 they’re doing in their plan. 3 It’s nice that they want to do it. But I don’t 4 think that under the Gulfco case, they can do it. And the 5 Gulfco case is a case that’s not just cited in the bankruptcy 6 world. In virtually every corporate borrowing opinion letter 7 from, you know, law firms, from Sullivan to Kirbath (ph) to 8 whoever.",
"I see that case cited over and over again. And I 9 don’t know how that gets reconciled here. I don’t. I don’t 10 have an answer for you. I don’t think it’s the way the 11 debtor is proposing to do it. 12 Thank you, Judge, for your time. I’ll let our 13 papers stand for themselves. Thank you. 14 THE COURT: Thank you. 15 All right, under the circumstances this is a 16 decision when I render it either has to be by a very detailed 17 bench decision or by writing, so I’m not going to decide from 18 the bench today. But I will promise, which I long ago 19 stopped doing because it never worked in my favor, but I will 20 promise a decision within days, not weeks. 21 But as long as you’re here, I think what I’d like 22 you to do is to walk me through the proposed confirmation 23 order just to flush out to see whether either the court or 24 others have any issues with where it now stands.",
"25 MR. TUCHIN: Thank you, Your Honor. And there was Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 104 of 106 103 1 one change made to the form of order that was submitted last 2 week. Actually, ministerial changes. We added in some 3 docket numbers and then one other change at the request of 4 the SEC. 5 We had indicated that the Ponzi scheme was 6 discovered in December 2017 and the SEC requested that we 7 change that to say the Ponzi scheme was discovered no later 8 than December 2017. Certainly, an acceptable change to us. 9 THE COURT: All right. 10 MR. TUCHIN: May I approach with that redline and 11 the form of order? 12 THE COURT: Yes, you may. 13 MR. TUCHIN: Thank you.",
"14 THE COURT: All right, well I see the changes that 15 have been made. Let me ask for the record, does anyone have 16 any comments with respect to any of the provisions of the 17 proposed order? 18 (No verbal response) 19 THE COURT: I hear no response. 20 Is there anything else that we need to talk about 21 today?",
"22 MR. TUCHIN: May I just have one minute, Your 23 Honor? 24 THE COURT: Yes, you may. Yes, it would be a good 25 idea to give the SEC a little extension on their time. Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 105 of 106 104 1 MR. TUCHIN: Exactly. So, Your Honor, we have 2 agreed that we will extend the SEC’s bar date until two 3 business days following the court’s ruling on confirmation. 4 THE COURT: Very well. 5 Anything else we need to talk about?",
"6 MR. TUCHIN: No, thank you, Your Honor. 7 THE COURT: All right, thank you, all, very much. 8 I appreciate all of the submissions and arguments and 9 presentations made. That concludes this hearing. Court will 10 stand in recess. 11 MR. TUCHIN: Thank you, Your Honor. 12 MR. SARACHEK: Thank you, Your Honor. 13 (Proceedings conclude at 12:18 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 Case 19-50329-JKS Doc 56-8 Filed 05/10/21 Page 106 of 106 105 1 CERTIFICATE 2 3 I certify that the foregoing is a correct transcript from the 4 electronic sound recording of the proceedings in the above- 5 entitled matter. 6 /s/Mary Zajaczkowski October 24, 2018 7 Mary Zajaczkowski, CET**D-531 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/169356744/ | 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 . Receipt is acknowledged of the Amendment filed on February 16, 2021. Accordingly, claims 2, 11 and 18-20 are cancelled; claims 1, 3-7, 9, 10 and 12-17 are currently pending in the application.
EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The purpose of the examiner’s amendment was to correct minor informalities in the claims in order to place the application in condition for allowance. The application has been amended as follows: Claim 8 has been cancelled (please see the second paragraph at page 6 of the Remarks). Claim 14 is indicated as Original status, but it is missing the first two lines. To be clear and precise, the original claim 14 is rewritten as follows: 14. (Original) The non-transitory, computer readable media of claim 10 further comprising instructions for: identifying a test abnormality from the module test;
determining whether the test abnormality is caused by the individual cell or the module.
Allowable Subject Matter Claims 1, 3-7, 9, 10 and 12-17 are allowed. The following is an examiner’s statement of reasons for allowance: With regard to claims 1 and 10, applicants’ arguments in the last paragraph at page 6 continued to the next page 7 of the Remarks and amendments have been considered and found persuasive. With regard to claims 3-9 and 12-17, these claims are allowed at least by virtue of their dependencies directly or indirectly from the base claims, respectively. 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.”
CONTACT INFORMATION Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOAI-AN D. NGUYEN whose telephone number is (571)272-2170. The examiner can normally be reached on MON-THURS. (7:00 - 5:00).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PATRICK J. ASSOUAD can be reached on 571-272-2210. 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.
HOAI-AN D. NGUYEN Primary Examiner Art Unit 2858
/HOAI-AN D. NGUYEN/Primary Examiner, Art Unit 2858 | 2021-03-09T18:02:05 | [
"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 . Receipt is acknowledged of the Amendment filed on February 16, 2021. Accordingly, claims 2, 11 and 18-20 are cancelled; claims 1, 3-7, 9, 10 and 12-17 are currently pending in the application. EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. The purpose of the examiner’s amendment was to correct minor informalities in the claims in order to place the application in condition for allowance. The application has been amended as follows: Claim 8 has been cancelled (please see the second paragraph at page 6 of the Remarks). Claim 14 is indicated as Original status, but it is missing the first two lines. To be clear and precise, the original claim 14 is rewritten as follows: 14. (Original) The non-transitory, computer readable media of claim 10 further comprising instructions for: identifying a test abnormality from the module test; determining whether the test abnormality is caused by the individual cell or the module.",
"Allowable Subject Matter Claims 1, 3-7, 9, 10 and 12-17 are allowed. The following is an examiner’s statement of reasons for allowance: With regard to claims 1 and 10, applicants’ arguments in the last paragraph at page 6 continued to the next page 7 of the Remarks and amendments have been considered and found persuasive. With regard to claims 3-9 and 12-17, these claims are allowed at least by virtue of their dependencies directly or indirectly from the base claims, respectively. 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.” CONTACT INFORMATION Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOAI-AN D. NGUYEN whose telephone number is (571)272-2170. The examiner can normally be reached on MON-THURS.",
"(7:00 - 5:00). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PATRICK J. ASSOUAD can be reached on 571-272-2210. 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. HOAI-AN D. NGUYEN Primary Examiner Art Unit 2858 /HOAI-AN D. NGUYEN/Primary Examiner, Art Unit 2858"
]
| 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 |
C. A. 3d Cir. Certiorari denied. | 11-28-2022 | [
"C. A. 3d Cir. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9167759/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
August 17, 2009
North Shore Acquisition Corp. 175 Great Neck Road, Suite 204 Great Neck, New York 11021 Attention: Barry J. Gordon
Sang-Chul Kim (135-270) 7th Floor, SoftForum B/D 545-7 Dogok-Dong Gangnam-Gu, Seoul 135-270 S. Korea
Dear Sirs:
Pursuant to that certain Registration Rights Agreement (the “RRA”), dated as of November 30, 2007, by and among North Shore Acquisition Corp., a Delaware Corporation (the “Company”), and the respective undersigned parties (each, individually, a “Stockholder”, and collectively, the “Stockholders”), the Company has granted the Stockholders certain registration rights (the “Registration Rights”) with respect to (a) the shares (the “Warrant Shares”) of common stock of the Company underlying warrants (the “Warrants”) purchased by the Stockholders under the terms of certain Warrant Subscription Agreements by and between the Company and each respective Stockholder, and (b) the shares of common stock (the “Insider Shares”, and together with the Warrant Shares, the “Registrable Securities”) purchased by the Stockholders from the Company prior to the Company’s initial public offering.
The Stockholders have executed an agreement (the “Put/Call Agreement”) of even date herewith pursuant to which the parties thereto have granted each other put and call options by which the Stockholders may (i) sell the Warrants following the Option Trigger (as defined in the Put/Call Agreement), and (ii) transfer, for no consideration, certain of the Insider Shares (the “Transfer Shares”) to Sang-Chul Kim (the “Investor”), in the amounts identified in Schedule A upon consummation of the Company’s initial acquisition of an operating business (a “Business Combination”). In connection with the potential sale of the Warrants following the Option Trigger and transfer of the Transfer Shares upon consummation of a Business Combination, the Stockholders desire to assign their Registration Rights conditionally with respect to the Warrants that may be sold and the Transfer Shares that may be transferred to the Investor in accordance with Section 6.2 of the RRA, and the Company has agreed to consent to such assignment. Accordingly, (a) upon exercise of an Option (as defined in the Put/Call Agreement) following the Option Trigger and subsequent sale of Warrants and (b) upon consummation of a Business Combination and subsequent transfer of the Transfer Shares, the Stockholders’ Registration Rights with respect to such securities shall be assigned to the Investor. The Stockholders shall maintain their Registration Rights with respect to any Insider Shares not transferred to the Investor. Until the Warrants and the Transfer Shares are sold and transferred, respectively, in accordance with the Put/Call Agreement, the Registration Rights will not be assigned by the Stockholders to the Investor. Upon the sale of the Warrants and the transfer of the Transfer Shares to the Investor, the Investor shall become party to the RRA and the parties thereto hereby consent to amend such RRA at that time such that the Investor shall have all the benefits of the Stockholders with respect to the transferred Registrable Securities under the RRA as if it was original parties thereto.
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This letter serves as each Stockholder’s irrevocable conditional assignment of the Registration Rights on the terms hereof, and the Company’s consent to such assignment.
[Remainder of page intentionally left blank; signature page to follow.]
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Very truly yours, STOCKHOLDERS: /s/ Barry J. Gordon Barry J. Gordon /s/ Marc H. Klee Marc H. Klee /s/ Arthur H. Goldberg Arthur H. Goldberg /s/ Harvey Granat Harvey Granat /s/ Alan J. Loewenstein Alan J. Loewenstein /s/ Robert Sroka Robert Sroka
The undersigned acknowledges and consents to the foregoing terms.
COMPANY:
NORTH SHORE ACQUISITION CORP.
By: /s/ Marc H. Klee Name: Marc H. Klee Title: President
[Signature Page - Registration Rights Assignment Letter]
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Schedule A
Stockholder Insider Shares Transfer Shares Warrants Barry J. Gordon 468,851 439,331 472,320 Marc H. Klee 364,663 341,702 367,360 Alan J. Loewenstein 135,320 126,800 136,320 Arthur H. Goldberg 206,472 193,472 208,000 Robert Sroka 206,472 193,472 208,000 Harvey Granat 206,472 193,473 208,000
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"August 17, 2009 North Shore Acquisition Corp. 175 Great Neck Road, Suite 204 Great Neck, New York 11021 Attention: Barry J. Gordon Sang-Chul Kim (135-270) 7th Floor, SoftForum B/D 545-7 Dogok-Dong Gangnam-Gu, Seoul 135-270 S. Korea Dear Sirs: Pursuant to that certain Registration Rights Agreement (the “RRA”), dated as of November 30, 2007, by and among North Shore Acquisition Corp., a Delaware Corporation (the “Company”), and the respective undersigned parties (each, individually, a “Stockholder”, and collectively, the “Stockholders”), the Company has granted the Stockholders certain registration rights (the “Registration Rights”) with respect to (a) the shares (the “Warrant Shares”) of common stock of the Company underlying warrants (the “Warrants”) purchased by the Stockholders under the terms of certain Warrant Subscription Agreements by and between the Company and each respective Stockholder, and (b) the shares of common stock (the “Insider Shares”, and together with the Warrant Shares, the “Registrable Securities”) purchased by the Stockholders from the Company prior to the Company’s initial public offering.",
"The Stockholders have executed an agreement (the “Put/Call Agreement”) of even date herewith pursuant to which the parties thereto have granted each other put and call options by which the Stockholders may (i) sell the Warrants following the Option Trigger (as defined in the Put/Call Agreement), and (ii) transfer, for no consideration, certain of the Insider Shares (the “Transfer Shares”) to Sang-Chul Kim (the “Investor”), in the amounts identified in Schedule A upon consummation of the Company’s initial acquisition of an operating business (a “Business Combination”). In connection with the potential sale of the Warrants following the Option Trigger and transfer of the Transfer Shares upon consummation of a Business Combination, the Stockholders desire to assign their Registration Rights conditionally with respect to the Warrants that may be sold and the Transfer Shares that may be transferred to the Investor in accordance with Section 6.2 of the RRA, and the Company has agreed to consent to such assignment. Accordingly, (a) upon exercise of an Option (as defined in the Put/Call Agreement) following the Option Trigger and subsequent sale of Warrants and (b) upon consummation of a Business Combination and subsequent transfer of the Transfer Shares, the Stockholders’ Registration Rights with respect to such securities shall be assigned to the Investor.",
"The Stockholders shall maintain their Registration Rights with respect to any Insider Shares not transferred to the Investor. Until the Warrants and the Transfer Shares are sold and transferred, respectively, in accordance with the Put/Call Agreement, the Registration Rights will not be assigned by the Stockholders to the Investor. Upon the sale of the Warrants and the transfer of the Transfer Shares to the Investor, the Investor shall become party to the RRA and the parties thereto hereby consent to amend such RRA at that time such that the Investor shall have all the benefits of the Stockholders with respect to the transferred Registrable Securities under the RRA as if it was original parties thereto. -------------------------------------------------------------------------------- This letter serves as each Stockholder’s irrevocable conditional assignment of the Registration Rights on the terms hereof, and the Company’s consent to such assignment. [Remainder of page intentionally left blank; signature page to follow.]",
"-------------------------------------------------------------------------------- Very truly yours, STOCKHOLDERS: /s/ Barry J. Gordon Barry J. Gordon /s/ Marc H. Klee Marc H. Klee /s/ Arthur H. Goldberg Arthur H. Goldberg /s/ Harvey Granat Harvey Granat /s/ Alan J. Loewenstein Alan J. Loewenstein /s/ Robert Sroka Robert Sroka The undersigned acknowledges and consents to the foregoing terms. COMPANY: NORTH SHORE ACQUISITION CORP. By: /s/ Marc H. Klee Name: Marc H. Klee Title: President [Signature Page - Registration Rights Assignment Letter] -------------------------------------------------------------------------------- Schedule A Stockholder Insider Shares Transfer Shares Warrants Barry J. Gordon 468,851 439,331 472,320 Marc H. Klee 364,663 341,702 367,360 Alan J. Loewenstein 135,320 126,800 136,320 Arthur H. Goldberg 206,472 193,472 208,000 Robert Sroka 206,472 193,472 208,000 Harvey Granat 206,472 193,473 208,000 --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Plaintiff sued upon a written contract for advertising. The cause was tried by the court without a jury and judgment went for plaintiff as prayed. The defendant appeals upon typewritten transcripts. On February 20, 1928, the parties executed a contract in writing under which plaintiff agreed to run thirty feet of advertising film six days a week alternating weekly between the Southern Pacific and Key Route waiting-rooms in the Ferry Building at San Francisco for the term of fifty-two weeks. The defendant agreed to pay therefor the sum of $30 a week payable monthly after the first exhibit, which was to start March 1, 1928. The contract provided: "Films may be changed twice monthly." On February 21, 1928, defendant wrote to the plaintiff that the contract was canceled. On February 27th the parties entered into an oral contract under which plaintiff agreed to furnish the same advertising for a period of two years at $15 a week or $65 a month, films to be run three days a week instead of six. On April 26, 1928, defendant sent written notice to plaintiff that this contract was terminated as of May 1st following. Plaintiff continued to run *Page 390 the film for the full period of two years, carrying without change an advertisement of a special sale of automobiles conducted by defendant at his places of business at 1521 and 690 Van Ness Avenue in San Francisco. This sale was advertised to commence March 1, 1928. The business at 690 Van Ness was discontinued in October of that year. Plaintiff sued upon the written contract of February 20th, alleging however, that there became due under the contract $65 a month, whereas the contract provided for payments of $30 a week. Defendant answered admitting the execution of the contract pleaded, denying generally that any sum was due under it, and pleading specially that the contract was abandoned and rescinded by mutual consent. During the trial plaintiff was forced to admit the abandonment of the written contract and then asked for and was granted leave to amend to conform to the proofs by pleading a new or modified contract in the terms of the oral agreement of February 27th. The defendant then proved the cancellation of this contract on April 26th in the manner above set forth. The complaint having been filed before the end of the two-year period, the trial court limited its findings to the fourteen months preceding May 1, 1929, and found that the plaintiff had performed all the terms of the contract as modified and gave judgment for plaintiff for $780 upon the conclusion of law that said sum was due "for services rendered under said contract". On this appeal the appellant attacks the judgment on the ground that, the contract having been canceled or repudiated by him, respondent's only remedy was to sue in damages for the breach.[1] Appellant rests his case on the well-accepted rule that a party to a contract has the power to stop performance on the other side by explicit direction to that effect, subjecting himself to such damages as will compensate the other party for the breach, and that the party thus forbidden cannot go on and thereby increase the damages. (6 R.C.L., p. 1029; Davis v.Bronson, 2 N.D. 300 [33 Am. St. Rep. 783, 16 L.R.A. 655, 50 N.W. 836]; Danforth v. Walker, 37 Vt. 239, 244; Dugan v.Anderson, 36 Md. 567, 11 Am. Rep. 509; Spratt v.Brown-Petzel Lumber Co., 105 Or. 672 [210 P. 700, 701];Southworth v. Rosendahl, 133 Minn. 447 [3 A.L.R. 468, 158 N.W. 717, 718]; Thomas v. Clayton *Page 391 Piano Co., 47 Utah, 91 [151 P. 543, 544]; Peck Co. v.Kansas City M.R. C. Co., 96 Mo. App. 212 [70 S.W. 169, 170].) The remedy for such a breach is declared in section 3300 of the Civil Code to be the amount which will compensate the party aggrieved for all the detriment proximately caused thereby. And section 3358 of the same code declares that no person can recover a greater amount of damages for the breach of a contract than he could have gained by the full performance. [2] Under the authorities the conclusion is unescapable that the respondent's right of action was for damages only, that he could not enhance these damages by continued performance after notice of repudiation, and that the judgment for "services rendered" is contrary to law. [3] Respondent does not question these principles of law. His only defense of the judgment is that the point was not raised in the trial court. In this he is in error. He pleaded and rested on a written contract. Appellant alleged that this contract was abandoned. The proof showed conclusively that such was the fact. Respondent then obtained leave to plead another contract. No special pleading was filed in answer to this amendment but all the evidence showing its repudiation was received without objection. There is no doubt that the issue of repudiation was fully tried and, though the trial court found that the contract was not "mutually abandoned", it did not find on the issue of repudiation. The evidence was there — not merely uncontradicted, but admitted — that the contract was repudiated. When such is the case the action must be for damages for the breach and not for services rendered under the contract after repudiation. In a similar case, Thomas v. Clayton Piano Co.,supra, the court say: "It is true that the damages may equal the amount stipulated in the contract under certain circumstances; but, if that be so, then the fact must be established by proper evidence. It cannot be established by merely proving that the plaintiff proceeded to perform after the renunciation had been made." The judgment is reversed. Sturtevant, J., and Spence, J., concurred. *Page 392 | 07-05-2016 | [
"Plaintiff sued upon a written contract for advertising. The cause was tried by the court without a jury and judgment went for plaintiff as prayed. The defendant appeals upon typewritten transcripts. On February 20, 1928, the parties executed a contract in writing under which plaintiff agreed to run thirty feet of advertising film six days a week alternating weekly between the Southern Pacific and Key Route waiting-rooms in the Ferry Building at San Francisco for the term of fifty-two weeks.",
"The defendant agreed to pay therefor the sum of $30 a week payable monthly after the first exhibit, which was to start March 1, 1928. The contract provided: \"Films may be changed twice monthly.\" On February 21, 1928, defendant wrote to the plaintiff that the contract was canceled. On February 27th the parties entered into an oral contract under which plaintiff agreed to furnish the same advertising for a period of two years at $15 a week or $65 a month, films to be run three days a week instead of six.",
"On April 26, 1928, defendant sent written notice to plaintiff that this contract was terminated as of May 1st following. Plaintiff continued to run *Page 390 the film for the full period of two years, carrying without change an advertisement of a special sale of automobiles conducted by defendant at his places of business at 1521 and 690 Van Ness Avenue in San Francisco. This sale was advertised to commence March 1, 1928. The business at 690 Van Ness was discontinued in October of that year. Plaintiff sued upon the written contract of February 20th, alleging however, that there became due under the contract $65 a month, whereas the contract provided for payments of $30 a week. Defendant answered admitting the execution of the contract pleaded, denying generally that any sum was due under it, and pleading specially that the contract was abandoned and rescinded by mutual consent. During the trial plaintiff was forced to admit the abandonment of the written contract and then asked for and was granted leave to amend to conform to the proofs by pleading a new or modified contract in the terms of the oral agreement of February 27th.",
"The defendant then proved the cancellation of this contract on April 26th in the manner above set forth. The complaint having been filed before the end of the two-year period, the trial court limited its findings to the fourteen months preceding May 1, 1929, and found that the plaintiff had performed all the terms of the contract as modified and gave judgment for plaintiff for $780 upon the conclusion of law that said sum was due \"for services rendered under said contract\". On this appeal the appellant attacks the judgment on the ground that, the contract having been canceled or repudiated by him, respondent's only remedy was to sue in damages for the breach. [1] Appellant rests his case on the well-accepted rule that a party to a contract has the power to stop performance on the other side by explicit direction to that effect, subjecting himself to such damages as will compensate the other party for the breach, and that the party thus forbidden cannot go on and thereby increase the damages. (6 R.C.L., p. 1029; Davis v.Bronson, 2 N.D. 300 [33 Am.",
"St. Rep. 783, 16 L.R.A. 655, 50 N.W. 836]; Danforth v. Walker, 37 Vt. 239, 244; Dugan v.Anderson, 36 Md. 567, 11 Am. Rep. 509; Spratt v.Brown-Petzel Lumber Co., 105 Or. 672 [210 P. 700, 701];Southworth v. Rosendahl, 133 Minn. 447 [3 A.L.R. 468, 158 N.W. 717, 718]; Thomas v. Clayton *Page 391 Piano Co., 47 Utah, 91 [151 P. 543, 544]; Peck Co. v.Kansas City M.R. C. Co., 96 Mo. App.",
"212 [70 S.W. 169, 170].) The remedy for such a breach is declared in section 3300 of the Civil Code to be the amount which will compensate the party aggrieved for all the detriment proximately caused thereby. And section 3358 of the same code declares that no person can recover a greater amount of damages for the breach of a contract than he could have gained by the full performance. [2] Under the authorities the conclusion is unescapable that the respondent's right of action was for damages only, that he could not enhance these damages by continued performance after notice of repudiation, and that the judgment for \"services rendered\" is contrary to law. [3] Respondent does not question these principles of law. His only defense of the judgment is that the point was not raised in the trial court. In this he is in error. He pleaded and rested on a written contract. Appellant alleged that this contract was abandoned. The proof showed conclusively that such was the fact.",
"Respondent then obtained leave to plead another contract. No special pleading was filed in answer to this amendment but all the evidence showing its repudiation was received without objection. There is no doubt that the issue of repudiation was fully tried and, though the trial court found that the contract was not \"mutually abandoned\", it did not find on the issue of repudiation. The evidence was there — not merely uncontradicted, but admitted — that the contract was repudiated. When such is the case the action must be for damages for the breach and not for services rendered under the contract after repudiation. In a similar case, Thomas v. Clayton Piano Co.,supra, the court say: \"It is true that the damages may equal the amount stipulated in the contract under certain circumstances; but, if that be so, then the fact must be established by proper evidence. It cannot be established by merely proving that the plaintiff proceeded to perform after the renunciation had been made.\" The judgment is reversed. Sturtevant, J., and Spence, J., concurred.",
"*Page 392"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3287985/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
833 A.2d 1070 (2003) 377 Md. 567 Wesley Eugene BAKER v. STATE of Maryland. No. 109, Sept. Term, 2002. Court of Appeals of Maryland. October 17, 2003. *1071 Stuart Jay Robinson, Bel Air, for appellant. Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., on brief), for appellee. Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. BELL, C.J. The issue in this case is whether, pursuant to a collateral attack, we should vacate as illegal, the sentence of a judge, who was appointed pursuant to the Maryland Constitution and duly elected to the Circuit Court for Harford County, but who may have lived outside of Harford County for a period of time during his term, in contravention to the residency requirements for state judges enumerated in the Maryland Constitution. The Circuit Court for Harford County denied the petitioner's motions attacking the of the Circuit Court judge in this case. We shall affirm.
I. Neither the facts underlying the petitioner's conviction, nor the procedural history of the case is relevant to the disposition of the case sub judice, except to the extent that they elucidate the timing and measure of the involvement of the particular judge whose judicial acts are at issue in this case.[1] This issue at bar arose following the petitioner's murder trial. *1072 After a jury convicted the petitioner, Wesley Eugene Baker, Harford County Circuit Court Judge, Cypert O. Whitfill, sentenced him to death.[2] Following an unsuccessful direct appeal and unsuccessful collateral attacks on the judgment, Judge Whitfill signed a warrant of execution directing that the petitioner be executed during the week of May 13, 2002. Subsequently, the petitioner filed motions in the Circuit Court for Harford County to quash Judge Whitfill's sentence and execution warrant. He alleged that the warrants had been issued without jurisdiction.[3] More particularly, he maintained that Judge Whitfill was not constitutionally qualified to preside at the petitioner's trial for first degree murder, or to sign the warrant for the petitioner's execution because, although appointed to the Harford County bench pursuant to the Maryland Constitution and duly elected by the voters of that county, Judge Whitfill lost his jurisdiction to preside over cases in Harford County when he changed his actual residence from Harford County to Baltimore County for some period during his term. Specifically, the petitioner alleged that, at some point prior to the petitioner's trial, *1073 Judge Whitfill ceased to meet the residency requirements imposed upon State judges by Article IV, Section 2 of the Maryland Constitution.[4] Thus, the petitioner maintained, the sentence Judge Whitfill imposed on him was "illegal," at the time of its imposition. Although the petitioner conceded that Judge Whitfill's alleged change in residence occurred prior to his trial and conviction, he argued nevertheless that the change "divested [Judge Whitfill] of the judicial power and authority to preside over the Sentencing Hearing on October 26, 1992." The matter was assigned to the Honorable John G. Turnbull, II, of the Circuit Court for Baltimore County, who denied the petitioner's motions without a hearing. The petitioner noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, the case was transferred to this Court, pursuant to Md.Code (1973, 2002 Repl.Vol.) § 12-307 of the Courts and Judicial Proceedings Article[5] and Maryland Rule 8-132.[6] In this Court, the petitioner maintains that although Judge Whitfill was a resident of Harford County during his trial, his sentencing and all times thereafter, Judge Whitfill's earlier change of residence from Harford County to Baltimore County divested him of his judicial authority immediately upon its occurrence and by operation of law. The petitioner insists that the Judge's judicial authority could not be regained by simply reestablishing a residence in Harford County. In support of his position, the petitioner relies upon this Court's precedents regarding challenges to the constitutional residency requirements *1074 of non-judicial elected officials. See generally, Oglesby v. Williams, 372 Md. 360, 812 A.2d 1061 (2002); Stevenson v. Steele, 352 Md. 60, 720 A.2d 1176 (1998); Blount v.Boston, 351 Md. 360, 718 A.2d 1111 (1998); Bainum v. Kalen, 272 Md. 490, 325 A.2d 392 (1974). The respondent rejoins that there is no support for the petitioner's argument, and that the fact that Judge Whitfill may have, temporarily maintained a residence in Baltimore County, rather than Harford County, did not evince any intent to abandon his Harford County domicile. The respondent also relies on the "de facto officer" doctrine. Directing our attention to Nguyen v. U.S., ___ U.S. ___, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003), then under review, and, subsequently decided by the United States Supreme Court, the State argues that, under the de facto officer doctrine, the acts of public officials acting under color of title are presumed to be valid even if it is later discovered that there are deficiencies in the official's appointment or election to office. Thus, the State asserts that a defect in Judge Whitfill's judicial authority may not be challenged in post-conviction proceedings. Consequently, the State maintains that the petitioner has missed his opportunity to challenge the alleged defect.
II. Neither party disputes that Judge Whitfill was qualified for, and duly elected to the office of judge of the Circuit Court for Harford County when he presided and imposed sentence in the petitioner's case. Therefore, the only question before this Court concerns how a fully qualified and validly elected judge may be removed from office, or be found to have vacated the office. Accordingly, we must decide whether Judge Whitfill's exercise of judicial authority may be collaterally attacked in a post-conviction proceeding. The Maryland Constitution vests "[t]he judicial power of this State in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans' Courts, and a District Court." See Article IV, Section 1 of the Maryland Constitution. Article IV also delineates the constitutional qualifications of judges. See Article IV, Section 2 of the Maryland Constitution, note 4 supra. Moreover, the Constitution addresses the grounds and procedures for removal of judges. Article 33 of the Maryland Declaration of Rights of the Maryland Constitution expressly proscribes the removal of judges "except in the manner, and for the causes provided in this Constitution." Article IV, Section 4 enumerates the grounds and procedures for said removal, providing: Section 4. Grounds and procedure for removal of judges "Any Judge shall be removed from office by the Governor, on conviction in a Court of Law, of incompetency, of wilful neglect of duty, misbehavior in office, or any other crime, or on impeachment, according to this Constitution, or the Laws of the State; or on the address of the General Assembly, two-thirds of each House concurring in such address, and the accused having been notified of the charges against him, and having had opportunity of making his defence." Section 5 of the same article states, in relevant part, that a Circuit Court judge "shall hold the [office of Circuit Court judge] until the election and qualification of his successor." Md. Const., Art. 4, § 5. Significantly, there is no constitutional provision that provides that the judges of this State may be divested of judicial authority by operation of law or that permits collateral attack on the authority of a *1075 judge based solely on that judge's change of residence. As early as 1886, the United States Supreme Court recognized that the acts of public officials acting under color of title are presumed to be valid, even though it is later discovered that the legality of that person's appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 441-42, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, 186 (1886). As the Court explained: "[t]he doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question." Id. The Court also recognized, however, that the doctrine was not absolute, pointing out that "the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an `officer' who holds no office, and a public office can exist only by force of law." Id. In Norton, the dispositive issue was whether the statutorily created Tennessee Board of Commissioners had the legal authority to issue bonds to finance a county subscription to the Mississippi River Railroad Company. Prior to the passage of the act empowering county commissioners to issue the bonds, that authority resided with the county court and the justices of the peace. The Supreme Court of Tennessee held that the act creating the Board of Commissioners and conferring on the commissioners the powers of the justices of the peace was unconstitutional and void. The United States Supreme Court affirmed, holding that the commissioners could not appropriately carry out actions that were exclusively constitutionally reserved for justices of the peace. To that end, the Court reasoned: "[F]or the existence of a de facto officer, there must be an office de jure.... Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby County who undertook to act as the county court, which could be constitutionally held only by justices of the peace. Their right to discharge the duties of justices of the peace was never recognized by the justices, but from the outset was resisted by legal proceedings, which terminated in an adjudication that they were usurpers, clothed with no authority or official function." Id. at 449, 6 S.Ct. at 1129, 30 L.Ed. at 188. The Supreme Court applied the de facto officer doctrine it had enunciated in Norton, in Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891). The issue in that case was whether the official acts of a de facto judge can be collaterally attacked. In Ball, a federal district judge from the Western District of Louisiana was assigned to sit in the Eastern District of Texas for the resident judge, who had fallen ill and subsequently died. The circuit judge who appointed him duly filed with the court clerk the appointment certificate *1076 required by law, which enumerated that the federal District Judge would serve for the then-current November 1888 term and the pending 1889 terms. Id. at 127,11 S.Ct. at 764, 35 L.Ed. at 381-82. After the 1888 and 1889 terms expired, however, the replacement judge continued to sit in the Eastern District of Texas without official written authority. Three defendants convicted of murder and sentenced to death after trials in the Eastern District of Texas challenged the authority of the judge, contending that he had not been officially appointed. The Supreme Court rejected the challenge. The Court determined, as to the term for which there was no new appointment filed, that the assigned judge "was a judge de facto, if not de jure, and his acts as such are not open to collateral attack." 140 U.S. at 128-129, 11 S.Ct. at 765, 35 L.Ed. at 382. Similarly, in McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895), the de facto officer doctrine was applied to resolve the issue of whether "the power of a Circuit Judge or Justice to call one District Judge from his own into another district ... extend[s] to cases in which there is a vacancy in the office of judge of the latter district." Id. at 598, 16 S.Ct. at 111, 40 L.Ed. at 272. In that case, a district judge from another district in the Fourth Circuit was temporarily assigned to fill a vacancy in the United States District Court for the District of South Carolina until the vacancy was permanently filled. The Court determined that the assignment of the one district judge to sit in another district involved no "trespass upon the executive power of appointment," id. at 598, 16 S.Ct. at 112, 40 L.Ed. at 272, and, in any event, the assigned judge was a "judge de facto," whose "actions as such, so far as they affect third persons, are not open to question." Id. at 601, 16 S.Ct. at 112, 40 L. Ed at 272. The Court elucidated: The time and place of a regular term of the District Court were fixed by law at Greenville, on the first Monday of February. Judge Seymour was a judge of the United States District Court, having all the powers attached to such office. He appeared at the time and place fixed by law for the regular term, and actually held that term. The Circuit Judge had, generally speaking, the power of designating the judge of some other district to do the work of the District Judge in this district. The order of designation was regular in form, and there was nothing on its face to suggest that there was any vacancy in the office of District Judge for the District of South Carolina. Any defect in the order, if defect there was, is shown only by matters dehors the record. While this may not be conclusive, it strongly sustains the contention of the government that Judge Seymour was, while holding that term, at least a judge de facto. Whatever doubt there may be as to the power of designation attaching in this particular emergency, the fact is that Judge Seymour was acting by virtue of an appointment, regular on its face, and the rule is well settled that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public. Of course, if he was judge de facto his orders or the continuance of the term from day to day until February 12, when the regular judge took his place upon the bench, were orders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. Id. at 601-602, 16 S.Ct. at 113, 40 L.Ed. at 273-74. Along the same lines, in Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 *1077 (1899), a petitioner sought habeas corpus relief, challenging the authority of the judge that sentenced him on the grounds that the judge's appointment during a Senate recess was improper. The Court denied relief, holding that "the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked." Id. 173 U.S. at 456, 19 S.Ct. at 460, 43 L.Ed. at 766. The Court declined to address the petitioner's constitutional arguments on the "well settled rule ... that where a court has jurisdiction of an offence, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus." Id. at 454, 19 S.Ct. at 460, 43 L.Ed. at 766. On the other hand, when the authority of the public official is raised before the official acts or on direct review, the Supreme Court has reached a different conclusion. Ryder v. United States, 515 U.S. 177, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). Thus, in Ryder, where the defendant challenged, while his case was pending, the assignment of two civilian judges to his three-judge Coast Guard Court Military Review panel, the Court rejected the application of the de facto officer doctrine and entertained the challenge. Acknowledging the Court's reliance upon the doctrine "in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceeding leading to their conviction and sentence," id. at 181, 115 S.Ct. at 2034, 132 L.Ed.2d at 142, the Court determined that the doctrine was inapplicable because the defendant promptly objected to the composition of the Coast Guard Court of Military Review. Id. at 182, 115 S.Ct. at 2035, 132 L.Ed.2d at 143. Unlike the defendants in Ball, McDowell and Ward, the Court explained, Ryder directly challenged the composition of the three judge panel while his case was pending before that very court. Id. The Court then agreed with Ryder that the composition of the three-judge panel violated the Appointment Clause of Article II of the United States Constitution. Id. at 187-88, 115 S.Ct. at 2038, 132 L.Ed.2d at 146-47. Most recently, the Supreme Court has stated that it will not apply the de facto officer doctrine when the error results not from an irregularity in an otherwise proper judicial designation, but from one that is statutorily impermissible. Nguyen v. United States, ___ U.S. ____, ___, 123 S.Ct. 2130, 2131, 156 L.Ed.2d 64, 72 (2003). Nguyen was an appeal from convictions for federal narcotic offenses. The petitioners in that case objected to the assignment of an Article IV territorial court judge to their Court of Appeals panel; however, unlike the petitioner in Ryder, the petitioners in Nguyen did not object to the composition of the panel while their case was pending in the Court of Appeals, but raised the issue in their Petitions for Certiorari filed with the Supreme Court. The Government argued that the de facto officer doctrine applied and, therefore, the convictions should be upheld. The Supreme Court disagreed. Vacating the judgments of conviction, the Court acknowledged that "[t]ypically [it had] found a judge's actions to be valid de facto when there is a merely `technical' defect of statutory authority," id., at ___, 123 S.Ct. at 2136, 156 L.Ed.2d at 76, quoting Glidden Co. v. Zdanok, 370 U.S. 530, 535, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), but contrasted that general proposition with its determination "to correct, at least on direct review, violations of a statutory provision *1078 that embodies a strong policy concerning the proper administration of judicial business' even though the defect was not raised in a timely manner." Id., (quoting Glidden, supra, 370 U.S. at 536, 82 S.Ct. at 1459, 8 L.Ed.2d at 671). The Court explained: "In American Constr. Co. v. Jacksonville, T & K W R Co., 148 U.S. 372, 13 S.Ct. 758, 37 L.Ed. 486 (1893), the case Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appeal. This Court succinctly observed: `If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari.' Id., at 387, 13 S.Ct. 758, 37 L.Ed. 486. The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U.S. 645, 33 S.Ct. 722, 57 L.Ed. 1003 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650, 33 S.Ct. 722. Rather than sift through the underlying merits, we remanded the case to the Circuit Court of Appeals `so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute.' Id., at 651, 33 S.Ct. 722, 57 L.Ed. 1003. See also Moran v. Dillingham, 174 U.S. 153, 158, 19 S.Ct. 620, 43 L.Ed. 930 (1899) (`This court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges....')." Nguyen, ___ U.S. at ___, 123 S.Ct. at 2136, 156 L.Ed.2d at 76-77. The Court drew a distinction between its decisions in McDowell and Ball and its decision in Nguyen reasoning that, in McDowell and Ball, the judges were constitutionally qualified to preside over the involved proceedings and the error in those cases were "technical" in nature. Id. at 2137, 156 L.Ed.2d at 77. By contrast, the Court reasoned that because Congress did not contemplate the assigning of an Article IV judge to an Article III Appellate Panel, the inclusion of the Article IV judge in Nguyen was inherently improper and thus, the panel lacked jurisdiction to decide that appellant's appeal. To that end, the Court stated that "[t]he difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore a difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all." Id. This Court has also applied the de facto officer doctrine in connection with judicial and other government officials. In Izer v. State, 77 Md. 110, 26 A. 282 (1893), at issue was the validity of the oath administered to the accused by the deputy clerk of the Allegany County Circuit Court. Particularly, the petitioner alleged that the clerk had neither been reappointed to the office, nor administered a new oath of office. Upholding the validity of the oath the clerk administered, we explained: "Of course, if Izer was never legally sworn to give testimony before the grand jury, no false statement made by *1079 him before that body could constitute indictable perjury; and if Williamson had no authority to administer to Izer the oath he did administer, Izer was not legally sworn. But Wlliamson was then in the undisputed possession of the office of deputy clerk and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de facto officer, filling a de jure office, and whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts, done under color of title, are, upon grounds of public policy and necessity, valid and binding." Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178. Or, as was said in Carleton v. The People, 10 Mich. 250: "All that is required when there is an office, to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact." See also, State v. Carroll, 38 Conn. 449; Clark v. Commonwealth, 29 Pa. 129; Sheehan's Case, 122 Mass. 445; State v. Speaks, 95 N.C. 689." Id. 77 Md. at 115, 26 A. at 283-84. In 1938, this Court was asked to determine whether a writ of mandamus commanding a justice of the peace to vacate his office should issue. Kimble v. Bender, 173 Md. 608, 196 A. 409 (1938). We concluded that, pursuant to Article 3, Section 17 of the Maryland Constitution,[7] Kimble was ineligible for appointment to the office of justice of the peace because he had been a member of the State Senate when the legislation creating the office was enacted. Accordingly, this Court affirmed the trial court's issuance of the writ. Id. at 622, 196 A. at 415. Nevertheless, the Court addressed the validity of Kimble's official actions while acting as a justice of the peace: "The appointment of an ineligible person is a nullity, except that the official acts of such a person are regarded as the acts of an officer de facto. So the official acts of the ineligible respondent, who has acted as a justice of the peace at large under a valid act but under an invalid appointment, are the acts of a de facto officer, whose official acts, if otherwise lawful, and until the respondent's title is adjudged insufficient, are as valid and effectual, where they concern the public or the rights of third persons, as though he were an officer de jure. State v. Fahey, 108 Md. 533, 538, 539, 70 A. 218[, 220 (1908) ]; Koontz v. Burgess ad Commrs. of Hancock, 64 Md. 134, 136, 20 A. 1039 [ (1885) ]; Izer v. State, 77 Md. 110, 115, 26 A. 282[, 283 (1893)]; Claude v. Wayson, 118 Md. 477, 84 A. 562. [ (1912) ]." Id. at 622-23, 196 A. at 415-16.[8]See also, Hendershott v. Young, 209 Md. 257, 260-61, *1080 120 A.2d 915, 916-17 (1956), in which this Court observed: "Open to very serious doubt is whether petitioner could challenge by habeas corpus the authority of the justice of the peace to act since he acted under color of title to a constitutional office and no court had declared that he was not legally able to do so, under the provisions of Chap. 321, § 5 of the Acts of 1927, codified as § 598 of the Code of Public Laws of Montgomery County (Flack, 1947), or otherwise. There are many decisions by able courts, holding that habeas corpus will not issue to challenge the effect or results of the action of a de facto judicial officer, including a justice of the peace. It may well be that the committing magistrate, who acted in the case before us, if not a de jure officeras to which we express no opinionwas, at least, a de facto officer. Constitution of Maryland, Art. 4, § 42." Id. See also Quenstedt v. Wilson, 173 Md. 11, 14-21, 194 A. 354, 355-59 (1937) (habeas corpus relief proper where "police justice" was validly appointed, but the new court created by the Legislature was unconstitutional). In Ralph v. Brough, 248 F.Supp. 334 (D.Md.1965), the United States District Court for the District of Maryland recognized the de facto officer doctrine in the context of a Maryland Death penalty case. There, the petitioner, Ralph challenged the authority of his trial court on the basis that the jurors and judges had been required to declare a belief in God when they took their required oaths in contravention of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), and State v. Madison, 240 Md. 265, 213 A.2d 880 (1965). Following Smith v. Brough, 248 F.Supp. 435 (D.Md. 1965), the court held that refusal to apply Schowgurow and Madison "retroactively, except for convictions which had not become final before the rendition of the *1081 Schowgurow opinion, did not violate any provision of the Fourteenth Amendment or any other provision of the Federal Constitution," id. at 335, and that the judges were de jure judges. Id. at 336. The court went on to say that even if the oath raised questions as to the judges' qualifications, the judges were nonetheless de facto judges. "Even if they were not de jure judges, they met all the tests of de facto judges. The general rule with respect to the validity of the official acts of de facto judges is set out in 30A Am.Jur., Judges, § 234, as follows: `It is the general rule that acts performed by a de facto judge are not invalid. A judge de facto is, to all intents and purposes, a judge de jure as to all persons except the state. Thus, the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned, and their validity may not be collaterally attacked.' In McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 112, 40 L.Ed. 271 (1895), the Supreme Court stated: `Judge Seymour must be held to have been a judge de facto, if not a judge de jure, and his actions as such, so far as they affect third persons, are not open to question.'" Id. at 336. (Some citations omitted). Courts in other States that have addressed the issue have reached similar results. See e.g., Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038-1039 (Alaska 1998) (de facto doctrine applies even when judge no longer a resident of State, a statutory requirement for Alaska judges); People v. Owers, 29 Colo. 535, 69 P. 515, 519 (1902) (although residency requirement is mandatory, judge should be removed from office only upon "substantial misconduct on his part"); State v. Carroll, 38 Conn. 449, 455 (1871) (where judge lawfully appointed becomes unqualified, "the defect, if it be one, is a defect of qualification in the officer, by reason of an omission of his, or of the clerk, and is not of a character to prevent his acts from being valid as the acts of an officer de facto, whether the law under which he was called in was constitutional or not."); State v. Whelan, 103 Idaho 651, 651 P.2d 916, 920 (1982) ("A de facto officer performs his duties under color of right of an actual officer qualified in law so to act, both being distinguished from the mere usurper who has neither lawful title nor color of right."); Cleary v. Chicago Title and Trust Company, 4 Ill.2d 57, 122 N.E.2d 227, 228 (1954) cert. denied 348 U.S. 972, 75 S.Ct. 534, 99 L.Ed. 757 (1955) (appointment of appellate court judges may not be attacked in collateral proceeding; appointment confers a color of office, and the judgments rendered thereunder are valid); Hovanec v. Diaz, 272 Ind. 342, 397 N.E.2d 1249, 1250 (1979) (to be de facto officer, must claim the office, be in possession and perform duties under color of election); State v. Roberts, 130 Kan. 754, 288 P. 761, 762 (1930) ("`The acts of an officer de facto are as valid and effectual where they concern the public or rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, and the legality of the acts of such an officer cannot be collaterally attacked in a proceeding to which he is not a party.'"); Martin v. Stumbo, 282 Ky. 793, 140 S.W.2d 405, 407 (1940) ("his [de facto judge's] acts ... are not void but valid and binding"); Brown v. Lunt, 37 Me. 423, 432 (1854) (noting that justice of the peace "acting with color of title, though holding over the time limited by his commission, and without legal authority" was de facto officer); Crocker v. Sears, Roebuck and Company, 346 So.2d 921, 922-23 (Miss. 1977) (acts of a de facto judge are valid, *1082 whether properly appointed or qualified or not); Brinkerhoff-Faris Trust Sav. Co. v. Gaskill, 356 Mo. 61, 201 S.W.2d 274, 276 (1947) ("... Judge Bruce was a judge de facto because as a special judge of a court of general jurisdiction he purported to act under color of the authority of a known appointment, made of record, actually exercising the judicial functions he assumed, even though there was in fact an irregularity in his appointment, and he apparently held such office as special judge with the irregularity of his appointment unknown to the public...."); State v. Kidder, 169 Neb. 181, 98 N.W.2d 800, 802 (1959) ("Where a person is appointed by the proper authority as acting county judge and thereafter performs the duties of the office and holds himself out to the public as such officer, but has failed to give the required statutory bond or take the required statutory oath of office, such person is a county judge de facto. The acts and judgment of a de facto officer are as valid and binding as though performed and rendered by an officer whose title was beyond dispute."); State v. Barnard, 67 N.H. 222, 29 A. 410, 411 (N.H.1892) (official title is not triable collaterally); Sylvia Lake Co. v. Northern Ore Company, 242 N.Y. 144, 151 N.E. 158, 159 (1926) ("Whatever may be said of his assuming to act after he became seventy years of age, he was, at least as far as third parties are concerned, a de facto justice"); In re Wingler, 231 N.C. 560, 58 S.E.2d 372, 375 (1950) ("A judge de facto may be defined as one who occupies a judicial office under some color of right, and for the time being performs its duties with public acquiescence, though having no right in fact."); Huffman v. Huffman, 2002 Ohio 6031, P44-45 (2002) (retired judge is de facto judge even though the referral pursuant to which he acted was an erroneous exercise of jurisdiction); Corporation Funding & Finance Co. v. Stoffregen, 264 Pa. 215, 219, 107 A. 727 (1919) ("The court had jurisdiction of the parties and the subject-matter and the judge was acting pursuant to a statutory authority and was at least a de facto judge, whose acts are valid without reference to the constitutionality of the statute...."); State v. Smejkal, 395 N.W.2d 588, 591-592 (S.D.1986) ("A de facto officer is one who is surrounded with the insignia of office and seems to act with authority.... Their title is not good in law, but they are in fact in the unobstructed position of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper."); Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 259 (1930) (quoting Blackburn v. State, 3 Head 690, [40 Tenn. 690 (1859)]) (where person elected judge sits beyond the term of court in which elected, official acts are not collaterally challengeable" `He may be removed from the office, and his powers terminated by the proper proceedings, but until that is done, his acts are binding.'"). See State v. Biggers, 911 S.W.2d 715, 718 (Tenn.1995) (judgment rendered by the judge who was elected to a term less than eight years as is constitutionally required was de facto judge); State v. Britton, 27 Wash.2d 336, 178 P.2d 341, 346 (1947) (rejecting the defendant's challenge to the temporary judge procedure, the court observed: "Judge Hill was in possession of the office by virtue of his appointment by the governor. He was not a mere usurper or interloper undertaking to act without any color of right. He was a de facto judge."). The de facto officer doctrine has been applied to validate acknowledgments required to be taken by a judge that were made after the expiration of the judicial term of the judge taking it, Brown v. Lunt, supra, 37 Me. at 432; to a judge sitting beyond the term in which elected, Ridout *1083 v. State, supra, 30 S.W.2d at 262-63; to a judge continuing to sit past retirement age, Sylvia Lake Co. v. Northern Ore Company, supra, 151 N.E. at 159; but see, In Re Pittman, 151 N.C.App. 112, 564 S.E.2d 899, 901 (2002) (concluding that judge who signed a court order one and one half months after her defeat in a judicial election was an usurper); the appointment of person without the proper qualifications for the position, State v. Smith, 52 Wash.App. 27, 756 P.2d 1335, 1336-37 (1988) (appointment of lay person as a judicial officer to issue search warrant when statute required an attorney); Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796, 800-01 (1978) (election of a person disqualified by reason of age to the office of judge); and, to a warrant signed by a lay magistrate prior to receiving certificate of authorization. State v. Smejkal, supra. Some of the cases have involved factual patterns quite similar to those of the case sub judice. In Hovanec v. Diaz, 272 Ind. 342, 397 N.E.2d 1249 (1979), Hovenac, a resident of Lake Station City, was re-elected as city judge in Lake Station City. While in office, however, he moved from Lake Station City to Crown Point, an adjoining township. His authority to continue as a Lake Station City judge was challenged by Diaz, who, having discovered, during an unrelated habeas corpus proceeding, that Hovanec had moved, filed a quo warranto proceeding to declare the seat vacant as of the date Hovanec moved. The Indiana court rejected the challenge. On the issue of Hovanec's status, it reasoned: "`[W]e note that Judge Hovanec has acted as a de facto officer. `All that is required to make officers de facto is that they are claiming the office and in possession of it, performing its duties and claiming under color of election. Rule, supra, 207 Ind. at 552, 194 N.E. at 153.' In Parker et al. v. State ex rel. Powell (1892) 133 Ind. 178, 200, 32 N.E. 836, 843, this Court stated: "The rule that the acts of an officer de facto, performed before ouster, are, as valid as the acts of an officer de jure, is too familiar to the profession to need the citation of authority.'" Id., 397 N.E.2d at 1250. Similarly, the judge in Crocker v. Sears, Roebuck and Company, supra, 346 So.2d 921 (Miss.1977), was alleged to reside outside the district in which he was sitting. As in Hovanec v. Diaz, the Mississippi Supreme Court, citing the de facto officer doctrine, refused to entertain a challenge to the judge's authority, pointing out: "`the acts of a de facto judge are valid, regardless of whether he was properly ... qualified or not, and we deem it unnecessary to pass upon the question as to whether the judge should have been appointed from the resident attorneys of the district.'" Id. at 922-23 (quoting Bird v. State, 154 Miss. 493, 122 So. 539, 540, (1929)). Gates v. City of Tenakee Springs, supra, 954 P.2d 1035, (Alaska, 1998) is an even more extreme case than the instant one is alleged to be. There, the judge whose judicial authority was at issue was retired and had been residing out of state for three years when he signed the order that was at the center of the challenge. Neither the fact of his retirement nor his out-of-state residence prevented the application of the de facto officer doctrine. Having initially noted that residency in Alaska was a statutory requirement for Alaska judges, the Supreme Court of Alaska opined: "But Gates is mistaken that the fact that Judge Schulz may have been a California resident entitles her to relitigate her medical emergency claims. Neither AS 22.10.090 nor any other Alaska statute *1084 or case indicates that Gates is entitled to such relief. Authority in other jurisdictions holds that an acting judge (such as Judge Schulz) who has colorable authority due to his or her appointment is a de facto officer whose acts are legally valid and binding on the public and on third persons if done within the scope and by the apparent authority of his or her office, even though the judge's actual authority suffers from a procedural defect.... "We perceive no compelling reason to deviate from the approach of these courts and to engraft the remedy Gates requests.... Requiring relitigation of matters decided by a competent, unbiased judge who, except for the matter of residency, was duly appointed is a poor use of valuable judicial and private resources.... Furthermore, the de facto judge doctrine protects third parties and the public in their dealings with the judicial system." Id. at 1038-39. (Citations omitted.). In addition to stating the de facto officer rule, the cases have emphasized the necessity of raising the issue of a defect in the officer's qualifications in the proper proceeding.[9] Many of these cases identify a quo warranto action, "a proceeding that deals mainly with the right of the incumbent officer and does not determine the rights of any adverse claimant," Hovanec v. Diaz, supra, 397 N.E.2d at 1250, as the "proper proceeding."[10]See e.g., Turner v. Evansville, 740 N.E.2d 860, 862 n. 2 (Ind. 2001) (proper way to challenge authority of an office is by filing a quo warranto action); Hovanec v. Diaz, supra, 397 N.E.2d at 1250 ("Historically, quo warranto is the proper remedy to determine the right to an office."); Brown v. Lunt, supra, 37 Me. at 430 (noting that "the trustees of a village, holding over beyond the term for *1085 which they were elected, by their own neglect, were liable to be ousted on quo warranto ..."); State v. Barnard, supra, 29 A. at 411 (colorable title may not be attacked except in appropriate action brought to establish legal title and in which the de facto officer is a party, mentioning quo warranto action); People v. Bowen, 231 Cal.App.3d 783, 789, 283 Cal. Rptr. 35, 39 (1991) ("the proper method of challenging the right of a judge to hold office is by a quo warranto proceeding"); State v. Smith, supra, 756 P.2d at 1337. See Bird v. State, 154 Miss. 493, 122 So. 539, 540 (1929) (noting that right to question a judge's entitlement to hold the office is for the state to raise in appropriate proceeding). Relative Value Studies, Inc. v. McGraw-Hill, Co., 981 P.2d 687, 688 (Colo.App.1999). At issue in Relative Value Studies, Inc. v. McGraw-Hill, Co., 981 P.2d 687 (Colo. App.1999), was the propriety of the trial judge's grant of summary judgment in a contract case, when, prior to the entry of summary judgment, the trial judge had moved his personal residence outside of the judicial district in which he had been elected, in violation of the Colorado Constitution. Id. at 688. The intermediate appellate court summarily disposed of the plaintiff's arguments that the order should be voided on that account. Acknowledging that the constitutional prescriptions were mandatory upon judges of Colorado, but relying on the Colorado Supreme Court's decision in People v. Owers, supra, 29 Colo. 535, 69 P. 515, 519 (1902), the court in Relative Value Studies noted that the proper procedure for removing a sitting judge is through a quo warranto proceeding. It explained: "In the only Colorado appellate case construing Colo. Const. art. VI, 11, the supreme court declined to remove a judge from office despite the fact that his principal residence was outside the district in which he was elected and was acting as judge. Although conceding that the constitutional residence requirement was mandatory, the supreme court there concluded, in a quo warranto action, that absent some `substantial misconduct upon his part,' the judge should not be removed from office. People v. Owers, 29 Colo. 535, 550, 69 P. 515, 519 (1902). "While that case does not directly answer the question before us, it logically dictates the result: a properly appointed judge, despite even a conceded violation of the constitutional residency requirement, does not lose his or her authority to act as judge merely because of the violation." Id. Similarly, in People v. Bowen, supra a criminal defendant learned subsequent to his trial that the judge, who presided at that trial, had violated the statutory residence requirement. He challenged the authority of the judge to act and to hold the office. The court concluded that the challenge lacked merit. Its reasoning turned, in part, on the fact that the defendant did not raise the defect in the trial judge's residency in the proper proceeding. In that regard, the court stated: "Since 1866 our courts have held the proper method of challenging the right of a judge to hold office is by a quo warranto proceeding. In People v. Sassovich (1866) 29 Cal. 480, a murder case in which the death penalty was imposed, on appeal the defendant challenged his trial proceedings as void because the court in which he was tried was unconstitutionally created by the Legislature and the governor lacked the constitutional power to appoint the judge who presided over defendant's trial and conviction. After finding the court was constitutionally *1086 created, the court rejected the second contention, holding: `The person who filled the office of Judge at the time this case was tried was appointed and commissioned by the Governor under and in pursuance of the provisions of the Act in question. He entered therefore under color of right and title to the office, and became Judge de facto if not de jure, and his title to the office cannot be questioned in this collateral mode. His title can only be questioned in an action brought directly for that purpose...." A contrary doctrine, for obvious reasons, would lead to most pernicious results." (29 Cal. at 485.). As between defendant and the People in this proceeding, the issue is collateral. Bowen, 231 Cal.App.3d at 789, 283 Cal. Rptr. at 39. In the case sub judice, there is no contention that Judge Whitfill was a usurper or took office pursuant to a fraudulent or invalid appointment or election. Indeed, it is conceded that, when Judge Whitfill was appointed and subsequently elected, he was, for all purposes, a duly qualified judge, a de jure judge, of the Circuit Court for Harford County. Assuming, arguendo that during his term as judge, Judge Whitfill changed his residence from Harford County to Baltimore County and maintained that residence outside Harford County for a period of time, it is clear that, during all of that period, he continued to occupy the office of Circuit Court Judge in Harford County, discharging throughout the period, and for all times thereafter, the duties of the office. And he did so openly and notoriously. Nor was or has, Judge Whitfill been removed pursuant to any constitutional, statutory or common law remedy. The appellant has not cited any cases, and we have not discovered any, that support the petitioner's argument that Judge Whitfill lost his judicial authority by operation of law upon his change of residence. It follows that even if, by virtue of a change of residence, Judge Whitfill ceased to be a de jure judge, he was, until his retirement,[11] at the very least a de facto judge for the period relevant to this case. As such, his actions "are as valid and effectual where they concern the public or rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure ..." State v. Roberts, supra, 288 P. at 762. To be sure, this applies to the petitioner, who is a third person in the case at hand. Furthermore, the legality of the acts of a de facto judge, or that judge's entitlement to the office, may not be collaterally attacked in a proceeding to which the de facto judge is not a party. Id. In this case, we have seen, the petitioner moved to quash or strike both an illegal sentence and the warrant of execution. This is a collateral attack on the petitioner's sentence. It is not a proceeding brought directly to question whether Judge Whitfill was validly holding the office of judge of the Circuit Court for Harford County when he sentenced the petitioner and signed the Warrant of Execution. JUDGMENT AFFIRMED, WITH COSTS.... NOTES [1] The facts supporting the petitioner's conviction for first degree murder were recounted most recently by this Court in Baker v. State, 367 Md. 648, 790 A.2d 629 (2002) ("Baker II") and, previously, in Baker v. State, 332 Md. 542, 632 A.2d 783 (1993) ("Baker I"). They reveal that this court affirmed the petitioner's conviction and death sentence on November 12, 1993, Baker I, supra, 332 Md. at 546-71, 632 A.2d at 784, and his Petition for Writ of Certiorari was denied by the United States Supreme Court. See Baker v. Maryland, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). Subsequently, the petitioner has sought post conviction relief, albeit unsuccessfully. After the Supreme Court denied certiorari, he filed a Petition for Post Conviction Relief in the Circuit Court for Harford County. The court rejected his allegations of various violations of his constitutional right to a fair and impartial jury and effective assistance of trial counsel and denied his petition.
Thereafter, the petitioner filed a Motion to Reopen the Post Conviction Proceeding. The Circuit Court denied that petition. The petitioner then filed in the United States District Court for the District of Maryland, a petition for habeas corpus relief. That court's denial of the habeas corpus relief was affirmed by the United States Court of Appeals for the Fourth Circuit, Baker v. Corcoran, 220 F.3d 276 (4th Cir.2000), and the United States Supreme Court declined further review. Baker v. Corcoran, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 110 (2001). Once again, the petitioner sought post conviction relief in the Circuit Court for Harford County, filing two new motions: a Motion for New Sentencing based on newly discovered evidence and a Motion to Correct Illegal Sentence and/or for New Sentencing Based Upon Mistake and Irregularity in the Circuit Court for Harford County. The court, Judge Whitfill presiding, denied both motions, prompting the petitioner to note an appeal to this Court. Baker II, supra, 367 Md. at 663-64, 790 A.2d at 638-39. We affirmed the judgments of the Circuit Court, id. at 698, 790 A.2d at 659, and denied the petitioner's motion for reconsideration. After Judge Whitfill signed the warrant of execution, the petitioner asked this Court to stay his execution, pending the filing of a writ of certiorari and application for stay of execution with the United States Supreme Court to challenge our decision affirming the Circuit Court's denial of post-conviction relief. We declined to do so. His subsequently filed petition for writ of certiorari and application for stay of execution was denied by the United States Supreme Court. See Baker v. Maryland, 535 U.S. 1050, 122 S.Ct. 1814, 152 L.Ed.2d 817 (2002). The Circuit Court declined the petitioner's invitation to reopen his state post conviction proceedings. The petitioner earlier had filed a motion to reopen post conviction proceedings, claiming racial discrimination in sentencing. Citing the same reasoning, he also moved this Court to recall its mandate from the petitioner's direct appeal. We denied the motion. By order dated May 9, 2002, the Court denied the petitioner's application for leave to appeal the decision denying his second motion to reopen post conviction proceedings and the accompanying motion to stay warrant of execution. [2] The petitioner elected to have Judge Whitfill, rather than the jury, decide the sentencing phase of his capital case. [3] On March 19, 2002 the petitioner filed three motions in the Circuit Court for Harford County styled: Defendant's Emergency Motion to Quash/Strike Both Illegal Sentence and Warrant of Execution for Lack of Jurisdiction by the Trial Judge and Judicial Authority Pursuant to Maryland Rule 4-345, Memorandum, Exhibits, Requests an Emergency Hearing and Other Relief; Defendant's Emergency Motion to Stay Warrant of Execution Pending a Hearing on the Defendant's Motion for Illegal Sentence, Quashing Warrant, Recusal, Other Relief and Exhibits as the Defendant's Execution is Imminent Commencing the Week of May 13, 2002; and Defendant's Emergency Motion for Recusal of Judge Cypert O. Whitfill and Fellow Judges, Both Active and Retired from the Circuit Court and District Courts of Harford County, Maryland from Participating in Any Further Proceedings as the Presiding Judge Relating to the Defendant, Wesley Baker, Exhibit Index and Request for Hearing. [4] Article IV, Section 2 of the Maryland Constitution provides:
"The Judges of all of the said Courts shall be citizens of the State of Maryland, and qualified voters under this Constitution, and shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, in the city, county, district, judicial circuit, intermediate appellate judicial circuit or appellate judicial circuit for which they may be, respectively, elected or appointed. They shall be not less than thirty years of age at the time of their election or appointment, and shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge." The constitutional provision refers to the Judicial circuit to which a judge may be elected or appointed. We do not decide whether, after appointment or election, residence by the judge in the judicial circuit, as opposed to the County, in which the court to which he or she was appointed, would be in compliance with the constitutional requirement. [5] Maryland Code (1973, 2002 Repl.Vol.) § 12-307 of the Court and Judicial Proceedings Article provides:
"The Court of Appeals has: "(1) Jurisdiction to review a case or proceeding pending in or decided by the Court of Special Appeals in accordance with Subtitle 2 of this title; "(2) Jurisdiction to review a case or proceeding decided by a circuit court in accordance with § 12-305 of this subtitle "(3) Exclusive appellate jurisdiction with respect to a question of law certified to it under the Uniform Certification of Questions of Law Act; and "(4) Exclusive appellate jurisdiction over a criminal case in which the death penalty is imposed and any appellate proceedings under § 3-904 of the Correctional Services Article." [6] Maryland Rule 8-132 provides:
"Transfer of Appeal Improperly Taken If the Court of Appeals or the Court of Special Appeals determines that an appellant has improperly noted an appeal to it but may be entitled to appeal to another court exercising appellate jurisdiction, the Court shall not dismiss the appeal but shall instead transfer the action to the court apparently having jurisdiction upon the payment of costs provided in the order transferring the action." [7] Section 17 of Article 3 of the Constitution of Maryland provides: "No Senator or Delegate, after qualifying as such, notwithstanding he may thereafter resign, shall during the whole period of time for which he was elected, be eligible to any office, which shall have been created, or the salary, or profits of which shall have been increased, during such term." [8] The resolution of the issue in Kimble v. Bender, 173 Md. 608, 196 A. 409 (1938) required the Court to review a number of statutes and statutory provisions, which the Court determined to be "defective on constitutional grounds." Id. at 623, 196 A. at 416. Recognizing, therefore, "that throughout an extended period, immediately preceding the statute [at issue in the case], a number of justices of the peace discharged the duties of that office in Allegany County under purporting statutory authority which failed on constitutional grounds to authorize the appointments," id., the Court looked at the effect of these unconstitutional statutes on the acts of those appointed pursuant to them. It concluded:
"Thus it happened that, throughout the entire period mentioned, the constitutional office of justice of the peace subsisted, but appointments of justices to fill the position were made under the wrong statutes. The unconstitutional statutes, however, were accepted by the public authorities as valid.The various governors of the State during this period, by and with the advice of the Senate, appointed, pursuant to the terms of the unconstitutional terms of the laws, the number of justices of the peace specified, from time to time, and sent them their commissions, whereupon the several justices of the peace so selected and commissioned qualified in the usual manner and took the oath prescribed, and entered upon and discharged the duties and office of justice of the peace for Allegany County according to the tenor of the statutes currently assumed to be in force. The judgments thus rendered are not subject to collateral attack, and their validity may be sustained upon the theory that the justices so appointed were de facto justices. Supra." Id. at 623-24, 196 A. at 416. Acknowledging the conflict with the position taken by the United States Supreme Court in Norton v. Shelby County, supra, the Court adopted the rule that, "although there is no de jure office, because the statute which provides for it is unconstitutional, there may be a de facto officer until the unconstitutionality of the act has been judicially determined." Id. at 625, 196 A. at 417. The distinction this court discerned was that, in Norton," the unconstitutional act proposed to create an office which had not theretofore formed a part of the governmental scheme and was an anomaly in the administrative system of county affairs in the State of Tennessee," id., while, in Maryland, the office of justice of the peace is constitutional, of ancient origin and customary usage, predating the passage of the various statutes determined to be unconstitutional. Id. at 626, 196 A. at 417. [9] Although it recognizes the de facto officer doctrine in the context of judicial decision-making, New Jersey applies a somewhat different analysis in such cases, requiring that the issue of the judge's authority to act be raised by the party challenging it in the court in which the judge whose authority is being challenged presided. See State v. Pillo, 15 N.J. 99, 104 A.2d 50, (1954); State v. Sagarese, 34 N.J.Super. 126, 111 A.2d 777, 779 (1955). But see State v. Town of Dover, 62 N.J.L. 138, 41 A. 98, 98-99 (1898), where the court said:
"No private citizen can challenge the legal existence of organized municipal government. It can be successfully assailed only by the attorney-general. Until he intervenes to controvert its authority, and until he institutes proceedings by which it is overturned and suppressed, it is de facto, and the public functions with which it is charged, within the scope of its apparent powers, may be lawfully exercised by its officials as de facto officers. "In our judgment, such a government must prevail and be respected until the attorney-general intervenes by quo warranto and, through judicial action, secures the actual ouster and removal of the incumbents in office." [10] Whether, in this State, quo warranto is an appropriate proceeding is far from clear. In Hawkins v. State of Maryland, 81 Md. 306, 311, 32 A. 278, 279 (1895), this Court, holding that the State's Attorney had no legal authority to institute quo warranto proceedings seeking to oust a county commissioner from office, suggested that the remedy was available only with legislative authorization: "And the fact that special provision was made by the Act of 1856, ch. 16 (Code Art. 69, sections 4 and 5), although apparently never availed of for proceeding by quo warranto, for the purpose of ousting defaulters from office, would seem to indicate that the power to institute such proceedings against persons holding office without authority of law did not exist, or at least was not supposed to exist outside of and independent of the statute." See also Harwood v. Marshall, 9 Md. 83, 106 (1856) (holding mandamus to be appropriate remedy for a party who claims title to an office, and asks for the removal of the occupant and rejecting the argument that quo warranto was another legal remedy). [11] Since retirement, Judge Whitfill has been certified by this Court for recall to sit, by special designation, in the Third Circuit, which consists of the Circuit Court for Harford County and the Circuit Court for Baltimore County. | 10-30-2013 | [
"833 A.2d 1070 (2003) 377 Md. 567 Wesley Eugene BAKER v. STATE of Maryland. No. 109, Sept. Term, 2002. Court of Appeals of Maryland. October 17, 2003. *1071 Stuart Jay Robinson, Bel Air, for appellant. Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., on brief), for appellee. Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. BELL, C.J. The issue in this case is whether, pursuant to a collateral attack, we should vacate as illegal, the sentence of a judge, who was appointed pursuant to the Maryland Constitution and duly elected to the Circuit Court for Harford County, but who may have lived outside of Harford County for a period of time during his term, in contravention to the residency requirements for state judges enumerated in the Maryland Constitution.",
"The Circuit Court for Harford County denied the petitioner's motions attacking the of the Circuit Court judge in this case. We shall affirm. I. Neither the facts underlying the petitioner's conviction, nor the procedural history of the case is relevant to the disposition of the case sub judice, except to the extent that they elucidate the timing and measure of the involvement of the particular judge whose judicial acts are at issue in this case. [1] This issue at bar arose following the petitioner's murder trial.",
"*1072 After a jury convicted the petitioner, Wesley Eugene Baker, Harford County Circuit Court Judge, Cypert O. Whitfill, sentenced him to death. [2] Following an unsuccessful direct appeal and unsuccessful collateral attacks on the judgment, Judge Whitfill signed a warrant of execution directing that the petitioner be executed during the week of May 13, 2002. Subsequently, the petitioner filed motions in the Circuit Court for Harford County to quash Judge Whitfill's sentence and execution warrant. He alleged that the warrants had been issued without jurisdiction. [3] More particularly, he maintained that Judge Whitfill was not constitutionally qualified to preside at the petitioner's trial for first degree murder, or to sign the warrant for the petitioner's execution because, although appointed to the Harford County bench pursuant to the Maryland Constitution and duly elected by the voters of that county, Judge Whitfill lost his jurisdiction to preside over cases in Harford County when he changed his actual residence from Harford County to Baltimore County for some period during his term. Specifically, the petitioner alleged that, at some point prior to the petitioner's trial, *1073 Judge Whitfill ceased to meet the residency requirements imposed upon State judges by Article IV, Section 2 of the Maryland Constitution.",
"[4] Thus, the petitioner maintained, the sentence Judge Whitfill imposed on him was \"illegal,\" at the time of its imposition. Although the petitioner conceded that Judge Whitfill's alleged change in residence occurred prior to his trial and conviction, he argued nevertheless that the change \"divested [Judge Whitfill] of the judicial power and authority to preside over the Sentencing Hearing on October 26, 1992.\" The matter was assigned to the Honorable John G. Turnbull, II, of the Circuit Court for Baltimore County, who denied the petitioner's motions without a hearing.",
"The petitioner noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, the case was transferred to this Court, pursuant to Md.Code (1973, 2002 Repl.Vol.) § 12-307 of the Courts and Judicial Proceedings Article[5] and Maryland Rule 8-132. [6] In this Court, the petitioner maintains that although Judge Whitfill was a resident of Harford County during his trial, his sentencing and all times thereafter, Judge Whitfill's earlier change of residence from Harford County to Baltimore County divested him of his judicial authority immediately upon its occurrence and by operation of law. The petitioner insists that the Judge's judicial authority could not be regained by simply reestablishing a residence in Harford County.",
"In support of his position, the petitioner relies upon this Court's precedents regarding challenges to the constitutional residency requirements *1074 of non-judicial elected officials. See generally, Oglesby v. Williams, 372 Md. 360, 812 A.2d 1061 (2002); Stevenson v. Steele, 352 Md. 60, 720 A.2d 1176 (1998); Blount v.Boston, 351 Md. 360, 718 A.2d 1111 (1998); Bainum v. Kalen, 272 Md. 490, 325 A.2d 392 (1974). The respondent rejoins that there is no support for the petitioner's argument, and that the fact that Judge Whitfill may have, temporarily maintained a residence in Baltimore County, rather than Harford County, did not evince any intent to abandon his Harford County domicile. The respondent also relies on the \"de facto officer\" doctrine. Directing our attention to Nguyen v. U.S., ___ U.S. ___, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003), then under review, and, subsequently decided by the United States Supreme Court, the State argues that, under the de facto officer doctrine, the acts of public officials acting under color of title are presumed to be valid even if it is later discovered that there are deficiencies in the official's appointment or election to office. Thus, the State asserts that a defect in Judge Whitfill's judicial authority may not be challenged in post-conviction proceedings. Consequently, the State maintains that the petitioner has missed his opportunity to challenge the alleged defect.",
"II. Neither party disputes that Judge Whitfill was qualified for, and duly elected to the office of judge of the Circuit Court for Harford County when he presided and imposed sentence in the petitioner's case. Therefore, the only question before this Court concerns how a fully qualified and validly elected judge may be removed from office, or be found to have vacated the office. Accordingly, we must decide whether Judge Whitfill's exercise of judicial authority may be collaterally attacked in a post-conviction proceeding. The Maryland Constitution vests \"[t]he judicial power of this State in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans' Courts, and a District Court.\"",
"See Article IV, Section 1 of the Maryland Constitution. Article IV also delineates the constitutional qualifications of judges. See Article IV, Section 2 of the Maryland Constitution, note 4 supra. Moreover, the Constitution addresses the grounds and procedures for removal of judges. Article 33 of the Maryland Declaration of Rights of the Maryland Constitution expressly proscribes the removal of judges \"except in the manner, and for the causes provided in this Constitution.\" Article IV, Section 4 enumerates the grounds and procedures for said removal, providing: Section 4. Grounds and procedure for removal of judges \"Any Judge shall be removed from office by the Governor, on conviction in a Court of Law, of incompetency, of wilful neglect of duty, misbehavior in office, or any other crime, or on impeachment, according to this Constitution, or the Laws of the State; or on the address of the General Assembly, two-thirds of each House concurring in such address, and the accused having been notified of the charges against him, and having had opportunity of making his defence.\" Section 5 of the same article states, in relevant part, that a Circuit Court judge \"shall hold the [office of Circuit Court judge] until the election and qualification of his successor.\" Md.",
"Const., Art. 4, § 5. Significantly, there is no constitutional provision that provides that the judges of this State may be divested of judicial authority by operation of law or that permits collateral attack on the authority of a *1075 judge based solely on that judge's change of residence. As early as 1886, the United States Supreme Court recognized that the acts of public officials acting under color of title are presumed to be valid, even though it is later discovered that the legality of that person's appointment or election to office is deficient.",
"Norton v. Shelby County, 118 U.S. 425, 441-42, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, 186 (1886). As the Court explained: \"[t]he doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question.\" Id.",
"The Court also recognized, however, that the doctrine was not absolute, pointing out that \"the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an `officer' who holds no office, and a public office can exist only by force of law.\" Id. In Norton, the dispositive issue was whether the statutorily created Tennessee Board of Commissioners had the legal authority to issue bonds to finance a county subscription to the Mississippi River Railroad Company. Prior to the passage of the act empowering county commissioners to issue the bonds, that authority resided with the county court and the justices of the peace.",
"The Supreme Court of Tennessee held that the act creating the Board of Commissioners and conferring on the commissioners the powers of the justices of the peace was unconstitutional and void. The United States Supreme Court affirmed, holding that the commissioners could not appropriately carry out actions that were exclusively constitutionally reserved for justices of the peace. To that end, the Court reasoned: \"[F]or the existence of a de facto officer, there must be an office de jure.... Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby County who undertook to act as the county court, which could be constitutionally held only by justices of the peace. Their right to discharge the duties of justices of the peace was never recognized by the justices, but from the outset was resisted by legal proceedings, which terminated in an adjudication that they were usurpers, clothed with no authority or official function.\" Id.",
"at 449, 6 S.Ct. at 1129, 30 L.Ed. at 188. The Supreme Court applied the de facto officer doctrine it had enunciated in Norton, in Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891). The issue in that case was whether the official acts of a de facto judge can be collaterally attacked. In Ball, a federal district judge from the Western District of Louisiana was assigned to sit in the Eastern District of Texas for the resident judge, who had fallen ill and subsequently died. The circuit judge who appointed him duly filed with the court clerk the appointment certificate *1076 required by law, which enumerated that the federal District Judge would serve for the then-current November 1888 term and the pending 1889 terms. Id.",
"at 127,11 S.Ct. at 764, 35 L.Ed. at 381-82. After the 1888 and 1889 terms expired, however, the replacement judge continued to sit in the Eastern District of Texas without official written authority. Three defendants convicted of murder and sentenced to death after trials in the Eastern District of Texas challenged the authority of the judge, contending that he had not been officially appointed. The Supreme Court rejected the challenge. The Court determined, as to the term for which there was no new appointment filed, that the assigned judge \"was a judge de facto, if not de jure, and his acts as such are not open to collateral attack.\" 140 U.S. at 128-129, 11 S.Ct.",
"at 765, 35 L.Ed. at 382. Similarly, in McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895), the de facto officer doctrine was applied to resolve the issue of whether \"the power of a Circuit Judge or Justice to call one District Judge from his own into another district ... extend[s] to cases in which there is a vacancy in the office of judge of the latter district.\" Id. at 598, 16 S.Ct. at 111, 40 L.Ed. at 272. In that case, a district judge from another district in the Fourth Circuit was temporarily assigned to fill a vacancy in the United States District Court for the District of South Carolina until the vacancy was permanently filled.",
"The Court determined that the assignment of the one district judge to sit in another district involved no \"trespass upon the executive power of appointment,\" id. at 598, 16 S.Ct. at 112, 40 L.Ed. at 272, and, in any event, the assigned judge was a \"judge de facto,\" whose \"actions as such, so far as they affect third persons, are not open to question.\" Id. at 601, 16 S.Ct. at 112, 40 L. Ed at 272.",
"The Court elucidated: The time and place of a regular term of the District Court were fixed by law at Greenville, on the first Monday of February. Judge Seymour was a judge of the United States District Court, having all the powers attached to such office. He appeared at the time and place fixed by law for the regular term, and actually held that term. The Circuit Judge had, generally speaking, the power of designating the judge of some other district to do the work of the District Judge in this district. The order of designation was regular in form, and there was nothing on its face to suggest that there was any vacancy in the office of District Judge for the District of South Carolina.",
"Any defect in the order, if defect there was, is shown only by matters dehors the record. While this may not be conclusive, it strongly sustains the contention of the government that Judge Seymour was, while holding that term, at least a judge de facto. Whatever doubt there may be as to the power of designation attaching in this particular emergency, the fact is that Judge Seymour was acting by virtue of an appointment, regular on its face, and the rule is well settled that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public.",
"Of course, if he was judge de facto his orders or the continuance of the term from day to day until February 12, when the regular judge took his place upon the bench, were orders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. Id. at 601-602, 16 S.Ct. at 113, 40 L.Ed. at 273-74. Along the same lines, in Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 *1077 (1899), a petitioner sought habeas corpus relief, challenging the authority of the judge that sentenced him on the grounds that the judge's appointment during a Senate recess was improper. The Court denied relief, holding that \"the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked.\" Id. 173 U.S. at 456, 19 S.Ct. at 460, 43 L.Ed.",
"at 766. The Court declined to address the petitioner's constitutional arguments on the \"well settled rule ... that where a court has jurisdiction of an offence, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.\" Id. at 454, 19 S.Ct. at 460, 43 L.Ed. at 766. On the other hand, when the authority of the public official is raised before the official acts or on direct review, the Supreme Court has reached a different conclusion. Ryder v. United States, 515 U.S. 177, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995).",
"Thus, in Ryder, where the defendant challenged, while his case was pending, the assignment of two civilian judges to his three-judge Coast Guard Court Military Review panel, the Court rejected the application of the de facto officer doctrine and entertained the challenge. Acknowledging the Court's reliance upon the doctrine \"in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceeding leading to their conviction and sentence,\" id. at 181, 115 S.Ct. at 2034, 132 L.Ed.2d at 142, the Court determined that the doctrine was inapplicable because the defendant promptly objected to the composition of the Coast Guard Court of Military Review.",
"Id. at 182, 115 S.Ct. at 2035, 132 L.Ed.2d at 143. Unlike the defendants in Ball, McDowell and Ward, the Court explained, Ryder directly challenged the composition of the three judge panel while his case was pending before that very court. Id. The Court then agreed with Ryder that the composition of the three-judge panel violated the Appointment Clause of Article II of the United States Constitution. Id. at 187-88, 115 S.Ct. at 2038, 132 L.Ed.2d at 146-47. Most recently, the Supreme Court has stated that it will not apply the de facto officer doctrine when the error results not from an irregularity in an otherwise proper judicial designation, but from one that is statutorily impermissible. Nguyen v. United States, ___ U.S. ____, ___, 123 S.Ct. 2130, 2131, 156 L.Ed.2d 64, 72 (2003). Nguyen was an appeal from convictions for federal narcotic offenses. The petitioners in that case objected to the assignment of an Article IV territorial court judge to their Court of Appeals panel; however, unlike the petitioner in Ryder, the petitioners in Nguyen did not object to the composition of the panel while their case was pending in the Court of Appeals, but raised the issue in their Petitions for Certiorari filed with the Supreme Court. The Government argued that the de facto officer doctrine applied and, therefore, the convictions should be upheld.",
"The Supreme Court disagreed. Vacating the judgments of conviction, the Court acknowledged that \"[t]ypically [it had] found a judge's actions to be valid de facto when there is a merely `technical' defect of statutory authority,\" id., at ___, 123 S.Ct. at 2136, 156 L.Ed.2d at 76, quoting Glidden Co. v. Zdanok, 370 U.S. 530, 535, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), but contrasted that general proposition with its determination \"to correct, at least on direct review, violations of a statutory provision *1078 that embodies a strong policy concerning the proper administration of judicial business' even though the defect was not raised in a timely manner.\" Id., (quoting Glidden, supra, 370 U.S. at 536, 82 S.Ct.",
"at 1459, 8 L.Ed.2d at 671). The Court explained: \"In American Constr. Co. v. Jacksonville, T & K W R Co., 148 U.S. 372, 13 S.Ct. 758, 37 L.Ed. 486 (1893), the case Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appeal. This Court succinctly observed: `If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari.'",
"Id., at 387, 13 S.Ct. 758, 37 L.Ed. 486. The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U.S. 645, 33 S.Ct. 722, 57 L.Ed. 1003 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650, 33 S.Ct. 722. Rather than sift through the underlying merits, we remanded the case to the Circuit Court of Appeals `so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute.' Id., at 651, 33 S.Ct.",
"722, 57 L.Ed. 1003. See also Moran v. Dillingham, 174 U.S. 153, 158, 19 S.Ct. 620, 43 L.Ed. 930 (1899) (`This court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges....').\" Nguyen, ___ U.S. at ___, 123 S.Ct. at 2136, 156 L.Ed.2d at 76-77. The Court drew a distinction between its decisions in McDowell and Ball and its decision in Nguyen reasoning that, in McDowell and Ball, the judges were constitutionally qualified to preside over the involved proceedings and the error in those cases were \"technical\" in nature.",
"Id. at 2137, 156 L.Ed.2d at 77. By contrast, the Court reasoned that because Congress did not contemplate the assigning of an Article IV judge to an Article III Appellate Panel, the inclusion of the Article IV judge in Nguyen was inherently improper and thus, the panel lacked jurisdiction to decide that appellant's appeal. To that end, the Court stated that \"[t]he difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore a difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all.\" Id.",
"This Court has also applied the de facto officer doctrine in connection with judicial and other government officials. In Izer v. State, 77 Md. 110, 26 A. 282 (1893), at issue was the validity of the oath administered to the accused by the deputy clerk of the Allegany County Circuit Court. Particularly, the petitioner alleged that the clerk had neither been reappointed to the office, nor administered a new oath of office. Upholding the validity of the oath the clerk administered, we explained: \"Of course, if Izer was never legally sworn to give testimony before the grand jury, no false statement made by *1079 him before that body could constitute indictable perjury; and if Williamson had no authority to administer to Izer the oath he did administer, Izer was not legally sworn. But Wlliamson was then in the undisputed possession of the office of deputy clerk and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de facto officer, filling a de jure office, and whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts, done under color of title, are, upon grounds of public policy and necessity, valid and binding.\"",
"Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178. Or, as was said in Carleton v. The People, 10 Mich. 250: \"All that is required when there is an office, to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact.\" See also, State v. Carroll, 38 Conn. 449; Clark v. Commonwealth, 29 Pa. 129; Sheehan's Case, 122 Mass. 445; State v. Speaks, 95 N.C. 689.\" Id.",
"77 Md. at 115, 26 A. at 283-84. In 1938, this Court was asked to determine whether a writ of mandamus commanding a justice of the peace to vacate his office should issue. Kimble v. Bender, 173 Md. 608, 196 A. 409 (1938). We concluded that, pursuant to Article 3, Section 17 of the Maryland Constitution,[7] Kimble was ineligible for appointment to the office of justice of the peace because he had been a member of the State Senate when the legislation creating the office was enacted. Accordingly, this Court affirmed the trial court's issuance of the writ. Id. at 622, 196 A. at 415.",
"Nevertheless, the Court addressed the validity of Kimble's official actions while acting as a justice of the peace: \"The appointment of an ineligible person is a nullity, except that the official acts of such a person are regarded as the acts of an officer de facto. So the official acts of the ineligible respondent, who has acted as a justice of the peace at large under a valid act but under an invalid appointment, are the acts of a de facto officer, whose official acts, if otherwise lawful, and until the respondent's title is adjudged insufficient, are as valid and effectual, where they concern the public or the rights of third persons, as though he were an officer de jure. State v. Fahey, 108 Md. 533, 538, 539, 70 A. 218[, 220 (1908) ]; Koontz v. Burgess ad Commrs. of Hancock, 64 Md.",
"134, 136, 20 A. 1039 [ (1885) ]; Izer v. State, 77 Md. 110, 115, 26 A. 282[, 283 (1893)]; Claude v. Wayson, 118 Md. 477, 84 A. 562. [ (1912) ].\" Id. at 622-23, 196 A. at 415-16. [8]See also, Hendershott v. Young, 209 Md. 257, 260-61, *1080 120 A.2d 915, 916-17 (1956), in which this Court observed: \"Open to very serious doubt is whether petitioner could challenge by habeas corpus the authority of the justice of the peace to act since he acted under color of title to a constitutional office and no court had declared that he was not legally able to do so, under the provisions of Chap. 321, § 5 of the Acts of 1927, codified as § 598 of the Code of Public Laws of Montgomery County (Flack, 1947), or otherwise. There are many decisions by able courts, holding that habeas corpus will not issue to challenge the effect or results of the action of a de facto judicial officer, including a justice of the peace. It may well be that the committing magistrate, who acted in the case before us, if not a de jure officeras to which we express no opinionwas, at least, a de facto officer.",
"Constitution of Maryland, Art. 4, § 42.\" Id. See also Quenstedt v. Wilson, 173 Md. 11, 14-21, 194 A. 354, 355-59 (1937) (habeas corpus relief proper where \"police justice\" was validly appointed, but the new court created by the Legislature was unconstitutional). In Ralph v. Brough, 248 F.Supp. 334 (D.Md.1965), the United States District Court for the District of Maryland recognized the de facto officer doctrine in the context of a Maryland Death penalty case. There, the petitioner, Ralph challenged the authority of his trial court on the basis that the jurors and judges had been required to declare a belief in God when they took their required oaths in contravention of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), and State v. Madison, 240 Md. 265, 213 A.2d 880 (1965). Following Smith v. Brough, 248 F.Supp.",
"435 (D.Md. 1965), the court held that refusal to apply Schowgurow and Madison \"retroactively, except for convictions which had not become final before the rendition of the *1081 Schowgurow opinion, did not violate any provision of the Fourteenth Amendment or any other provision of the Federal Constitution,\" id. at 335, and that the judges were de jure judges. Id. at 336. The court went on to say that even if the oath raised questions as to the judges' qualifications, the judges were nonetheless de facto judges. \"Even if they were not de jure judges, they met all the tests of de facto judges. The general rule with respect to the validity of the official acts of de facto judges is set out in 30A Am.Jur., Judges, § 234, as follows: `It is the general rule that acts performed by a de facto judge are not invalid. A judge de facto is, to all intents and purposes, a judge de jure as to all persons except the state.",
"Thus, the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned, and their validity may not be collaterally attacked.' In McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 112, 40 L.Ed. 271 (1895), the Supreme Court stated: `Judge Seymour must be held to have been a judge de facto, if not a judge de jure, and his actions as such, so far as they affect third persons, are not open to question.'\" Id. at 336. (Some citations omitted). Courts in other States that have addressed the issue have reached similar results.",
"See e.g., Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038-1039 (Alaska 1998) (de facto doctrine applies even when judge no longer a resident of State, a statutory requirement for Alaska judges); People v. Owers, 29 Colo. 535, 69 P. 515, 519 (1902) (although residency requirement is mandatory, judge should be removed from office only upon \"substantial misconduct on his part\"); State v. Carroll, 38 Conn. 449, 455 (1871) (where judge lawfully appointed becomes unqualified, \"the defect, if it be one, is a defect of qualification in the officer, by reason of an omission of his, or of the clerk, and is not of a character to prevent his acts from being valid as the acts of an officer de facto, whether the law under which he was called in was constitutional or not. \"); State v. Whelan, 103 Idaho 651, 651 P.2d 916, 920 (1982) (\"A de facto officer performs his duties under color of right of an actual officer qualified in law so to act, both being distinguished from the mere usurper who has neither lawful title nor color of right. \"); Cleary v. Chicago Title and Trust Company, 4 Ill.2d 57, 122 N.E.2d 227, 228 (1954) cert. denied 348 U.S. 972, 75 S.Ct.",
"534, 99 L.Ed. 757 (1955) (appointment of appellate court judges may not be attacked in collateral proceeding; appointment confers a color of office, and the judgments rendered thereunder are valid); Hovanec v. Diaz, 272 Ind. 342, 397 N.E.2d 1249, 1250 (1979) (to be de facto officer, must claim the office, be in possession and perform duties under color of election); State v. Roberts, 130 Kan. 754, 288 P. 761, 762 (1930) (\"`The acts of an officer de facto are as valid and effectual where they concern the public or rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, and the legality of the acts of such an officer cannot be collaterally attacked in a proceeding to which he is not a party. '\"); Martin v. Stumbo, 282 Ky. 793, 140 S.W.2d 405, 407 (1940) (\"his [de facto judge's] acts ... are not void but valid and binding\"); Brown v. Lunt, 37 Me. 423, 432 (1854) (noting that justice of the peace \"acting with color of title, though holding over the time limited by his commission, and without legal authority\" was de facto officer); Crocker v. Sears, Roebuck and Company, 346 So.2d 921, 922-23 (Miss. 1977) (acts of a de facto judge are valid, *1082 whether properly appointed or qualified or not); Brinkerhoff-Faris Trust Sav.",
"Co. v. Gaskill, 356 Mo. 61, 201 S.W.2d 274, 276 (1947) (\"... Judge Bruce was a judge de facto because as a special judge of a court of general jurisdiction he purported to act under color of the authority of a known appointment, made of record, actually exercising the judicial functions he assumed, even though there was in fact an irregularity in his appointment, and he apparently held such office as special judge with the irregularity of his appointment unknown to the public....\"); State v. Kidder, 169 Neb. 181, 98 N.W.2d 800, 802 (1959) (\"Where a person is appointed by the proper authority as acting county judge and thereafter performs the duties of the office and holds himself out to the public as such officer, but has failed to give the required statutory bond or take the required statutory oath of office, such person is a county judge de facto.",
"The acts and judgment of a de facto officer are as valid and binding as though performed and rendered by an officer whose title was beyond dispute. \"); State v. Barnard, 67 N.H. 222, 29 A. 410, 411 (N.H.1892) (official title is not triable collaterally); Sylvia Lake Co. v. Northern Ore Company, 242 N.Y. 144, 151 N.E. 158, 159 (1926) (\"Whatever may be said of his assuming to act after he became seventy years of age, he was, at least as far as third parties are concerned, a de facto justice\"); In re Wingler, 231 N.C. 560, 58 S.E.2d 372, 375 (1950) (\"A judge de facto may be defined as one who occupies a judicial office under some color of right, and for the time being performs its duties with public acquiescence, though having no right in fact. \"); Huffman v. Huffman, 2002 Ohio 6031, P44-45 (2002) (retired judge is de facto judge even though the referral pursuant to which he acted was an erroneous exercise of jurisdiction); Corporation Funding & Finance Co. v. Stoffregen, 264 Pa. 215, 219, 107 A. 727 (1919) (\"The court had jurisdiction of the parties and the subject-matter and the judge was acting pursuant to a statutory authority and was at least a de facto judge, whose acts are valid without reference to the constitutionality of the statute....\"); State v. Smejkal, 395 N.W.2d 588, 591-592 (S.D.1986) (\"A de facto officer is one who is surrounded with the insignia of office and seems to act with authority.... Their title is not good in law, but they are in fact in the unobstructed position of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper.",
"\"); Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 259 (1930) (quoting Blackburn v. State, 3 Head 690, [40 Tenn. 690 (1859)]) (where person elected judge sits beyond the term of court in which elected, official acts are not collaterally challengeable\" `He may be removed from the office, and his powers terminated by the proper proceedings, but until that is done, his acts are binding.'\"). See State v. Biggers, 911 S.W.2d 715, 718 (Tenn.1995) (judgment rendered by the judge who was elected to a term less than eight years as is constitutionally required was de facto judge); State v. Britton, 27 Wash.2d 336, 178 P.2d 341, 346 (1947) (rejecting the defendant's challenge to the temporary judge procedure, the court observed: \"Judge Hill was in possession of the office by virtue of his appointment by the governor. He was not a mere usurper or interloper undertaking to act without any color of right. He was a de facto judge.\"). The de facto officer doctrine has been applied to validate acknowledgments required to be taken by a judge that were made after the expiration of the judicial term of the judge taking it, Brown v. Lunt, supra, 37 Me.",
"at 432; to a judge sitting beyond the term in which elected, Ridout *1083 v. State, supra, 30 S.W.2d at 262-63; to a judge continuing to sit past retirement age, Sylvia Lake Co. v. Northern Ore Company, supra, 151 N.E. at 159; but see, In Re Pittman, 151 N.C.App. 112, 564 S.E.2d 899, 901 (2002) (concluding that judge who signed a court order one and one half months after her defeat in a judicial election was an usurper); the appointment of person without the proper qualifications for the position, State v. Smith, 52 Wash.App. 27, 756 P.2d 1335, 1336-37 (1988) (appointment of lay person as a judicial officer to issue search warrant when statute required an attorney); Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796, 800-01 (1978) (election of a person disqualified by reason of age to the office of judge); and, to a warrant signed by a lay magistrate prior to receiving certificate of authorization. State v. Smejkal, supra. Some of the cases have involved factual patterns quite similar to those of the case sub judice.",
"In Hovanec v. Diaz, 272 Ind. 342, 397 N.E.2d 1249 (1979), Hovenac, a resident of Lake Station City, was re-elected as city judge in Lake Station City. While in office, however, he moved from Lake Station City to Crown Point, an adjoining township. His authority to continue as a Lake Station City judge was challenged by Diaz, who, having discovered, during an unrelated habeas corpus proceeding, that Hovanec had moved, filed a quo warranto proceeding to declare the seat vacant as of the date Hovanec moved. The Indiana court rejected the challenge. On the issue of Hovanec's status, it reasoned: \"`[W]e note that Judge Hovanec has acted as a de facto officer.",
"`All that is required to make officers de facto is that they are claiming the office and in possession of it, performing its duties and claiming under color of election. Rule, supra, 207 Ind. at 552, 194 N.E. at 153.' In Parker et al. v. State ex rel. Powell (1892) 133 Ind. 178, 200, 32 N.E. 836, 843, this Court stated: \"The rule that the acts of an officer de facto, performed before ouster, are, as valid as the acts of an officer de jure, is too familiar to the profession to need the citation of authority.'\"",
"Id., 397 N.E.2d at 1250. Similarly, the judge in Crocker v. Sears, Roebuck and Company, supra, 346 So.2d 921 (Miss.1977), was alleged to reside outside the district in which he was sitting. As in Hovanec v. Diaz, the Mississippi Supreme Court, citing the de facto officer doctrine, refused to entertain a challenge to the judge's authority, pointing out: \"`the acts of a de facto judge are valid, regardless of whether he was properly ... qualified or not, and we deem it unnecessary to pass upon the question as to whether the judge should have been appointed from the resident attorneys of the district.'\" Id. at 922-23 (quoting Bird v. State, 154 Miss. 493, 122 So. 539, 540, (1929)). Gates v. City of Tenakee Springs, supra, 954 P.2d 1035, (Alaska, 1998) is an even more extreme case than the instant one is alleged to be.",
"There, the judge whose judicial authority was at issue was retired and had been residing out of state for three years when he signed the order that was at the center of the challenge. Neither the fact of his retirement nor his out-of-state residence prevented the application of the de facto officer doctrine. Having initially noted that residency in Alaska was a statutory requirement for Alaska judges, the Supreme Court of Alaska opined: \"But Gates is mistaken that the fact that Judge Schulz may have been a California resident entitles her to relitigate her medical emergency claims. Neither AS 22.10.090 nor any other Alaska statute *1084 or case indicates that Gates is entitled to such relief.",
"Authority in other jurisdictions holds that an acting judge (such as Judge Schulz) who has colorable authority due to his or her appointment is a de facto officer whose acts are legally valid and binding on the public and on third persons if done within the scope and by the apparent authority of his or her office, even though the judge's actual authority suffers from a procedural defect.... \"We perceive no compelling reason to deviate from the approach of these courts and to engraft the remedy Gates requests.... Requiring relitigation of matters decided by a competent, unbiased judge who, except for the matter of residency, was duly appointed is a poor use of valuable judicial and private resources.... Furthermore, the de facto judge doctrine protects third parties and the public in their dealings with the judicial system.\" Id.",
"at 1038-39. (Citations omitted.). In addition to stating the de facto officer rule, the cases have emphasized the necessity of raising the issue of a defect in the officer's qualifications in the proper proceeding. [9] Many of these cases identify a quo warranto action, \"a proceeding that deals mainly with the right of the incumbent officer and does not determine the rights of any adverse claimant,\" Hovanec v. Diaz, supra, 397 N.E.2d at 1250, as the \"proper proceeding.",
"\"[10]See e.g., Turner v. Evansville, 740 N.E.2d 860, 862 n. 2 (Ind. 2001) (proper way to challenge authority of an office is by filing a quo warranto action); Hovanec v. Diaz, supra, 397 N.E.2d at 1250 (\"Historically, quo warranto is the proper remedy to determine the right to an office. \"); Brown v. Lunt, supra, 37 Me. at 430 (noting that \"the trustees of a village, holding over beyond the term for *1085 which they were elected, by their own neglect, were liable to be ousted on quo warranto ...\"); State v. Barnard, supra, 29 A. at 411 (colorable title may not be attacked except in appropriate action brought to establish legal title and in which the de facto officer is a party, mentioning quo warranto action); People v. Bowen, 231 Cal.App.3d 783, 789, 283 Cal. Rptr.",
"35, 39 (1991) (\"the proper method of challenging the right of a judge to hold office is by a quo warranto proceeding\"); State v. Smith, supra, 756 P.2d at 1337. See Bird v. State, 154 Miss. 493, 122 So. 539, 540 (1929) (noting that right to question a judge's entitlement to hold the office is for the state to raise in appropriate proceeding). Relative Value Studies, Inc. v. McGraw-Hill, Co., 981 P.2d 687, 688 (Colo.App.1999). At issue in Relative Value Studies, Inc. v. McGraw-Hill, Co., 981 P.2d 687 (Colo. App.1999), was the propriety of the trial judge's grant of summary judgment in a contract case, when, prior to the entry of summary judgment, the trial judge had moved his personal residence outside of the judicial district in which he had been elected, in violation of the Colorado Constitution. Id. at 688.",
"The intermediate appellate court summarily disposed of the plaintiff's arguments that the order should be voided on that account. Acknowledging that the constitutional prescriptions were mandatory upon judges of Colorado, but relying on the Colorado Supreme Court's decision in People v. Owers, supra, 29 Colo. 535, 69 P. 515, 519 (1902), the court in Relative Value Studies noted that the proper procedure for removing a sitting judge is through a quo warranto proceeding. It explained: \"In the only Colorado appellate case construing Colo. Const. art. VI, 11, the supreme court declined to remove a judge from office despite the fact that his principal residence was outside the district in which he was elected and was acting as judge. Although conceding that the constitutional residence requirement was mandatory, the supreme court there concluded, in a quo warranto action, that absent some `substantial misconduct upon his part,' the judge should not be removed from office. People v. Owers, 29 Colo. 535, 550, 69 P. 515, 519 (1902).",
"\"While that case does not directly answer the question before us, it logically dictates the result: a properly appointed judge, despite even a conceded violation of the constitutional residency requirement, does not lose his or her authority to act as judge merely because of the violation.\" Id. Similarly, in People v. Bowen, supra a criminal defendant learned subsequent to his trial that the judge, who presided at that trial, had violated the statutory residence requirement. He challenged the authority of the judge to act and to hold the office. The court concluded that the challenge lacked merit. Its reasoning turned, in part, on the fact that the defendant did not raise the defect in the trial judge's residency in the proper proceeding.",
"In that regard, the court stated: \"Since 1866 our courts have held the proper method of challenging the right of a judge to hold office is by a quo warranto proceeding. In People v. Sassovich (1866) 29 Cal. 480, a murder case in which the death penalty was imposed, on appeal the defendant challenged his trial proceedings as void because the court in which he was tried was unconstitutionally created by the Legislature and the governor lacked the constitutional power to appoint the judge who presided over defendant's trial and conviction. After finding the court was constitutionally *1086 created, the court rejected the second contention, holding: `The person who filled the office of Judge at the time this case was tried was appointed and commissioned by the Governor under and in pursuance of the provisions of the Act in question.",
"He entered therefore under color of right and title to the office, and became Judge de facto if not de jure, and his title to the office cannot be questioned in this collateral mode. His title can only be questioned in an action brought directly for that purpose....\" A contrary doctrine, for obvious reasons, would lead to most pernicious results.\" (29 Cal. at 485.). As between defendant and the People in this proceeding, the issue is collateral. Bowen, 231 Cal.App.3d at 789, 283 Cal. Rptr. at 39. In the case sub judice, there is no contention that Judge Whitfill was a usurper or took office pursuant to a fraudulent or invalid appointment or election.",
"Indeed, it is conceded that, when Judge Whitfill was appointed and subsequently elected, he was, for all purposes, a duly qualified judge, a de jure judge, of the Circuit Court for Harford County. Assuming, arguendo that during his term as judge, Judge Whitfill changed his residence from Harford County to Baltimore County and maintained that residence outside Harford County for a period of time, it is clear that, during all of that period, he continued to occupy the office of Circuit Court Judge in Harford County, discharging throughout the period, and for all times thereafter, the duties of the office. And he did so openly and notoriously. Nor was or has, Judge Whitfill been removed pursuant to any constitutional, statutory or common law remedy. The appellant has not cited any cases, and we have not discovered any, that support the petitioner's argument that Judge Whitfill lost his judicial authority by operation of law upon his change of residence. It follows that even if, by virtue of a change of residence, Judge Whitfill ceased to be a de jure judge, he was, until his retirement,[11] at the very least a de facto judge for the period relevant to this case.",
"As such, his actions \"are as valid and effectual where they concern the public or rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure ...\" State v. Roberts, supra, 288 P. at 762. To be sure, this applies to the petitioner, who is a third person in the case at hand.",
"Furthermore, the legality of the acts of a de facto judge, or that judge's entitlement to the office, may not be collaterally attacked in a proceeding to which the de facto judge is not a party. Id. In this case, we have seen, the petitioner moved to quash or strike both an illegal sentence and the warrant of execution. This is a collateral attack on the petitioner's sentence. It is not a proceeding brought directly to question whether Judge Whitfill was validly holding the office of judge of the Circuit Court for Harford County when he sentenced the petitioner and signed the Warrant of Execution. JUDGMENT AFFIRMED, WITH COSTS.... NOTES [1] The facts supporting the petitioner's conviction for first degree murder were recounted most recently by this Court in Baker v. State, 367 Md.",
"648, 790 A.2d 629 (2002) (\"Baker II\") and, previously, in Baker v. State, 332 Md. 542, 632 A.2d 783 (1993) (\"Baker I\"). They reveal that this court affirmed the petitioner's conviction and death sentence on November 12, 1993, Baker I, supra, 332 Md. at 546-71, 632 A.2d at 784, and his Petition for Writ of Certiorari was denied by the United States Supreme Court. See Baker v. Maryland, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). Subsequently, the petitioner has sought post conviction relief, albeit unsuccessfully. After the Supreme Court denied certiorari, he filed a Petition for Post Conviction Relief in the Circuit Court for Harford County.",
"The court rejected his allegations of various violations of his constitutional right to a fair and impartial jury and effective assistance of trial counsel and denied his petition. Thereafter, the petitioner filed a Motion to Reopen the Post Conviction Proceeding. The Circuit Court denied that petition. The petitioner then filed in the United States District Court for the District of Maryland, a petition for habeas corpus relief. That court's denial of the habeas corpus relief was affirmed by the United States Court of Appeals for the Fourth Circuit, Baker v. Corcoran, 220 F.3d 276 (4th Cir.2000), and the United States Supreme Court declined further review. Baker v. Corcoran, 531 U.S. 1193, 121 S.Ct.",
"1194, 149 L.Ed.2d 110 (2001). Once again, the petitioner sought post conviction relief in the Circuit Court for Harford County, filing two new motions: a Motion for New Sentencing based on newly discovered evidence and a Motion to Correct Illegal Sentence and/or for New Sentencing Based Upon Mistake and Irregularity in the Circuit Court for Harford County. The court, Judge Whitfill presiding, denied both motions, prompting the petitioner to note an appeal to this Court. Baker II, supra, 367 Md. at 663-64, 790 A.2d at 638-39. We affirmed the judgments of the Circuit Court, id. at 698, 790 A.2d at 659, and denied the petitioner's motion for reconsideration. After Judge Whitfill signed the warrant of execution, the petitioner asked this Court to stay his execution, pending the filing of a writ of certiorari and application for stay of execution with the United States Supreme Court to challenge our decision affirming the Circuit Court's denial of post-conviction relief. We declined to do so.",
"His subsequently filed petition for writ of certiorari and application for stay of execution was denied by the United States Supreme Court. See Baker v. Maryland, 535 U.S. 1050, 122 S.Ct. 1814, 152 L.Ed.2d 817 (2002). The Circuit Court declined the petitioner's invitation to reopen his state post conviction proceedings. The petitioner earlier had filed a motion to reopen post conviction proceedings, claiming racial discrimination in sentencing. Citing the same reasoning, he also moved this Court to recall its mandate from the petitioner's direct appeal. We denied the motion. By order dated May 9, 2002, the Court denied the petitioner's application for leave to appeal the decision denying his second motion to reopen post conviction proceedings and the accompanying motion to stay warrant of execution. [2] The petitioner elected to have Judge Whitfill, rather than the jury, decide the sentencing phase of his capital case. [3] On March 19, 2002 the petitioner filed three motions in the Circuit Court for Harford County styled: Defendant's Emergency Motion to Quash/Strike Both Illegal Sentence and Warrant of Execution for Lack of Jurisdiction by the Trial Judge and Judicial Authority Pursuant to Maryland Rule 4-345, Memorandum, Exhibits, Requests an Emergency Hearing and Other Relief; Defendant's Emergency Motion to Stay Warrant of Execution Pending a Hearing on the Defendant's Motion for Illegal Sentence, Quashing Warrant, Recusal, Other Relief and Exhibits as the Defendant's Execution is Imminent Commencing the Week of May 13, 2002; and Defendant's Emergency Motion for Recusal of Judge Cypert O. Whitfill and Fellow Judges, Both Active and Retired from the Circuit Court and District Courts of Harford County, Maryland from Participating in Any Further Proceedings as the Presiding Judge Relating to the Defendant, Wesley Baker, Exhibit Index and Request for Hearing.",
"[4] Article IV, Section 2 of the Maryland Constitution provides: \"The Judges of all of the said Courts shall be citizens of the State of Maryland, and qualified voters under this Constitution, and shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, in the city, county, district, judicial circuit, intermediate appellate judicial circuit or appellate judicial circuit for which they may be, respectively, elected or appointed. They shall be not less than thirty years of age at the time of their election or appointment, and shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge.\" The constitutional provision refers to the Judicial circuit to which a judge may be elected or appointed.",
"We do not decide whether, after appointment or election, residence by the judge in the judicial circuit, as opposed to the County, in which the court to which he or she was appointed, would be in compliance with the constitutional requirement. [5] Maryland Code (1973, 2002 Repl.Vol.) § 12-307 of the Court and Judicial Proceedings Article provides: \"The Court of Appeals has: \"(1) Jurisdiction to review a case or proceeding pending in or decided by the Court of Special Appeals in accordance with Subtitle 2 of this title; \"(2) Jurisdiction to review a case or proceeding decided by a circuit court in accordance with § 12-305 of this subtitle \"(3) Exclusive appellate jurisdiction with respect to a question of law certified to it under the Uniform Certification of Questions of Law Act; and \"(4) Exclusive appellate jurisdiction over a criminal case in which the death penalty is imposed and any appellate proceedings under § 3-904 of the Correctional Services Article.\"",
"[6] Maryland Rule 8-132 provides: \"Transfer of Appeal Improperly Taken If the Court of Appeals or the Court of Special Appeals determines that an appellant has improperly noted an appeal to it but may be entitled to appeal to another court exercising appellate jurisdiction, the Court shall not dismiss the appeal but shall instead transfer the action to the court apparently having jurisdiction upon the payment of costs provided in the order transferring the action.\" [7] Section 17 of Article 3 of the Constitution of Maryland provides: \"No Senator or Delegate, after qualifying as such, notwithstanding he may thereafter resign, shall during the whole period of time for which he was elected, be eligible to any office, which shall have been created, or the salary, or profits of which shall have been increased, during such term.\" [8] The resolution of the issue in Kimble v. Bender, 173 Md.",
"608, 196 A. 409 (1938) required the Court to review a number of statutes and statutory provisions, which the Court determined to be \"defective on constitutional grounds.\" Id. at 623, 196 A. at 416. Recognizing, therefore, \"that throughout an extended period, immediately preceding the statute [at issue in the case], a number of justices of the peace discharged the duties of that office in Allegany County under purporting statutory authority which failed on constitutional grounds to authorize the appointments,\" id., the Court looked at the effect of these unconstitutional statutes on the acts of those appointed pursuant to them. It concluded: \"Thus it happened that, throughout the entire period mentioned, the constitutional office of justice of the peace subsisted, but appointments of justices to fill the position were made under the wrong statutes. The unconstitutional statutes, however, were accepted by the public authorities as valid.The various governors of the State during this period, by and with the advice of the Senate, appointed, pursuant to the terms of the unconstitutional terms of the laws, the number of justices of the peace specified, from time to time, and sent them their commissions, whereupon the several justices of the peace so selected and commissioned qualified in the usual manner and took the oath prescribed, and entered upon and discharged the duties and office of justice of the peace for Allegany County according to the tenor of the statutes currently assumed to be in force.",
"The judgments thus rendered are not subject to collateral attack, and their validity may be sustained upon the theory that the justices so appointed were de facto justices. Supra.\" Id. at 623-24, 196 A. at 416. Acknowledging the conflict with the position taken by the United States Supreme Court in Norton v. Shelby County, supra, the Court adopted the rule that, \"although there is no de jure office, because the statute which provides for it is unconstitutional, there may be a de facto officer until the unconstitutionality of the act has been judicially determined.\" Id. at 625, 196 A. at 417. The distinction this court discerned was that, in Norton,\" the unconstitutional act proposed to create an office which had not theretofore formed a part of the governmental scheme and was an anomaly in the administrative system of county affairs in the State of Tennessee,\" id., while, in Maryland, the office of justice of the peace is constitutional, of ancient origin and customary usage, predating the passage of the various statutes determined to be unconstitutional.",
"Id. at 626, 196 A. at 417. [9] Although it recognizes the de facto officer doctrine in the context of judicial decision-making, New Jersey applies a somewhat different analysis in such cases, requiring that the issue of the judge's authority to act be raised by the party challenging it in the court in which the judge whose authority is being challenged presided. See State v. Pillo, 15 N.J. 99, 104 A.2d 50, (1954); State v. Sagarese, 34 N.J.Super. 126, 111 A.2d 777, 779 (1955). But see State v. Town of Dover, 62 N.J.L. 138, 41 A. 98, 98-99 (1898), where the court said: \"No private citizen can challenge the legal existence of organized municipal government.",
"It can be successfully assailed only by the attorney-general. Until he intervenes to controvert its authority, and until he institutes proceedings by which it is overturned and suppressed, it is de facto, and the public functions with which it is charged, within the scope of its apparent powers, may be lawfully exercised by its officials as de facto officers. \"In our judgment, such a government must prevail and be respected until the attorney-general intervenes by quo warranto and, through judicial action, secures the actual ouster and removal of the incumbents in office.\" [10] Whether, in this State, quo warranto is an appropriate proceeding is far from clear. In Hawkins v. State of Maryland, 81 Md. 306, 311, 32 A.",
"278, 279 (1895), this Court, holding that the State's Attorney had no legal authority to institute quo warranto proceedings seeking to oust a county commissioner from office, suggested that the remedy was available only with legislative authorization: \"And the fact that special provision was made by the Act of 1856, ch. 16 (Code Art. 69, sections 4 and 5), although apparently never availed of for proceeding by quo warranto, for the purpose of ousting defaulters from office, would seem to indicate that the power to institute such proceedings against persons holding office without authority of law did not exist, or at least was not supposed to exist outside of and independent of the statute.\"",
"See also Harwood v. Marshall, 9 Md. 83, 106 (1856) (holding mandamus to be appropriate remedy for a party who claims title to an office, and asks for the removal of the occupant and rejecting the argument that quo warranto was another legal remedy). [11] Since retirement, Judge Whitfill has been certified by this Court for recall to sit, by special designation, in the Third Circuit, which consists of the Circuit Court for Harford County and the Circuit Court for Baltimore County."
]
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Citation Nr: 1423106
Decision Date: 05/21/14 Archive Date: 05/29/14
DOCKET NO. 09-09 373 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress syndrome (PTSD).
2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD.
3. Entitlement to service connection for a right knee disability.
4. Entitlement to a rating in excess of 10 percent for a left knee disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. A. Flynn, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.
With regard to the Veteran's claim for service connection for an acquired psychiatric disability, the Board observes that the Veteran's February 2007 claim sought service connection for PTSD. Although, as in the instant case, a veteran's stated claim may only seek service connection for a specific psychiatric condition, the United States Court of Appeals for Veterans Claims (Court) has held that such a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form but instead makes a general claim for compensation for the difficulties posed by a mental condition. Pursuant to the Court's decision in Clemons, the issue for consideration on remand should not be strictly limited to any one psychiatric condition such as PTSD, but it should instead encompass this and any other acquired psychiatric diagnosis shown. The issue on appeal has been recharacterized accordingly.
These matters were previously before the Board in July 2012, and the Board finds that there has been substantial compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.
The issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is REMANDED to the RO via the Appeals Management Center in Washington, D.C.
FINDINGS OF FACT
1. An unappealed July 1999 rating decision denied the Veteran's claim of entitlement to service connection for PTSD.
2. The evidence received since the July 1999 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability.
3. The weight of the evidence is against a finding that a right knee disability is related to the Veteran's service-connected left knee disability.
4. The Veteran's left knee disability is manifested by a range of motion limited by pain and weakness to no worse than 70 degrees of flexion and 7 degrees of extension, and no clinical evidence showing even slight instability.
CONCLUSIONS OF LAW
1. The July 1999 rating decision denying the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999).
2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a psychiatric disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013).
3. A right knee disability is not the result of or aggravated by a service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013).
4. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. Timberlake v. Gober, 14 Vet. App. 122 (2000).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
New and Material Evidence
Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2013). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2013); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The Veteran's claim of entitlement to service connection for PTSD was last finally denied in a July 1999 rating decision. No evidence was received within one year of the July 1999 decision and no new service records have been submitted. Therefore, the July 1999 decision is final. 38 C.F.R. § 3.156(b), (c) (2013). That decision found that the evidence did not demonstrate that the Veteran had a psychiatric disability.
Since the July 1999 rating decision, additional evidence has been submitted diagnosing the Veteran with depression NOS and a mood disorder. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly-submitted evidence, the Veteran's previous claim for service connection was denied because the evidence did not demonstrate that the Veteran had an acquired psychiatric disability. The newly-submitted evidence supports the presence of such a disability, and thus relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for an acquired psychiatric disability, to include PTSD, is reopened.
Service Connection
The Veteran claims that he has a right knee disability that is secondary to his service-connected left knee disability. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998).
Turning to the facts in this case, the Veteran has been diagnosed with degenerative joint disease of the right knee, and he is service-connected for a left knee disability. Thus, both a current disability and a service-connected disability are shown. What remains to be demonstrated, then, is a nexus, or connection, between the Veteran's service-connected left knee disability and his right knee disability.
The Veteran's central contention in this case is that his service-connected left knee disability has caused him to favor his right knee, causing increased problems with his right knee. The Veteran has twice received medical examinations in order to determine whether medical care providers share the Veteran's opinion regarding the relationship between his service-connected left knee disability and his right knee disability.
In September 2007, after an examination of the Veteran, a VA examiner indicated that he was unable to relate the Veteran's right knee osteoarthritis to his left knee osteoarthritis. This opinion was not accompanied by a rationale, and the Board therefore affords this opinion with relatively little probative weight.
In October 2012, a VA examiner opined that the Veteran's right knee disability was less likely than not due to, the result of, or aggravated by the Veteran's service-connected left knee disability. As a rationale for this decision, the examiner noted that the Veteran was seen in December 1970 and January 1971 for left knee pains. The examiner noted that a June 1973 VA examination revealed that the Veteran's bilateral knees were normal. The Veteran began seeking treatment for right knee pain in November 1974; between June 1973 and November 1974, there were no medical records regarding a left knee problem. The examiner could find no support for the contention that the Veteran's left knee disability aggravated his right knee disability.
The Board has otherwise reviewed the record for medical evidence relating the Veteran's current right knee disability to the Veteran's service-connected left knee disability, and it has found none. To the extent that the Veteran believes that his right knee disability is related to his service-connected left knee disability, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations.
Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a right knee disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's right knee disability is related to his service-connected left knee disability, the Board ultimately affords the objective medical evidence of record, which weighs against finding a connection between the Veteran's right knee disability and his left knee disability, with greater probative weight than the lay opinions. The evidence does not support the finding of a nexus, or connection, between the Veteran's right knee disability and his service-connected left knee disability.
In summary, the Board finds that the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Increased Rating
Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When there is a question as to which of two ratings shall be applied, the higher ratings will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013).
In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).
The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2013); Esteban v. Brown, 6 Vet. App. 259 (1994). Pyramiding, or rating the same manifestation of a disability under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2013).
Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2013). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2013); Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995).
Degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2013). When limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied for each such major joint or group of minor joints affected by limitation of motion. That rating cannot be combined with a limitation of motion rating of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2013).
Separate evaluations may be assigned for limitation of flexion and extension of the same joint. VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id.
Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013).
VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately; in other words, evaluation of knee dysfunction based on both arthritis and instability does not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997).
Increased Rating Based on Limitation of Motion
The Veteran underwent an examination of his left knee in September 2007. The Veteran complained of continuous pain in his knee, and he indicated that he experienced swelling, stiffness, and weakness most of the time. The Veteran denied experiencing heat or redness. The Veteran complained of limited endurance, but he denied experiencing flare-ups of his symptoms. The Veteran's gait was normal, and the Veteran did not use a brace or other support device. No obvious bony deformity was noted, and there was no swelling, joint effusion, or distal edema. There was no joint line or peripatellar tenderness. The Veteran had a range of motion from 7 degrees to 118 degrees, limited by pain. The Veteran was only able to perform 4 squats due to pain, and no changes were noted in the Veteran's range of motion following such squats.
The Veteran underwent an examination of his left knee in October 2012. The examiner noted that the Veteran had been diagnosed with degenerative joint disease of the left knee. The Veteran did not report that flare-ups impacted the function of the left knee and lower leg. The left knee had flexion to 70 degrees and extension to 0 degrees, with no objective evidence of painful motion, providing evidence against this claim. Repetitive use testing did not result in an additional limitation of motion, functional loss, or functional impairment. No tenderness or pain to palpation for the joint line or soft tissues of the knee were noted. The Veteran showed active movement against some resistance.
Turning to an evaluation of this evidence of record, the Board has considered the applicability of each of the Diagnostic Codes applicable to the knees. There is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a (2013). With those Diagnostic Codes excluded, the issue is whether the Veteran is entitled to a greater level of compensation under the Diagnostic Codes that are potentially applicable to the Veteran's left knee disability: Diagnostic Code 5003, applicable to degenerative arthritis; Diagnostic Code 5260, applicable to limitation of flexion of the leg; or Diagnostic Code 5261, applicable to limitation of extension of the leg. 38 C.F.R. § 4.71a (2013).
The Board will first evaluate whether a greater rating is available to the Veteran under Diagnostic Codes 5260 and 5261, which are based on limitation of motion of the leg. The Veteran is currently in receipt of a 10 percent disability evaluation based on impairment of flexion. The Board observes that the Veteran has never demonstrated flexion to 45 degrees or fewer. A disability rating in excess of the currently-assigned 10 percent rating is thus unavailable to the Veteran. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). With regard to knee extension, the Veteran demonstrated a limitation of extension to 5 degrees in September 2007 (rounded from 7 degrees) and full extension in October 2012. Accordingly, with extension never limited to 10 degrees or greater, a compensable rating is unavailable on the basis of impairment of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013).
The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2013). VA examiners and clinicians have noted the Veteran's complaints such as pain and weakness, and the Board has taken those complaints into consideration in its above discussion. The Board finds that the evidence does not support a finding that the Veteran's functional loss causes disability beyond the above-discussed range of motion testing. While the Board accepts the credible contentions of the Veteran that his left knee disability causes him to experience significant pain, the Board has taken that into account in its consideration of the range of motion of the Veteran's knee. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss beyond the functional limitations discussed above.
In this regard, it is important for the Veteran to understand that if the problems he has cited were not considered, there would be no basis for the current finding.
With regard to a higher rating based on arthritis, when x-ray evidence of degenerative arthritis is presented but the associated loss of range of motion is noncompensable, a 10 percent disability rating is warranted under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The Veteran is in receipt of a 10 percent rating of his right knee disability based on limitation of flexion. The Diagnostic Code applicable to degenerative arthritis does not provide for a rating in excess of 10 percent with the involvement of a single major joint. A greater increased rating based on arthritis is accordingly unavailable to the Veteran's left knee.
Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for limitation of motion of the left knee based on limitation of motion. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Increased Rating Based on Instability
A separate rating may be assigned for knee instability. Recurrent subluxation or lateral instability is rated at 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Clinicians' use of terms such as "moderate" and "severe," although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013).
Turning to the facts in this case, in a September 2007 VA examination, the Veteran complained of locking and giving way of his knee, but the Veteran could not state how often he experienced these symptoms. There was no anterior or posterior translocation, and there was no medial or lateral opening. In an October 2012 VA examination, stability testing was normal, and no history of recurrent patellar subluxation or dislocation was noted, providing evidence against this case of his probative value.
The Veteran used a cane constantly for ambulation, though it was not noted that the Veteran used a cane as a result of his service-connected left knee disability.
The Board finds that the evidence does not support the award of a separate rating for instability of the left knee. A compensable rating for knee instability requires a finding that the Veteran has symptoms approximating "slight" recurrent subluxation or lateral instability. The evidence does not support such a finding. While the Board acknowledges that the Veteran generally asserted that he had experienced locking and instability of his knee in September 2007, he was unable to state the frequency with which such symptoms occurred. The Veteran's left knee has been consistently found by clinicians to be stable. While the Board acknowledges the Veteran's contention that he experienced giving way of his left knee, the Board places greater weight on the narrative medical reports, which do not describe symptomatology of recurrent subluxation or lateral instability that the Board finds meets a "slight" level of severity.
Accordingly, the Board finds that a compensable rating based on instability is not warranted at any time for the left knee. The Board finds that the preponderance of the evidence is against the assignment of a higher rating based on instability. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Extra-schedular Ratings
The Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993).
There is a three step inquiry to determine whether a claim should be referred for extra-schedular consideration. First, 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 to be inadequate, the Board must determine whether the Veteran's 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 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 extra-schedular rating. 38 C.F.R. § 3.321 (2013); Thun v. Peake, 22 Vet. App. 111 (2008).
In this case, the evidence fails to show anything unique or unusual about the Veteran's left knee disability that would render the schedular rating criteria inadequate. Review of the record reflects the Veteran's primary complaint relating to his knee was of painful movement. The Board finds that the Veteran's left knee symptomatology is fully addressed by the schedular rating criteria under which such disability is rated. Specifically, the rating criteria contemplate limitation of movement of the knee. Therefore, the Board finds that such manifestations of the Veteran's left knee disability are contemplated by the rating schedule. As such, there are no additional symptoms of his left knee disability that are not addressed by the rating schedule. Therefore referral for consideration for an extra-schedular rating is not warranted.
The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. In this case, the record does not reflect that the Veteran is unemployable due to his left knee disability. Indeed, in September 2007, the Veteran indicated that he was able to engage in most daily activities, but such activities took additional time. In October 2012, a VA examiner found only that the Veteran's non-service-connected right knee disability impacted the Veteran's ability to work. Therefore, the Board finds that a claim for TDIU is not raised by the record.
Duties to Notify and Assist
The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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) (West 2002); 38 C.F.R. § 3.159(b) (2013); 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the instant case, correspondence dated May 2007 provided all appropriate notification relating to the Veteran's claim for service connection for a right knee disability and an increased rating for a left knee disability. Any notification issues relating to the reopening of the Veteran's claim for service connection are moot because the Board has reopened the Veteran's claim. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.
With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. Private and VA medical records have been obtained and reviewed in connection with this appeal. The Veteran has been provided with two VA examinations of his knees. The VA examiners reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted appropriate evaluations, and provided appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007).
In his March 2009 substantive appeal, the Veteran requested a hearing before a member of the Board; however, the Veteran failed to report to his scheduled hearing without presenting good cause. Under these circumstances, the Board considers the Veteran's request for a hearing to have been withdrawn. 38 C.F.R. § 20.702(d) (2013). The Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met.
ORDER
The claim for service connection for an acquired psychiatric disability is reopened, and the appeal is allowed to that extent only.
Service connection for a right knee disability is denied.
A rating in excess of 10 percent for a right knee disability is denied.
REMAND
The RO did not reopen the Veteran's claim for service connection for an acquired psychiatric disability and consider such claim on the merits. Generally, when the Board reopens a claim that the RO did not, a remand is required for RO consideration. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Turning to the facts in this case, although the newly-presented psychiatric diagnoses of record were sufficient to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric condition, these diagnoses alone do not establish service connection. Therefore remand is required for RO consideration.
Accordingly, the case is REMANDED for the following action:
Readjudicate the Veteran's claim for service connection for an acquired psychiatric disability, to include PTSD, on the merits based on a complete review of the claims file. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.
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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013).
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 05-21-2014 | [
"Citation Nr: 1423106 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 09-09 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress syndrome (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.",
"With regard to the Veteran's claim for service connection for an acquired psychiatric disability, the Board observes that the Veteran's February 2007 claim sought service connection for PTSD. Although, as in the instant case, a veteran's stated claim may only seek service connection for a specific psychiatric condition, the United States Court of Appeals for Veterans Claims (Court) has held that such a claim \"cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.\" Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form but instead makes a general claim for compensation for the difficulties posed by a mental condition. Pursuant to the Court's decision in Clemons, the issue for consideration on remand should not be strictly limited to any one psychiatric condition such as PTSD, but it should instead encompass this and any other acquired psychiatric diagnosis shown. The issue on appeal has been recharacterized accordingly. These matters were previously before the Board in July 2012, and the Board finds that there has been substantial compliance with its remand instructions.",
"Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the \"Virtual VA\" system to ensure a total review of the evidence. The issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. An unappealed July 1999 rating decision denied the Veteran's claim of entitlement to service connection for PTSD. 2. The evidence received since the July 1999 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability. 3.",
"The weight of the evidence is against a finding that a right knee disability is related to the Veteran's service-connected left knee disability. 4. The Veteran's left knee disability is manifested by a range of motion limited by pain and weakness to no worse than 70 degrees of flexion and 7 degrees of extension, and no clinical evidence showing even slight instability. CONCLUSIONS OF LAW 1. The July 1999 rating decision denying the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a psychiatric disability.",
"38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2013). 3. A right knee disability is not the result of or aggravated by a service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 4. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record.",
"The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).",
"New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2013). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir.",
"1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2013); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App.",
"110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran's claim of entitlement to service connection for PTSD was last finally denied in a July 1999 rating decision. No evidence was received within one year of the July 1999 decision and no new service records have been submitted. Therefore, the July 1999 decision is final. 38 C.F.R. § 3.156(b), (c) (2013). That decision found that the evidence did not demonstrate that the Veteran had a psychiatric disability. Since the July 1999 rating decision, additional evidence has been submitted diagnosing the Veteran with depression NOS and a mood disorder. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly-submitted evidence, the Veteran's previous claim for service connection was denied because the evidence did not demonstrate that the Veteran had an acquired psychiatric disability. The newly-submitted evidence supports the presence of such a disability, and thus relates to an unestablished fact necessary to substantiate the claim.",
"As new and material evidence has been received, the claim for service connection for an acquired psychiatric disability, to include PTSD, is reopened. Service Connection The Veteran claims that he has a right knee disability that is secondary to his service-connected left knee disability. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995).",
"To establish service connection for a claimed disability on a secondary basis, there must be evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Turning to the facts in this case, the Veteran has been diagnosed with degenerative joint disease of the right knee, and he is service-connected for a left knee disability. Thus, both a current disability and a service-connected disability are shown. What remains to be demonstrated, then, is a nexus, or connection, between the Veteran's service-connected left knee disability and his right knee disability.",
"The Veteran's central contention in this case is that his service-connected left knee disability has caused him to favor his right knee, causing increased problems with his right knee. The Veteran has twice received medical examinations in order to determine whether medical care providers share the Veteran's opinion regarding the relationship between his service-connected left knee disability and his right knee disability. In September 2007, after an examination of the Veteran, a VA examiner indicated that he was unable to relate the Veteran's right knee osteoarthritis to his left knee osteoarthritis. This opinion was not accompanied by a rationale, and the Board therefore affords this opinion with relatively little probative weight. In October 2012, a VA examiner opined that the Veteran's right knee disability was less likely than not due to, the result of, or aggravated by the Veteran's service-connected left knee disability. As a rationale for this decision, the examiner noted that the Veteran was seen in December 1970 and January 1971 for left knee pains.",
"The examiner noted that a June 1973 VA examination revealed that the Veteran's bilateral knees were normal. The Veteran began seeking treatment for right knee pain in November 1974; between June 1973 and November 1974, there were no medical records regarding a left knee problem. The examiner could find no support for the contention that the Veteran's left knee disability aggravated his right knee disability. The Board has otherwise reviewed the record for medical evidence relating the Veteran's current right knee disability to the Veteran's service-connected left knee disability, and it has found none. To the extent that the Veteran believes that his right knee disability is related to his service-connected left knee disability, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet.",
"App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a right knee disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's right knee disability is related to his service-connected left knee disability, the Board ultimately affords the objective medical evidence of record, which weighs against finding a connection between the Veteran's right knee disability and his left knee disability, with greater probative weight than the lay opinions.",
"The evidence does not support the finding of a nexus, or connection, between the Veteran's right knee disability and his service-connected left knee disability. In summary, the Board finds that the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities.",
"38 C.F.R. Part 4 (2013). When there is a question as to which of two ratings shall be applied, the higher ratings will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App.",
"505 (2007). The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2013); Esteban v. Brown, 6 Vet. App. 259 (1994). Pyramiding, or rating the same manifestation of a disability under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2013). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.",
"38 C.F.R. § 4.40 (2013). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2013); Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R.",
"§ 4.71a, Diagnostic Code 5003 (2013). For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2013). When limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied for each such major joint or group of minor joints affected by limitation of motion. That rating cannot be combined with a limitation of motion rating of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R.",
"§ 4.71, Plate II (2013). Separate evaluations may be assigned for limitation of flexion and extension of the same joint. VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating.",
"Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately; in other words, evaluation of knee dysfunction based on both arthritis and instability does not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability.",
"Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Increased Rating Based on Limitation of Motion The Veteran underwent an examination of his left knee in September 2007. The Veteran complained of continuous pain in his knee, and he indicated that he experienced swelling, stiffness, and weakness most of the time. The Veteran denied experiencing heat or redness. The Veteran complained of limited endurance, but he denied experiencing flare-ups of his symptoms. The Veteran's gait was normal, and the Veteran did not use a brace or other support device. No obvious bony deformity was noted, and there was no swelling, joint effusion, or distal edema. There was no joint line or peripatellar tenderness.",
"The Veteran had a range of motion from 7 degrees to 118 degrees, limited by pain. The Veteran was only able to perform 4 squats due to pain, and no changes were noted in the Veteran's range of motion following such squats. The Veteran underwent an examination of his left knee in October 2012. The examiner noted that the Veteran had been diagnosed with degenerative joint disease of the left knee. The Veteran did not report that flare-ups impacted the function of the left knee and lower leg. The left knee had flexion to 70 degrees and extension to 0 degrees, with no objective evidence of painful motion, providing evidence against this claim. Repetitive use testing did not result in an additional limitation of motion, functional loss, or functional impairment. No tenderness or pain to palpation for the joint line or soft tissues of the knee were noted. The Veteran showed active movement against some resistance. Turning to an evaluation of this evidence of record, the Board has considered the applicability of each of the Diagnostic Codes applicable to the knees. There is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum.",
"Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a (2013). With those Diagnostic Codes excluded, the issue is whether the Veteran is entitled to a greater level of compensation under the Diagnostic Codes that are potentially applicable to the Veteran's left knee disability: Diagnostic Code 5003, applicable to degenerative arthritis; Diagnostic Code 5260, applicable to limitation of flexion of the leg; or Diagnostic Code 5261, applicable to limitation of extension of the leg. 38 C.F.R. § 4.71a (2013). The Board will first evaluate whether a greater rating is available to the Veteran under Diagnostic Codes 5260 and 5261, which are based on limitation of motion of the leg. The Veteran is currently in receipt of a 10 percent disability evaluation based on impairment of flexion. The Board observes that the Veteran has never demonstrated flexion to 45 degrees or fewer. A disability rating in excess of the currently-assigned 10 percent rating is thus unavailable to the Veteran.",
"38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). With regard to knee extension, the Veteran demonstrated a limitation of extension to 5 degrees in September 2007 (rounded from 7 degrees) and full extension in October 2012. Accordingly, with extension never limited to 10 degrees or greater, a compensable rating is unavailable on the basis of impairment of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2013). VA examiners and clinicians have noted the Veteran's complaints such as pain and weakness, and the Board has taken those complaints into consideration in its above discussion. The Board finds that the evidence does not support a finding that the Veteran's functional loss causes disability beyond the above-discussed range of motion testing. While the Board accepts the credible contentions of the Veteran that his left knee disability causes him to experience significant pain, the Board has taken that into account in its consideration of the range of motion of the Veteran's knee.",
"The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss beyond the functional limitations discussed above. In this regard, it is important for the Veteran to understand that if the problems he has cited were not considered, there would be no basis for the current finding. With regard to a higher rating based on arthritis, when x-ray evidence of degenerative arthritis is presented but the associated loss of range of motion is noncompensable, a 10 percent disability rating is warranted under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The Veteran is in receipt of a 10 percent rating of his right knee disability based on limitation of flexion. The Diagnostic Code applicable to degenerative arthritis does not provide for a rating in excess of 10 percent with the involvement of a single major joint.",
"A greater increased rating based on arthritis is accordingly unavailable to the Veteran's left knee. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for limitation of motion of the left knee based on limitation of motion. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Based on Instability A separate rating may be assigned for knee instability. Recurrent subluxation or lateral instability is rated at 10 percent when slight, 20 percent when moderate, and 30 percent when severe.",
"38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). The words \"slight,\" \"moderate,\" and \"severe\" are not defined in the VA Schedule for Rating Disabilities. Clinicians' use of terms such as \"moderate\" and \"severe,\" although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013). Turning to the facts in this case, in a September 2007 VA examination, the Veteran complained of locking and giving way of his knee, but the Veteran could not state how often he experienced these symptoms. There was no anterior or posterior translocation, and there was no medial or lateral opening.",
"In an October 2012 VA examination, stability testing was normal, and no history of recurrent patellar subluxation or dislocation was noted, providing evidence against this case of his probative value. The Veteran used a cane constantly for ambulation, though it was not noted that the Veteran used a cane as a result of his service-connected left knee disability. The Board finds that the evidence does not support the award of a separate rating for instability of the left knee. A compensable rating for knee instability requires a finding that the Veteran has symptoms approximating \"slight\" recurrent subluxation or lateral instability. The evidence does not support such a finding. While the Board acknowledges that the Veteran generally asserted that he had experienced locking and instability of his knee in September 2007, he was unable to state the frequency with which such symptoms occurred. The Veteran's left knee has been consistently found by clinicians to be stable.",
"While the Board acknowledges the Veteran's contention that he experienced giving way of his left knee, the Board places greater weight on the narrative medical reports, which do not describe symptomatology of recurrent subluxation or lateral instability that the Board finds meets a \"slight\" level of severity. Accordingly, the Board finds that a compensable rating based on instability is not warranted at any time for the left knee. The Board finds that the preponderance of the evidence is against the assignment of a higher rating based on instability. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular Ratings The Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.",
"Fisher v. Principi, 4 Vet. App. 57 (1993). There is a three step inquiry to determine whether a claim should be referred for extra-schedular consideration. First, 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 to be inadequate, the Board must determine whether the Veteran's 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 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 extra-schedular rating.",
"38 C.F.R. § 3.321 (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence fails to show anything unique or unusual about the Veteran's left knee disability that would render the schedular rating criteria inadequate. Review of the record reflects the Veteran's primary complaint relating to his knee was of painful movement. The Board finds that the Veteran's left knee symptomatology is fully addressed by the schedular rating criteria under which such disability is rated. Specifically, the rating criteria contemplate limitation of movement of the knee. Therefore, the Board finds that such manifestations of the Veteran's left knee disability are contemplated by the rating schedule. As such, there are no additional symptoms of his left knee disability that are not addressed by the rating schedule.",
"Therefore referral for consideration for an extra-schedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. In this case, the record does not reflect that the Veteran is unemployable due to his left knee disability. Indeed, in September 2007, the Veteran indicated that he was able to engage in most daily activities, but such activities took additional time. In October 2012, a VA examiner found only that the Veteran's non-service-connected right knee disability impacted the Veteran's ability to work. Therefore, the Board finds that a claim for TDIU is not raised by the record. Duties to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.",
"2012); 38 C.F.R. § 3.159 (2013). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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) (West 2002); 38 C.F.R. § 3.159(b) (2013); 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).",
"In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the instant case, correspondence dated May 2007 provided all appropriate notification relating to the Veteran's claim for service connection for a right knee disability and an increased rating for a left knee disability. Any notification issues relating to the reopening of the Veteran's claim for service connection are moot because the Board has reopened the Veteran's claim. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.",
"With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. Private and VA medical records have been obtained and reviewed in connection with this appeal. The Veteran has been provided with two VA examinations of his knees. The VA examiners reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted appropriate evaluations, and provided appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). In his March 2009 substantive appeal, the Veteran requested a hearing before a member of the Board; however, the Veteran failed to report to his scheduled hearing without presenting good cause. Under these circumstances, the Board considers the Veteran's request for a hearing to have been withdrawn. 38 C.F.R. § 20.702(d) (2013). The Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise.",
"Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met. ORDER The claim for service connection for an acquired psychiatric disability is reopened, and the appeal is allowed to that extent only. Service connection for a right knee disability is denied. A rating in excess of 10 percent for a right knee disability is denied. REMAND The RO did not reopen the Veteran's claim for service connection for an acquired psychiatric disability and consider such claim on the merits. Generally, when the Board reopens a claim that the RO did not, a remand is required for RO consideration. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Turning to the facts in this case, although the newly-presented psychiatric diagnoses of record were sufficient to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric condition, these diagnoses alone do not establish service connection. Therefore remand is required for RO consideration. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claim for service connection for an acquired psychiatric disability, to include PTSD, on the merits based on a complete review of the claims file.",
"If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question. | 11-27-2022 | [
"Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8984947/ | 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 .
Specification The examiner has not checked the specification to the extent necessary to determine the presence of all possible minor errors (grammatical, typographical and idiomatic). Cooperation of the applicant(s) is requested in correcting any errors of which applicant(s) may become aware of in the specification, in the claims and in any future amendment(s) that applicant(s) may file. Applicant(s) is also requested to complete the status of any copending applications referred to in the specification by their Attorney Docket Number or Application Serial Number, if any. The status of the parent application(s) and/or any other application(s) cross-referenced to this application, if any, should be updated in a timely manner.
Information Disclosure Statement The information disclosure statements filed have been considered as set forth in MPEP 609. Once the minimum requirements of 37 C.F.R. 1.97 and 1.98 are met, the examiner has the obligation to consider the information. Consideration by the examiner of the information submitted in an IDS means nothing more than considering the documents in the same manner that other documents in Office search files are considered by the examiner while conducting a search of the prior art in a proper field of
PTO/SB/08A and 08B, or its equivalent, mean that the examiner to the extent noted above has considered the information. See MPEP 609.05(b) Rev. 5. Applicant should note that documents not in the English language have been considered only to the extent of statements of relevance, explanations provided in the corresponding search reports provided and provided translations.
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 8 and 14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 8 now requires pretreating of the doped ZSM-5 zeolite. It is unclear as to whether this is prior to desilication, and further unclear as to how it can be a “pre” treatment if the zeolite has already been doped. Claim 14 recites that the doped ZSM-5 zeolite SAR is 5-50, but it cannot be determined if this is prior to or subsequent to the desilication step.
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
Claims 1, 3- 11, 13, 14, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over the Ogunrombi et al. article. Ogunrombi et al. disclose a ZSM-5 zeolite catalyst containing gallium, which material can be desilicated to impart intracrystalline mesopores into the zeolite framework. The starting SAR of the materials can be within the range of claim 14. It cannot be determined whether the SAR reported in claim 14 is prior to or after desilication, so SARs of upwards to 80 could reasonably be considered capable of providing a desilicated zeolite with SARs in the claimed range. Additionally, see paragraph 2.1 and 2.2 indicating SAR of 23-280. Pore diameters of the mesopores obtained by desilication are reported at 6.45 and 7.60 nm. The mesopore volume for two of the desilicated samples are approximately 0.29 and 0.49 cm2/g, well in excess of the claimed requirement of greater than 0.09. See Tables 1 and 2. Ogunrombi et al. disclose the use of such materials to catalyze an aromatization process as claimed in the instant application, wherein BTX is the desirable source (benzene, toluene, xylene). The only distinction between the reference process and that claimed herein is one of scope, in that the reference does not provide ranges for claimed variables. The instant claims would have been obvious, however, because the reference provides workable variables that fall within the ranges claimed herein. The amounts of Ga by percentage
are not specified. However, the gallium amounts corresponding to the reference Ga/(Al+Ga) are within the range claimed by applicant for claims 6 and 7. Ogunrombi et al. disclose the conversion of propane to aromatic products. Process conditions included temperature of 540C, atmospheric pressure (over 1 bar). The space velocity is not provided in WHSV, because the SV was varied to evaluate product selectivity. Nevertheless, the ordinarily skilled artisan is capable of varying SV depending on reactor volumes and flow rates being used. The reference mentions that it is known in the art to reduce GaZSM-5 with H2 to assist in diffusion of Fa species into the interior of a zeolite. See the introduction. Time and temperature are clearly result-effective in this situation, as the goal is dispersion of the gallium within the zeolite. A final difference between the reference and the claims specifying a C4+, light naphtha feedstock, which can contain minor aromatics is that the reference specifies a propane feed. This is not unexpected in that literature references normally employ more pure feedstocks for laboratory evaluation purposes. However, the skilled artisan operating industrially is aware that they will more frequently be dealing with mixed oil cuts in excess of three carbons, like light naphtha, containing higher hydrocarbons and possibly minor amounts of undesirable species, and which is generally a low-value oil cut. The artisan would be motivated to convert such material as well as lower carbon number hydrocarbons. The Kanai et al. reference is provided as evidence in support of this position, namely that zinc and HZSM-5 zeolites have long been known to convert C6 hydrocarbons to hexene, followed by aromatization. See the provided abstract of this article. . Conclusion Applicant's submission of an information disclosure statement under 37 CFR 1.97(c) with the fee set forth in 37 CFR 1.17(p) on January 7, 2022 prompted the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 609.04(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH D WOOD whose telephone number is (571)272-1377. The examiner can normally be reached M-F, 730 am-3 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.
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.
/ELIZABETH D WOOD/Primary Examiner, Art Unit 1732
/E.D.W/Primary Examiner, Art Unit 1732 | 2022-02-27T10:35:38 | [
"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 . Specification The examiner has not checked the specification to the extent necessary to determine the presence of all possible minor errors (grammatical, typographical and idiomatic). Cooperation of the applicant(s) is requested in correcting any errors of which applicant(s) may become aware of in the specification, in the claims and in any future amendment(s) that applicant(s) may file. Applicant(s) is also requested to complete the status of any copending applications referred to in the specification by their Attorney Docket Number or Application Serial Number, if any. The status of the parent application(s) and/or any other application(s) cross-referenced to this application, if any, should be updated in a timely manner. Information Disclosure Statement The information disclosure statements filed have been considered as set forth in MPEP 609. Once the minimum requirements of 37 C.F.R. 1.97 and 1.98 are met, the examiner has the obligation to consider the information. Consideration by the examiner of the information submitted in an IDS means nothing more than considering the documents in the same manner that other documents in Office search files are considered by the examiner while conducting a search of the prior art in a proper field of PTO/SB/08A and 08B, or its equivalent, mean that the examiner to the extent noted above has considered the information.",
"See MPEP 609.05(b) Rev. 5. Applicant should note that documents not in the English language have been considered only to the extent of statements of relevance, explanations provided in the corresponding search reports provided and provided translations. 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 8 and 14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 8 now requires pretreating of the doped ZSM-5 zeolite. It is unclear as to whether this is prior to desilication, and further unclear as to how it can be a “pre” treatment if the zeolite has already been doped. Claim 14 recites that the doped ZSM-5 zeolite SAR is 5-50, but it cannot be determined if this is prior to or subsequent to the desilication step.",
"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 Claims 1, 3- 11, 13, 14, 21 and 22 are rejected under 35 U.S.C.",
"103 as being unpatentable over the Ogunrombi et al. article. Ogunrombi et al. disclose a ZSM-5 zeolite catalyst containing gallium, which material can be desilicated to impart intracrystalline mesopores into the zeolite framework. The starting SAR of the materials can be within the range of claim 14. It cannot be determined whether the SAR reported in claim 14 is prior to or after desilication, so SARs of upwards to 80 could reasonably be considered capable of providing a desilicated zeolite with SARs in the claimed range. Additionally, see paragraph 2.1 and 2.2 indicating SAR of 23-280. Pore diameters of the mesopores obtained by desilication are reported at 6.45 and 7.60 nm. The mesopore volume for two of the desilicated samples are approximately 0.29 and 0.49 cm2/g, well in excess of the claimed requirement of greater than 0.09.",
"See Tables 1 and 2. Ogunrombi et al. disclose the use of such materials to catalyze an aromatization process as claimed in the instant application, wherein BTX is the desirable source (benzene, toluene, xylene). The only distinction between the reference process and that claimed herein is one of scope, in that the reference does not provide ranges for claimed variables. The instant claims would have been obvious, however, because the reference provides workable variables that fall within the ranges claimed herein. The amounts of Ga by percentage are not specified.",
"However, the gallium amounts corresponding to the reference Ga/(Al+Ga) are within the range claimed by applicant for claims 6 and 7. Ogunrombi et al. disclose the conversion of propane to aromatic products. Process conditions included temperature of 540C, atmospheric pressure (over 1 bar). The space velocity is not provided in WHSV, because the SV was varied to evaluate product selectivity. Nevertheless, the ordinarily skilled artisan is capable of varying SV depending on reactor volumes and flow rates being used. The reference mentions that it is known in the art to reduce GaZSM-5 with H2 to assist in diffusion of Fa species into the interior of a zeolite. See the introduction. Time and temperature are clearly result-effective in this situation, as the goal is dispersion of the gallium within the zeolite. A final difference between the reference and the claims specifying a C4+, light naphtha feedstock, which can contain minor aromatics is that the reference specifies a propane feed.",
"This is not unexpected in that literature references normally employ more pure feedstocks for laboratory evaluation purposes. However, the skilled artisan operating industrially is aware that they will more frequently be dealing with mixed oil cuts in excess of three carbons, like light naphtha, containing higher hydrocarbons and possibly minor amounts of undesirable species, and which is generally a low-value oil cut. The artisan would be motivated to convert such material as well as lower carbon number hydrocarbons. The Kanai et al. reference is provided as evidence in support of this position, namely that zinc and HZSM-5 zeolites have long been known to convert C6 hydrocarbons to hexene, followed by aromatization. See the provided abstract of this article. .",
"Conclusion Applicant's submission of an information disclosure statement under 37 CFR 1.97(c) with the fee set forth in 37 CFR 1.17(p) on January 7, 2022 prompted the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 609.04(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH D WOOD whose telephone number is (571)272-1377. The examiner can normally be reached M-F, 730 am-3 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. 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. /ELIZABETH D WOOD/Primary Examiner, Art Unit 1732 /E.D.W/Primary Examiner, Art Unit 1732"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-06.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
II Calendar No. 604 110th CONGRESS 2d Session S. 2719 IN THE SENATE OF THE UNITED STATES March 5, 2008 Mrs. Dole introduced the following bill; which was read the first time March 6, 2008 Read the second time and placed on the calendar A BILL To provide that Executive Order 13166 shall have no force or effect, and to prohibit the use of funds for certain purposes. 1.Nullification of effect of executive orderExecutive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (August 16, 2000; 65 Fed. Reg. 50121), is null and void and shall have no force or effect. 2.Prohibition against use of funds for certain purposesNo funds appropriated pursuant to any provision of law may be used to promulgate or enforce any executive order that creates an entitlement to services provided in any language other than English. March 6, 2008 Read the second time and placed on the calendar | 03-06-2008 | [
"II Calendar No. 604 110th CONGRESS 2d Session S. 2719 IN THE SENATE OF THE UNITED STATES March 5, 2008 Mrs. Dole introduced the following bill; which was read the first time March 6, 2008 Read the second time and placed on the calendar A BILL To provide that Executive Order 13166 shall have no force or effect, and to prohibit the use of funds for certain purposes. 1.Nullification of effect of executive orderExecutive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (August 16, 2000; 65 Fed. Reg. 50121), is null and void and shall have no force or effect.",
"2.Prohibition against use of funds for certain purposesNo funds appropriated pursuant to any provision of law may be used to promulgate or enforce any executive order that creates an entitlement to services provided in any language other than English. March 6, 2008 Read the second time and placed on the calendar"
]
| https://www.govinfo.gov/content/pkg/BILLS-110s2719pcs/xml/BILLS-110s2719pcs.xml | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
21-30071-hcm Doc#41-1 Filed 04/06/21 Entered 04/06/21 11:44:51 Proposed Order Pg 1 of 2
UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION
IN RE: § § CASE NO 21-30071 THE GATEWAY VENTURES, LLC, § § § Debtor. §
ORDER GRANTING MOTION OF DEBTOR TO (I) REJECT ESCROW CONTRACT AND (II) REFUND DEPOSIT
On this day came on for consideration the Motion of Debtor to (I) Reject Escrow
Contract and (II) Refund Deposit (the “Motion”) filed herein on April 6, 2021 by The Gateway
Ventures, LLC (“TGV”). The Court finds and concludes that the Motion contained the
appropriate notices under the Bankruptcy Local Rules; according to the certificate of service
attached to the Motion, the Motion was served upon the parties entitled to receive notice under
the Bankruptcy Local Rules; no party in interest filed a response or objection to the Motion or
any such response or objection is overruled by this Order; and that upon review of the record of
this case and with respect to the Motion that cause exists to grant the relief requested therein.
ORDER GRANTING MOTION OF DEBTOR TO (I) REJECT ESCROW CONTRACT AND (II) REFUND DEPOSIT — Page 1 1929316.DOCX [5] 21-30071-hcm Doc#41-1 Filed 04/06/21 Entered 04/06/21 11:44:51 Proposed Order Pg 2 of 2
IT IS THEREFORE ORDERED THAT:
1. The Motion is granted as set forth herein.
2. All capitalized terms shall have the same meaning as ascribed to such terms in the Motion, unless otherwise defined herein.
3. The Lease is deemed rejected as of the Petition Date.
4. The Escrow Agent identified in the Lease may return the $18,500.00 deposit to Union Gateway LLC.
5. Union Gateway LLC shall file no proof of claim in this bankruptcy case, and releases the TGV and the estate from any and all claims resulting from the Lease and the rejection thereof.
###
Submitted by:
Jeff Carruth (TX SBN: 24001846) WEYCER, KAPLAN, PULASKI & ZUBER, P.C. 3030 Matlock Rd. Suite 201 Arlington, Texas 76105 Telephone: (713) 341-1158 Fax: (866) 666-5322 E-mail: jcarruth@wkpz.com
PROPOSED ATTORNEYS FOR THE GATEWAY VENTURES, LLC DEBTOR AND DEBTOR IN POSSESSION
ORDER GRANTING MOTION OF DEBTOR TO (I) REJECT ESCROW CONTRACT AND (II) REFUND DEPOSIT — Page 2 1929316.DOCX [5] | 2021-04-06 | [
"21-30071-hcm Doc#41-1 Filed 04/06/21 Entered 04/06/21 11:44:51 Proposed Order Pg 1 of 2 UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION IN RE: § § CASE NO 21-30071 THE GATEWAY VENTURES, LLC, § § § Debtor. § ORDER GRANTING MOTION OF DEBTOR TO (I) REJECT ESCROW CONTRACT AND (II) REFUND DEPOSIT On this day came on for consideration the Motion of Debtor to (I) Reject Escrow Contract and (II) Refund Deposit (the “Motion”) filed herein on April 6, 2021 by The Gateway Ventures, LLC (“TGV”). The Court finds and concludes that the Motion contained the appropriate notices under the Bankruptcy Local Rules; according to the certificate of service attached to the Motion, the Motion was served upon the parties entitled to receive notice under the Bankruptcy Local Rules; no party in interest filed a response or objection to the Motion or any such response or objection is overruled by this Order; and that upon review of the record of this case and with respect to the Motion that cause exists to grant the relief requested therein. ORDER GRANTING MOTION OF DEBTOR TO (I) REJECT ESCROW CONTRACT AND (II) REFUND DEPOSIT — Page 1 1929316.DOCX [5] 21-30071-hcm Doc#41-1 Filed 04/06/21 Entered 04/06/21 11:44:51 Proposed Order Pg 2 of 2 IT IS THEREFORE ORDERED THAT: 1. The Motion is granted as set forth herein. 2.",
"All capitalized terms shall have the same meaning as ascribed to such terms in the Motion, unless otherwise defined herein. 3. The Lease is deemed rejected as of the Petition Date. 4. The Escrow Agent identified in the Lease may return the $18,500.00 deposit to Union Gateway LLC. 5. Union Gateway LLC shall file no proof of claim in this bankruptcy case, and releases the TGV and the estate from any and all claims resulting from the Lease and the rejection thereof. ### Submitted by: Jeff Carruth (TX SBN: 24001846) WEYCER, KAPLAN, PULASKI & ZUBER, P.C. 3030 Matlock Rd. Suite 201 Arlington, Texas 76105 Telephone: (713) 341-1158 Fax: (866) 666-5322 E-mail: jcarruth@wkpz.com PROPOSED ATTORNEYS FOR THE GATEWAY VENTURES, LLC DEBTOR AND DEBTOR IN POSSESSION ORDER GRANTING MOTION OF DEBTOR TO (I) REJECT ESCROW CONTRACT AND (II) REFUND DEPOSIT — Page 2 1929316.DOCX [5]"
]
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Opinion for the Court filed by Circuit Judge SENTELLE. Dissenting opinion filed by Circuit Judge EDWARDS. SENTELLE, Circuit Judge: ExxonMobil Gas Marketing Company, et al.,1 (hereinafter “ExxonMobil”) and the Producer Coalition2 petition for review of *175Federal Energy Regulatory Commission (“FERC” or “the Commission”) orders in which FERC reclassified portions of Sea Robin Pipeline Company’s pipeline system on the Outer Continental Shelf as non-jurisdictional “gathering” facilities for natural gas, rather than jurisdictional “transportation” facilities, pursuant to section 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b). FERC argues that in developing and applying its reformulated “primary function” test the Commission followed the suggestion of the United States Court of Appeals for the Fifth Circuit in Sea Robin Pipeline Co. v. FERC, 127 F.3d 365 (5th Cir.1997) (“Sea Robin I”), and reasonably identified the demarcation point between gathering and transportation in Sea Robin’s pipeline system. Because the Commission did not act unreasonably in determining that portions of Sea Robin’s system were non-jurisdictional, we deny the petitions for review. I. Background A. Statutory and Regulatory Framework Section 1(b) of the Natural Gas Act (“the Act”), 15 U.S.C. § 717 et secy., governs “the transportation of natural gas in interstate commerce.” 15 U.S.C. § 717(b). However, in section 1(b) of the Act Congress prescribed not only “the intended reach of the Commission’s power, but also specified the areas into which this power was not to extend.” Federal Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499 (1949) (emphasis added). Section 1(b) expressly exempts from the Commission’s jurisdiction “the production or gathering of natural gas.” 15 U.S.C. § 717(b). Thus, Congress “carefully divided,” Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 510, 109 S.Ct. 1262, 1274, 103 L.Ed.2d 509 (1989), energy regulatory authority and “did not envisage federal regulation of the entire natural-gas field to the limit of constitutional power. Rather it contemplated the exercise of federal power as specified in the Act.” Panhandle Eastern, 337 U.S. at 502-03, 69 S.Ct. at 1255. The Natural Gas Act does not define either “transportation,” which falls within the Commission’s jurisdiction, or “gathering,” which is exempt from FERC authority under the Act. The Supreme Court has, however, held that “[e]xceptions to the primary grant of jurisdiction in the section are to be strictly construed.” Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U.S. 682, 690-91, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742 (1947) (construing 15 U.S.C. § 717(b)). Thus, the Supreme Court has “consistently held that ‘production’ and ‘gathering’ are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution.” Northern Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 90, 83 S.Ct. 646, 649-50, 9 L.Ed.2d 601 (1963). The Commission’s long-held definition of gathering, taken as consistent with the Supreme Court’s pronouncements on the Act, is “the collecting of gas from various wells and bringing it by separate and several individual lines to a central point where it is delivered into a single line.” Barnes Transp. Co., 18 F.P.C. 369, 372 (1957); see also Conoco Inc. v. FERC, 90 F.3d 536, 539 n. 2 (D.C.Cir.1996) (“Gathering is the process of taking natural gas from the wells and moving it to a collection point for further movement through a pipeline’s principal transmission system.”) (citing Northwest Pipeline Corp. v. FERC, 905 F.2d 1403, 1404 n. 1 (10th Cir.1990)). Despite these attempts to clarify the Natural Gas Act, this Court has observed that “[t]he line between jurisdictional transportation and nonjurisdictional *176gathering is not always clear.” Conoco, 90 F.3d at 542. For many years the Commission employed two principal tests to differentiate transportation from gathering. Developed in the on-shore context, these tests were the “behind-the-plant” test and the “central-point-in-the-field” test. The “behind-the-plant” test presumes that all facilities located between the wellhead and a processing plant are non-jurisdictional gathering lines, while facilities downstream of the processing plant are presumptively transportation facilities. See Phillips Petroleum Co., 10 F.P.C. 246, 276-78, 1951 WL 1832 (1951), rev’d on other grounds, Wisconsin v. Federal Power Comm’n, 205 F.2d 706 (D.C.Cir.1953), aff'd, Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). For gas that requires no processing the “central-point-in-the-field” test applied, under which lateral lines collecting gas from separate wells that then converge into a single larger line (typically at the point where the gas is compressed for transportation by the pipeline), were classified as gathering facilities. E.g., Barnes Transp. Co., 18 F.P.C. 369, 372 (1957). Since 1983, the Commission has subsumed these two tests into its “primaiy function” test to determine “whether a facility is devoted to the collection of gas from wells — gathering— or to the further (‘downstream’) long-distance movement of gas after it has been collected — interstate transportation.” Conoco, 90 F.3d at 543 (citing Farmland Industries, Inc., 23 F.E.R.C. ¶ 61,063, at 61,143, 1983 WL 39391 (1983); Amerada Hess Corp., 52 F.E.R.C. ¶ 61,268, at 61,987-88, 1990 WL 1241336 (1990)). The “primaiy function” test generally employs the following six physical criteria: (1) the length and diameters of the lines; (2) the extension of the facility beyond the central point in the field; (3) the geographic configuration of the facility; (4) the location of compressors and processing plants; (5) the location of wells along all or part of the line facility; and (6) the operating pressure of the lines. Lomak Petroleum, Inc. v. FERC, 206 F.3d 1193, 1196 (D.C.Cir.2000). In addition, FERC considers the following “non-physical” criteria: (1) the purpose, location and operation of the facility; (2) the general business activity of the owner of the facility; (3) whether a jurisdictional determination, i.e., gathering versus transmission, is consistent with the objectives of the Natural Gas Act and other legislation; and (4) the changing technical and geographic nature of exploration and production activities. Id. No one factor is determinative in the primary function test, and not all factors apply in all situations. See Williams Field Servs. Group, Inc. v. FERC, 194 F.3d 110, 116 (D.C.Cir.1999); Conoco, 90 F.3d at 543. The Commission “gives consideration to all of the facts and circumstances of the case rather than mechanically applying a facilities configuration standard.” West Tex. Gathering Co., 45 F.E.R.C. ¶ 61,386, at 62,219 n.4, 1988 WL 246728 (1988); see also Conoco, 90 F.3d at 543. When these physical factors were developed, most jurisdictional questions involved onshore facilities. As an increasing number of facilities have been constructed offshore on the Outer Continental Shelf (“OCS”), where the pattern of gathering and distribution differs, the applicability of the factors has been questioned. See, e.g., EP Operating Co. v. FERC, 876 F.2d 46 (5th Cir.1989). Specifically, it is often not feasible to process raw gas on open water. As a result, pipelines on the OCS typically do not gather gas at a local, centralized point within a field as they would onshore, to prepare it for traditional transportation. Rather, on the OCS, relatively long lines are constructed to carry the raw gas from offshore platforms, where “[o]nly the most rudimentary separation and dehydration operations” are conducted, EP Operating, *177876 F.2d at 47, to the shore or a point closer to shore, where it can be processed into “pipeline quality” gas. Id. at 48. In EP Operating Co., the Fifth Circuit discounted FERC’s ruling that the offshore platform where initial gas treatment took place constituted a “central point in the field” where the gathering function was complete, and reversed FERC’s decision that the 51-mile long, 16-inch diameter OCS pipeline downstream of that platform was a jurisdictional transportation facility. See id. at 49. Following EP Operating Co., FERC noted that “because of recent advances in engineering and available technology, offshore drilling operations continue to move further offshore and further from existing interstate pipeline interconnections” and therefore the Commission would assess “the continuing viability and relevance of the ‘primary function’ test to current industry conditions.” Amerada Hess, 52 F.E.R.C. at 61,988. FERC then modified its primary function test to apply a sliding scale, “allowing for] the use of gathering pipelines of increasing lengths and diameters in correlation to the distance from shore and the water depth of the offshore production area,” id. at 61,-988, and to consider .the “non-physical” criteria described above. This “modified” primary function test was applied by FERC when Sea Robin petitioned in 1995 for a declaration that its facilities perform a gathering function, rather than transportation, thus entitling Sea Robin to exemption from the Commission’s jurisdiction under section 1(b) of the Act. B. Sea Robin’s Pipeline System3 Sea Robin’s pipeline system is located entirely offshore in the Gulf of Mexico and approximately 90 percent of its facilities lie in water depths of less than 140 feet. It is one of numerous competing pipeline systerns located in the Gulf. The Sea Robin system is configured roughly in the form of an inverted “Y” with two arteries stretching roughly southwest and southeast from a central point about fifty miles south of the Louisiana coast. These two pipelines collect raw gas from sixty-seven offshore production platforms. Sea Robin’s Vermilion 149 Compressor Station stands at the intersection of these two pipelines. It compresses the gas from the sixty-seven platforms for travel north, up the inclined seabed, to the Erath Compressor Station on the mainland. After collecting gas from four more platforms, the system terminates near Erath, -Louisiana, where the gas is separated, dehydrated and processed. The Erath Compressor Station then prepares the gas for delivery to downstream transmission pipelines at five nearby entry points. The Sea Robin system consists of 438 miles of dual-phase pipelines with a capacity to transport 1.26 billion cubic feet of gas per day (Bcf/day) and includes around 69,-500 horsepower (hp) of compression. The pipeline is “dual-phase” in that it carries a raw stream of unpurified natural gas and liquid hydrocarbons taken directly from the gas wells. The total compression horsepower at the Vermilion 149 Station is37,050 hp and is 32,490 hp at Erath, Louisiana. Of the 438 miles of pipes, 339 miles are larger than twenty inches in diameter. The remaining ninety-nine miles of pipes, mostly running from individual platforms to the larger pipes, are between four and sixteen inches in diameter. Along the two arms of the inverted “Y,” which extend out in the Outer Continental Shelf, 45 lateral lines with diameters ranging from 4.5 to 30 inches are connected to 67 receipt points located on production *178platforms, or at subsea taps where Sea Robin’s facilities intersect with short lateral lines of producers or pipelines. Through these upstream arms, Sea Robin moves the raw gas to the Vermilion 149 Station at the fork of the “Y,” a manned platform with, two turbine compressor units of 12,350 horsepower each. From there, the gas moves along the Vermilion 149-Erath segment. That segment is the longest portion of the pipeline, consisting of 66.3 miles of 36-inch diameter pipeline running in a straight line from Sea Robin’s Vermilion compressor station to onshore processing facilities. Gas from four additional platforms is mingled with the gas traveling the Vermilion 149-Erath segment. The four platforms along this section are within twenty-five miles of the Vermilion compressor station, which means that the last forty-one miles of the thirty-six inch diameter pipeline are uninterrupted by lateral pipe segments. The gas and liquefiables delivered by Sea Robin meet the merchantable natural gas quality standards of downstream transmission pipelines. FERC issued the original certificate for the Sea Robin system in 1969, pursuant to section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), authorizing the system to both sell and transport gas from the Outer Continental Shelf. Sea Robin Pipeline Co., 41 F.P.C. 257, 1969 WL 5152 (1969). In later years the Commission certificated extensions of the Sea Robin system farther out on the OCS. See Sea Robin Pipeline Co., 87 F.E.R.C. at 62,429 n. 26. Subsequently, Sea Robin became a transportation-only pipeline, and its shippers today consist of producers and marketers that transport gas onshore for ultimate delivery to markets on connecting interstate pipelines. Id. at 62,428. C. Prior Proceedings In 1995, the Sea Robin Pipeline Company petitioned FERC for a declaration that its facilities perform a “gathering” function, rather than “transportation,” and are thus not subject to the Commission’s jurisdiction under section 1(b) of the Natural Gas Act. See Sea Robin I, 127 F.3d at 367. FERC denied Sea Robin’s petition, determining that its pipelines were engaged in jurisdictional transportation activities. See id.; Sea Robin Pipeline Co., 71 F.E.R.C. ¶ 61,351, 1995 WL 361806 (1995), order denying reh’g, lb F.E.R.C. ¶ 61,332, 1996 WL 355518 (1996). In reaching its conclusion, FERC emphasized the “very large size of [Sea Robin’s] system.” Sea Robin Pipeline Co., 71 F.E.R.C. at 62,398 (emphasis in original). According to the Commission, “the length and diameter of the system’s components, as well as its overall size, [we]re not outweighed by other elements of the ‘primary function’ test.” Id. Further, FERC “repeatedly emphasized that the non-physical criteria in its test supported its conclusion that Sea Robin was a transporter, particularly Sea Robin’s prior certification as a jurisdictional pipeline and its ownership by an interstate pipeline.” Sea Robin I, 127 F.3d at 369-70. Sea Robin petitioned for review of FERC’s order in the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit granted that petition for review, vacated the order, and remanded to .the Commission. Sea Robin I, 127 F.3d at 372. Specifically, the Fifth Circuit questioned FERC’s reliance on the size of Sea Robin’s system as “presumptively” determinative, as well as the apparent abandonment, without reasoned consideration, of the “sliding scale” approach announced by the Commission in Amerada Hess, 52 F.E.R.C. ¶ 61,268 (1990). See Sea Robin I, 127 F.3d at 370. The Fifth Circuit concluded that FERC had “reverted to its single factor, bright-line approaches that it had previously rejected as unworkable for offshore pipelines.” Id. (citing Northwest *179Pipeline Corp., 905 F.2d at 1409; EP Operating Co., 876 F.2d at 48). The Court also faulted the Commission for the reliance it placed on non-physical considerations, such as Sea Robin’s ownership and shipper expectations. See 127 F.3d at 370-71 (“If the Commission is to remain tethered to the statute, as it must, that inquiry must be based primarily on physical criteria and the realities of the field.”). The Fifth Circuit “intend[ed] that [nonphysical criteria] be put in its place as considerations secondary to the physical factors.” Id. at 371. Finally, the Fifth Circuit found FERC’s “regulatory gap” argument, that a regulatory gap might arise if Sea Robin was held to be a gathering system, wanting: “Need for regulation cannot alone create authority to regulate.” Id. In remanding to the Commission, the Fifth Circuit acknowledged that “Sea Robin’s system resists easy categorization because the logistics of offshore pipelines obscures differences between gathering gas from Gulf platforms and transporting it to the mainland.” Sea Robin I, 127 F.3d at 370. It also observed that “the pattern of gathering and distribution on shore differs from the pattern of transportation and gathering of gas from the middle of the Gulf to the mainland,” id., and suggested that FERC “again consider the applicability of the primary function test to offshore pipeline systems and if necessary, reformulate this test.” Id. at 367. The Court noted that on remand, “Sea Robin may choose to respond to the Commission’s invitation to offer portions of its system as predominantly involved in a gathering or a transportation function.” Id. at 371 (footnote omitted). In doing so, the Court specifically admonished the Commission that “[discomfort in drawing the jurisdictional line at points internal to an overall system may be soothed with the reminder that Congress did not intend to extend FERC’s jurisdiction to all natural gas pipelines; indeed it demands the drawing of jurisdictional lines, even when the end of gathering is not easily located.” Id. The Court opined that the Commission could “consider, for example, a distinction between the field south of the Vermilion Compressor Station and the pipelines leading north to Erath, Louisiana.” Id. On remand, FERC accepted the Fifth Circuit’s invitation to reformulate its primary function test. Sea Robin Pipeline Co., 87 F.E.R.C. ¶ 61,384, 1999 WL 444654 (1999) (“Remand Order”). In reformulating its primary function test, the Commission concluded that the “behind-the-plant” factor is not necessarily determinative of where gathering ends when applied to offshore facilities. See id. at 62,425. Further, FERC determined that it would “assess the physical configuration of offshore pipeline systems to determine if there exists a central location where gas is aggregated for further transportation to shore.” Id. Such a location would be the “offshore analogue of the onshore ‘central-point-in-the-field’ criterion.” Id. In eases where a pipeline system is configured to deliver gas collected from upstream wells to a centralized location through several relatively small diameter lines for further delivery onshore through a single larger diameter pipeline, that centralized aggregation location is considered by FERC to be analogous to the central-point-in-the-field factor and “given weight in identifying the demarcation point between gathering and transportation on OCS pipeline systems.” Id. at 62,426. Thus, the Commission was willing to consider, as suggested by the Fifth Circuit, that the demarcation point between gathering and transmission on a system like Sea Robin’s could be determined to be at a point internal to an overall pipeline system. See Sea Robin Pipeline Co., 92 F.E.R.C. ¶ 61,072, at 61,285 (2000) (“Rehearing Order”). *180Applying its reformulated primary function test, the Commission concluded that Sea Robin’s pipeline facilities comprise two distinct components: a jurisdictional transportation system from the Vermilion 149 Station to Erath, and a non-jurisdictional gathering system upstream of the Vermilion 149 Station. See Remand Order, 87 F.E.R.C. at 62,426. FERC found that the primary function of the Vermilion-Erath line “is to transport to shore natural gas that has been delivered from many areas through a network-like configuration of relatively smaller diameter lines to a centralized point where gas is aggregated and compressed,” namely the Vermilion 149 Station. Id. at 62,482. In support of its decision to draw the jurisdictional line at the Vermilion 149 Compressor Station, the Commission emphasized certain key aspects of the system’s overall physical configuration. Specifically, FERC found that the “straight-shot” geographical configuration of Sea Robin’s system downstream of the Vermilion 149 Station, interconnecting with only two laterals delivering gas from only four wells along its 66.3-mile length, and the line’s large 36-inch diameter are indicative of transportation. See id. at 62,430. In contrast, the facilities upstream of the Vermilion 149 Station interconnect with 45 laterals connected to 67 production platforms, and the lines are 30 inches or less in diameter. See id. at 62,431. Moreover, FERC found that the compression that occurs at Vermilion 149 “is typical of compression found on large diameter transportation lines transporting high volumes of gas over relatively long distances,” rather than “field compression” associated with production. Id. at 62,430. According to FERC, the Vermilion 149 Station thus represented a central aggregation location highly suggestive of the demarcation point between gathering and transportation. See id. at 62,431. The Commission concluded that in the “most fundamental meaning of the ‘primary function’ test, the ‘totality of the circumstances’ demonstrates that the primary function of the Vermilion-Erath Line is to transport to shore natural gas that has been delivered from many areas through a network-like configuration of relatively smaller diameter lines to a centralized point where the gas is aggregated and compressed,” and these smaller lines upstream of Vermilion 149 are engaged in non-jurisdictional gathering. Id. at 62,432. On rehearing, the Commission adhered to its position. See Rehearing Order, 92 F.E.R.C. at 61,284. FERC reiterated that its reformulated primary function test included: (1) consideration of an additional analytical element applicable where OCS pipeline facilities exhibit a “centralized aggregation point”; (2) adjustment in the weight to be afforded the behind-the-plant criterion on the OCS; and (3) a primary focus on physical factors. Id. at 61,285. It addressed arguments from the petitioners that all of Sea Robin’s system was engaged in jurisdictional transportation, and arguments from Sea Robin that its system was engaged entirely in non-jurisdictional gathering.4 Specifically the Rehearing Order identifies 13 physical factors considered in concluding that the facilities upstream of the Vermilion 149 Station are engaged in non-jurisdictional gathering. See id. at 61,291. These physical factors are: (1) the 66.3 mile length of the Vermillion-Erath line; (2) the 36-inch diameter of the Vermillion-Erath line; *181(3) the straight-line configuration of the Vermillion-Erath line; (4) the inverted-Y configuration of the Sea Robin System; (5) the existence of only four platforms along the length of the VermillionErath line as compared to the connections to 71 production platforms upstream of the Vermillion 149 Compressor Station; (6) the abrupt change in physical attributes and configuration in the system occurring at the Vermillion 149 Compressor Station; (7) the concentration of compression at the Vermillion 149 Compressor Station; (8) the existence of a centralized aggregation location at the Vermillion 149 Compressor Station; (9) the 4.5 to 24 inch diameters of the lines upstream of the Vermillion 149 Compressor Station; (10) the existence of 45 laterals feeding into the two upstream arms of the inverted-Y upstream of the Vermillion 149 Compressor station; (11) the presence of 71 production platforms connected to the system upstream of the Vermillion 149 Compressor station; (12) the network configuration of Sea Robin’s facilities upstream of the Vermillion 149 Compressor Station; and (13) the onshore location of processing plants, which was not considered a determinative factor due to the geographic and technical characteristic of production and transportation offshore. Id. Further, FERC rejected the argument that it had substituted the new “centralized aggregation point” criteria for its prior impermissible reliance on a single-factor test. Rather, it explained, “the centralized-aggregation-point is more appropriately viewed as a descriptive label for a set of a number of individual physical characteristics.” Id. “Just as the historical behind-the-plant and central-point-in-the-field factors are based on the existence of a confluence of individual elements, the new centralized-aggregation-point factor also is an example of an additional physical factor that can arise as the result of the combination of several individual physical components....” Id. at 61,292. Relying on the Fifth Circuit’s Sea Robin I decision, the Commission rejected the suggestion that various production platforms, rather than the Vermilion 149 Station, are centralized aggregation points. See id. Similarly, the Commission relied on the Fifth Circuit’s decision to reject the suggestion that the reformulated primary function test would create an unlawful “regulatory gap” on the Outer Continental Shelf. See id. at 61,293 (citing Sea Robin I, 127 F.3d at 371). Moreover, FERC claimed to have addressed such “regulatory gap” concerns in its separate decision to promulgate regulations under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq., to ensure that natural gas is transported in an open and nondiscriminatory manner. Rehearing Order, 92 F.E.R.C. at 61,293 (citing 65 Fed.Reg. 20,354 (Apr. 17, 2000)). FERC also addressed arguments that it had given inadequate attention to the impact of the jurisdictional determination on the settled expectations of customers and on new upstream deepwater systems. The Commission found that the “remanding Court’s directions on this point were clear. The Court ruled that while the practical effect of the determination of gathering is relevant, the primary consideration in formulating a jurisdictional test must be the physical characteristics that distinguish gathering from transmission.” Id. at 61,-293-94 (citing Sea Robin I, 127 F.3d at 371). Thus, although FERC considered *182these non-physical factors, the primary focus, as required by the Fifth Circuit, had to be the physical factors, and those factors supported drawing the jurisdictional line at the Vermilion 149 Station. See id. at 61,294. Finally, FERC considered and rejected arguments that: (1) a 1978 amendment to OCSLA purportedly equated the scope of the “gathering” exemption in the Natural Gas Act with the concept of “feeder lines,” see id.; (2) certificates issued to Sea Robin for the reclassified non-jurisdictional facilities must be subject to “abandonment” proceedings pursuant to section 7(b) of the Natural Gas Act, 15 U.S.C. § 717f(b), see id. at 61,294-95; and (3) the fact that a jurisdictional upstream pipeline (the Garden Banks pipeline) delivers gas into the east leg of Sea Robin’s system upstream of the Vermilion 149 Station prevents the Commission from reclassifying the Sea Robin system as non-jurisdictional. See id. at 61,295. On this last issue, petitioners contended that FERC had violated its prior ruling in Tarpon Transmission Co., 60 F.E.R.C. ¶ 61,041, 1992 WL 166429 (1992), which they read as precluding pipeline facilities that carry gas delivered by a jurisdictional transportation pipeline from being classified as gathering facilities. FERC noted that this issue was raised for the first time on rehearing; however, the Commission went on to hold that the petitioners’ reliance on Tarpon was misplaced. See Rehearing Order, 92 F.E.R.C. at 61,-295. Although the presence of upstream transportation facilities was one factor considered in Tarpon, the real concern in that proceeding was that finding Tarpon’s facilities to be engaged in non-jurisdictional gathering would have left shippers and producers unprotected from the exercise of monopoly power. See id. FERC concluded that such concerns were no longer relevant for facilities exempt from the Natural Gas Act because of the Commission’s new OCSLA anti-discrimination regulations. Id. at 61,295-96. ExxonMobil and the Producer Coalition filed timely petitions for review challenging the Remand Order and the Rehearing Order in this Court. II. Analysis The challenged orders are subject to reversal if the FERC’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making this determination, “[t]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); see Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). To the extent that the petitioners are challenging FERC’s interpretation of section 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b), we apply the two-step approach of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When Congress has spoken, we are bound by that pronouncement and that ends this Court’s inquiry. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82 (Chevron step one). Where “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782 (footnote omitted) (Chevron step two). In reviewing the Commission’s determinations, we are mindful that “[t]he *183line between jurisdictional transportation and non-jurisdictional gathering is not always clear.” Conoco, 90 F.3d at 542. The jurisdictional determination under section 1(b) of the Act is “a line-drawing problem for which there is no easy answer.” Williams Field Servs., 194 F.3d at 118. Thus, “it is not this court’s role to interpose its judgment.” Id. Rather, we are mindful that in “evaluating and balancing the several factors under the primary function test, the Commission brings to bear its considerable expertise about the natural gas industry.” Conoco, 90 F.3d at 544; see also Lomak, 206 F.3d at 1196-97; Williams Field Servs., 194 F.3d at 118. “Accordingly, we will uphold the Commission’s application of the test as long as it gives ‘reasoned consideration to each of the pertinent factors’ and articulates factual conclusions that are supported by substantial evidence in the record.” Lomak, 206 F.3d at 1197 (quoting Conoco, 90 F.3d at 544); see 15 U.S.C. § 717r(b) (“The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.”). The burden is on the petitioners to show that the Commission’s choices are unreasonable and its chosen line of demarcation is not within a “ ‘zone of reasonableness’ ” as distinct from the question of whether the fine drawn by the Commission is “precisely right.” Hercules Inc. v. EPA, 598 F.2d 91, 107 (D.C.Cir.1978) (quoting Federal Power Comm’n v. Conway Corp., 426 U.S. 271, 278, 96 S.Ct. 1999, 2004, 48 L.Ed.2d 626 (1976)). We cannot say that the Commission acted unreasonably either in interpreting the Natural Gas Act or declining to exercise jurisdiction over portions of Sea Robin’s system. Therefore petitioners have failed to cany their burden, and the petitions must be denied. A. ExxonMobil challenges FERC’s determination that the Vermilion 149 Station is a reasonable point at which the Commission may draw the line between non-jurisdictional gathering and jurisdictional transportation. It contends that the added compression at Vermilion 149 only serves to push and pull gas along an “integrated” transportation system. Petitioner proposes that the individual production platforms mark the point at which gathering ends and transportation begins. However, petitioner’s differing interpretation of the physical factors present on the Sea Robin system does not provide us with a basis to upset the Commission’s order. Reasonable people may disagree as to where gathering ends and transportation begins. Were we the Federal Energy Regulatory Commission, we might draw the line at Erath. Others might draw it at the production platforms themselves. But see EP Operating Co., 876 F.2d at 49. But after considering the inherent ambiguity in the statute and the fact that “[t]he line between jurisdictional transportation and non-jurisdictional gathering is not always clear,” Conoco, 90 F.3d at 542, (as it is not clear here) we simply cannot conclude that the Commission’s choice of the Vermilion 149 Station as the dividing line was unreasonable, especially in light of the Fifth Circuit’s decision on remand. See Sea Robin I, 127 F.3d at 371. We therefore hold that the Commission’s choice, if not unassailable, is at least defensible, and survives the arbitrary-and-capricious review of the Administrative Procedure Act. FERC relied on the smaller dimensions of the upstream lines in contrast to the 36-inch Vermilion-Erath line; the 45 laterals feeding into the two upstream arms; the 67 production platforms connected to the upstream facilities compared with only four downstream; the network configuration of the upstream facilities; and the need for added compression at the Vermilion 149 Station to move gas to shore. See Rehearing Order, 92 F.E.R.C. at 61,291-*18492. All of these physical factors show a meaningful distinction between the facilities upstream and downstream of Vermilion 149 and make it reasonable to define it as the central aggregation point. Obedient to the Fifth Circuit’s suggestion, FERC examined Sea Robin’s system in parts, rather than as a whole, and reasonably concluded that different parts of the system required different jurisdictional treatment. Moreover, as described by the Commission, the central aggregation test is not a new, bright-line test, but rather is an amalgamation of physical factors, and in any event, is wholly consistent with past FERC precedent. It has long been the Commission’s view, upheld by this Court, among others, that when gas from separate wells is collected by several lines which converge at a single location in the producing field for delivery into a single line for transportation, the separate lateral lines behind the central point are classified as non-jurisdictional gathering facilities. Accord Barnes Transp. Co., 18 F.P.C. 369, 372 (1957). That aptly describes the Sea Robin system. At Vermilion 149 gas from several lateral lines is brought together and propelled to shore. The dissent is critical of FERC’s determination because in its view, “[sjurely a ‘fork in the road’ cannot be the demarcation line between unregulated production/gathering and regulated transportation.” Dis. Op. at 5. But why not? Cannot two roads diverging (or in this case, converging) make all the difference? Indeed, has that not always been the thrust of the Commission’s “central-point-in-the-field” test? In this case, the forks of the “Y” gathered gas from production platforms at 67 receipt points, whereas the straight segment received gas at only four such points; the forks were pipes of smaller diameter than that of the straight segment; and the forks required less compression to move the gas along. Moreover, the line between gathering and transportation is inherently elusive, see, e.g., Conoco, 90 F.3d at 542, and FERC “has wide discretion to determine where to draw administrative lines.” AT&T Corp. v. FCC, 220 F.3d 607, 627 (D.C.Cir.2000). It is for the Commission, in the first instance, to determine the patterns of gathering and transportation in the offshore context. “We are generally ‘unwilling to review line-drawing performed by the Commission unless a petitioner can demonstrate that lines drawn ... are patently unreasonable, having no relationship to the underlying regulatory problem.’ ” Cassell v. FCC, 154 F.3d 478, 485 (D.C.Cir.1998) (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 60 (D.C.Cir.1977)). We conclude that petitioner has failed to carry its burden. ExxonMobil makes much of the Supreme Court’s language in Northern Natural Gas Co. v. State Corp. Comm’n of Kansas, 372 U.S. 84, 90, 83 S.Ct. 646, 649-50, 9 L.Ed.2d 601 (1963), in which the Court held that “ ‘production’ and ‘gathering’ are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution.” Thus, petitioner essentially contends that given the length and size of the upstream portion of Sea Robin’s system, it cannot possibly be involved in gathering, as described by the Supreme Court. However, the Fifth Circuit expressly rejected FERC’s per se reliance on length of a pipeline, holding that a 51-mile pipeline was non-jurisdictional. EP Operating Co., 876 F.2d at 49. This same decision weighs against FERC’s treating the production platforms as central aggregation points as well. See id. Rather, the Fifth Circuit required the Commission to recognize that “the pattern of gathering and distribution on shore differs from the pattern of transportation and gathering of gas from the middle of the Gulf to the mainland.” Sea Robin I, 127 F.3d at 370; see also Amerada Hess, 52 F.E.R.C. at *18561,988 (adopting the “modified primary function test” in response to EP Operating Co., and in recognition of the “changing technical and geographic nature of exploration and production”). Given these different physical realities, what might not seem “narrowly confined” in the on-shore context, may well be on the Outer Continental Shelf. Cf. West v. Gibson, 527 U.S. 212, 218, 119 S.Ct. 1906, 1910, 144 L.Ed.2d 196 (1999) (“Words in statutes can enlarge or contract their scope as other changes, in the law or in the world, require their application.”); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998) (statutory provisions often go beyond “the principal evil Congress was concerned with”). Given this backdrop, we cannot conclude that FERC’s determination is unreasonable here. Moreover, we have previously recognized the limited reach of the Supreme Court’s holding in Northern Natural. In each case in which the Supreme Court “has applied this narrow definition of ‘production’ and ‘gathering’ to uphold the Commission’s jurisdiction, the regulated entity was engaged in a jurisdictional activity.” Conoco, 90 F.3d at 545. Thus, “when a natural gas company provided bundled sales and interstate transportation from its own wells to consumers and distributors, the Commission could properly include the company’s production and gathering costs in its rate base for the bundled service.” Id. We found that it was in the “context” of bundled jurisdictional and non-jurisdictional activities that “the Court defined ‘gathering’ narrowly, as limited to activities preceding sales for resale.” Id. at 546 (citing Phillips Petroleum, 347 U.S. at 678, 74 S.Ct. at 796-97). But we now live in an unbundled world. See id. at 539-40 (observing that in Order No. 636, FERC “mandat[ed] the unbundling of gas sales and interstate transportation ... in order to give pipeline customers unimpeded access to the competitive wellhead market and to permit all gas sellers to compete on an equal basis”). Sea Robin is no longer involved in the sales of gas from the OCS-it is now strictly a transportation system. Remand Order, 87 F.E.R.C. at 62,428. Therefore the Supreme Court’s restrictive definition of “gathering,” while clearly relevant, must be considered in context. In the context of unbundled, off-shore pipeline systems, “the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution,” Northern Natural Gas, 372 U.S. at 90, 83 S.Ct. at 650, cannot be as narrowly construed as on-shore. Accord Sea Robin I, 127 F.3d at 370; EP Operating Co., 876 F.2d at 49; Amerada Hess, 52 F.E.R.C. at 61,988. ExxonMobil faults the Commission for failing to give weight to the previously “settled status” of the classification of Sea Robin’s pipeline as engaged in jurisdictional transportation. However, as alluded to above, these petitions, like those in Conoco, “arise in the wake of major regulatory changes in the natural gas industry.” Conoco, 90 F.3d at 539. Whereas Sea Robin was once involved in sales and transportation, now it is strictly a transportation-only pipeline. When interstate gas pipelines served the multi-function role of purchasing, gathering, transporting, and re-selling natural gas, i.e. bundled sales, the transportation/gathering jurisdictional question may have been of less consequence. See, e.g., El Paso Natural Gas Co., 72 F.E.R.C. ¶ 61,219, at 62,002, 1995 WL 544234 (1995) (“Under [a] bundled sales regulatory environment, the gathering/ti’ansmission function distinction was not as important as it is in a post-Order 636 environment [requiring unbundling].... Consequently, many facilities that actually perform a gathering function originally were construed under [Natural Gas Act] section 7 certificates.”); CNG Transmission Corp., 67 F.E.R.C. *186¶ 61,330, at 62,177, 1994 WL 270455 (1994). Thus, the historical classification of Sea Robin’s system is of limited utility. Moreover, the Fifth Circuit expressly instructed FERC in this case to relegate non-physical factors, such as the “settled status” of a pipeline, and the expectations of shippers to secondary status: “If the Commission is to remain tethered to the statute, as it must, that inquiry must be based primarily on physical criteria and the realities of the field.” Sea Robin I, 127 F.3d at 371. The Fifth Circuit held that “general business activity and prior certification are relevant, but they are only part of the mix.” Id. We agree. Therefore, as FERC adequately considered non-physical factors, but properly relied primarily on physical factors, again, we cannot find its decision to decline jurisdiction over a portion of Sea Robin’s system unreasonable. Similarly, we find ExxonMobil’s argument that FERC’s jurisdictional ruling has created an “utterly illogical situation,” wherein gas is transported on a jurisdictional pipeline (the Garden Banks pipeline) into a non-jurisdictional gathering leg of Sea Robin’s pipeline, unavailing. Petitioners rely on Tarpon Transmission Co., 60 F.E.R.C. ¶ 61,041, 1992 WL 166429 (1992), and Trunkline Gas Co., 70 F.E.R.C. ¶ 61,163, 1995 WL 58234 (1995), for the proposition that the presence of an interconnection with an upstream jurisdictional facility compels a finding that the downstream facility is likewise jurisdictional. First, reliance on these orders for such a proposition is inherently suspect as in both instances the classification of the upstream system was in dispute, and in both cases the upstream system was reclassified as non-jurisdictional. If anything, this suggests that it is the Garden Banks pipeline, rather than Sea Robin, that has been erroneously classified: To hold that the Garden Banks pipeline’s jurisdictional status compelled FERC to classify Sea Robin’s system as jurisdictional would create a classic example of circular reasoning. When Garden Banks requested a non-jurisdictional gathering classification, FERC ruled that it was jurisdictional because it ivas located “proximate to jurisdictional lines." Shell Gas Pipeline Co., 74 F.E.R.C. ¶ 61,277, at 61,897, 1996 WL 111350 (1996) (emphasis added). Thus, proximity to Sea Robin, among other pipelines, resulted in Garden Banks’s jurisdictional classification. To now hold that Garden Banks’s interconnection with Sea Robin requires the latter to also be jurisdictional, is for the tail to wag the dog. Perhaps the present inconsistent treatment of the Garden Banks pipeline and the Sea Robin pipeline is “positively absurd,” as suggested by the dissent, Dis. Op. at 7, but that does not mean that the problem is necessarily with Sea Robin’s classification. FERC has been struggling with the reclassification of facilities in the wake of the unbundling of gas sales and interstate transportation in Order No. 636. See Conoco, 90 F.3d at 539-41. As it is entirely appropriate for FERC to proceed on a case-by-case basis, see SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580-81, 91 L.Ed. 1995 (1947), then “the reform may take one step at a time.” Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). We do not mean to pre-judge how FERC might apply its reformulated primary function test to Garden Banks. We only conclude that the status of the Garden Banks pipeline does not render the Commission’s reclassification of portions of Sea Robin’s system unreasonable. We turn now to ExxonMobil’s least persuasive argument — that FERC’s determination that portions of Sea Robin’s system are engaged in non-jurisdictional gathering results in a “regulatory gap.” We find this argument no more persuasive *187than did the Fifth Circuit. We emphatically agree that “[n]eed for regulation cannot alone create authority to regulate.” Sea Robin I, 127 F.3d at 371. Rather it is statidory authorization alone that gives FERC the authority to regulate, and in the absence of such authority, FERC’s action “ ‘is plainly contrary to law and cannot stand.’ ” Atlantic City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C.Cir.2002) (quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C.Cir.2001)). Here Congress clearly contemplates that the Commission will not have jurisdiction under the Natural Gas Act over “the production or gathering of natural gas.” 15 U.S.C. § 717(b). The language could not be any plainer. We have repeatedly admonished federal agencies that jurisdiction may not be presumed based solely on the fact that there is not an express withholding of jurisdiction. E.g., Atlantic City Elec. Co., 295 F.3d at 8-9; Michigan, 268 F.3d at 1082; American Petroleum Inst. v. EPA, 52 F.3d 1113, 1119-20 (D.C.Cir.1995); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C.Cir.1995). Where Congress has gone so far as to expressly delineate the limits of agency jurisdiction, we cannot fault the Commission for taking a conservative view of its own authority. Finally, we can quickly dispense with ExxonMobil’s argument that Sea Robin’s system was subject to abandonment proceedings under section 7(b) of the Act, 15 U.S.C. § 717f(b). Simply put, Sea Robin does not seek to abandon any facilities or services. Rather, it merely seeks to be able to continue operating previously certificated facilities as gathering facilities, exempt from FERC’s jurisdiction under the Natural Gas Act. This is not “abandonment” within the meaning of section 7(b). Cf. Conoco, 90 F.3d at 553. In addition, section 7(b) only applies to jurisdictional facilities, and “do[es] not expand the Commission’s § 1(b) jurisdiction.” Id. Therefore it cannot be used to bootstrap FERC jurisdiction here. B. The Producer Coalition argues that the scope of the “gathering” exemption under section 1(b) of the Natural Gas Act is defined by the concept of “feeder lines” in the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. Under OCSLA, the Commission is responsible for ensuring open and nondiscriminatory access to transportation of oil and gas for all shippers on the Outer Continental Shelf. 43 U.S.C. § 1334(f)(1)(A). FERC, however, may exempt from OCSLA’s requirements “any pipeline or class of pipelines which feeds into a facility where oil and gas are first collected or a facility where oil and gas are first separated, dehydrated, or otherwise processed.” 43 U.S.C. § 1334(f)(2). The Producer Coalition contends that the scope of exemption for “feeder lines” is coterminous with “gathering” facilities under the Natural Gas Act. Thus, in essence the Producer Coalition contends that FERC’s reformulated primary function test is unnecessary and that the Commission has stumbled under Chevron step one. In support of its position, the Producer Coalition relies on bits and pieces of legislative history surrounding the 1978 Amendments to OCSLA. But snippets of legislative history do not a law make. Accord Aldridge v. Williams, 44 U.S. (3 How.) 9, 24, 11 L.Ed. 469 (1845); In re Sealed Case, 237 F.3d 657, 669 (D.C.Cir.2001) (“The limits on the Commission’s authority — like that authority itself — are derived from statutory provisions, not from loosely worded fragments extracted from congressional reports and speeches”). Petitioners offer no direct evidence of congressional intent to fill in the Natural Gas Act definition of “gathering” sub silentio *188by reference to the feeder line concept. Indeed, there is no definition of “gathering” in the OCSLA, and it does not even use the term. Rather the Producer Coalition relies on isolated excerpts from the floor discussion by Congressman Sieberling. While Congressman Sieberling may have spoken, Congress has not. Morever, it would be anomalous to treat the “feeder line” provision of OCSLA and the “gathering” exemption of the Natural Gas Act as redundant. Under the Producer Coalition’s interpretation, in enacting the OCSLA Amendments, Congress would have replicated the non-discriminatory provisions already contained in the Natural Gas Act. Compare 43 U.S.C. § 1334(f)(a)(l)(A) (OCSLA), with 15 U.S.C. §§ 717c(b), 717d(a) (Natural Gas Act). Likewise, there would have been no need to authorize the Commission to exempt “feeder lines” from FERC jurisdiction if they were already exempt as gathering facilities. Rather, a more plausible inference is that Congress amended OCSLA to make OCS facilities not covered by the Natural Gas Act subject to similar nondiscriminatory requirements, with the exception of “feeder lines.” However, we do not decide whether it would be reasonable for FERC to equate the feeder line and gathering facilities exemptions. We simply hold that FERC’s interpretation of section 1(b) of the Natural Gas Act is not unreasonable, and therefore Chevron deference is applicable. III. Conclusion FERC’s jurisdiction over natural gas pipelines “demands the drawing of jurisdictional lines, even when the end of gathering is not easily located.” Sea Robin I, 127 F.3d at 371. Although we might draw a different line, we cannot say that the Commission acted unreasonably in concluding that the Vermilion 149 Station is the place where nonjurisdictional gathering ends and jurisdictional transportation begins. It is not our role to substitute our own judgment for that of the agency. Given the instructions of the United States Court of Appeals for the Fifth Circuit on remand, we cannot say that FERC has failed to give appropriate consideration to the primary physical factors and the secondary non-physical factors of its reformulated primary function test. Therefore the petitions for review are denied.
So ordered.
. Joining ExxonMobil Gas Marketing Co.’s brief are: Amerada Hess Corp., Amoco Production Co., BP Energy Co., Anadarko Petroleum Corp., Marathon Oil Co., Murphy Exploration and Production Co., Phillips Petroleum Co., and Texaco Natural Gas, Inc.
. The Producer Coalition consists of Forest Oil Corp., the Houston Exploration Co., New-field Exploration Co., Ocean Energy, Inc., Dominion Exploration & Production, Inc., and TotalFinaElf E&P U.S.A., Inc. Intervenor Independent Petroleum Association of America joins the Producer Coalition’s brief.
. This discussion is largely taken from Sea Robin I, 127 F.3d at 367-68. See also Sea Robin Pipeline Co., 87 F.E.R.C. ¶ 61,384, at 62,430, 1999 WL 444654 (1999).
. Sea Robin no longer challenges FERC's Remand Order and supports the Commission’s decision to draw the line between jurisdictional transportation and non-jurisdictional gathering at the Vermilion 149 Station. | 09-08-2022 | [
"Opinion for the Court filed by Circuit Judge SENTELLE. Dissenting opinion filed by Circuit Judge EDWARDS. SENTELLE, Circuit Judge: ExxonMobil Gas Marketing Company, et al.,1 (hereinafter “ExxonMobil”) and the Producer Coalition2 petition for review of *175Federal Energy Regulatory Commission (“FERC” or “the Commission”) orders in which FERC reclassified portions of Sea Robin Pipeline Company’s pipeline system on the Outer Continental Shelf as non-jurisdictional “gathering” facilities for natural gas, rather than jurisdictional “transportation” facilities, pursuant to section 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b).",
"FERC argues that in developing and applying its reformulated “primary function” test the Commission followed the suggestion of the United States Court of Appeals for the Fifth Circuit in Sea Robin Pipeline Co. v. FERC, 127 F.3d 365 (5th Cir.1997) (“Sea Robin I”), and reasonably identified the demarcation point between gathering and transportation in Sea Robin’s pipeline system. Because the Commission did not act unreasonably in determining that portions of Sea Robin’s system were non-jurisdictional, we deny the petitions for review. I. Background A. Statutory and Regulatory Framework Section 1(b) of the Natural Gas Act (“the Act”), 15 U.S.C. § 717 et secy., governs “the transportation of natural gas in interstate commerce.” 15 U.S.C. § 717(b).",
"However, in section 1(b) of the Act Congress prescribed not only “the intended reach of the Commission’s power, but also specified the areas into which this power was not to extend.” Federal Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 503, 69 S.Ct. 1251, 1255, 93 L.Ed. 1499 (1949) (emphasis added). Section 1(b) expressly exempts from the Commission’s jurisdiction “the production or gathering of natural gas.” 15 U.S.C. § 717(b). Thus, Congress “carefully divided,” Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 510, 109 S.Ct. 1262, 1274, 103 L.Ed.2d 509 (1989), energy regulatory authority and “did not envisage federal regulation of the entire natural-gas field to the limit of constitutional power. Rather it contemplated the exercise of federal power as specified in the Act.” Panhandle Eastern, 337 U.S. at 502-03, 69 S.Ct.",
"at 1255. The Natural Gas Act does not define either “transportation,” which falls within the Commission’s jurisdiction, or “gathering,” which is exempt from FERC authority under the Act. The Supreme Court has, however, held that “[e]xceptions to the primary grant of jurisdiction in the section are to be strictly construed.” Interstate Natural Gas Co. v. Federal Power Comm’n, 331 U.S. 682, 690-91, 67 S.Ct. 1482, 1487, 91 L.Ed. 1742 (1947) (construing 15 U.S.C. § 717(b)).",
"Thus, the Supreme Court has “consistently held that ‘production’ and ‘gathering’ are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution.” Northern Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 90, 83 S.Ct. 646, 649-50, 9 L.Ed.2d 601 (1963). The Commission’s long-held definition of gathering, taken as consistent with the Supreme Court’s pronouncements on the Act, is “the collecting of gas from various wells and bringing it by separate and several individual lines to a central point where it is delivered into a single line.” Barnes Transp. Co., 18 F.P.C. 369, 372 (1957); see also Conoco Inc. v. FERC, 90 F.3d 536, 539 n. 2 (D.C.Cir.1996) (“Gathering is the process of taking natural gas from the wells and moving it to a collection point for further movement through a pipeline’s principal transmission system.”) (citing Northwest Pipeline Corp. v. FERC, 905 F.2d 1403, 1404 n. 1 (10th Cir.1990)). Despite these attempts to clarify the Natural Gas Act, this Court has observed that “[t]he line between jurisdictional transportation and nonjurisdictional *176gathering is not always clear.” Conoco, 90 F.3d at 542.",
"For many years the Commission employed two principal tests to differentiate transportation from gathering. Developed in the on-shore context, these tests were the “behind-the-plant” test and the “central-point-in-the-field” test. The “behind-the-plant” test presumes that all facilities located between the wellhead and a processing plant are non-jurisdictional gathering lines, while facilities downstream of the processing plant are presumptively transportation facilities. See Phillips Petroleum Co., 10 F.P.C. 246, 276-78, 1951 WL 1832 (1951), rev’d on other grounds, Wisconsin v. Federal Power Comm’n, 205 F.2d 706 (D.C.Cir.1953), aff'd, Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). For gas that requires no processing the “central-point-in-the-field” test applied, under which lateral lines collecting gas from separate wells that then converge into a single larger line (typically at the point where the gas is compressed for transportation by the pipeline), were classified as gathering facilities.",
"E.g., Barnes Transp. Co., 18 F.P.C. 369, 372 (1957). Since 1983, the Commission has subsumed these two tests into its “primaiy function” test to determine “whether a facility is devoted to the collection of gas from wells — gathering— or to the further (‘downstream’) long-distance movement of gas after it has been collected — interstate transportation.” Conoco, 90 F.3d at 543 (citing Farmland Industries, Inc., 23 F.E.R.C. ¶ 61,063, at 61,143, 1983 WL 39391 (1983); Amerada Hess Corp., 52 F.E.R.C.",
"¶ 61,268, at 61,987-88, 1990 WL 1241336 (1990)). The “primaiy function” test generally employs the following six physical criteria: (1) the length and diameters of the lines; (2) the extension of the facility beyond the central point in the field; (3) the geographic configuration of the facility; (4) the location of compressors and processing plants; (5) the location of wells along all or part of the line facility; and (6) the operating pressure of the lines. Lomak Petroleum, Inc. v. FERC, 206 F.3d 1193, 1196 (D.C.Cir.2000). In addition, FERC considers the following “non-physical” criteria: (1) the purpose, location and operation of the facility; (2) the general business activity of the owner of the facility; (3) whether a jurisdictional determination, i.e., gathering versus transmission, is consistent with the objectives of the Natural Gas Act and other legislation; and (4) the changing technical and geographic nature of exploration and production activities.",
"Id. No one factor is determinative in the primary function test, and not all factors apply in all situations. See Williams Field Servs. Group, Inc. v. FERC, 194 F.3d 110, 116 (D.C.Cir.1999); Conoco, 90 F.3d at 543. The Commission “gives consideration to all of the facts and circumstances of the case rather than mechanically applying a facilities configuration standard.” West Tex. Gathering Co., 45 F.E.R.C. ¶ 61,386, at 62,219 n.4, 1988 WL 246728 (1988); see also Conoco, 90 F.3d at 543. When these physical factors were developed, most jurisdictional questions involved onshore facilities. As an increasing number of facilities have been constructed offshore on the Outer Continental Shelf (“OCS”), where the pattern of gathering and distribution differs, the applicability of the factors has been questioned. See, e.g., EP Operating Co. v. FERC, 876 F.2d 46 (5th Cir.1989). Specifically, it is often not feasible to process raw gas on open water. As a result, pipelines on the OCS typically do not gather gas at a local, centralized point within a field as they would onshore, to prepare it for traditional transportation. Rather, on the OCS, relatively long lines are constructed to carry the raw gas from offshore platforms, where “[o]nly the most rudimentary separation and dehydration operations” are conducted, EP Operating, *177876 F.2d at 47, to the shore or a point closer to shore, where it can be processed into “pipeline quality” gas.",
"Id. at 48. In EP Operating Co., the Fifth Circuit discounted FERC’s ruling that the offshore platform where initial gas treatment took place constituted a “central point in the field” where the gathering function was complete, and reversed FERC’s decision that the 51-mile long, 16-inch diameter OCS pipeline downstream of that platform was a jurisdictional transportation facility. See id. at 49. Following EP Operating Co., FERC noted that “because of recent advances in engineering and available technology, offshore drilling operations continue to move further offshore and further from existing interstate pipeline interconnections” and therefore the Commission would assess “the continuing viability and relevance of the ‘primary function’ test to current industry conditions.” Amerada Hess, 52 F.E.R.C. at 61,988. FERC then modified its primary function test to apply a sliding scale, “allowing for] the use of gathering pipelines of increasing lengths and diameters in correlation to the distance from shore and the water depth of the offshore production area,” id.",
"at 61,-988, and to consider .the “non-physical” criteria described above. This “modified” primary function test was applied by FERC when Sea Robin petitioned in 1995 for a declaration that its facilities perform a gathering function, rather than transportation, thus entitling Sea Robin to exemption from the Commission’s jurisdiction under section 1(b) of the Act. B. Sea Robin’s Pipeline System3 Sea Robin’s pipeline system is located entirely offshore in the Gulf of Mexico and approximately 90 percent of its facilities lie in water depths of less than 140 feet. It is one of numerous competing pipeline systerns located in the Gulf. The Sea Robin system is configured roughly in the form of an inverted “Y” with two arteries stretching roughly southwest and southeast from a central point about fifty miles south of the Louisiana coast. These two pipelines collect raw gas from sixty-seven offshore production platforms.",
"Sea Robin’s Vermilion 149 Compressor Station stands at the intersection of these two pipelines. It compresses the gas from the sixty-seven platforms for travel north, up the inclined seabed, to the Erath Compressor Station on the mainland. After collecting gas from four more platforms, the system terminates near Erath, -Louisiana, where the gas is separated, dehydrated and processed. The Erath Compressor Station then prepares the gas for delivery to downstream transmission pipelines at five nearby entry points. The Sea Robin system consists of 438 miles of dual-phase pipelines with a capacity to transport 1.26 billion cubic feet of gas per day (Bcf/day) and includes around 69,-500 horsepower (hp) of compression. The pipeline is “dual-phase” in that it carries a raw stream of unpurified natural gas and liquid hydrocarbons taken directly from the gas wells.",
"The total compression horsepower at the Vermilion 149 Station is37,050 hp and is 32,490 hp at Erath, Louisiana. Of the 438 miles of pipes, 339 miles are larger than twenty inches in diameter. The remaining ninety-nine miles of pipes, mostly running from individual platforms to the larger pipes, are between four and sixteen inches in diameter. Along the two arms of the inverted “Y,” which extend out in the Outer Continental Shelf, 45 lateral lines with diameters ranging from 4.5 to 30 inches are connected to 67 receipt points located on production *178platforms, or at subsea taps where Sea Robin’s facilities intersect with short lateral lines of producers or pipelines. Through these upstream arms, Sea Robin moves the raw gas to the Vermilion 149 Station at the fork of the “Y,” a manned platform with, two turbine compressor units of 12,350 horsepower each.",
"From there, the gas moves along the Vermilion 149-Erath segment. That segment is the longest portion of the pipeline, consisting of 66.3 miles of 36-inch diameter pipeline running in a straight line from Sea Robin’s Vermilion compressor station to onshore processing facilities. Gas from four additional platforms is mingled with the gas traveling the Vermilion 149-Erath segment. The four platforms along this section are within twenty-five miles of the Vermilion compressor station, which means that the last forty-one miles of the thirty-six inch diameter pipeline are uninterrupted by lateral pipe segments. The gas and liquefiables delivered by Sea Robin meet the merchantable natural gas quality standards of downstream transmission pipelines. FERC issued the original certificate for the Sea Robin system in 1969, pursuant to section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), authorizing the system to both sell and transport gas from the Outer Continental Shelf.",
"Sea Robin Pipeline Co., 41 F.P.C. 257, 1969 WL 5152 (1969). In later years the Commission certificated extensions of the Sea Robin system farther out on the OCS. See Sea Robin Pipeline Co., 87 F.E.R.C. at 62,429 n. 26. Subsequently, Sea Robin became a transportation-only pipeline, and its shippers today consist of producers and marketers that transport gas onshore for ultimate delivery to markets on connecting interstate pipelines. Id. at 62,428. C. Prior Proceedings In 1995, the Sea Robin Pipeline Company petitioned FERC for a declaration that its facilities perform a “gathering” function, rather than “transportation,” and are thus not subject to the Commission’s jurisdiction under section 1(b) of the Natural Gas Act. See Sea Robin I, 127 F.3d at 367. FERC denied Sea Robin’s petition, determining that its pipelines were engaged in jurisdictional transportation activities. See id.",
"; Sea Robin Pipeline Co., 71 F.E.R.C. ¶ 61,351, 1995 WL 361806 (1995), order denying reh’g, lb F.E.R.C. ¶ 61,332, 1996 WL 355518 (1996). In reaching its conclusion, FERC emphasized the “very large size of [Sea Robin’s] system.” Sea Robin Pipeline Co., 71 F.E.R.C. at 62,398 (emphasis in original). According to the Commission, “the length and diameter of the system’s components, as well as its overall size, [we]re not outweighed by other elements of the ‘primary function’ test.” Id. Further, FERC “repeatedly emphasized that the non-physical criteria in its test supported its conclusion that Sea Robin was a transporter, particularly Sea Robin’s prior certification as a jurisdictional pipeline and its ownership by an interstate pipeline.” Sea Robin I, 127 F.3d at 369-70. Sea Robin petitioned for review of FERC’s order in the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit granted that petition for review, vacated the order, and remanded to .the Commission. Sea Robin I, 127 F.3d at 372. Specifically, the Fifth Circuit questioned FERC’s reliance on the size of Sea Robin’s system as “presumptively” determinative, as well as the apparent abandonment, without reasoned consideration, of the “sliding scale” approach announced by the Commission in Amerada Hess, 52 F.E.R.C.",
"¶ 61,268 (1990). See Sea Robin I, 127 F.3d at 370. The Fifth Circuit concluded that FERC had “reverted to its single factor, bright-line approaches that it had previously rejected as unworkable for offshore pipelines.” Id. (citing Northwest *179Pipeline Corp., 905 F.2d at 1409; EP Operating Co., 876 F.2d at 48). The Court also faulted the Commission for the reliance it placed on non-physical considerations, such as Sea Robin’s ownership and shipper expectations. See 127 F.3d at 370-71 (“If the Commission is to remain tethered to the statute, as it must, that inquiry must be based primarily on physical criteria and the realities of the field.”).",
"The Fifth Circuit “intend[ed] that [nonphysical criteria] be put in its place as considerations secondary to the physical factors.” Id. at 371. Finally, the Fifth Circuit found FERC’s “regulatory gap” argument, that a regulatory gap might arise if Sea Robin was held to be a gathering system, wanting: “Need for regulation cannot alone create authority to regulate.” Id. In remanding to the Commission, the Fifth Circuit acknowledged that “Sea Robin’s system resists easy categorization because the logistics of offshore pipelines obscures differences between gathering gas from Gulf platforms and transporting it to the mainland.” Sea Robin I, 127 F.3d at 370. It also observed that “the pattern of gathering and distribution on shore differs from the pattern of transportation and gathering of gas from the middle of the Gulf to the mainland,” id., and suggested that FERC “again consider the applicability of the primary function test to offshore pipeline systems and if necessary, reformulate this test.” Id. at 367. The Court noted that on remand, “Sea Robin may choose to respond to the Commission’s invitation to offer portions of its system as predominantly involved in a gathering or a transportation function.” Id. at 371 (footnote omitted). In doing so, the Court specifically admonished the Commission that “[discomfort in drawing the jurisdictional line at points internal to an overall system may be soothed with the reminder that Congress did not intend to extend FERC’s jurisdiction to all natural gas pipelines; indeed it demands the drawing of jurisdictional lines, even when the end of gathering is not easily located.” Id.",
"The Court opined that the Commission could “consider, for example, a distinction between the field south of the Vermilion Compressor Station and the pipelines leading north to Erath, Louisiana.” Id. On remand, FERC accepted the Fifth Circuit’s invitation to reformulate its primary function test. Sea Robin Pipeline Co., 87 F.E.R.C. ¶ 61,384, 1999 WL 444654 (1999) (“Remand Order”). In reformulating its primary function test, the Commission concluded that the “behind-the-plant” factor is not necessarily determinative of where gathering ends when applied to offshore facilities.",
"See id. at 62,425. Further, FERC determined that it would “assess the physical configuration of offshore pipeline systems to determine if there exists a central location where gas is aggregated for further transportation to shore.” Id. Such a location would be the “offshore analogue of the onshore ‘central-point-in-the-field’ criterion.” Id. In eases where a pipeline system is configured to deliver gas collected from upstream wells to a centralized location through several relatively small diameter lines for further delivery onshore through a single larger diameter pipeline, that centralized aggregation location is considered by FERC to be analogous to the central-point-in-the-field factor and “given weight in identifying the demarcation point between gathering and transportation on OCS pipeline systems.” Id.",
"at 62,426. Thus, the Commission was willing to consider, as suggested by the Fifth Circuit, that the demarcation point between gathering and transmission on a system like Sea Robin’s could be determined to be at a point internal to an overall pipeline system. See Sea Robin Pipeline Co., 92 F.E.R.C. ¶ 61,072, at 61,285 (2000) (“Rehearing Order”). *180Applying its reformulated primary function test, the Commission concluded that Sea Robin’s pipeline facilities comprise two distinct components: a jurisdictional transportation system from the Vermilion 149 Station to Erath, and a non-jurisdictional gathering system upstream of the Vermilion 149 Station. See Remand Order, 87 F.E.R.C. at 62,426.",
"FERC found that the primary function of the Vermilion-Erath line “is to transport to shore natural gas that has been delivered from many areas through a network-like configuration of relatively smaller diameter lines to a centralized point where gas is aggregated and compressed,” namely the Vermilion 149 Station. Id. at 62,482. In support of its decision to draw the jurisdictional line at the Vermilion 149 Compressor Station, the Commission emphasized certain key aspects of the system’s overall physical configuration. Specifically, FERC found that the “straight-shot” geographical configuration of Sea Robin’s system downstream of the Vermilion 149 Station, interconnecting with only two laterals delivering gas from only four wells along its 66.3-mile length, and the line’s large 36-inch diameter are indicative of transportation. See id.",
"at 62,430. In contrast, the facilities upstream of the Vermilion 149 Station interconnect with 45 laterals connected to 67 production platforms, and the lines are 30 inches or less in diameter. See id. at 62,431. Moreover, FERC found that the compression that occurs at Vermilion 149 “is typical of compression found on large diameter transportation lines transporting high volumes of gas over relatively long distances,” rather than “field compression” associated with production. Id. at 62,430. According to FERC, the Vermilion 149 Station thus represented a central aggregation location highly suggestive of the demarcation point between gathering and transportation. See id. at 62,431. The Commission concluded that in the “most fundamental meaning of the ‘primary function’ test, the ‘totality of the circumstances’ demonstrates that the primary function of the Vermilion-Erath Line is to transport to shore natural gas that has been delivered from many areas through a network-like configuration of relatively smaller diameter lines to a centralized point where the gas is aggregated and compressed,” and these smaller lines upstream of Vermilion 149 are engaged in non-jurisdictional gathering. Id.",
"at 62,432. On rehearing, the Commission adhered to its position. See Rehearing Order, 92 F.E.R.C. at 61,284. FERC reiterated that its reformulated primary function test included: (1) consideration of an additional analytical element applicable where OCS pipeline facilities exhibit a “centralized aggregation point”; (2) adjustment in the weight to be afforded the behind-the-plant criterion on the OCS; and (3) a primary focus on physical factors. Id. at 61,285. It addressed arguments from the petitioners that all of Sea Robin’s system was engaged in jurisdictional transportation, and arguments from Sea Robin that its system was engaged entirely in non-jurisdictional gathering.4 Specifically the Rehearing Order identifies 13 physical factors considered in concluding that the facilities upstream of the Vermilion 149 Station are engaged in non-jurisdictional gathering. See id.",
"at 61,291. These physical factors are: (1) the 66.3 mile length of the Vermillion-Erath line; (2) the 36-inch diameter of the Vermillion-Erath line; *181(3) the straight-line configuration of the Vermillion-Erath line; (4) the inverted-Y configuration of the Sea Robin System; (5) the existence of only four platforms along the length of the VermillionErath line as compared to the connections to 71 production platforms upstream of the Vermillion 149 Compressor Station; (6) the abrupt change in physical attributes and configuration in the system occurring at the Vermillion 149 Compressor Station; (7) the concentration of compression at the Vermillion 149 Compressor Station; (8) the existence of a centralized aggregation location at the Vermillion 149 Compressor Station; (9) the 4.5 to 24 inch diameters of the lines upstream of the Vermillion 149 Compressor Station; (10) the existence of 45 laterals feeding into the two upstream arms of the inverted-Y upstream of the Vermillion 149 Compressor station; (11) the presence of 71 production platforms connected to the system upstream of the Vermillion 149 Compressor station; (12) the network configuration of Sea Robin’s facilities upstream of the Vermillion 149 Compressor Station; and (13) the onshore location of processing plants, which was not considered a determinative factor due to the geographic and technical characteristic of production and transportation offshore.",
"Id. Further, FERC rejected the argument that it had substituted the new “centralized aggregation point” criteria for its prior impermissible reliance on a single-factor test. Rather, it explained, “the centralized-aggregation-point is more appropriately viewed as a descriptive label for a set of a number of individual physical characteristics.” Id. “Just as the historical behind-the-plant and central-point-in-the-field factors are based on the existence of a confluence of individual elements, the new centralized-aggregation-point factor also is an example of an additional physical factor that can arise as the result of the combination of several individual physical components....” Id. at 61,292. Relying on the Fifth Circuit’s Sea Robin I decision, the Commission rejected the suggestion that various production platforms, rather than the Vermilion 149 Station, are centralized aggregation points.",
"See id. Similarly, the Commission relied on the Fifth Circuit’s decision to reject the suggestion that the reformulated primary function test would create an unlawful “regulatory gap” on the Outer Continental Shelf. See id. at 61,293 (citing Sea Robin I, 127 F.3d at 371). Moreover, FERC claimed to have addressed such “regulatory gap” concerns in its separate decision to promulgate regulations under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq., to ensure that natural gas is transported in an open and nondiscriminatory manner. Rehearing Order, 92 F.E.R.C. at 61,293 (citing 65 Fed.Reg. 20,354 (Apr.",
"17, 2000)). FERC also addressed arguments that it had given inadequate attention to the impact of the jurisdictional determination on the settled expectations of customers and on new upstream deepwater systems. The Commission found that the “remanding Court’s directions on this point were clear. The Court ruled that while the practical effect of the determination of gathering is relevant, the primary consideration in formulating a jurisdictional test must be the physical characteristics that distinguish gathering from transmission.” Id.",
"at 61,-293-94 (citing Sea Robin I, 127 F.3d at 371). Thus, although FERC considered *182these non-physical factors, the primary focus, as required by the Fifth Circuit, had to be the physical factors, and those factors supported drawing the jurisdictional line at the Vermilion 149 Station. See id. at 61,294. Finally, FERC considered and rejected arguments that: (1) a 1978 amendment to OCSLA purportedly equated the scope of the “gathering” exemption in the Natural Gas Act with the concept of “feeder lines,” see id. ; (2) certificates issued to Sea Robin for the reclassified non-jurisdictional facilities must be subject to “abandonment” proceedings pursuant to section 7(b) of the Natural Gas Act, 15 U.S.C. § 717f(b), see id. at 61,294-95; and (3) the fact that a jurisdictional upstream pipeline (the Garden Banks pipeline) delivers gas into the east leg of Sea Robin’s system upstream of the Vermilion 149 Station prevents the Commission from reclassifying the Sea Robin system as non-jurisdictional. See id.",
"at 61,295. On this last issue, petitioners contended that FERC had violated its prior ruling in Tarpon Transmission Co., 60 F.E.R.C. ¶ 61,041, 1992 WL 166429 (1992), which they read as precluding pipeline facilities that carry gas delivered by a jurisdictional transportation pipeline from being classified as gathering facilities. FERC noted that this issue was raised for the first time on rehearing; however, the Commission went on to hold that the petitioners’ reliance on Tarpon was misplaced. See Rehearing Order, 92 F.E.R.C. at 61,-295. Although the presence of upstream transportation facilities was one factor considered in Tarpon, the real concern in that proceeding was that finding Tarpon’s facilities to be engaged in non-jurisdictional gathering would have left shippers and producers unprotected from the exercise of monopoly power.",
"See id. FERC concluded that such concerns were no longer relevant for facilities exempt from the Natural Gas Act because of the Commission’s new OCSLA anti-discrimination regulations. Id. at 61,295-96. ExxonMobil and the Producer Coalition filed timely petitions for review challenging the Remand Order and the Rehearing Order in this Court. II. Analysis The challenged orders are subject to reversal if the FERC’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making this determination, “[t]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); see Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct.",
"2856, 2866-67, 77 L.Ed.2d 443 (1983). To the extent that the petitioners are challenging FERC’s interpretation of section 1(b) of the Natural Gas Act, 15 U.S.C. § 717(b), we apply the two-step approach of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When Congress has spoken, we are bound by that pronouncement and that ends this Court’s inquiry. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82 (Chevron step one). Where “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id.",
"at 843, 104 S.Ct. at 2782 (footnote omitted) (Chevron step two). In reviewing the Commission’s determinations, we are mindful that “[t]he *183line between jurisdictional transportation and non-jurisdictional gathering is not always clear.” Conoco, 90 F.3d at 542. The jurisdictional determination under section 1(b) of the Act is “a line-drawing problem for which there is no easy answer.” Williams Field Servs., 194 F.3d at 118. Thus, “it is not this court’s role to interpose its judgment.” Id. Rather, we are mindful that in “evaluating and balancing the several factors under the primary function test, the Commission brings to bear its considerable expertise about the natural gas industry.” Conoco, 90 F.3d at 544; see also Lomak, 206 F.3d at 1196-97; Williams Field Servs., 194 F.3d at 118.",
"“Accordingly, we will uphold the Commission’s application of the test as long as it gives ‘reasoned consideration to each of the pertinent factors’ and articulates factual conclusions that are supported by substantial evidence in the record.” Lomak, 206 F.3d at 1197 (quoting Conoco, 90 F.3d at 544); see 15 U.S.C. § 717r(b) (“The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.”). The burden is on the petitioners to show that the Commission’s choices are unreasonable and its chosen line of demarcation is not within a “ ‘zone of reasonableness’ ” as distinct from the question of whether the fine drawn by the Commission is “precisely right.” Hercules Inc. v. EPA, 598 F.2d 91, 107 (D.C.Cir.1978) (quoting Federal Power Comm’n v. Conway Corp., 426 U.S. 271, 278, 96 S.Ct. 1999, 2004, 48 L.Ed.2d 626 (1976)). We cannot say that the Commission acted unreasonably either in interpreting the Natural Gas Act or declining to exercise jurisdiction over portions of Sea Robin’s system.",
"Therefore petitioners have failed to cany their burden, and the petitions must be denied. A. ExxonMobil challenges FERC’s determination that the Vermilion 149 Station is a reasonable point at which the Commission may draw the line between non-jurisdictional gathering and jurisdictional transportation. It contends that the added compression at Vermilion 149 only serves to push and pull gas along an “integrated” transportation system. Petitioner proposes that the individual production platforms mark the point at which gathering ends and transportation begins. However, petitioner’s differing interpretation of the physical factors present on the Sea Robin system does not provide us with a basis to upset the Commission’s order. Reasonable people may disagree as to where gathering ends and transportation begins.",
"Were we the Federal Energy Regulatory Commission, we might draw the line at Erath. Others might draw it at the production platforms themselves. But see EP Operating Co., 876 F.2d at 49. But after considering the inherent ambiguity in the statute and the fact that “[t]he line between jurisdictional transportation and non-jurisdictional gathering is not always clear,” Conoco, 90 F.3d at 542, (as it is not clear here) we simply cannot conclude that the Commission’s choice of the Vermilion 149 Station as the dividing line was unreasonable, especially in light of the Fifth Circuit’s decision on remand. See Sea Robin I, 127 F.3d at 371. We therefore hold that the Commission’s choice, if not unassailable, is at least defensible, and survives the arbitrary-and-capricious review of the Administrative Procedure Act.",
"FERC relied on the smaller dimensions of the upstream lines in contrast to the 36-inch Vermilion-Erath line; the 45 laterals feeding into the two upstream arms; the 67 production platforms connected to the upstream facilities compared with only four downstream; the network configuration of the upstream facilities; and the need for added compression at the Vermilion 149 Station to move gas to shore. See Rehearing Order, 92 F.E.R.C. at 61,291-*18492. All of these physical factors show a meaningful distinction between the facilities upstream and downstream of Vermilion 149 and make it reasonable to define it as the central aggregation point. Obedient to the Fifth Circuit’s suggestion, FERC examined Sea Robin’s system in parts, rather than as a whole, and reasonably concluded that different parts of the system required different jurisdictional treatment. Moreover, as described by the Commission, the central aggregation test is not a new, bright-line test, but rather is an amalgamation of physical factors, and in any event, is wholly consistent with past FERC precedent. It has long been the Commission’s view, upheld by this Court, among others, that when gas from separate wells is collected by several lines which converge at a single location in the producing field for delivery into a single line for transportation, the separate lateral lines behind the central point are classified as non-jurisdictional gathering facilities. Accord Barnes Transp.",
"Co., 18 F.P.C. 369, 372 (1957). That aptly describes the Sea Robin system. At Vermilion 149 gas from several lateral lines is brought together and propelled to shore. The dissent is critical of FERC’s determination because in its view, “[sjurely a ‘fork in the road’ cannot be the demarcation line between unregulated production/gathering and regulated transportation.” Dis. Op. at 5. But why not? Cannot two roads diverging (or in this case, converging) make all the difference? Indeed, has that not always been the thrust of the Commission’s “central-point-in-the-field” test? In this case, the forks of the “Y” gathered gas from production platforms at 67 receipt points, whereas the straight segment received gas at only four such points; the forks were pipes of smaller diameter than that of the straight segment; and the forks required less compression to move the gas along. Moreover, the line between gathering and transportation is inherently elusive, see, e.g., Conoco, 90 F.3d at 542, and FERC “has wide discretion to determine where to draw administrative lines.” AT&T Corp. v. FCC, 220 F.3d 607, 627 (D.C.Cir.2000).",
"It is for the Commission, in the first instance, to determine the patterns of gathering and transportation in the offshore context. “We are generally ‘unwilling to review line-drawing performed by the Commission unless a petitioner can demonstrate that lines drawn ... are patently unreasonable, having no relationship to the underlying regulatory problem.’ ” Cassell v. FCC, 154 F.3d 478, 485 (D.C.Cir.1998) (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 60 (D.C.Cir.1977)). We conclude that petitioner has failed to carry its burden. ExxonMobil makes much of the Supreme Court’s language in Northern Natural Gas Co. v. State Corp. Comm’n of Kansas, 372 U.S. 84, 90, 83 S.Ct. 646, 649-50, 9 L.Ed.2d 601 (1963), in which the Court held that “ ‘production’ and ‘gathering’ are terms narrowly confined to the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution.” Thus, petitioner essentially contends that given the length and size of the upstream portion of Sea Robin’s system, it cannot possibly be involved in gathering, as described by the Supreme Court.",
"However, the Fifth Circuit expressly rejected FERC’s per se reliance on length of a pipeline, holding that a 51-mile pipeline was non-jurisdictional. EP Operating Co., 876 F.2d at 49. This same decision weighs against FERC’s treating the production platforms as central aggregation points as well. See id. Rather, the Fifth Circuit required the Commission to recognize that “the pattern of gathering and distribution on shore differs from the pattern of transportation and gathering of gas from the middle of the Gulf to the mainland.” Sea Robin I, 127 F.3d at 370; see also Amerada Hess, 52 F.E.R.C. at *18561,988 (adopting the “modified primary function test” in response to EP Operating Co., and in recognition of the “changing technical and geographic nature of exploration and production”). Given these different physical realities, what might not seem “narrowly confined” in the on-shore context, may well be on the Outer Continental Shelf. Cf. West v. Gibson, 527 U.S. 212, 218, 119 S.Ct.",
"1906, 1910, 144 L.Ed.2d 196 (1999) (“Words in statutes can enlarge or contract their scope as other changes, in the law or in the world, require their application.”); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998) (statutory provisions often go beyond “the principal evil Congress was concerned with”). Given this backdrop, we cannot conclude that FERC’s determination is unreasonable here. Moreover, we have previously recognized the limited reach of the Supreme Court’s holding in Northern Natural. In each case in which the Supreme Court “has applied this narrow definition of ‘production’ and ‘gathering’ to uphold the Commission’s jurisdiction, the regulated entity was engaged in a jurisdictional activity.” Conoco, 90 F.3d at 545.",
"Thus, “when a natural gas company provided bundled sales and interstate transportation from its own wells to consumers and distributors, the Commission could properly include the company’s production and gathering costs in its rate base for the bundled service.” Id. We found that it was in the “context” of bundled jurisdictional and non-jurisdictional activities that “the Court defined ‘gathering’ narrowly, as limited to activities preceding sales for resale.” Id. at 546 (citing Phillips Petroleum, 347 U.S. at 678, 74 S.Ct.",
"at 796-97). But we now live in an unbundled world. See id. at 539-40 (observing that in Order No. 636, FERC “mandat[ed] the unbundling of gas sales and interstate transportation ... in order to give pipeline customers unimpeded access to the competitive wellhead market and to permit all gas sellers to compete on an equal basis”). Sea Robin is no longer involved in the sales of gas from the OCS-it is now strictly a transportation system. Remand Order, 87 F.E.R.C. at 62,428. Therefore the Supreme Court’s restrictive definition of “gathering,” while clearly relevant, must be considered in context. In the context of unbundled, off-shore pipeline systems, “the physical acts of drawing the gas from the earth and preparing it for the first stages of distribution,” Northern Natural Gas, 372 U.S. at 90, 83 S.Ct.",
"at 650, cannot be as narrowly construed as on-shore. Accord Sea Robin I, 127 F.3d at 370; EP Operating Co., 876 F.2d at 49; Amerada Hess, 52 F.E.R.C. at 61,988. ExxonMobil faults the Commission for failing to give weight to the previously “settled status” of the classification of Sea Robin’s pipeline as engaged in jurisdictional transportation. However, as alluded to above, these petitions, like those in Conoco, “arise in the wake of major regulatory changes in the natural gas industry.” Conoco, 90 F.3d at 539. Whereas Sea Robin was once involved in sales and transportation, now it is strictly a transportation-only pipeline.",
"When interstate gas pipelines served the multi-function role of purchasing, gathering, transporting, and re-selling natural gas, i.e. bundled sales, the transportation/gathering jurisdictional question may have been of less consequence. See, e.g., El Paso Natural Gas Co., 72 F.E.R.C. ¶ 61,219, at 62,002, 1995 WL 544234 (1995) (“Under [a] bundled sales regulatory environment, the gathering/ti’ansmission function distinction was not as important as it is in a post-Order 636 environment [requiring unbundling].... Consequently, many facilities that actually perform a gathering function originally were construed under [Natural Gas Act] section 7 certificates.”); CNG Transmission Corp., 67 F.E.R.C. *186¶ 61,330, at 62,177, 1994 WL 270455 (1994). Thus, the historical classification of Sea Robin’s system is of limited utility. Moreover, the Fifth Circuit expressly instructed FERC in this case to relegate non-physical factors, such as the “settled status” of a pipeline, and the expectations of shippers to secondary status: “If the Commission is to remain tethered to the statute, as it must, that inquiry must be based primarily on physical criteria and the realities of the field.” Sea Robin I, 127 F.3d at 371. The Fifth Circuit held that “general business activity and prior certification are relevant, but they are only part of the mix.” Id.",
"We agree. Therefore, as FERC adequately considered non-physical factors, but properly relied primarily on physical factors, again, we cannot find its decision to decline jurisdiction over a portion of Sea Robin’s system unreasonable. Similarly, we find ExxonMobil’s argument that FERC’s jurisdictional ruling has created an “utterly illogical situation,” wherein gas is transported on a jurisdictional pipeline (the Garden Banks pipeline) into a non-jurisdictional gathering leg of Sea Robin’s pipeline, unavailing. Petitioners rely on Tarpon Transmission Co., 60 F.E.R.C. ¶ 61,041, 1992 WL 166429 (1992), and Trunkline Gas Co., 70 F.E.R.C. ¶ 61,163, 1995 WL 58234 (1995), for the proposition that the presence of an interconnection with an upstream jurisdictional facility compels a finding that the downstream facility is likewise jurisdictional.",
"First, reliance on these orders for such a proposition is inherently suspect as in both instances the classification of the upstream system was in dispute, and in both cases the upstream system was reclassified as non-jurisdictional. If anything, this suggests that it is the Garden Banks pipeline, rather than Sea Robin, that has been erroneously classified: To hold that the Garden Banks pipeline’s jurisdictional status compelled FERC to classify Sea Robin’s system as jurisdictional would create a classic example of circular reasoning. When Garden Banks requested a non-jurisdictional gathering classification, FERC ruled that it was jurisdictional because it ivas located “proximate to jurisdictional lines.\" Shell Gas Pipeline Co., 74 F.E.R.C. ¶ 61,277, at 61,897, 1996 WL 111350 (1996) (emphasis added).",
"Thus, proximity to Sea Robin, among other pipelines, resulted in Garden Banks’s jurisdictional classification. To now hold that Garden Banks’s interconnection with Sea Robin requires the latter to also be jurisdictional, is for the tail to wag the dog. Perhaps the present inconsistent treatment of the Garden Banks pipeline and the Sea Robin pipeline is “positively absurd,” as suggested by the dissent, Dis. Op. at 7, but that does not mean that the problem is necessarily with Sea Robin’s classification. FERC has been struggling with the reclassification of facilities in the wake of the unbundling of gas sales and interstate transportation in Order No. 636. See Conoco, 90 F.3d at 539-41. As it is entirely appropriate for FERC to proceed on a case-by-case basis, see SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 1580-81, 91 L.Ed. 1995 (1947), then “the reform may take one step at a time.” Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct.",
"461, 465, 99 L.Ed. 563 (1955). We do not mean to pre-judge how FERC might apply its reformulated primary function test to Garden Banks. We only conclude that the status of the Garden Banks pipeline does not render the Commission’s reclassification of portions of Sea Robin’s system unreasonable. We turn now to ExxonMobil’s least persuasive argument — that FERC’s determination that portions of Sea Robin’s system are engaged in non-jurisdictional gathering results in a “regulatory gap.” We find this argument no more persuasive *187than did the Fifth Circuit.",
"We emphatically agree that “[n]eed for regulation cannot alone create authority to regulate.” Sea Robin I, 127 F.3d at 371. Rather it is statidory authorization alone that gives FERC the authority to regulate, and in the absence of such authority, FERC’s action “ ‘is plainly contrary to law and cannot stand.’ ” Atlantic City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C.Cir.2002) (quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C.Cir.2001)). Here Congress clearly contemplates that the Commission will not have jurisdiction under the Natural Gas Act over “the production or gathering of natural gas.” 15 U.S.C. § 717(b).",
"The language could not be any plainer. We have repeatedly admonished federal agencies that jurisdiction may not be presumed based solely on the fact that there is not an express withholding of jurisdiction. E.g., Atlantic City Elec. Co., 295 F.3d at 8-9; Michigan, 268 F.3d at 1082; American Petroleum Inst. v. EPA, 52 F.3d 1113, 1119-20 (D.C.Cir.1995); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C.Cir.1995). Where Congress has gone so far as to expressly delineate the limits of agency jurisdiction, we cannot fault the Commission for taking a conservative view of its own authority. Finally, we can quickly dispense with ExxonMobil’s argument that Sea Robin’s system was subject to abandonment proceedings under section 7(b) of the Act, 15 U.S.C. § 717f(b).",
"Simply put, Sea Robin does not seek to abandon any facilities or services. Rather, it merely seeks to be able to continue operating previously certificated facilities as gathering facilities, exempt from FERC’s jurisdiction under the Natural Gas Act. This is not “abandonment” within the meaning of section 7(b). Cf. Conoco, 90 F.3d at 553. In addition, section 7(b) only applies to jurisdictional facilities, and “do[es] not expand the Commission’s § 1(b) jurisdiction.” Id. Therefore it cannot be used to bootstrap FERC jurisdiction here. B. The Producer Coalition argues that the scope of the “gathering” exemption under section 1(b) of the Natural Gas Act is defined by the concept of “feeder lines” in the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. Under OCSLA, the Commission is responsible for ensuring open and nondiscriminatory access to transportation of oil and gas for all shippers on the Outer Continental Shelf.",
"43 U.S.C. § 1334(f)(1)(A). FERC, however, may exempt from OCSLA’s requirements “any pipeline or class of pipelines which feeds into a facility where oil and gas are first collected or a facility where oil and gas are first separated, dehydrated, or otherwise processed.” 43 U.S.C. § 1334(f)(2). The Producer Coalition contends that the scope of exemption for “feeder lines” is coterminous with “gathering” facilities under the Natural Gas Act. Thus, in essence the Producer Coalition contends that FERC’s reformulated primary function test is unnecessary and that the Commission has stumbled under Chevron step one. In support of its position, the Producer Coalition relies on bits and pieces of legislative history surrounding the 1978 Amendments to OCSLA. But snippets of legislative history do not a law make. Accord Aldridge v. Williams, 44 U.S. (3 How.) 9, 24, 11 L.Ed.",
"469 (1845); In re Sealed Case, 237 F.3d 657, 669 (D.C.Cir.2001) (“The limits on the Commission’s authority — like that authority itself — are derived from statutory provisions, not from loosely worded fragments extracted from congressional reports and speeches”). Petitioners offer no direct evidence of congressional intent to fill in the Natural Gas Act definition of “gathering” sub silentio *188by reference to the feeder line concept. Indeed, there is no definition of “gathering” in the OCSLA, and it does not even use the term. Rather the Producer Coalition relies on isolated excerpts from the floor discussion by Congressman Sieberling. While Congressman Sieberling may have spoken, Congress has not. Morever, it would be anomalous to treat the “feeder line” provision of OCSLA and the “gathering” exemption of the Natural Gas Act as redundant. Under the Producer Coalition’s interpretation, in enacting the OCSLA Amendments, Congress would have replicated the non-discriminatory provisions already contained in the Natural Gas Act. Compare 43 U.S.C.",
"§ 1334(f)(a)(l)(A) (OCSLA), with 15 U.S.C. §§ 717c(b), 717d(a) (Natural Gas Act). Likewise, there would have been no need to authorize the Commission to exempt “feeder lines” from FERC jurisdiction if they were already exempt as gathering facilities. Rather, a more plausible inference is that Congress amended OCSLA to make OCS facilities not covered by the Natural Gas Act subject to similar nondiscriminatory requirements, with the exception of “feeder lines.” However, we do not decide whether it would be reasonable for FERC to equate the feeder line and gathering facilities exemptions. We simply hold that FERC’s interpretation of section 1(b) of the Natural Gas Act is not unreasonable, and therefore Chevron deference is applicable. III. Conclusion FERC’s jurisdiction over natural gas pipelines “demands the drawing of jurisdictional lines, even when the end of gathering is not easily located.” Sea Robin I, 127 F.3d at 371.",
"Although we might draw a different line, we cannot say that the Commission acted unreasonably in concluding that the Vermilion 149 Station is the place where nonjurisdictional gathering ends and jurisdictional transportation begins. It is not our role to substitute our own judgment for that of the agency. Given the instructions of the United States Court of Appeals for the Fifth Circuit on remand, we cannot say that FERC has failed to give appropriate consideration to the primary physical factors and the secondary non-physical factors of its reformulated primary function test.",
"Therefore the petitions for review are denied. So ordered. . Joining ExxonMobil Gas Marketing Co.’s brief are: Amerada Hess Corp., Amoco Production Co., BP Energy Co., Anadarko Petroleum Corp., Marathon Oil Co., Murphy Exploration and Production Co., Phillips Petroleum Co., and Texaco Natural Gas, Inc. . The Producer Coalition consists of Forest Oil Corp., the Houston Exploration Co., New-field Exploration Co., Ocean Energy, Inc., Dominion Exploration & Production, Inc., and TotalFinaElf E&P U.S.A., Inc. Intervenor Independent Petroleum Association of America joins the Producer Coalition’s brief. . This discussion is largely taken from Sea Robin I, 127 F.3d at 367-68. See also Sea Robin Pipeline Co., 87 F.E.R.C.",
"¶ 61,384, at 62,430, 1999 WL 444654 (1999). . Sea Robin no longer challenges FERC's Remand Order and supports the Commission’s decision to draw the line between jurisdictional transportation and non-jurisdictional gathering at the Vermilion 149 Station."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7862959/ | 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 . Allowable subject matter
Claims 2-22 are allowed. The following is an examiner’s statement of reasons for allowance: The art of record did not teach or suggest the claims taken as a whole and particular the limitations pertaining to:
“determining, by the computing system, a creator score for a creator of the particular video based at least on (i) the accumulated watch time of the particular video by the one or more viewers within the first viewer category and (ii) the quality score for the first viewer category; receiving, by the computing system, a request for video content to provide to a first user; selecting, by the computing system, one or more videos that are responsive to the request, including determining whether to return an indication of the particular video in response to the request based at least on the creator score for the creator of the particular video” as recited in claims 2, 9 and 16.
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.”
Conclusions Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEAN D SAINT CYR whose telephone number is (571)270-3224. The examiner can normally be reached on 9-5. 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, Brian Pendleton can be reached on 5712727527. 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.
/JEAN D SAINT CYR/Examiner, Art Unit 2425
/Brian T Pendleton/Supervisory Patent Examiner, Art Unit 2425 | 2021-05-07T09:54:41 | [
"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 2-22 are allowed. The following is an examiner’s statement of reasons for allowance: The art of record did not teach or suggest the claims taken as a whole and particular the limitations pertaining to: “determining, by the computing system, a creator score for a creator of the particular video based at least on (i) the accumulated watch time of the particular video by the one or more viewers within the first viewer category and (ii) the quality score for the first viewer category; receiving, by the computing system, a request for video content to provide to a first user; selecting, by the computing system, one or more videos that are responsive to the request, including determining whether to return an indication of the particular video in response to the request based at least on the creator score for the creator of the particular video” as recited in claims 2, 9 and 16.",
"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.” Conclusions Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEAN D SAINT CYR whose telephone number is (571)270-3224. The examiner can normally be reached on 9-5. 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, Brian Pendleton can be reached on 5712727527. 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.",
"/JEAN D SAINT CYR/Examiner, Art Unit 2425 /Brian T Pendleton/Supervisory Patent Examiner, Art Unit 2425"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-09.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Corrected Mailing of Office Action This action corrects the listing of the claims being rejected below, and this mailing represents the pending Office action.
Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 55-61 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liu et al. (Biomaterials, 2013, 34(10), pages 2442-2454 & its supplemental information) as evidenced by Martinovic et al. (J. Histochem. Cytochem., 2004, 52(9), pages 1159-1167). Liu et al. discloses sulfobetaine as a zwitterionic mediator for three-dimensional hydroxyapatite mineralization (title). This zwitterion is used as a ligand to enable mineralization in crosslinked hydrogels (abstract). The hydrogel thus prepared were polymeric, and used zwitterionic poly[2-methacryloyloxy)ethyl]dimethyl-(3-sulfopropyl)ammonium hydroxide as a zwitterionic monomer (and this monomer incorporates the sulfobetaine moiety as a pendant group), and which was crosslinked using ethylene glycol dimethacrylate (page 2443, section 2.1). See also figure 1a for a schematic representation of this composite. Liu et al. further states that bone marrow stromal cells were encapsulated within the hydrogels (page 2445, section 2.10). Martinovic et al. demonstrates that bone marrow stromal cells express bone morphogenetic proteins (title & abstract). Thus, the hydrogel encapsulating the bone marrow stromal cells also are encapsulating the expressed bone morphogenetic protein (the elected species of active compound). Liu additionally suggests that the opposite charge distribution of the zwitterion can help realize in vivo osteointegration for scaffold-assisted skeletal tissue repair (page 1159, first paragraph) and can be used for in vivo applications, including orthopedic and dental applications (page 2453, last paragraph). Thus, Liu et al. discloses hydrogels with encapsulated cells, and suggests there in vivo use for skeletal tissue repair. Liu et al. does not disclose the release rate of the cells (and proteins therein), which are recited by independent instant claims 55-59. However, the hydrogel prepared by Liu et al. (supplemental information, table S1) appears to have the same amount and polymeric ingredients as instantly prepared (page 8 of the instant specification, table 1). The specification appears to make clear that the 3-dimensional polymer network sequesters the biomolecules without compromising their bioactivity (paragraph [8]), and can be used to retain them for delivering to the desired site (id.). Thus, the hydrogel prepared by Liu et al. would have the same biodegradable and release properties as the hydrogel prepared in the instant specification.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached on Monday - Friday 7am - 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, 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 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.
/Brian Gulledge/Primary Examiner, Art Unit 1612 | 2021-03-29T06:35:11 | [
"DETAILED ACTION Corrected Mailing of Office Action This action corrects the listing of the claims being rejected below, and this mailing represents the pending Office action. Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claims 55-61 are rejected under 35 U.S.C.",
"102(a)(1) as being anticipated by Liu et al. (Biomaterials, 2013, 34(10), pages 2442-2454 & its supplemental information) as evidenced by Martinovic et al. (J. Histochem. Cytochem., 2004, 52(9), pages 1159-1167). Liu et al. discloses sulfobetaine as a zwitterionic mediator for three-dimensional hydroxyapatite mineralization (title). This zwitterion is used as a ligand to enable mineralization in crosslinked hydrogels (abstract). The hydrogel thus prepared were polymeric, and used zwitterionic poly[2-methacryloyloxy)ethyl]dimethyl-(3-sulfopropyl)ammonium hydroxide as a zwitterionic monomer (and this monomer incorporates the sulfobetaine moiety as a pendant group), and which was crosslinked using ethylene glycol dimethacrylate (page 2443, section 2.1). See also figure 1a for a schematic representation of this composite. Liu et al. further states that bone marrow stromal cells were encapsulated within the hydrogels (page 2445, section 2.10). Martinovic et al. demonstrates that bone marrow stromal cells express bone morphogenetic proteins (title & abstract). Thus, the hydrogel encapsulating the bone marrow stromal cells also are encapsulating the expressed bone morphogenetic protein (the elected species of active compound).",
"Liu additionally suggests that the opposite charge distribution of the zwitterion can help realize in vivo osteointegration for scaffold-assisted skeletal tissue repair (page 1159, first paragraph) and can be used for in vivo applications, including orthopedic and dental applications (page 2453, last paragraph). Thus, Liu et al. discloses hydrogels with encapsulated cells, and suggests there in vivo use for skeletal tissue repair. Liu et al. does not disclose the release rate of the cells (and proteins therein), which are recited by independent instant claims 55-59. However, the hydrogel prepared by Liu et al. (supplemental information, table S1) appears to have the same amount and polymeric ingredients as instantly prepared (page 8 of the instant specification, table 1). The specification appears to make clear that the 3-dimensional polymer network sequesters the biomolecules without compromising their bioactivity (paragraph [8]), and can be used to retain them for delivering to the desired site (id.). Thus, the hydrogel prepared by Liu et al. would have the same biodegradable and release properties as the hydrogel prepared in the instant specification. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian Gulledge whose telephone number is (571) 270-5756. The examiner can normally be reached on Monday - Friday 7am - 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, 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 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. /Brian Gulledge/Primary Examiner, Art Unit 1612"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-14.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam. TMs was an action in debt, in the Circuit Court of Madison county, by appellee against appellant, to .recover penalties for the alleged practice of medicine by appellant without a license, in violation of Section 9 of the Act pertaining to Medicine and Surgery. Jury waived. Trial by the court without a jury. The court found appellant guilty on the fifth count of the declaration, rendered judgment on the finding, imposed a fine of $100, and costs, and ' ordered her committed to the county jail until the fine and costs were paid. The declaration consisted of eight counts, each in effect charging appellant with treating a specified patient or patients, without having a license, in violation of the statute. At the close of the evidence in chief counsel for appellee withdrew all the counts except the fifth and seventh. The fifth charged appellant with treating Mrs. Touree Hawks, and the seventh, with treating two infant children of Mrs. Touree Hawks. Appellant has a license as a midwife, issued by the State Board of Health, June 16, 1897, and has practiced as a midwife in Granite City and in that neighborhood ever since, having an extensive practice, sometimes going as far as twenty miles to visit patients. Since the prosecution withdrew six counts of the declaration and the court found appellant not guilty as to one count, there remains for our consideration only the case as based upon the remaining count,—the fifth. This count as above noted charges appellant with treating Mrs. Touree Hawks. Mrs Hawks was confined on the 27th day of December, 1907, and appellant was called to attend her. Mrs. Hawks gave birth to twins, and appellant attended upon her “for about eight days, this being the usual time for a midwife to attend in labor cases.” Counsel for appellee claims that appellant gave Mrs. Hawks some kind of a tablet, administered to her in water, just after the birth of the children. This is the sum total of the claim against appellant, with respect to this count, and counsel does not- even suggest what the tablet contained nor what it was given for. The proof that any tablet was in fact administered by appellant or under her direction, or even that the patient took a tablet, is not satisfactory; and we are of opinion that the evidence wholly fails to prove that appellant “used any drugs or medicine,” at any time in connection with her attendance upon Mrs. Hawks. This being our judgment as to the state of the evidence, and being conclusive as to the case, we do not feel that it would be proper for us to discuss and express our opinion upon the other questions raised upon this appeal. The judgment of the Circuit Court is reversed, and we find as an ultimate fact to be incorporated in the judgment, that the evidence does not prove that appellant used any drugs or medicine, at any time, in connection with her attendance upon Mrs. Touree Hawks during the period of her confinement. Reversed. | 11-26-2022 | [
"Per Curiam. TMs was an action in debt, in the Circuit Court of Madison county, by appellee against appellant, to .recover penalties for the alleged practice of medicine by appellant without a license, in violation of Section 9 of the Act pertaining to Medicine and Surgery. Jury waived. Trial by the court without a jury. The court found appellant guilty on the fifth count of the declaration, rendered judgment on the finding, imposed a fine of $100, and costs, and ' ordered her committed to the county jail until the fine and costs were paid. The declaration consisted of eight counts, each in effect charging appellant with treating a specified patient or patients, without having a license, in violation of the statute.",
"At the close of the evidence in chief counsel for appellee withdrew all the counts except the fifth and seventh. The fifth charged appellant with treating Mrs. Touree Hawks, and the seventh, with treating two infant children of Mrs. Touree Hawks. Appellant has a license as a midwife, issued by the State Board of Health, June 16, 1897, and has practiced as a midwife in Granite City and in that neighborhood ever since, having an extensive practice, sometimes going as far as twenty miles to visit patients. Since the prosecution withdrew six counts of the declaration and the court found appellant not guilty as to one count, there remains for our consideration only the case as based upon the remaining count,—the fifth. This count as above noted charges appellant with treating Mrs. Touree Hawks.",
"Mrs Hawks was confined on the 27th day of December, 1907, and appellant was called to attend her. Mrs. Hawks gave birth to twins, and appellant attended upon her “for about eight days, this being the usual time for a midwife to attend in labor cases.” Counsel for appellee claims that appellant gave Mrs. Hawks some kind of a tablet, administered to her in water, just after the birth of the children. This is the sum total of the claim against appellant, with respect to this count, and counsel does not- even suggest what the tablet contained nor what it was given for. The proof that any tablet was in fact administered by appellant or under her direction, or even that the patient took a tablet, is not satisfactory; and we are of opinion that the evidence wholly fails to prove that appellant “used any drugs or medicine,” at any time in connection with her attendance upon Mrs. Hawks. This being our judgment as to the state of the evidence, and being conclusive as to the case, we do not feel that it would be proper for us to discuss and express our opinion upon the other questions raised upon this appeal. The judgment of the Circuit Court is reversed, and we find as an ultimate fact to be incorporated in the judgment, that the evidence does not prove that appellant used any drugs or medicine, at any time, in connection with her attendance upon Mrs. Touree Hawks during the period of her confinement.",
"Reversed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8807012/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
TIMOTHY J. KELLY, United States District Judge Roseberry-Andrews, proceeding pro se , challenges a number of decisions by the Air Force Board for Correction of Military Records (the "Board") denying her requests to modify her military records. She asks this Court to rule that these denials were arbitrary and capricious and to remand to the Board for a number of forms of relief, including monetary compensation. Defendant moves to dismiss the case for lack of subject matter jurisdiction, or, alternatively, for summary judgment.1 The Court concludes that Roseberry-Andrews' request for monetary relief divests this Court of subject matter jurisdiction over her complaint. As a result, the Court transfers the case to the Court of Federal Claims. I. Factual and Procedural Background A. Roseberry-Andrews' Allegations Senior Master Sergeant Cynthia Roseberry-Andrews enlisted in the Air National *450Guard in 1982. AR 18. After twelve years in the Air National Guard, she transferred to the United States Air Force Reserve's "Individual Mobilization Augmentee" ("IMA") program. Compl. ¶ 3; AR 18. An IMA is a part-time reservist who is assigned to an active-duty unit. Def.'s MTD at 2. In August 2002, Roseberry-Andrews accepted a position as a Program Manager in the Human Resources Directorate at the Defense Contract Management Agency ("DCMA"). Compl. ¶ 10. Roseberry-Andrews alleges that she was harmed in a number of ways while serving at the DCMA. Broadly speaking, her allegations fall into two categories. First, Roseberry-Andrews alleges that two of her active-duty orders should have been medically extended due to an ankle injury that she suffered, which would have provided her various employment-related benefits. Second, she alleges that various Air Force personnel retaliated against her in a number of ways for claiming that certain Air Force personnel had engaged in improper conduct. 1. Roseberry-Andrews' Ankle Injuries While Serving on Active-Duty Orders Roseberry-Andrews injured her ankle twice while serving on active-duty orders. She was placed on active-duty orders from January 1, 2003, to May 28, 2004. AR 5. In August 2003, she fell while conducting agility and obedience training with a show dog, severely injuring her left ankle. Compl. ¶ 39; AR 8. The injury was determined to be in the "line of duty," meaning she was on active duty and did not act negligently or irresponsibly in causing it. Compl. ¶ 40; AR 30-31. On March 25, 2004, Roseberry-Andrews underwent reconstructive ankle surgery. Compl. ¶ 42. After the surgery, she went on convalescent leave for thirty days because she could not drive to work. Id. ¶¶ 48-50, 55. When she returned to work, Roseberry-Andrews expected to be placed on active duty while undergoing physical therapy, but instead she was placed on incapacitation pay for six months. Id. ¶¶ 56-57, 59. Thus, her active-duty orders for this tour ended on May 28, 2004. AR 8. In November 2005, DCMA selected Roseberry-Andrews for an active-duty deployment to the Middle East from September 2, 2006, to April 15, 2007. Id. ¶ 82. During that deployment, she reinjured her ankle. Id. ¶ 84. Upon returning to the United States, her post-deployment physician referred her to an orthopedic clinic. Id. ¶ 85. An orthopedic examination revealed that Roseberry-Andrews' ankle was broken in two places, necessitating two more surgeries and additional physical therapy. Id. ¶ 86. Roseberry-Andrews was placed on "Medical Hold" and her active-duty orders were not extended beyond April 15, 2007. Id. ¶¶ 82, 87-88. 2. Retaliation Against Roseberry-Andrews Roseberry-Andrews also alleges that various Air Force personnel engaged in "unlawful personnel practices." Id. ¶ 11. She claims that when she refused to participate in those practices, those personnel, including Captain Michael Goodwin and Colonel Mary Purdue, retaliated against her in number of ways. For instance, Roseberry-Andrews alleges that: • In February 2004, Roseberry-Andrews received a Letter of Counseling alleging that she sent an email to Captain Goodwin that was "condescending, confrontational, and disrespectful." Id. ¶¶ 28-29. • In March 2004, Colonel Purdue called a military human resources office to inquire whether Roseberry-Andrews had been "erroneously enlisted" in hopes of removing her from the military. Id. ¶¶ 27, *45135; AR 5. She was properly enlisted. Compl. ¶ 36. • Before Roseberry-Andrews' ankle surgery in March 2004, Colonel Purdue called Walter Reed National Military Medical Center to see whether the surgery could be cancelled and whether Roseberry-Andrews could return to work immediately after the surgery. Id. ¶¶ 45-54. The hospital declined these requests. Id. ¶¶ 48, 54. • On May 18, 2004, Lieutenant Colonel Karen Cox issued a Letter of Reprimand to Roseberry-Andrews and established an Unfavorable Information File. Id. ¶¶ 67, 71; AR 129-35. • In June 2005, Captain Goodwin issued an unfavorable Enlisted Performance Report ("EPR") stating that, among other things, he had "lost faith and confidence in [Roseberry-Andrews'] ability to conduct herself in a manner befitting a [Senior Non-Commissioned Officer]." Compl. ¶¶ 72-73; AR 136-37; Def.'s MTD at 6 n.1. • After Roseberry-Andrews had redeployed in April 2007, she requested to be transferred to the DCMA General Counsel's Office ("DCMA-GC") as an Advisor-Paralegal. Compl. ¶ 92. DCMA-GC submitted the transfer request, AR 170-71, but Michael McLaughlin (then the Director of Human Resources at DCMA) instead converted the billet for Roseberry-Andrews' paralegal position to an Aircraft Avionics position in Palmdale, California. Compl. ¶¶ 100-102; AR 172. McLaughlin informed Roseberry-Andrews that she would be moved to the Individual Ready Reserve unless she could find another position in her specialty in six months. AR 172. • Roseberry-Andrews did not receive payment for 105 days of work that she performed between July 1, 2008, and October 13, 2008. Compl. ¶ 96. • On April 1, 2009, McLaughlin and others transferred Roseberry-Andrews to the Individual Ready Reserve. Id. ¶ 104. Roseberry-Andrews ultimately was able to reenlist after briefing the Chief of Military Personnel for the Air Force Reserve. Id. ¶¶ 109-112. At the time the complaint was filed, Roseberry-Andrews continued to serve as an IMA reservist in the Air Force. Id. ¶ 3. B. Roseberry-Andrews' Efforts to Seek Redress From the Board Roseberry-Andrews has sought redress for these grievances from the Board several times. On November 29, 2007, she filed her first application. Id. ¶ 115; AR 14-29. Brought pursuant to 10 U.S.C. § 1552, AR 14, it requested that (1) her active-duty orders ending in May 2004 and April 2007, respectively, be medically continued due to her ankle injury and that she be paid associated back pay and medically-related costs, (2) that her position be transferred to DCMA-GC effective March 20, 2008, and (3) that several military records be expunged. Compl. ¶ 116; AR 4. On March 23, 2009, the Board retroactively extended the end date of Roseberry-Andrews' first active-duty orders from May 28, 2004, to December 28, 2004, but denied all the other relief she had requested. AR 11-13. On May 29, 2009, Roseberry-Andrews filed a petition for reconsideration with the Board. Compl. ¶ 139. In addition to the relief requested in her original petition, Roseberry-Andrews also requested pay for 105 days she allegedly worked in 2008, *452placement on an active-duty tour in the DCMA General Counsel's Office, and favorable changes to two EPRs (proposing, for example, to change "Ineffective" to "Exceptionally effective leader," AR 136, 401). See AR 393-416; Compl. ¶¶ 138-139. On January 18, 2011, the Board again denied relief, concluding that the bulk of her application "consist[ed] of ... information already addressed by the previous Board." AR 176; Compl. ¶ 140. At this point, Roseberry-Andrews' counsel wrote a number of letters to the Executive Director of the Board complaining that the Board had denied Roseberry-Andrews due process. See AR 1873-77 (Apr. 27, 2011 Ltr.); AR 1870-71 (Oct. 5, 2011 Ltr.); AR 1867-69 (Apr. 20, 2012 Ltr.). These letters incorporated her previous requests for relief and also added requests for a promotion and associated back pay as well as retroactive placement on active-duty orders from September 1, 2010, until the Board completed reviewing her case. AR 1867-69. On October 23, 2012, the Board denied the majority of the relief she had requested, but it did further extend the end date of her first active-duty order from December 28, 2004, to September 9, 2005. AR 806. On November 30, 2012, Roseberry-Andrews' counsel wrote a letter to the Director of the Board requesting a meeting. AR 1909-20. On January 2, 2013, the Director responded that he would not meet with Roseberry-Andrews' counsel, that the Board's decisions were thoroughly considered, and that Roseberry-Andrews could seek further relief in federal court. AR 1921. C. Roseberry-Andrews' Complaint On October 15, 2015, Roseberry-Andrews filed this action. See ECF No. 1. She asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. Compl. ¶¶ 1-2. She also asserts that she has exhausted her administrative remedies and that her claims are timely pursuant to the six-year statute of limitations set forth in 28 U.S.C. § 2501, the statute governing the timeliness of claims over which the Court of Federal Claims has jurisdiction. Compl. ¶¶ 5-6. She appears to assert a single cause of action, under the APA. Id. ¶¶ 224-231. The complaint reiterates many of the same allegations previously presented to the Board. Id. ¶¶ 7-113. Ultimately, Roseberry-Andrews seeks a "ruling" that the "Boards' denial of full relief was arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable law or regulation and remand to the Board for the following relief...." Id. ¶ 232. The "following relief" runs to seventeen paragraphs and can be grouped into four categories: (1) retroactive adjustments to her active-duty status, (2) adjustments to her rank and position, (3) monetary relief, and (4) amendments of her performance reviews. First, Roseberry-Andrews requests retroactive extensions of her 2003-2005 and 2006-2007 active-duty orders and retroactive placement on active duty from September 1, 2010, until the Board "provides full relief." Id. ¶¶ 233, 235. Second, she seeks to be placed into the advisor-paralegal position in the DCMA General Counsel's office, retroactive promotion to the grade of Chief Master Sergeant, pay grade E9, effective April 1, 2009, and modification to her reenlistment for a full six-year term. Id. ¶¶ 234, 236, 238. Third, she requests a number of forms of monetary relief, including a remand to the Board to: "[a]djust [her] pay accordingly, including all cost of living and time-in-grade increases, interest and retirement points," id. ¶ 237; "[p]ay [her] all accrued leave with compounded interest," id. ¶ 239; "[p]ay *453[her] all interest, penalty, and fees for her LOD injury medical travel," id. ¶ 241; "[p]ay" her compound interest as a result of the corrections made pursuant to the Orders of March 23, 2009, and October 23, 2012, id. ¶ 242; "[r]eimburse [her] for all investment and retirement account losses, penalty fees, early withdrawal fees and taxes, reinstatement fees, mortgage refinance fees, and other lost benefits or compensations during the entire AFBCMR period to present," id. ¶ 243; "[r]eimburse [her] all medical, medication and dental treatment costs," id. ¶ 244; and pay for attorneys' fees, id. ¶ 248. Last, Roseberry-Andrews seeks expungement of one EPR and favorable corrections to two others. Id. ¶¶ 245-247. II. Legal Standard "To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear h[er] claims." Remmie v. Mabus , 898 F.Supp.2d 108, 114 (D.D.C. 2012). "It is well established that '[c]ourts must construe pro se filings liberally.' " Fermin v. United States , 268 F.Supp.3d 228, 231 (D.D.C. 2017) (alteration in original) (quoting Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999) ). But a pro se plaintiff "must nevertheless establish a clear basis for jurisdiction." Id. "The court may ... examine 'other pleadings to understand the nature and basis of [plaintiff's] pro se claims.' " Bowe-Connor v. Shinseki , 845 F.Supp.2d 77, 84 (D.D.C. 2012) (alteration in original) (quoting Chandler v. W.E. Welch & Assocs. , 533 F.Supp.2d 94, 102 (D.D.C. 2008) ). "It is 'axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.' " Houseal v. McHugh , 962 F.Supp.2d 286, 291 (D.D.C. 2013) (quoting United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ). The APA, and the Tucker Act, 28 U.S.C. § 1491(a)(1), "both waive sovereign immunity, allowing plaintiffs to sue the United States in specific circumstances." Martin v. Donley , 886 F.Supp.2d 1, 7 (D.D.C. 2012). "Under the APA, a plaintiff may sue the United States 'in the district courts for remedies other than money damages arising from an agency's unlawful action.' " Id. (quoting Bublitz v. Brownlee , 309 F.Supp.2d 1, 6 (D.D.C. 2004) ). Alternatively, "[u]nder the Tucker Act, the Court of Federal Claims is vested with exclusive jurisdiction over cases involving non-tort money damages in excess of $10,000." Tootle v. Sec'y of Navy , 446 F.3d 167, 169 (D.C. Cir. 2006).2 The D.C. Circuit "uses a self-described 'bright line' approach to the Tucker Act, considering cases within its scope 'only if the plaintiff seeks money or the district court grants it.' " Remmie , 898 F.Supp.2d at 116 (quoting Smalls v. United States , 471 F.3d 186, 189 (D.C. Cir. 2006) ). "[A] claim is subject to the Tucker Act and its jurisdictional consequences if, in whole or in part, it explicitly or 'in essence' seeks more than $10,000 in monetary relief from the federal government." Smalls , 471 F.3d at 190 (quoting Kidwell v. Dep't of Army, Bd. for Correction of Military Records , 56 F.3d 279, 284 (D.C. Cir. 1995) ). "[W]here the jurisdiction of the court turns on whether the complaint seeks monetary relief, the court must generally limit itself to the four corners of the complaint." Tootle , 446 F.3d at 174. *454"[W]here a claim by its terms seeks money from the federal government, it falls within the Tucker Act." Palacios v. Spencer , 267 F.Supp.3d 1, 5 (D.D.C. 2017) (citing Van Drasek v. Lehman , 762 F.2d 1065, 1071 (D.C. Cir. 1985) ). Courts "only look to the essence of a complaint in the absence of an explicit request for monetary relief." Schwalier v. Hagel , 734 F.3d 1218, 1221 (D.C. Cir. 2013). "To decide whether a plaintiff is attempting to sidestep Tucker Act jurisdiction, the court must look to the substance rather than the form of the complaint." Van Allen v. U.S. Dep't of Veterans Affairs , 925 F.Supp.2d 119, 125 (D.D.C. 2013) (quoting Bliss v. England , 208 F.Supp.2d 2, 6 (D.D.C. 2002) ). "A complaint is not in essence one for monetary damages if the only remedy requested is 'non-monetary relief that has considerable value independent of any future potential for monetary relief.' " Smalls , 471 F.3d at 190 (quoting Tootle , 446 F.3d at 176 ). "The fact that in seeking the correction of a military record the plaintiff may, if successful, obtain monetary relief from the United States in subsequent administrative proceedings is insufficient to deprive the district court of jurisdiction." Id. III. Analysis The threshold question before the Court is whether Roseberry-Andrews' complaint "explicitly or 'in essence' seeks more than $10,000 in monetary relief from the federal government." Smalls , 471 F.3d at 190 (quoting Kidwell , 56 F.3d at 284 ). If it does, the Court must dismiss or transfer the case for want of subject matter jurisdiction because exclusive jurisdiction lies with the Court of Federal Claims under the Tucker Act. This, the D.C. Circuit has instructed, is a "bright line" rule. Id. at 189. Defendant contends that Roseberry-Andrews "explicitly requests monetary relief." Def.'s MTD at 13. Roseberry-Andrews counters that her complaint "does not explicitly seek money" because she requests that the Court find that the Board's decisions were arbitrary and capricious and remand for the relief she seeks. Pl.'s Opp. at 9; see also id. at 3, 17. The Court has little choice but to conclude that Roseberry-Andrews explicitly seeks monetary relief. In her prayer for relief, she requests an "[a]djust[ment] [of her] pay [as a result of a requested promotion], including all cost of living and time-in-grade increases, interest and retirement points," Compl. ¶ 237; "[p]ay [for] all accrued leave with compounded interest," id. ¶ 239; "[p]ay" for "all interest, penalty, and fees for her LOD injury medical travel," id. ¶ 241; "[p]ay" for compounded interest as a result of the corrections made pursuant to the Orders of March 23, 2009, and October 23, 2012, id. ¶ 242; "[r]eimburse[ment] ... for all investment and retirement account losses, penalty fees, early withdrawal fees and taxes, reinstatement fees, mortgage refinance fees, and other lost benefits or compensations during the entire AFBCMR period to present," id. ¶ 243; "[r]eimburse[ment] [for] ... all medical, medication and dental treatment costs," id. ¶ 244; and payment for attorney's fees and costs, id. ¶ 248. These requests are "unambiguously monetary in nature." Schwalier , 734 F.3d at 1222 ; see also Palacios , 267 F.Supp.3d at 5 (claim for back pay is "on its face, a claim for money damages"). In fact, Roseberry-Andrews' request for monetary relief is much more explicit and detailed than the plaintiff's request in Schwalier , where the D.C. Circuit concluded that it did not have jurisdiction because the complaint sought monetary relief. 734 F.3d at 1222. The monetary request in that case-"any other relief, including active duty back pay and retired pay, as this Honorable Court deems just and proper," id. at 1219 -was *455merely part of a catch-all relief provision. Here, Roseberry-Andrews' prayer for relief includes a laundry list of explicit requests ranging from back pay to payment for medical expenses to reimbursement for mortgage refinancing fees. There is one procedural wrinkle, however, that at least potentially complicates what would otherwise be a straightforward conclusion that the Court lacks subject matter jurisdiction as a result of Roseberry-Andrews' request for monetary relief. Roseberry-Andrews argues that this Court is not divested of jurisdiction because she has "petitioned this court to 'review' the Agency's decisions and remand her AFBCMR petition to the AFBCMR to properly correct her records." Pl.'s Opp. at 9. Of course, the mere fact that her complaint requests other types of relief-such as correction of her records-in addition to monetary relief does not help her. As long as the complaint "in whole or in part ... seeks ... monetary relief," it is "subject to the Tucker Act and its jurisdictional consequences." Smalls , 471 F.3d at 190 (quoting Kidwell , 56 F.3d at 284 ); see also Brown v. West , No. 94-cv-2674-LFO, 1995 WL 623038, at *4 (D.D.C. Oct. 13, 1995) ("[I]t would not make sense to allow plaintiff to split his equitable claims from his monetary claims. So doing would render the Kidwell bright line rule a nullity."). However, Roseberry-Andrews' complaint requests "remand to the Board" for all of the various forms of relief she seeks, including monetary relief. That raises what appears to be a novel question in this Circuit: whether a request to remand for monetary relief-instead of seeking such relief directly from the Court-is a distinction that matters for purposes of determining whether this Court has subject matter jurisdiction in light of the Tucker Act. Although it is a close case, the Court holds that it is not. The Court reaches this conclusion because Roseberry-Andrews appears to seek to invoke the Court's authority to obtain relief (including monetary relief) by ordering the AFBCMR to provide it, rather than by merely instructing the AFBCMR to conduct further proceedings. The language in the complaint reflects as much, as she requests "remand to the Board for the following relief," as opposed to merely for the consideration of that relief after further proceedings. Compl. ¶ 232 (emphasis added). There is simply no other reason for her to have set forth the requested relief in such detail, other than to request that the Court ensure that she receives it from the AFBCMR. Thus, just as if she had requested the Court award her that relief directly, the monetary relief she requests here "would ... flow directly from the exercise of the court's jurisdiction." Motorola, Inc. v. Perry , 917 F.Supp. 43, 47 (D.D.C. 1996). As a result, the Court concludes that it does not have subject matter jurisdiction over her complaint. The Court's conclusion is bolstered by the contrast between this case and the line of cases holding that a district court retains jurisdiction when any monetary relief would come from "subsequent administrative proceedings." Smalls , 471 F.3d at 190 ; see also Tootle , 446 F.3d at 175 ; Remmie , 898 F.Supp.2d at 117-18 ; Calloway v. Brownlee , 366 F.Supp.2d 43, 52-53 (D.D.C. 2005). None of the plaintiffs in those cases explicitly sought remand for an award of carefully specified monetary damages, as Roseberry-Andrews does here. In addition, in each of those cases, the court emphasized that any monetary relief recovered by the plaintiffs would be an uncertain downstream effect of the district court's ruling. See Tootle , 446 F.3d at 175 ("[A]ny monetary benefits that might flow if Tootle prevails on his non-monetary claims will not come from the District Court's exercise of jurisdiction, 'but from *456the structure of statutory and regulatory requirements governing compensation when a servicemember's files change.' Indeed, we have no way of knowing whether Tootle ever will be entitled to any monies if he succeeds before the District Court." (quoting Kidwell , 56 F.3d at 285-86 ) ); Smalls , 471 F.3d at 190-91 ("[B]ut it is clear that [relief] would come as a result of administrative proceedings ... and not as a result of the adjudication of the claims in his amended complaint"); Remmie , 898 F.Supp.2d at 118 ("Any financial benefit Plaintiff might receive in the future, therefore, would be the result of a 'subsequent administrative proceeding[ ]' and is thus 'insufficient to deprive the district court of jurisdiction.' " (quoting Smalls , 471 F.3d at 190 ) ); Calloway , 366 F.Supp.2d at 52 ("[A]ny monetary damages would not flow from the case before this Court, but rather from later proceedings before various Army boards of review."). By contrast, in this case, because Roseberry-Andrews seeks to invoke the Court's authority to obtain monetary relief by ordering the AFBCMR to provide it to her, rather than by merely instructing the AFBCMR to conduct further proceedings, she seeks relief that is not similarly dependent on subsequent administrative proceedings. Roseberry-Andrews' other arguments are more easily disposed of. She argues that Tucker Act jurisdiction is not implicated because she does not put a precise dollar figure on her requested monetary relief. Pl.'s Opp. at 9. But Schwalier forecloses making an end-run around the Tucker Act by failing to request a specific amount of money. See 734 F.3d at 1221 ("To permit plaintiffs to evade the strictures of the Tucker Act by setting forth the formula for their monetary relief rather than asking for a specified amount of 'damages' in so many words would undo the carefully erected structure that Congress set forth."). In addition, the Court agrees with Defendant that Roseberry-Andrews seeks well over $10,000 in damages, Def.'s MTD at 15 & n.4, so this Court may not retain jurisdiction under the Little Tucker Act. Thus, the Court concludes that it lacks subject matter jurisdiction because Roseberry-Andrews' complaint is subject to the Tucker Act.3 IV. Transfer A federal court must "make a single decision upon concluding that it lacks jurisdiction-whether to dismiss the case or, 'in the interest of justice,' to transfer it to a court ... that has jurisdiction" under 28 U.S.C. § 1631. Tootle , 446 F.3d at 173 (quoting Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ). "There are three elements to a section 1631 transfer: (1) there must be a lack of jurisdiction in the district court; (2) the transfer must be in the interest of justice; and (3) the transfer can be made only to a court in which the action could have been brought at the time it was filed or noticed." Freedman v. Suntrust Banks, Inc. , 139 F.Supp.3d 271, 277 (D.D.C. 2015) (quoting Fasolyak v. The Cradle Soc'y, Inc. , No. 06-cv-01126 TFH, 2007 WL 2071644, at *11 (D.D.C. July 19, 2007) ). "The legislative history of § 1631 indicates that Congress contemplated that it would *457provide assistance to those parties who were 'confused about the proper forum for review.' " Levy v. SEC , 462 F.Supp.2d 64, 66 (D.D.C. 2006) (quoting Am. Beef Packers, Inc. v. Interstate Commerce Comm'n , 711 F.2d 388, 390 (D.C. Cir. 1983) ). "Transfer of a case is usually preferable to dismissal." Sierra Club v. Tenn. Valley Auth. , 905 F.Supp.2d 356, 364 (D.D.C. 2012). A. Lack of Subject Matter Jurisdiction As explained above, Roseberry-Andrews' complaint "in whole or in part" seeks monetary relief. Thus, this Court lacks subject matter jurisdiction because exclusive jurisdiction rests with the Court of Federal Claims. Kidwell , 56 F.3d at 284 ; Brown , 1995 WL 623038, at *4. B. The Interest of Justice "In determining whether a transfer is in the interest of justice, the equities of dismissing a claim when it could be transferred should be carefully weighed." Bethea v. Holder , 82 F.Supp.3d 362, 366 (D.D.C. 2015) (quoting Liriano v. United States , 95 F.3d 119, 122 (2d Cir. 1996) ). "Courts have found that transfer is 'in the interest of justice' when, for example, the original action was misfiled by a pro se plaintiff or by a plaintiff who, in good faith, misinterpreted a complex or novel jurisdictional provision." Janvey v. Proskauer Rose, LLP , 59 F.Supp.3d 1, 7 (D.D.C. 2014) (collecting cases). "Courts have also looked to whether it would be time consuming and costly to require a plaintiff to refile his or her action in the proper court or whether dismissal would work a significant hardship on plaintiff who would likely now be time barred from bringing his or her action in the proper court." Id. at 7. But "transfer is not 'in the interest of justice' where that review reveals that success on the merits appears unlikely." Boultinghouse v. Lappin , 816 F.Supp.2d 107, 113 (D.D.C. 2011). Here, the Court concludes that it would be in the interest of justice to transfer this case to the Court of Federal Claims. Roseberry-Andrews is proceeding pro se and the question of whether the Court of Federal Claims has jurisdiction under the Tucker Act involves a "complex or novel jurisdictional provision." Janvey , 59 F.Supp.3d at 7 ; cf. Sharp v. Weinberger , 798 F.2d 1521, 1522 (D.C. Cir. 1986) (Scalia, J.) ("If there is a less profitable expenditure of the time and resources of federal courts and federal litigants than resolving a threshold issue of [Tucker Act jurisdiction], it does not come readily to mind."); Martin , 886 F.Supp.2d at 10 ("While this Court recognizes the effort made by Congress to ensure that claims for money damages against the United States receive uniform adjudication, the Court joins other judges from the courts of this Circuit in noting its frustration with the quagmire that is the Tucker Act and its imprecisely drawn jurisdictional provision."). It may also be "time consuming and costly" to require Roseberry-Andrews, proceeding pro se , to refile her action. On the briefing before the Court, it is unclear whether dismissal "would work a significant hardship on plaintiff who would likely now be time barred from bringing ... her action in the proper court." Janvey , 59 F.Supp.3d at 7. As discussed below, neither party has provided fulsome briefing on when Roseberry-Andrews' claim(s) accrued. But "once a suit is dismissed, even if without prejudice, 'the tolling effect of the filing of the suit is wiped out and the statute of limitations is deemed to have continued running from whenever the cause of action accrued, without interruption by that filing.' " Ciralsky v. CIA , 355 F.3d 661, 672 (D.C. Cir. 2004) (quoting *458Elmore v. Henderson , 227 F.3d 1009, 1011 (7th Cir. 2000) ). Thus, the Court concludes that transfer, instead of dismissal, would be in the interest of justice. C. Transfer to the Court of Federal Claims Defendant argues that "dismissal rather than transfer is the most appropriate remedy" because the Court of Federal Claims also does not have subject matter jurisdiction. Def.'s MTD at 15. Specifically, Defendant argues that statutes of limitations for causes of action against the United States are jurisdictional and that Roseberry-Andrews' claim for "military pay" in this case is time-barred. Id. at 16. The Court disagrees that Roseberry-Andrews' claims are clearly time-barred, and thus it concludes that transfer to the Court of Federal Claims is proper. As an initial matter, "it remains within this Court's discretion to transfer an action sua sponte. " Amerijet Int'l, Inc. v. DHS , 43 F.Supp.3d 4, 21 (D.D.C. 2014). Thus, the fact that the government moved to dismiss instead of transfer does not prohibit the court from transferring the case. See, e.g., Nat'l Fed'n of Blind v. U.S. Dep't of Transportation , 78 F.Supp.3d 407, 415 (D.D.C. 2015) (transferring case where government moved to dismiss on the ground claims were time-barred). Nevertheless, the Court can only transfer this action to a court where the case "could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631 ; see also Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS , 490 F.3d 940, 944 (Fed. Cir. 2007) (a district court "could properly transfer this case only if the Court of Federal Claims possesses jurisdiction"). The statute of limitations for claims over which the Court of Federal Claims has jurisdiction, 28 U.S.C. § 2501, is jurisdictional. See John R. Sand & Gravel Co. v. United States , 552 U.S. 130, 134, 139, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Thus, the Court of Federal Claims would not have subject matter jurisdiction-and the case could not have been "brought at the time it was filed or noticed," 28 U.S.C. § 1631 -over claims that are time-barred. "A claim accrues, for purposes of the Tucker Act, 'as soon as all events have occurred that are necessary to enable the plaintiff to bring suit.' " Fuentes v. United States , 100 Fed.Cl. 85, 89-90 (2011) (quoting Martinez v. United States , 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) ). The Tucker Act "does not itself provide the substantive cause of action; instead a plaintiff must look elsewhere for the source of substantive law on which to base a Tucker Act suit against the United States." Chambers v. United States , 417 F.3d 1218, 1223 (Fed. Cir. 2005) (quoting Martinez , 333 F.3d at 1303 ). And "[t]hat source must be 'money-mandating.' " Id. (quoting Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) ). Defendant argues that Roseberry-Andrews' claims are time-barred because "a Tucker Act claim seeking military pay accrues when a reservist is separated from active duty" and, here, Roseberry-Andrews was placed on Individual Ready Reserve on April 1, 2009-more than six years before she filed the complaint. Def.'s MTD at 16. The Court concludes that this argument in insufficient to dismiss Roseberry-Andrews' complaint because whether her claims are time-barred is more complex than Defendant suggests. Even if Defendant is correct that Roseberry-Andrews' claims regarding medical extension of her 2003-2005 and 2006-2007 active-duty orders are time-barred (an issue on which the Court takes no position), Defendant does not address many other claims in Roseberry-Andrews' complaint. *459Roseberry-Andrews seeks, for instance, "compounded interest ... due to the AFBCMR technician failing to include interest verbiage" in the Board's Order of October 23, 2012, extending one of Roseberry-Andrews' active-duty tours. Compl. ¶ 242. The Federal Circuit has held that 10 U.S.C. § 1552, the statute under which Roseberry-Andrews brought her original Board petition, AR 14, can be money-mandating "when the correction board has granted relief and the service member seeks to enforce or challenge the implementation or scope of the remedial order." Peoples v. United States , 87 Fed.Cl. 553, 569 (2009) (citing Martinez , 333 F.3d at 1315 n.4 ). Thus, if Roseberry-Andrews' complaint is construed as bringing a challenge under 10 U.S.C. § 1552 to enforce the Order of October 23, 2012, that claim could be timely if it accrued in 2012. See Martinez , 333 F.3d at 1303.4 Because the Court of Federal Claims may have jurisdiction over at least some of Roseberry-Andrews' claims, the Court believes the correct course of action is to transfer the entire case for a determination of precisely which claims, if any, are time-barred. See, e.g. , Reaves v. Hagel , No. 12-CV-795-FL, 2013 WL 5674981, at *10 (E.D.N.C. Oct. 17, 2013) (transferring case to the Court of Federal Claims where plaintiff's claim was not "plainly barred" by statute of limitations); Prawoto v. PrimeLending , 720 F.Supp.2d 1149, 1161 (C.D. Cal. 2010) (transferring case involving a "obscure and confusing jurisdictional doctrine[ ]" where the court concluded that "at least some claims may be timely and that the interests of justice favor transfer over dismissal"). This Court's "determination that the action 'could have been brought' before the transferee court does not relieve or otherwise exempt a plaintiff from meeting its burden to establish jurisdiction before the transferee court." Stockton E. Water Dist. v. United States , 62 Fed.Cl. 379, 389 (2004) ; cf. Chisolm v. United States , 82 Fed.Cl. 185, 197 (2008) ("The Federal Circuit has emphasized that issues within our court's exclusive jurisdiction must be decided in the first instance in our court.... The question of when Mr. Chisolm's back pay claims accrued is just such an issue.") (citation omitted). V. Conclusion and Order For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss, ECF No. 12. The Court further ORDERS that the above-captioned actioned be transferred to the Court of Federal Claims. SO ORDERED.
Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes Heather Wilson as the Defendant. In evaluating Defendant's Motion, the Court considered Roseberry-Andrews' Verified Complaint, ECF No. 1 ("Compl."); Defendant's Memorandum in Support of her Motion to Dismiss or for Summary Judgment, ECF No. 12-1 ("Def.'s MTD"); Plaintiff's Memorandum in Support of her Cross-Motion for Summary Judgment, ECF No. 17 ("Pl.'s Opp."); Defendant's Reply and Opposition, ECF No. 20 ("Def.'s Reply"); and the excerpts of the Administrative Record filed by the parties, ECF No. 23 (hereinafter "AR ___").
If a plaintiff alleges less than $10,000 in damages, the "Little Tucker Act" vests "concurrent jurisdiction in the Court of Federal Claims and in the United States district courts." Charlton v. Donley , 611 F.Supp.2d 73, 75 (D.D.C. 2009) (citing 28 U.S.C. § 1346(a)(2) ).
In light of this conclusion, the Court does not rule on the parties' cross-motions for summary judgment. See Del., Dep't of Health & Soc. Servs., Div. of Medicaid & Med. Assistance v. U.S. Dep't of Health & Human Servs. , 272 F.Supp.3d 103, 108 (D.D.C. 2017) ("A court's decision regarding its 'subject-matter jurisdiction necessarily precedes a ruling on the merits....' ") (quoting Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ).
To be clear, this Court is not holding that Roseberry-Andrews' complaint should be construed in this manner, that she has established that any of her claims are timely, or that she validly states a claim for compound interest. It simply concludes that some of her request for relief may not be time-barred. | 07-25-2022 | [
"TIMOTHY J. KELLY, United States District Judge Roseberry-Andrews, proceeding pro se , challenges a number of decisions by the Air Force Board for Correction of Military Records (the \"Board\") denying her requests to modify her military records. She asks this Court to rule that these denials were arbitrary and capricious and to remand to the Board for a number of forms of relief, including monetary compensation. Defendant moves to dismiss the case for lack of subject matter jurisdiction, or, alternatively, for summary judgment.1 The Court concludes that Roseberry-Andrews' request for monetary relief divests this Court of subject matter jurisdiction over her complaint. As a result, the Court transfers the case to the Court of Federal Claims. I. Factual and Procedural Background A. Roseberry-Andrews' Allegations Senior Master Sergeant Cynthia Roseberry-Andrews enlisted in the Air National *450Guard in 1982. AR 18. After twelve years in the Air National Guard, she transferred to the United States Air Force Reserve's \"Individual Mobilization Augmentee\" (\"IMA\") program.",
"Compl. ¶ 3; AR 18. An IMA is a part-time reservist who is assigned to an active-duty unit. Def. 's MTD at 2. In August 2002, Roseberry-Andrews accepted a position as a Program Manager in the Human Resources Directorate at the Defense Contract Management Agency (\"DCMA\"). Compl. ¶ 10. Roseberry-Andrews alleges that she was harmed in a number of ways while serving at the DCMA. Broadly speaking, her allegations fall into two categories. First, Roseberry-Andrews alleges that two of her active-duty orders should have been medically extended due to an ankle injury that she suffered, which would have provided her various employment-related benefits. Second, she alleges that various Air Force personnel retaliated against her in a number of ways for claiming that certain Air Force personnel had engaged in improper conduct. 1. Roseberry-Andrews' Ankle Injuries While Serving on Active-Duty Orders Roseberry-Andrews injured her ankle twice while serving on active-duty orders. She was placed on active-duty orders from January 1, 2003, to May 28, 2004. AR 5. In August 2003, she fell while conducting agility and obedience training with a show dog, severely injuring her left ankle. Compl. ¶ 39; AR 8.",
"The injury was determined to be in the \"line of duty,\" meaning she was on active duty and did not act negligently or irresponsibly in causing it. Compl. ¶ 40; AR 30-31. On March 25, 2004, Roseberry-Andrews underwent reconstructive ankle surgery. Compl. ¶ 42. After the surgery, she went on convalescent leave for thirty days because she could not drive to work. Id. ¶¶ 48-50, 55. When she returned to work, Roseberry-Andrews expected to be placed on active duty while undergoing physical therapy, but instead she was placed on incapacitation pay for six months. Id. ¶¶ 56-57, 59. Thus, her active-duty orders for this tour ended on May 28, 2004. AR 8. In November 2005, DCMA selected Roseberry-Andrews for an active-duty deployment to the Middle East from September 2, 2006, to April 15, 2007.",
"Id. ¶ 82. During that deployment, she reinjured her ankle. Id. ¶ 84. Upon returning to the United States, her post-deployment physician referred her to an orthopedic clinic. Id. ¶ 85. An orthopedic examination revealed that Roseberry-Andrews' ankle was broken in two places, necessitating two more surgeries and additional physical therapy. Id. ¶ 86. Roseberry-Andrews was placed on \"Medical Hold\" and her active-duty orders were not extended beyond April 15, 2007. Id. ¶¶ 82, 87-88.",
"2. Retaliation Against Roseberry-Andrews Roseberry-Andrews also alleges that various Air Force personnel engaged in \"unlawful personnel practices.\" Id. ¶ 11. She claims that when she refused to participate in those practices, those personnel, including Captain Michael Goodwin and Colonel Mary Purdue, retaliated against her in number of ways. For instance, Roseberry-Andrews alleges that: • In February 2004, Roseberry-Andrews received a Letter of Counseling alleging that she sent an email to Captain Goodwin that was \"condescending, confrontational, and disrespectful.\" Id. ¶¶ 28-29. • In March 2004, Colonel Purdue called a military human resources office to inquire whether Roseberry-Andrews had been \"erroneously enlisted\" in hopes of removing her from the military. Id. ¶¶ 27, *45135; AR 5. She was properly enlisted. Compl. ¶ 36. • Before Roseberry-Andrews' ankle surgery in March 2004, Colonel Purdue called Walter Reed National Military Medical Center to see whether the surgery could be cancelled and whether Roseberry-Andrews could return to work immediately after the surgery.",
"Id. ¶¶ 45-54. The hospital declined these requests. Id. ¶¶ 48, 54. • On May 18, 2004, Lieutenant Colonel Karen Cox issued a Letter of Reprimand to Roseberry-Andrews and established an Unfavorable Information File. Id. ¶¶ 67, 71; AR 129-35. • In June 2005, Captain Goodwin issued an unfavorable Enlisted Performance Report (\"EPR\") stating that, among other things, he had \"lost faith and confidence in [Roseberry-Andrews'] ability to conduct herself in a manner befitting a [Senior Non-Commissioned Officer].\" Compl.",
"¶¶ 72-73; AR 136-37; Def. 's MTD at 6 n.1. • After Roseberry-Andrews had redeployed in April 2007, she requested to be transferred to the DCMA General Counsel's Office (\"DCMA-GC\") as an Advisor-Paralegal. Compl. ¶ 92. DCMA-GC submitted the transfer request, AR 170-71, but Michael McLaughlin (then the Director of Human Resources at DCMA) instead converted the billet for Roseberry-Andrews' paralegal position to an Aircraft Avionics position in Palmdale, California. Compl. ¶¶ 100-102; AR 172. McLaughlin informed Roseberry-Andrews that she would be moved to the Individual Ready Reserve unless she could find another position in her specialty in six months.",
"AR 172. • Roseberry-Andrews did not receive payment for 105 days of work that she performed between July 1, 2008, and October 13, 2008. Compl. ¶ 96. • On April 1, 2009, McLaughlin and others transferred Roseberry-Andrews to the Individual Ready Reserve. Id. ¶ 104. Roseberry-Andrews ultimately was able to reenlist after briefing the Chief of Military Personnel for the Air Force Reserve. Id. ¶¶ 109-112. At the time the complaint was filed, Roseberry-Andrews continued to serve as an IMA reservist in the Air Force. Id.",
"¶ 3. B. Roseberry-Andrews' Efforts to Seek Redress From the Board Roseberry-Andrews has sought redress for these grievances from the Board several times. On November 29, 2007, she filed her first application. Id. ¶ 115; AR 14-29. Brought pursuant to 10 U.S.C. § 1552, AR 14, it requested that (1) her active-duty orders ending in May 2004 and April 2007, respectively, be medically continued due to her ankle injury and that she be paid associated back pay and medically-related costs, (2) that her position be transferred to DCMA-GC effective March 20, 2008, and (3) that several military records be expunged. Compl. ¶ 116; AR 4. On March 23, 2009, the Board retroactively extended the end date of Roseberry-Andrews' first active-duty orders from May 28, 2004, to December 28, 2004, but denied all the other relief she had requested. AR 11-13.",
"On May 29, 2009, Roseberry-Andrews filed a petition for reconsideration with the Board. Compl. ¶ 139. In addition to the relief requested in her original petition, Roseberry-Andrews also requested pay for 105 days she allegedly worked in 2008, *452placement on an active-duty tour in the DCMA General Counsel's Office, and favorable changes to two EPRs (proposing, for example, to change \"Ineffective\" to \"Exceptionally effective leader,\" AR 136, 401). See AR 393-416; Compl. ¶¶ 138-139. On January 18, 2011, the Board again denied relief, concluding that the bulk of her application \"consist[ed] of ... information already addressed by the previous Board.\"",
"AR 176; Compl. ¶ 140. At this point, Roseberry-Andrews' counsel wrote a number of letters to the Executive Director of the Board complaining that the Board had denied Roseberry-Andrews due process. See AR 1873-77 (Apr. 27, 2011 Ltr. ); AR 1870-71 (Oct. 5, 2011 Ltr. ); AR 1867-69 (Apr. 20, 2012 Ltr.). These letters incorporated her previous requests for relief and also added requests for a promotion and associated back pay as well as retroactive placement on active-duty orders from September 1, 2010, until the Board completed reviewing her case. AR 1867-69. On October 23, 2012, the Board denied the majority of the relief she had requested, but it did further extend the end date of her first active-duty order from December 28, 2004, to September 9, 2005. AR 806.",
"On November 30, 2012, Roseberry-Andrews' counsel wrote a letter to the Director of the Board requesting a meeting. AR 1909-20. On January 2, 2013, the Director responded that he would not meet with Roseberry-Andrews' counsel, that the Board's decisions were thoroughly considered, and that Roseberry-Andrews could seek further relief in federal court. AR 1921. C. Roseberry-Andrews' Complaint On October 15, 2015, Roseberry-Andrews filed this action. See ECF No. 1.",
"She asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702 of the Administrative Procedure Act (\"APA\"), 5 U.S.C. § 551 et seq. Compl. ¶¶ 1-2. She also asserts that she has exhausted her administrative remedies and that her claims are timely pursuant to the six-year statute of limitations set forth in 28 U.S.C. § 2501, the statute governing the timeliness of claims over which the Court of Federal Claims has jurisdiction. Compl. ¶¶ 5-6. She appears to assert a single cause of action, under the APA. Id. ¶¶ 224-231. The complaint reiterates many of the same allegations previously presented to the Board.",
"Id. ¶¶ 7-113. Ultimately, Roseberry-Andrews seeks a \"ruling\" that the \"Boards' denial of full relief was arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable law or regulation and remand to the Board for the following relief....\" Id. ¶ 232. The \"following relief\" runs to seventeen paragraphs and can be grouped into four categories: (1) retroactive adjustments to her active-duty status, (2) adjustments to her rank and position, (3) monetary relief, and (4) amendments of her performance reviews. First, Roseberry-Andrews requests retroactive extensions of her 2003-2005 and 2006-2007 active-duty orders and retroactive placement on active duty from September 1, 2010, until the Board \"provides full relief.\" Id. ¶¶ 233, 235. Second, she seeks to be placed into the advisor-paralegal position in the DCMA General Counsel's office, retroactive promotion to the grade of Chief Master Sergeant, pay grade E9, effective April 1, 2009, and modification to her reenlistment for a full six-year term.",
"Id. ¶¶ 234, 236, 238. Third, she requests a number of forms of monetary relief, including a remand to the Board to: \"[a]djust [her] pay accordingly, including all cost of living and time-in-grade increases, interest and retirement points,\" id. ¶ 237; \"[p]ay [her] all accrued leave with compounded interest,\" id. ¶ 239; \"[p]ay *453[her] all interest, penalty, and fees for her LOD injury medical travel,\" id. ¶ 241; \"[p]ay\" her compound interest as a result of the corrections made pursuant to the Orders of March 23, 2009, and October 23, 2012, id. ¶ 242; \"[r]eimburse [her] for all investment and retirement account losses, penalty fees, early withdrawal fees and taxes, reinstatement fees, mortgage refinance fees, and other lost benefits or compensations during the entire AFBCMR period to present,\" id. ¶ 243; \"[r]eimburse [her] all medical, medication and dental treatment costs,\" id. ¶ 244; and pay for attorneys' fees, id. ¶ 248. Last, Roseberry-Andrews seeks expungement of one EPR and favorable corrections to two others.",
"Id. ¶¶ 245-247. II. Legal Standard \"To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear h[er] claims.\" Remmie v. Mabus , 898 F.Supp.2d 108, 114 (D.D.C. 2012). \"It is well established that '[c]ourts must construe pro se filings liberally.' \" Fermin v. United States , 268 F.Supp.3d 228, 231 (D.D.C. 2017) (alteration in original) (quoting Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999) ). But a pro se plaintiff \"must nevertheless establish a clear basis for jurisdiction.\" Id. \"The court may ... examine 'other pleadings to understand the nature and basis of [plaintiff's] pro se claims.' \" Bowe-Connor v. Shinseki , 845 F.Supp.2d 77, 84 (D.D.C. 2012) (alteration in original) (quoting Chandler v. W.E. Welch & Assocs. , 533 F.Supp.2d 94, 102 (D.D.C. 2008) ). \"It is 'axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.'",
"\" Houseal v. McHugh , 962 F.Supp.2d 286, 291 (D.D.C. 2013) (quoting United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ). The APA, and the Tucker Act, 28 U.S.C. § 1491(a)(1), \"both waive sovereign immunity, allowing plaintiffs to sue the United States in specific circumstances.\" Martin v. Donley , 886 F.Supp.2d 1, 7 (D.D.C. 2012). \"Under the APA, a plaintiff may sue the United States 'in the district courts for remedies other than money damages arising from an agency's unlawful action.' \" Id. (quoting Bublitz v. Brownlee , 309 F.Supp.2d 1, 6 (D.D.C.",
"2004) ). Alternatively, \"[u]nder the Tucker Act, the Court of Federal Claims is vested with exclusive jurisdiction over cases involving non-tort money damages in excess of $10,000.\" Tootle v. Sec'y of Navy , 446 F.3d 167, 169 (D.C. Cir. 2006).2 The D.C. Circuit \"uses a self-described 'bright line' approach to the Tucker Act, considering cases within its scope 'only if the plaintiff seeks money or the district court grants it.' \" Remmie , 898 F.Supp.2d at 116 (quoting Smalls v. United States , 471 F.3d 186, 189 (D.C. Cir. 2006) ).",
"\"[A] claim is subject to the Tucker Act and its jurisdictional consequences if, in whole or in part, it explicitly or 'in essence' seeks more than $10,000 in monetary relief from the federal government.\" Smalls , 471 F.3d at 190 (quoting Kidwell v. Dep't of Army, Bd. for Correction of Military Records , 56 F.3d 279, 284 (D.C. Cir. 1995) ). \"[W]here the jurisdiction of the court turns on whether the complaint seeks monetary relief, the court must generally limit itself to the four corners of the complaint.\" Tootle , 446 F.3d at 174. *454\"[W]here a claim by its terms seeks money from the federal government, it falls within the Tucker Act.\"",
"Palacios v. Spencer , 267 F.Supp.3d 1, 5 (D.D.C. 2017) (citing Van Drasek v. Lehman , 762 F.2d 1065, 1071 (D.C. Cir. 1985) ). Courts \"only look to the essence of a complaint in the absence of an explicit request for monetary relief.\" Schwalier v. Hagel , 734 F.3d 1218, 1221 (D.C. Cir. 2013). \"To decide whether a plaintiff is attempting to sidestep Tucker Act jurisdiction, the court must look to the substance rather than the form of the complaint.\"",
"Van Allen v. U.S. Dep't of Veterans Affairs , 925 F.Supp.2d 119, 125 (D.D.C. 2013) (quoting Bliss v. England , 208 F.Supp.2d 2, 6 (D.D.C. 2002) ). \"A complaint is not in essence one for monetary damages if the only remedy requested is 'non-monetary relief that has considerable value independent of any future potential for monetary relief.' \" Smalls , 471 F.3d at 190 (quoting Tootle , 446 F.3d at 176 ). \"The fact that in seeking the correction of a military record the plaintiff may, if successful, obtain monetary relief from the United States in subsequent administrative proceedings is insufficient to deprive the district court of jurisdiction.\" Id. III. Analysis The threshold question before the Court is whether Roseberry-Andrews' complaint \"explicitly or 'in essence' seeks more than $10,000 in monetary relief from the federal government.\" Smalls , 471 F.3d at 190 (quoting Kidwell , 56 F.3d at 284 ). If it does, the Court must dismiss or transfer the case for want of subject matter jurisdiction because exclusive jurisdiction lies with the Court of Federal Claims under the Tucker Act. This, the D.C.",
"Circuit has instructed, is a \"bright line\" rule. Id. at 189. Defendant contends that Roseberry-Andrews \"explicitly requests monetary relief.\" Def. 's MTD at 13. Roseberry-Andrews counters that her complaint \"does not explicitly seek money\" because she requests that the Court find that the Board's decisions were arbitrary and capricious and remand for the relief she seeks. Pl. 's Opp. at 9; see also id. at 3, 17. The Court has little choice but to conclude that Roseberry-Andrews explicitly seeks monetary relief. In her prayer for relief, she requests an \"[a]djust[ment] [of her] pay [as a result of a requested promotion], including all cost of living and time-in-grade increases, interest and retirement points,\" Compl. ¶ 237; \"[p]ay [for] all accrued leave with compounded interest,\" id.",
"¶ 239; \"[p]ay\" for \"all interest, penalty, and fees for her LOD injury medical travel,\" id. ¶ 241; \"[p]ay\" for compounded interest as a result of the corrections made pursuant to the Orders of March 23, 2009, and October 23, 2012, id. ¶ 242; \"[r]eimburse[ment] ... for all investment and retirement account losses, penalty fees, early withdrawal fees and taxes, reinstatement fees, mortgage refinance fees, and other lost benefits or compensations during the entire AFBCMR period to present,\" id. ¶ 243; \"[r]eimburse[ment] [for] ... all medical, medication and dental treatment costs,\" id.",
"¶ 244; and payment for attorney's fees and costs, id. ¶ 248. These requests are \"unambiguously monetary in nature.\" Schwalier , 734 F.3d at 1222 ; see also Palacios , 267 F.Supp.3d at 5 (claim for back pay is \"on its face, a claim for money damages\"). In fact, Roseberry-Andrews' request for monetary relief is much more explicit and detailed than the plaintiff's request in Schwalier , where the D.C. Circuit concluded that it did not have jurisdiction because the complaint sought monetary relief. 734 F.3d at 1222. The monetary request in that case-\"any other relief, including active duty back pay and retired pay, as this Honorable Court deems just and proper,\" id. at 1219 -was *455merely part of a catch-all relief provision. Here, Roseberry-Andrews' prayer for relief includes a laundry list of explicit requests ranging from back pay to payment for medical expenses to reimbursement for mortgage refinancing fees. There is one procedural wrinkle, however, that at least potentially complicates what would otherwise be a straightforward conclusion that the Court lacks subject matter jurisdiction as a result of Roseberry-Andrews' request for monetary relief.",
"Roseberry-Andrews argues that this Court is not divested of jurisdiction because she has \"petitioned this court to 'review' the Agency's decisions and remand her AFBCMR petition to the AFBCMR to properly correct her records.\" Pl. 's Opp. at 9. Of course, the mere fact that her complaint requests other types of relief-such as correction of her records-in addition to monetary relief does not help her. As long as the complaint \"in whole or in part ... seeks ... monetary relief,\" it is \"subject to the Tucker Act and its jurisdictional consequences.\" Smalls , 471 F.3d at 190 (quoting Kidwell , 56 F.3d at 284 ); see also Brown v. West , No.",
"94-cv-2674-LFO, 1995 WL 623038, at *4 (D.D.C. Oct. 13, 1995) (\"[I]t would not make sense to allow plaintiff to split his equitable claims from his monetary claims. So doing would render the Kidwell bright line rule a nullity.\"). However, Roseberry-Andrews' complaint requests \"remand to the Board\" for all of the various forms of relief she seeks, including monetary relief. That raises what appears to be a novel question in this Circuit: whether a request to remand for monetary relief-instead of seeking such relief directly from the Court-is a distinction that matters for purposes of determining whether this Court has subject matter jurisdiction in light of the Tucker Act. Although it is a close case, the Court holds that it is not. The Court reaches this conclusion because Roseberry-Andrews appears to seek to invoke the Court's authority to obtain relief (including monetary relief) by ordering the AFBCMR to provide it, rather than by merely instructing the AFBCMR to conduct further proceedings. The language in the complaint reflects as much, as she requests \"remand to the Board for the following relief,\" as opposed to merely for the consideration of that relief after further proceedings. Compl. ¶ 232 (emphasis added).",
"There is simply no other reason for her to have set forth the requested relief in such detail, other than to request that the Court ensure that she receives it from the AFBCMR. Thus, just as if she had requested the Court award her that relief directly, the monetary relief she requests here \"would ... flow directly from the exercise of the court's jurisdiction.\" Motorola, Inc. v. Perry , 917 F.Supp. 43, 47 (D.D.C. 1996). As a result, the Court concludes that it does not have subject matter jurisdiction over her complaint. The Court's conclusion is bolstered by the contrast between this case and the line of cases holding that a district court retains jurisdiction when any monetary relief would come from \"subsequent administrative proceedings.\" Smalls , 471 F.3d at 190 ; see also Tootle , 446 F.3d at 175 ; Remmie , 898 F.Supp.2d at 117-18 ; Calloway v. Brownlee , 366 F.Supp.2d 43, 52-53 (D.D.C. 2005). None of the plaintiffs in those cases explicitly sought remand for an award of carefully specified monetary damages, as Roseberry-Andrews does here. In addition, in each of those cases, the court emphasized that any monetary relief recovered by the plaintiffs would be an uncertain downstream effect of the district court's ruling.",
"See Tootle , 446 F.3d at 175 (\"[A]ny monetary benefits that might flow if Tootle prevails on his non-monetary claims will not come from the District Court's exercise of jurisdiction, 'but from *456the structure of statutory and regulatory requirements governing compensation when a servicemember's files change.' Indeed, we have no way of knowing whether Tootle ever will be entitled to any monies if he succeeds before the District Court.\" (quoting Kidwell , 56 F.3d at 285-86 ) ); Smalls , 471 F.3d at 190-91 (\"[B]ut it is clear that [relief] would come as a result of administrative proceedings ... and not as a result of the adjudication of the claims in his amended complaint\"); Remmie , 898 F.Supp.2d at 118 (\"Any financial benefit Plaintiff might receive in the future, therefore, would be the result of a 'subsequent administrative proceeding[ ]' and is thus 'insufficient to deprive the district court of jurisdiction.' \" (quoting Smalls , 471 F.3d at 190 ) ); Calloway , 366 F.Supp.2d at 52 (\"[A]ny monetary damages would not flow from the case before this Court, but rather from later proceedings before various Army boards of review.\"). By contrast, in this case, because Roseberry-Andrews seeks to invoke the Court's authority to obtain monetary relief by ordering the AFBCMR to provide it to her, rather than by merely instructing the AFBCMR to conduct further proceedings, she seeks relief that is not similarly dependent on subsequent administrative proceedings. Roseberry-Andrews' other arguments are more easily disposed of. She argues that Tucker Act jurisdiction is not implicated because she does not put a precise dollar figure on her requested monetary relief.",
"Pl. 's Opp. at 9. But Schwalier forecloses making an end-run around the Tucker Act by failing to request a specific amount of money. See 734 F.3d at 1221 (\"To permit plaintiffs to evade the strictures of the Tucker Act by setting forth the formula for their monetary relief rather than asking for a specified amount of 'damages' in so many words would undo the carefully erected structure that Congress set forth.\"). In addition, the Court agrees with Defendant that Roseberry-Andrews seeks well over $10,000 in damages, Def. 's MTD at 15 & n.4, so this Court may not retain jurisdiction under the Little Tucker Act. Thus, the Court concludes that it lacks subject matter jurisdiction because Roseberry-Andrews' complaint is subject to the Tucker Act.3 IV. Transfer A federal court must \"make a single decision upon concluding that it lacks jurisdiction-whether to dismiss the case or, 'in the interest of justice,' to transfer it to a court ... that has jurisdiction\" under 28 U.S.C.",
"§ 1631. Tootle , 446 F.3d at 173 (quoting Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ). \"There are three elements to a section 1631 transfer: (1) there must be a lack of jurisdiction in the district court; (2) the transfer must be in the interest of justice; and (3) the transfer can be made only to a court in which the action could have been brought at the time it was filed or noticed.\" Freedman v. Suntrust Banks, Inc. , 139 F.Supp.3d 271, 277 (D.D.C. 2015) (quoting Fasolyak v. The Cradle Soc'y, Inc. , No. 06-cv-01126 TFH, 2007 WL 2071644, at *11 (D.D.C.",
"July 19, 2007) ). \"The legislative history of § 1631 indicates that Congress contemplated that it would *457provide assistance to those parties who were 'confused about the proper forum for review.' \" Levy v. SEC , 462 F.Supp.2d 64, 66 (D.D.C. 2006) (quoting Am. Beef Packers, Inc. v. Interstate Commerce Comm'n , 711 F.2d 388, 390 (D.C. Cir. 1983) ). \"Transfer of a case is usually preferable to dismissal.\" Sierra Club v. Tenn. Valley Auth. , 905 F.Supp.2d 356, 364 (D.D.C. 2012). A. Lack of Subject Matter Jurisdiction As explained above, Roseberry-Andrews' complaint \"in whole or in part\" seeks monetary relief.",
"Thus, this Court lacks subject matter jurisdiction because exclusive jurisdiction rests with the Court of Federal Claims. Kidwell , 56 F.3d at 284 ; Brown , 1995 WL 623038, at *4. B. The Interest of Justice \"In determining whether a transfer is in the interest of justice, the equities of dismissing a claim when it could be transferred should be carefully weighed.\" Bethea v. Holder , 82 F.Supp.3d 362, 366 (D.D.C. 2015) (quoting Liriano v. United States , 95 F.3d 119, 122 (2d Cir. 1996) ).",
"\"Courts have found that transfer is 'in the interest of justice' when, for example, the original action was misfiled by a pro se plaintiff or by a plaintiff who, in good faith, misinterpreted a complex or novel jurisdictional provision.\" Janvey v. Proskauer Rose, LLP , 59 F.Supp.3d 1, 7 (D.D.C. 2014) (collecting cases). \"Courts have also looked to whether it would be time consuming and costly to require a plaintiff to refile his or her action in the proper court or whether dismissal would work a significant hardship on plaintiff who would likely now be time barred from bringing his or her action in the proper court.\" Id. at 7. But \"transfer is not 'in the interest of justice' where that review reveals that success on the merits appears unlikely.\"",
"Boultinghouse v. Lappin , 816 F.Supp.2d 107, 113 (D.D.C. 2011). Here, the Court concludes that it would be in the interest of justice to transfer this case to the Court of Federal Claims. Roseberry-Andrews is proceeding pro se and the question of whether the Court of Federal Claims has jurisdiction under the Tucker Act involves a \"complex or novel jurisdictional provision.\" Janvey , 59 F.Supp.3d at 7 ; cf. Sharp v. Weinberger , 798 F.2d 1521, 1522 (D.C. Cir. 1986) (Scalia, J.) (\"If there is a less profitable expenditure of the time and resources of federal courts and federal litigants than resolving a threshold issue of [Tucker Act jurisdiction], it does not come readily to mind.",
"\"); Martin , 886 F.Supp.2d at 10 (\"While this Court recognizes the effort made by Congress to ensure that claims for money damages against the United States receive uniform adjudication, the Court joins other judges from the courts of this Circuit in noting its frustration with the quagmire that is the Tucker Act and its imprecisely drawn jurisdictional provision.\"). It may also be \"time consuming and costly\" to require Roseberry-Andrews, proceeding pro se , to refile her action. On the briefing before the Court, it is unclear whether dismissal \"would work a significant hardship on plaintiff who would likely now be time barred from bringing ... her action in the proper court.\"",
"Janvey , 59 F.Supp.3d at 7. As discussed below, neither party has provided fulsome briefing on when Roseberry-Andrews' claim(s) accrued. But \"once a suit is dismissed, even if without prejudice, 'the tolling effect of the filing of the suit is wiped out and the statute of limitations is deemed to have continued running from whenever the cause of action accrued, without interruption by that filing.' \" Ciralsky v. CIA , 355 F.3d 661, 672 (D.C. Cir. 2004) (quoting *458Elmore v. Henderson , 227 F.3d 1009, 1011 (7th Cir. 2000) ). Thus, the Court concludes that transfer, instead of dismissal, would be in the interest of justice. C. Transfer to the Court of Federal Claims Defendant argues that \"dismissal rather than transfer is the most appropriate remedy\" because the Court of Federal Claims also does not have subject matter jurisdiction. Def. 's MTD at 15. Specifically, Defendant argues that statutes of limitations for causes of action against the United States are jurisdictional and that Roseberry-Andrews' claim for \"military pay\" in this case is time-barred. Id. at 16. The Court disagrees that Roseberry-Andrews' claims are clearly time-barred, and thus it concludes that transfer to the Court of Federal Claims is proper. As an initial matter, \"it remains within this Court's discretion to transfer an action sua sponte. \"",
"Amerijet Int'l, Inc. v. DHS , 43 F.Supp.3d 4, 21 (D.D.C. 2014). Thus, the fact that the government moved to dismiss instead of transfer does not prohibit the court from transferring the case. See, e.g., Nat'l Fed'n of Blind v. U.S. Dep't of Transportation , 78 F.Supp.3d 407, 415 (D.D.C. 2015) (transferring case where government moved to dismiss on the ground claims were time-barred). Nevertheless, the Court can only transfer this action to a court where the case \"could have been brought at the time it was filed or noticed.\" 28 U.S.C. § 1631 ; see also Gonzales & Gonzales Bonds & Ins.",
"Agency, Inc. v. DHS , 490 F.3d 940, 944 (Fed. Cir. 2007) (a district court \"could properly transfer this case only if the Court of Federal Claims possesses jurisdiction\"). The statute of limitations for claims over which the Court of Federal Claims has jurisdiction, 28 U.S.C. § 2501, is jurisdictional. See John R. Sand & Gravel Co. v. United States , 552 U.S. 130, 134, 139, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Thus, the Court of Federal Claims would not have subject matter jurisdiction-and the case could not have been \"brought at the time it was filed or noticed,\" 28 U.S.C. § 1631 -over claims that are time-barred. \"A claim accrues, for purposes of the Tucker Act, 'as soon as all events have occurred that are necessary to enable the plaintiff to bring suit.' \" Fuentes v. United States , 100 Fed.Cl.",
"85, 89-90 (2011) (quoting Martinez v. United States , 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) ). The Tucker Act \"does not itself provide the substantive cause of action; instead a plaintiff must look elsewhere for the source of substantive law on which to base a Tucker Act suit against the United States.\" Chambers v. United States , 417 F.3d 1218, 1223 (Fed. Cir. 2005) (quoting Martinez , 333 F.3d at 1303 ). And \"[t]hat source must be 'money-mandating.' \" Id. (quoting Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir.",
"2005) (en banc in relevant part) ). Defendant argues that Roseberry-Andrews' claims are time-barred because \"a Tucker Act claim seeking military pay accrues when a reservist is separated from active duty\" and, here, Roseberry-Andrews was placed on Individual Ready Reserve on April 1, 2009-more than six years before she filed the complaint. Def. 's MTD at 16. The Court concludes that this argument in insufficient to dismiss Roseberry-Andrews' complaint because whether her claims are time-barred is more complex than Defendant suggests. Even if Defendant is correct that Roseberry-Andrews' claims regarding medical extension of her 2003-2005 and 2006-2007 active-duty orders are time-barred (an issue on which the Court takes no position), Defendant does not address many other claims in Roseberry-Andrews' complaint.",
"*459Roseberry-Andrews seeks, for instance, \"compounded interest ... due to the AFBCMR technician failing to include interest verbiage\" in the Board's Order of October 23, 2012, extending one of Roseberry-Andrews' active-duty tours. Compl. ¶ 242. The Federal Circuit has held that 10 U.S.C. § 1552, the statute under which Roseberry-Andrews brought her original Board petition, AR 14, can be money-mandating \"when the correction board has granted relief and the service member seeks to enforce or challenge the implementation or scope of the remedial order.\" Peoples v. United States , 87 Fed.Cl. 553, 569 (2009) (citing Martinez , 333 F.3d at 1315 n.4 ). Thus, if Roseberry-Andrews' complaint is construed as bringing a challenge under 10 U.S.C.",
"§ 1552 to enforce the Order of October 23, 2012, that claim could be timely if it accrued in 2012. See Martinez , 333 F.3d at 1303.4 Because the Court of Federal Claims may have jurisdiction over at least some of Roseberry-Andrews' claims, the Court believes the correct course of action is to transfer the entire case for a determination of precisely which claims, if any, are time-barred. See, e.g. , Reaves v. Hagel , No. 12-CV-795-FL, 2013 WL 5674981, at *10 (E.D.N.C. Oct. 17, 2013) (transferring case to the Court of Federal Claims where plaintiff's claim was not \"plainly barred\" by statute of limitations); Prawoto v. PrimeLending , 720 F.Supp.2d 1149, 1161 (C.D. Cal. 2010) (transferring case involving a \"obscure and confusing jurisdictional doctrine[ ]\" where the court concluded that \"at least some claims may be timely and that the interests of justice favor transfer over dismissal\"). This Court's \"determination that the action 'could have been brought' before the transferee court does not relieve or otherwise exempt a plaintiff from meeting its burden to establish jurisdiction before the transferee court.\" Stockton E. Water Dist.",
"v. United States , 62 Fed.Cl. 379, 389 (2004) ; cf. Chisolm v. United States , 82 Fed.Cl. 185, 197 (2008) (\"The Federal Circuit has emphasized that issues within our court's exclusive jurisdiction must be decided in the first instance in our court.... The question of when Mr. Chisolm's back pay claims accrued is just such an issue.\") (citation omitted). V. Conclusion and Order For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss, ECF No. 12. The Court further ORDERS that the above-captioned actioned be transferred to the Court of Federal Claims.",
"SO ORDERED. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes Heather Wilson as the Defendant. In evaluating Defendant's Motion, the Court considered Roseberry-Andrews' Verified Complaint, ECF No. 1 (\"Compl. \"); Defendant's Memorandum in Support of her Motion to Dismiss or for Summary Judgment, ECF No. 12-1 (\"Def. 's MTD\"); Plaintiff's Memorandum in Support of her Cross-Motion for Summary Judgment, ECF No. 17 (\"Pl. 's Opp. \"); Defendant's Reply and Opposition, ECF No. 20 (\"Def. 's Reply\"); and the excerpts of the Administrative Record filed by the parties, ECF No. 23 (hereinafter \"AR ___\").",
"If a plaintiff alleges less than $10,000 in damages, the \"Little Tucker Act\" vests \"concurrent jurisdiction in the Court of Federal Claims and in the United States district courts.\" Charlton v. Donley , 611 F.Supp.2d 73, 75 (D.D.C. 2009) (citing 28 U.S.C. § 1346(a)(2) ). In light of this conclusion, the Court does not rule on the parties' cross-motions for summary judgment. See Del., Dep't of Health & Soc. Servs., Div. of Medicaid & Med. Assistance v. U.S. Dep't of Health & Human Servs. , 272 F.Supp.3d 103, 108 (D.D.C. 2017) (\"A court's decision regarding its 'subject-matter jurisdiction necessarily precedes a ruling on the merits....' \") (quoting Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ).",
"To be clear, this Court is not holding that Roseberry-Andrews' complaint should be construed in this manner, that she has established that any of her claims are timely, or that she validly states a claim for compound interest. It simply concludes that some of her request for relief may not be time-barred."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7246536/ | 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 .
Election/Restriction Restriction to one of the following inventions is required under 35 U.S.C. 121: I. Claims 1-6, drawn to a dental implant comprising: a body including an external surface positioned to contact a jawbone of a patient when the dental implant is implanted, a majority of the external surface being coated with silver nanoparticles, wherein the silver nanoparticles are configured to provide antimicrobial properties to the dental implant, classified in A61K 9/0063. II. Claims 7-14, drawn to a method of depositing nanoparticles on a dental implant comprising: preparing an electrolyte solution comprising an aqueous solution having silver nitrate (AgNO3); positioning the dental implant within the electrolyte solution; and applying an electric current to the electrolyte solution for a duration of time, thereby causing deposition of silver nanoparticles on a surface of the dental implant, the silver nanoparticles providing antimicrobial properties to the dental implant, classified in A61L 2420/02. III. Claims 15-20, drawn to a method implanting a dental implant comprising: forming a bore in a jaw of a patient; and implanting the dental implant into the bore at an implantation location, the dental implant including a coating of silver nanoparticles on a surface of the dental implant, the silver nanoparticles being configured to dissolve over time and provide an antimicrobial effect within the patient at the implantation location, classified in A61L 2430/12.
Inventions I and II are related as process of making and product made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case the process as claimed can be used to make another and materially different product. A dental implant such as dentures that are not positioned to contact a jawbone, may be coated with silver nanoparticles using the method of claim 7. Inventions I and III are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case a dental implant such as dentures that are not positioned to contact a jawbone may be inserted onto the gums. Inventions II and III are directed to related processes. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed have materially different mode of operation, i.e., preparation of silver nanoparticle-coated dental implants versus implantation into a bore in a jaw of a patient or for treatment. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants. and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply: (a) separate classification which shows that each invention has attained recognition in the art as a separate subject for inventive effort, and also a separate field of search; (b) separate status in the art even though the inventions are classified together, each invention forming a separate subject for inventive effort; and (c) search for one of the inventions is not likely to result in finding art pertinent to the other invention(s) (e.g., searching different classes/subclasses or electronic resources, or employing different search queries, a different field of search is shown, even though the two are classified together. Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention. The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i). The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined. In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01. Any inquiry concerning this communication or earlier communications from the examiner should be directed to H. PARK whose telephone number is (571)270-5258. The examiner can normally be reached weekdays. 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, Robert A Wax can be reached on 571-272-0623. 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
/H. SARAH PARK/Primary Examiner, Art Unit 1615 | 2022-04-01T11:53:23 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restriction Restriction to one of the following inventions is required under 35 U.S.C. 121: I. Claims 1-6, drawn to a dental implant comprising: a body including an external surface positioned to contact a jawbone of a patient when the dental implant is implanted, a majority of the external surface being coated with silver nanoparticles, wherein the silver nanoparticles are configured to provide antimicrobial properties to the dental implant, classified in A61K 9/0063.",
"II. Claims 7-14, drawn to a method of depositing nanoparticles on a dental implant comprising: preparing an electrolyte solution comprising an aqueous solution having silver nitrate (AgNO3); positioning the dental implant within the electrolyte solution; and applying an electric current to the electrolyte solution for a duration of time, thereby causing deposition of silver nanoparticles on a surface of the dental implant, the silver nanoparticles providing antimicrobial properties to the dental implant, classified in A61L 2420/02. III. Claims 15-20, drawn to a method implanting a dental implant comprising: forming a bore in a jaw of a patient; and implanting the dental implant into the bore at an implantation location, the dental implant including a coating of silver nanoparticles on a surface of the dental implant, the silver nanoparticles being configured to dissolve over time and provide an antimicrobial effect within the patient at the implantation location, classified in A61L 2430/12. Inventions I and II are related as process of making and product made.",
"The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case the process as claimed can be used to make another and materially different product. A dental implant such as dentures that are not positioned to contact a jawbone, may be coated with silver nanoparticles using the method of claim 7. Inventions I and III are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product.",
"See MPEP § 806.05(h). In the instant case a dental implant such as dentures that are not positioned to contact a jawbone may be inserted onto the gums. Inventions II and III are directed to related processes. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed have materially different mode of operation, i.e., preparation of silver nanoparticle-coated dental implants versus implantation into a bore in a jaw of a patient or for treatment.",
"Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants. and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply: (a) separate classification which shows that each invention has attained recognition in the art as a separate subject for inventive effort, and also a separate field of search; (b) separate status in the art even though the inventions are classified together, each invention forming a separate subject for inventive effort; and (c) search for one of the inventions is not likely to result in finding art pertinent to the other invention(s) (e.g., searching different classes/subclasses or electronic resources, or employing different search queries, a different field of search is shown, even though the two are classified together.",
"Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention. The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely.",
"Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention. Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).",
"The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined. In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112.",
"Until all claims to the elected product/apparatus are found allowable, an Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01. Any inquiry concerning this communication or earlier communications from the examiner should be directed to H. PARK whose telephone number is (571)270-5258. The examiner can normally be reached weekdays. 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, Robert A Wax can be reached on 571-272-0623.",
"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 /H. SARAH PARK/Primary Examiner, Art Unit 1615"
]
| 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 |
Court of Appeals of the State of Georgia
ATLANTA,____________________ October 02, 2018
The Court of Appeals hereby passes the following order:
A19A0183. OLIVIA BOYCE v. THERESA ANN MULL.
On December 20, 2017, the trial court dismissed Olivia Boyce’s petition for a stalking protective order. Boyce filed a motion for reconsideration, which the trial court denied on June 5, 2018. Boyce filed a notice of appeal to both this Court and the Georgia Supreme Court from the trial court’s order. The appeal to this Court was docketed as Case No. A18A2096 and dismissed on August 2, 2018, for lack of jurisdiction. The Supreme Court has since transferred the appeal filed in its court to this Court, which we dismiss as duplicative. As explained in the order dismissing Case No. A18A2096, a notice of appeal must be filed within 30 days after the entry of the trial court’s order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court. Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). The denial of a motion for reconsideration is not directly appealable, and the filing of such a motion does not extend the time for filing an appeal. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271 (326 SE2d 5) (1985). Boyce file her notice of appeal more than 30 days after the entry of the trial court’s order dismissing her case. Accordingly, we have no jurisdiction to consider an appeal from the trial court’s order. Therefore, this second appeal from the same order is hereby DISMISSED as duplicative.
Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/02/2018 I certi fy that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my si gnature and the seal of said court hereto affixed the day and year last above written.
, Clerk. | 10-17-2018 | [
"Court of Appeals of the State of Georgia ATLANTA,____________________ October 02, 2018 The Court of Appeals hereby passes the following order: A19A0183. OLIVIA BOYCE v. THERESA ANN MULL. On December 20, 2017, the trial court dismissed Olivia Boyce’s petition for a stalking protective order. Boyce filed a motion for reconsideration, which the trial court denied on June 5, 2018. Boyce filed a notice of appeal to both this Court and the Georgia Supreme Court from the trial court’s order. The appeal to this Court was docketed as Case No. A18A2096 and dismissed on August 2, 2018, for lack of jurisdiction. The Supreme Court has since transferred the appeal filed in its court to this Court, which we dismiss as duplicative. As explained in the order dismissing Case No. A18A2096, a notice of appeal must be filed within 30 days after the entry of the trial court’s order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court.",
"Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). The denial of a motion for reconsideration is not directly appealable, and the filing of such a motion does not extend the time for filing an appeal. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271 (326 SE2d 5) (1985). Boyce file her notice of appeal more than 30 days after the entry of the trial court’s order dismissing her case. Accordingly, we have no jurisdiction to consider an appeal from the trial court’s order. Therefore, this second appeal from the same order is hereby DISMISSED as duplicative. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/02/2018 I certi fy that the above is a true extract from the minutes of the Court of Appeals of Georgia.",
"Witness my si gnature and the seal of said court hereto affixed the day and year last above written. , Clerk."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4321511/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Sup. Ct. Conn. [Certiorari granted, 465 U. S. 1078.] Motion of National Right to Work Legal Defense Foundation, Inc., for leave to file a brief as amicus curiae granted. | 11-27-2022 | [
"Sup. Ct. Conn. [Certiorari granted, 465 U. S. 1078.] Motion of National Right to Work Legal Defense Foundation, Inc., for leave to file a brief as amicus curiae granted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9041702/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE ARIZONA COURT OF APPEALS DIVISION ONE
CARLOS YANEZ, Plaintiff/Appellant,
v.
CHANDAN KUNDAVARAM, M.D., et al., Defendants/Appellees.
No. 1 CA-CV 20-0303 FILED 8-10-2021
Appeal from the Superior Court in Maricopa County No. CV2017-014109 The Honorable Danielle J. Viola, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
Kelly & Lyons, PLLC, Scottsdale By Jason M. Kelly, Richard D. Lyons Counsel for Plaintiff/Appellant
Sanders & Park, PC, Phoenix By Robin E. Burgess, Molly B. Adrian Counsel for Defendant/Appellee YANEZ v. KUNDAVARAM, et al. Decision of the Court
MEMORANDUM DECISION
Chief Judge Kent E. Cattani delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
C A T T A N I, Chief Judge:
¶1 Carlos Yanez appeals the judgment and the superior court’s order denying his motion for new trial in a medical malpractice case. Yanez argues the superior court gave erroneous jury instructions and miscalculated taxable costs. For reasons that follow, we vacate the costs award and remand for a redetermination of the award. In all other respects, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In March 2017, Dr. Chandan Kundavaram removed Yanez’s prostate during a computer-assisted robotic surgery. After the surgery, Yanez felt significant pain, and a subsequent X-ray and CT scan revealed a suture needle inadvertently left in Yanez’s pelvis. Dr. Kundavaram performed another surgery four days later to remove the needle.
¶3 The suture needle left in Yanez’s body was one of two needles used to connect the bladder and the urethra. During the surgery, Dr. Kundavaram’s surgical assistant, Matthew Tremayne, accidentally knocked a pair of scissors from the instrument tray onto the ground while working on the patient’s left side. After getting a new pair of scissors and moving to the patient’s right side, Tremayne apparently forgot to go back to the left side to remove the suture needle.
¶4 As Dr. Kundavaram completed the surgery, the scrub technician and the circulating nurse performed two counts of the medical instruments that had been removed from the body to compare to the initial count of instruments present before surgery began. One count did not match the initial count, but the other count did, so Dr. Kundavaram asked the scrub technician and the circulating nurse to count a third time. The final two counts matched the scrub technician’s initial instrument count, so the nurse reported it as “accurate and correct.” Relying on those final two counts, Dr. Kundavaram sewed up the patient.
2 YANEZ v. KUNDAVARAM, et al. Decision of the Court
¶5 Yanez brought a medical negligence claim against Dr. Kundavaram and Abrazo Community Health Network, the hospital where the surgery took place. Yanez did not sue Tremayne. Yanez settled with Abrazo and proceeded to trial against Dr. Kundavaram. During the six- day trial, Yanez, Dr. Kundavaram, Tremayne, the scrub technician, and several experts testified. The jury found in favor of Dr. Kundavaram. The court issued a judgment in favor of Dr. Kundavaram and awarded him taxable costs in the amount of $13,146.87, including the fees he paid for two experts to testify at trial.
¶6 Yanez filed a motion for new trial under Arizona Rule of Civil Procedure 59, arguing that (1) the court should have instructed the jury regarding vicarious liability, and (2) the court’s instruction on the measure of recoverable damages misled the jury. The court denied the motion, and Yanez timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1), (5)(a).
DISCUSSION
I. Jury Instructions.
¶7 Yanez asserts that the superior court improperly rejected his proposed respondeat superior jury instruction, and that the court’s damages instruction was improper.
¶8 We review the denial of a requested jury instruction for an abuse of discretion. Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 409, ¶ 21 (App. 2008). “The court must give a proposed jury instruction ‘if: (1) the evidence presented supports the instruction, (2) the instruction is proper under the law, and (3) the instruction pertains to an important issue, and the gist of the instruction is not given in any other instructions.’” Id. at ¶ 22 (quoting DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 10 (1985)). We review jury instructions “as a whole with an eye toward determining whether the jury was given the proper rules of law to apply in arriving at its decision.” Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121, 126 (App. 1996). We will not disturb a jury verdict based on instructional error absent “substantial doubt as to whether the jury was properly guided in its deliberations.” Id.
¶9 At trial, Yanez argued for the inclusion of a respondeat superior jury instruction, alleging that Tremayne was Dr. Kundavaram’s agent. Dr. Kundavaram opposed the instruction, arguing that he was responsible only for his own acts and that it was the Abrazo staff that was
3 YANEZ v. KUNDAVARAM, et al. Decision of the Court
negligent. Tremayne was not named in the suit. The court denied Yanez’s request for the respondeat superior jury instruction.
¶10 Respondeat superior applies to employer/employee relationships when the employee was acting within the scope of his or her employment, but it is not generally applicable to independent contractors. See Kopp v. Physician Grp. of Ariz., Inc., 244 Ariz. 439, 441, ¶ 9 (2018) (explaining that respondeat superior renders the principal liable for the “negligent work-related actions” of his or her agents); Wiggs v. City of Phx., 198 Ariz. 367, 369, ¶ 7 (2000) (distinguishing between employees and independent contractors for these purposes); see also Rev. Ariz. Jury Instr. (Civil) Standard 5 (6th ed. 2015) (“Respondeat Superior Liability”). A principal is not liable for an independent contractor’s negligence if the principal only “instructs the independent contractor (agent)[] on what to do, but not how to do it. That is what distinguishes an independent contractor from an employee.” Wiggs, 198 Ariz. at 370, ¶ 10 (citing Restatement (Second) of Agency § 2(3) (1958)).
¶11 Yanez does not dispute that Tremayne was an independent contractor. Instead, Yanez argues that there was an agency relationship between Dr. Kundavaram and Tremayne. Yanez relies on a statement Dr. Kundavaram made during a deposition (and that was repeated by his own expert during trial) to “show” Dr. Kundavaram’s control: Dr. Kundavaram stated that a surgeon is “responsible for how your assistant is helping you.” But that statement was not an admission that Tremayne was Dr. Kundavaram’s employee, and instead was simply an acknowledgement that the surgical assistant’s work is guided by the surgeon.
¶12 While it is true that an independent contractor can be an agent, see id., Yanez failed to prove that an agency relationship existed between Tremayne and Dr. Kundavaram such that respondeat superior liability applies. During trial, Tremayne testified that his job primarily consists of exchanging instruments with the surgeon and the robot, retraction, suction, and passing and removing sutures. Tremayne testified that he “practic[es] independently during these procedures” and he does not need the surgeon telling him every aspect of what to do. Dr. Kundavaram also testified that Tremayne “works very independently” and that Dr. Kundavaram relied on Tremayne to perform his job while Dr. Kundavaram performed his own duties. Dr. Kundavaram testified that he sits at a distance from the operating table, “sometimes with [his] back to the patient,” directing the robot by placing his head inside a console. In contrast to Tremayne, Dr. Kundavaram—although physically present in the room and controlling the instruments—was not “scrubbed in” (or
4 YANEZ v. KUNDAVARAM, et al. Decision of the Court
sterile), and was not tasked with removing instruments from the patient during the operation. Yanez did not controvert this testimony or otherwise provide evidence that Dr. Kundavaram could, or did, exercise specific control over this aspect of Tremayne’s work. See id. Accordingly, the superior court did not abuse its discretion by denying the requested respondeat superior jury instruction.
¶13 Yanez notes that Dr. Kundavaram did not name Tremayne as a non-party at fault, which “sand-bagged” him at trial, as demonstrated by a juror questioning why Tremayne was not included on the “list to hold accountable.” Yanez also notes that Dr. Kundavaram did not argue at trial that Tremayne bore responsibility (although Dr. Kundavaram’s counsel did elicit testimony from Tremayne that he forgot to remove the suture needle). But those facts do not establish an agency relationship. And the plaintiff, as “master of the claim,” see Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987), can—and must—join every person as a party to the suit so that the court can “accord complete relief among existing parties.” Ariz. R. Civ. P. 19(a)(1)(A). Here, Yanez could have joined Tremayne as a defendant in the lawsuit but did not do so. Yanez’s failure to do so did not entitle him to a respondeat superior instruction.
¶14 Moreover, the jury was properly instructed on Arizona’s law regarding comparative fault, under which a tortfeasor is liable only to the extent of his or her own fault. A.R.S. § 12-2506(A) (“Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault . . . .”); Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42, 51, ¶ 34 (App. 2011) (citing sources). The comparative fault of Dr. Kundavaram individually was properly submitted to the jury, as was the comparative fault of the Abrazo staff responsible for counting the instruments, and Yanez has shown no error in these jury instructions. Thompson, 187 Ariz. at 126.
¶15 Next, Yanez challenges the damages instruction provided to the jurors, asserting that the instruction wrongfully omitted the value of the second surgery and subsequent hospitalization. Before trial, the court granted Dr. Kundavaram’s motion in limine precluding Yanez from discussing any evidence of expenses related to his subsequent surgery to remove the needle because he was not charged for those services.
¶16 Yanez argues that he was entitled to claim the reasonable value of all medical expenses rendered, not just those costs actually paid. As they did below, the parties dispute whether Yanez can claim the value of the second surgery and hospitalization as medical expenses when he was
5 YANEZ v. KUNDAVARAM, et al. Decision of the Court
never billed for the second surgery to remove the needle (or the subsequent hospitalization). See Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 206–07, ¶¶ 24, 26 (App. 2006) (authorizing recovery of “the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off from the bills pursuant to contractual rate reductions”). But where the jury finds no liability on the part of the defendant, any purported error in a damages instruction is harmless. Medlyn v. Kimble, 106 Ariz. 66, 68 (1970). Accordingly, we decline to reach this issue.
II. Expert Witness Fees as Taxable Costs.
¶17 Finally, Yanez argues that the superior court erred by awarding Dr. Kundavaram his testifying expert witness fees as taxable costs under Rule 54.
¶18 After trial, Dr. Kundavaram submitted his statement of costs that included $11,800 in expert witness fees: $1,800 for Linda Redding, R.N., and $10,000 for Dr. Ali Borhan. These fees appear to represent the amounts paid by Dr. Kundavaram for the experts’ time while testifying at trial. Yanez argues that such fees are not awardable as taxable costs under Rule 54(f). We consider de novo whether expert witness fees may be considered taxable costs. Schritter v. State Farm Mut. Auto. Ins. Co., 201 Ariz. 391, 392, ¶ 5 (2001).
¶19 “A party to a civil action cannot recover its litigation expenses as costs without statutory authorization.” Id. at ¶ 6. By statute, taxable costs include witness fees. A.R.S. § 12-332(A)(1). And testifying witness fees are limited to $12 per day with a travel allowance. A.R.S. § 12-303. The statutory scheme does not provide for “the allowance of expert witness fees” as costs. Schritter, 201 Ariz. at 392, ¶ 7 (quoting State v. McDonald, 88 Ariz. 1, 14 (1960)).
¶20 Before 2017, Rule 54(f) provided: “[i]n medical malpractice cases only, witness fees, set forth in A.R.S. § 12-332(A)(1) as taxable costs in the Superior Court, shall include reasonable fees paid expert witnesses for testifying at trial.” Ariz. R. Civ. P. 54(f)(2) (2016); Foster ex rel. Foster v. Weir, 212 Ariz. 193, 195, ¶ 4 (App. 2006). But in 2017, Rule 54 was amended and this specific carve-out for medical negligence claims was removed. Ariz. R. Civ. P. Order R-16-0010, at 156, 158–59, https://www.azcourts.gov/ Portals/20/2016%20Rules/R-16-0010.pdf. Although the 2017 amendments to Rule 54 “make several clarifying and substantive changes,” none of the
6 YANEZ v. KUNDAVARAM, et al. Decision of the Court
rule-change comments discuss the removal of the medical malpractice- specific language. Id. at 158–59.
¶21 Because the 2017 amendment to Rule 54(f) removed any specific reference to medical negligence claims, expert witness fees in medical negligence claims are treated like they are in connection with other claims. And in all other claims, “the fees [a litigant] pays its own expert witness are not recoverable.” RS Indus., Inc. v. Candrian, 240 Ariz. 132, 137, ¶ 16 (App. 2016). Accordingly, the fees a litigant pays his own expert witness for testifying in medical malpractice cases are not taxable costs, and the superior court erred when it awarded them as such.
¶22 Dr. Kundavaram offers no other basis to authorize these testifying expert witness fees as taxable costs. He asserts, however, that he is entitled to the fees because Arizona law requires experts in medical malpractice actions. But while almost all medical malpractice claims require claimants—or plaintiffs—to use experts to establish the standard of care under A.R.S. § 12-2603(B), it is not accurate, as Dr. Kundavaram asserts, to suggest that a defendant in a medical malpractice claim must retain an expert. See Seisinger v. Siebel, 220 Ariz. 85, 94–95, ¶¶ 33, 35–36 (explaining the plaintiff’s duty to provide a physician expert witness in a medical malpractice case against a physician to avoid judgment for the defendant). Moreover, even assuming expert witnesses are generally necessary to rebut required expert witness testimony, there is no statutory provision authorizing recovery in litigation of such witness expenses.
¶23 Accordingly, we vacate the superior court’s award of expert fees as costs and remand for Dr. Kundavaram’s costs to be reduced by $11,800.
III. Transcripts and Sanction Request.
¶24 Dr. Kundavaram alleges that Yanez failed to scrupulously follow ARCAP 11 and violated other ARCAP provisions. Dr. Kundavaram requests ARCAP 25 sanctions against Yanez and the dismissal of the appeal. In our discretion, we decline to impose sanctions.
7 YANEZ v. KUNDAVARAM, et al. Decision of the Court
CONCLUSION
¶25 For the foregoing reasons, we affirm the judgment on the merits but vacate the award of $11,800 in expert witness fees as taxable costs and remand for entry of judgment with the proper calculation of costs. In our discretion, we deny both parties their costs associated with the appeal.
AMY M. WOOD • Clerk of the Court FILED: AA
8 | 08-10-2021 | [
"NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE CARLOS YANEZ, Plaintiff/Appellant, v. CHANDAN KUNDAVARAM, M.D., et al., Defendants/Appellees. No. 1 CA-CV 20-0303 FILED 8-10-2021 Appeal from the Superior Court in Maricopa County No. CV2017-014109 The Honorable Danielle J. Viola, Judge AFFIRMED IN PART, VACATED IN PART, AND REMANDED COUNSEL Kelly & Lyons, PLLC, Scottsdale By Jason M. Kelly, Richard D. Lyons Counsel for Plaintiff/Appellant Sanders & Park, PC, Phoenix By Robin E. Burgess, Molly B. Adrian Counsel for Defendant/Appellee YANEZ v. KUNDAVARAM, et al.",
"Decision of the Court MEMORANDUM DECISION Chief Judge Kent E. Cattani delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined. C A T T A N I, Chief Judge: ¶1 Carlos Yanez appeals the judgment and the superior court’s order denying his motion for new trial in a medical malpractice case. Yanez argues the superior court gave erroneous jury instructions and miscalculated taxable costs.",
"For reasons that follow, we vacate the costs award and remand for a redetermination of the award. In all other respects, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 In March 2017, Dr. Chandan Kundavaram removed Yanez’s prostate during a computer-assisted robotic surgery. After the surgery, Yanez felt significant pain, and a subsequent X-ray and CT scan revealed a suture needle inadvertently left in Yanez’s pelvis. Dr. Kundavaram performed another surgery four days later to remove the needle. ¶3 The suture needle left in Yanez’s body was one of two needles used to connect the bladder and the urethra. During the surgery, Dr. Kundavaram’s surgical assistant, Matthew Tremayne, accidentally knocked a pair of scissors from the instrument tray onto the ground while working on the patient’s left side. After getting a new pair of scissors and moving to the patient’s right side, Tremayne apparently forgot to go back to the left side to remove the suture needle.",
"¶4 As Dr. Kundavaram completed the surgery, the scrub technician and the circulating nurse performed two counts of the medical instruments that had been removed from the body to compare to the initial count of instruments present before surgery began. One count did not match the initial count, but the other count did, so Dr. Kundavaram asked the scrub technician and the circulating nurse to count a third time. The final two counts matched the scrub technician’s initial instrument count, so the nurse reported it as “accurate and correct.” Relying on those final two counts, Dr. Kundavaram sewed up the patient. 2 YANEZ v. KUNDAVARAM, et al.",
"Decision of the Court ¶5 Yanez brought a medical negligence claim against Dr. Kundavaram and Abrazo Community Health Network, the hospital where the surgery took place. Yanez did not sue Tremayne. Yanez settled with Abrazo and proceeded to trial against Dr. Kundavaram. During the six- day trial, Yanez, Dr. Kundavaram, Tremayne, the scrub technician, and several experts testified. The jury found in favor of Dr. Kundavaram. The court issued a judgment in favor of Dr. Kundavaram and awarded him taxable costs in the amount of $13,146.87, including the fees he paid for two experts to testify at trial.",
"¶6 Yanez filed a motion for new trial under Arizona Rule of Civil Procedure 59, arguing that (1) the court should have instructed the jury regarding vicarious liability, and (2) the court’s instruction on the measure of recoverable damages misled the jury. The court denied the motion, and Yanez timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1), (5)(a). DISCUSSION I. Jury Instructions. ¶7 Yanez asserts that the superior court improperly rejected his proposed respondeat superior jury instruction, and that the court’s damages instruction was improper. ¶8 We review the denial of a requested jury instruction for an abuse of discretion.",
"Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 409, ¶ 21 (App. 2008). “The court must give a proposed jury instruction ‘if: (1) the evidence presented supports the instruction, (2) the instruction is proper under the law, and (3) the instruction pertains to an important issue, and the gist of the instruction is not given in any other instructions.’” Id. at ¶ 22 (quoting DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 10 (1985)). We review jury instructions “as a whole with an eye toward determining whether the jury was given the proper rules of law to apply in arriving at its decision.” Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121, 126 (App. 1996). We will not disturb a jury verdict based on instructional error absent “substantial doubt as to whether the jury was properly guided in its deliberations.” Id. ¶9 At trial, Yanez argued for the inclusion of a respondeat superior jury instruction, alleging that Tremayne was Dr. Kundavaram’s agent. Dr. Kundavaram opposed the instruction, arguing that he was responsible only for his own acts and that it was the Abrazo staff that was 3 YANEZ v. KUNDAVARAM, et al. Decision of the Court negligent. Tremayne was not named in the suit.",
"The court denied Yanez’s request for the respondeat superior jury instruction. ¶10 Respondeat superior applies to employer/employee relationships when the employee was acting within the scope of his or her employment, but it is not generally applicable to independent contractors. See Kopp v. Physician Grp. of Ariz., Inc., 244 Ariz. 439, 441, ¶ 9 (2018) (explaining that respondeat superior renders the principal liable for the “negligent work-related actions” of his or her agents); Wiggs v. City of Phx., 198 Ariz. 367, 369, ¶ 7 (2000) (distinguishing between employees and independent contractors for these purposes); see also Rev. Ariz. Jury Instr. (Civil) Standard 5 (6th ed. 2015) (“Respondeat Superior Liability”). A principal is not liable for an independent contractor’s negligence if the principal only “instructs the independent contractor (agent)[] on what to do, but not how to do it.",
"That is what distinguishes an independent contractor from an employee.” Wiggs, 198 Ariz. at 370, ¶ 10 (citing Restatement (Second) of Agency § 2(3) (1958)). ¶11 Yanez does not dispute that Tremayne was an independent contractor. Instead, Yanez argues that there was an agency relationship between Dr. Kundavaram and Tremayne. Yanez relies on a statement Dr. Kundavaram made during a deposition (and that was repeated by his own expert during trial) to “show” Dr. Kundavaram’s control: Dr. Kundavaram stated that a surgeon is “responsible for how your assistant is helping you.” But that statement was not an admission that Tremayne was Dr. Kundavaram’s employee, and instead was simply an acknowledgement that the surgical assistant’s work is guided by the surgeon.",
"¶12 While it is true that an independent contractor can be an agent, see id., Yanez failed to prove that an agency relationship existed between Tremayne and Dr. Kundavaram such that respondeat superior liability applies. During trial, Tremayne testified that his job primarily consists of exchanging instruments with the surgeon and the robot, retraction, suction, and passing and removing sutures. Tremayne testified that he “practic[es] independently during these procedures” and he does not need the surgeon telling him every aspect of what to do. Dr. Kundavaram also testified that Tremayne “works very independently” and that Dr. Kundavaram relied on Tremayne to perform his job while Dr. Kundavaram performed his own duties. Dr. Kundavaram testified that he sits at a distance from the operating table, “sometimes with [his] back to the patient,” directing the robot by placing his head inside a console.",
"In contrast to Tremayne, Dr. Kundavaram—although physically present in the room and controlling the instruments—was not “scrubbed in” (or 4 YANEZ v. KUNDAVARAM, et al. Decision of the Court sterile), and was not tasked with removing instruments from the patient during the operation. Yanez did not controvert this testimony or otherwise provide evidence that Dr. Kundavaram could, or did, exercise specific control over this aspect of Tremayne’s work. See id. Accordingly, the superior court did not abuse its discretion by denying the requested respondeat superior jury instruction. ¶13 Yanez notes that Dr. Kundavaram did not name Tremayne as a non-party at fault, which “sand-bagged” him at trial, as demonstrated by a juror questioning why Tremayne was not included on the “list to hold accountable.” Yanez also notes that Dr. Kundavaram did not argue at trial that Tremayne bore responsibility (although Dr. Kundavaram’s counsel did elicit testimony from Tremayne that he forgot to remove the suture needle). But those facts do not establish an agency relationship.",
"And the plaintiff, as “master of the claim,” see Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987), can—and must—join every person as a party to the suit so that the court can “accord complete relief among existing parties.” Ariz. R. Civ. P. 19(a)(1)(A). Here, Yanez could have joined Tremayne as a defendant in the lawsuit but did not do so. Yanez’s failure to do so did not entitle him to a respondeat superior instruction. ¶14 Moreover, the jury was properly instructed on Arizona’s law regarding comparative fault, under which a tortfeasor is liable only to the extent of his or her own fault. A.R.S.",
"§ 12-2506(A) (“Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault . . . .”); Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42, 51, ¶ 34 (App. 2011) (citing sources). The comparative fault of Dr. Kundavaram individually was properly submitted to the jury, as was the comparative fault of the Abrazo staff responsible for counting the instruments, and Yanez has shown no error in these jury instructions.",
"Thompson, 187 Ariz. at 126. ¶15 Next, Yanez challenges the damages instruction provided to the jurors, asserting that the instruction wrongfully omitted the value of the second surgery and subsequent hospitalization. Before trial, the court granted Dr. Kundavaram’s motion in limine precluding Yanez from discussing any evidence of expenses related to his subsequent surgery to remove the needle because he was not charged for those services. ¶16 Yanez argues that he was entitled to claim the reasonable value of all medical expenses rendered, not just those costs actually paid. As they did below, the parties dispute whether Yanez can claim the value of the second surgery and hospitalization as medical expenses when he was 5 YANEZ v. KUNDAVARAM, et al. Decision of the Court never billed for the second surgery to remove the needle (or the subsequent hospitalization).",
"See Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 206–07, ¶¶ 24, 26 (App. 2006) (authorizing recovery of “the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off from the bills pursuant to contractual rate reductions”). But where the jury finds no liability on the part of the defendant, any purported error in a damages instruction is harmless. Medlyn v. Kimble, 106 Ariz. 66, 68 (1970). Accordingly, we decline to reach this issue. II. Expert Witness Fees as Taxable Costs.",
"¶17 Finally, Yanez argues that the superior court erred by awarding Dr. Kundavaram his testifying expert witness fees as taxable costs under Rule 54. ¶18 After trial, Dr. Kundavaram submitted his statement of costs that included $11,800 in expert witness fees: $1,800 for Linda Redding, R.N., and $10,000 for Dr. Ali Borhan. These fees appear to represent the amounts paid by Dr. Kundavaram for the experts’ time while testifying at trial. Yanez argues that such fees are not awardable as taxable costs under Rule 54(f). We consider de novo whether expert witness fees may be considered taxable costs. Schritter v. State Farm Mut. Auto. Ins.",
"Co., 201 Ariz. 391, 392, ¶ 5 (2001). ¶19 “A party to a civil action cannot recover its litigation expenses as costs without statutory authorization.” Id. at ¶ 6. By statute, taxable costs include witness fees. A.R.S. § 12-332(A)(1). And testifying witness fees are limited to $12 per day with a travel allowance. A.R.S. § 12-303. The statutory scheme does not provide for “the allowance of expert witness fees” as costs. Schritter, 201 Ariz. at 392, ¶ 7 (quoting State v. McDonald, 88 Ariz. 1, 14 (1960)). ¶20 Before 2017, Rule 54(f) provided: “[i]n medical malpractice cases only, witness fees, set forth in A.R.S.",
"§ 12-332(A)(1) as taxable costs in the Superior Court, shall include reasonable fees paid expert witnesses for testifying at trial.” Ariz. R. Civ. P. 54(f)(2) (2016); Foster ex rel. Foster v. Weir, 212 Ariz. 193, 195, ¶ 4 (App. 2006). But in 2017, Rule 54 was amended and this specific carve-out for medical negligence claims was removed. Ariz. R. Civ. P. Order R-16-0010, at 156, 158–59, https://www.azcourts.gov/ Portals/20/2016%20Rules/R-16-0010.pdf. Although the 2017 amendments to Rule 54 “make several clarifying and substantive changes,” none of the 6 YANEZ v. KUNDAVARAM, et al. Decision of the Court rule-change comments discuss the removal of the medical malpractice- specific language.",
"Id. at 158–59. ¶21 Because the 2017 amendment to Rule 54(f) removed any specific reference to medical negligence claims, expert witness fees in medical negligence claims are treated like they are in connection with other claims. And in all other claims, “the fees [a litigant] pays its own expert witness are not recoverable.” RS Indus., Inc. v. Candrian, 240 Ariz. 132, 137, ¶ 16 (App. 2016). Accordingly, the fees a litigant pays his own expert witness for testifying in medical malpractice cases are not taxable costs, and the superior court erred when it awarded them as such. ¶22 Dr. Kundavaram offers no other basis to authorize these testifying expert witness fees as taxable costs. He asserts, however, that he is entitled to the fees because Arizona law requires experts in medical malpractice actions.",
"But while almost all medical malpractice claims require claimants—or plaintiffs—to use experts to establish the standard of care under A.R.S. § 12-2603(B), it is not accurate, as Dr. Kundavaram asserts, to suggest that a defendant in a medical malpractice claim must retain an expert. See Seisinger v. Siebel, 220 Ariz. 85, 94–95, ¶¶ 33, 35–36 (explaining the plaintiff’s duty to provide a physician expert witness in a medical malpractice case against a physician to avoid judgment for the defendant). Moreover, even assuming expert witnesses are generally necessary to rebut required expert witness testimony, there is no statutory provision authorizing recovery in litigation of such witness expenses. ¶23 Accordingly, we vacate the superior court’s award of expert fees as costs and remand for Dr. Kundavaram’s costs to be reduced by $11,800. III. Transcripts and Sanction Request. ¶24 Dr. Kundavaram alleges that Yanez failed to scrupulously follow ARCAP 11 and violated other ARCAP provisions.",
"Dr. Kundavaram requests ARCAP 25 sanctions against Yanez and the dismissal of the appeal. In our discretion, we decline to impose sanctions. 7 YANEZ v. KUNDAVARAM, et al. Decision of the Court CONCLUSION ¶25 For the foregoing reasons, we affirm the judgment on the merits but vacate the award of $11,800 in expert witness fees as taxable costs and remand for entry of judgment with the proper calculation of costs. In our discretion, we deny both parties their costs associated with the appeal. AMY M. WOOD • Clerk of the Court FILED: AA 8"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4710342/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-01092-AMD-JO Document 1-5 Filed 02/27/20 Page 1 of 12 PageID #: 26 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 3 Document 1-5 Filed 02/27/20 Page 2RECEIVED of 12 PageID #: 27 NYSCEF: 09/05/2019
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---- --------------------------------------------X SHIRLEY BROWN, Index No.: Date Purchased:
Plaintiff, Plaintiff designates -against- QUEENS
County as the place of trial AMERICAN AIRLINES GROUP INC., AMENDED SUMMONS JANE DOE and AMERICAN AIRLINES INC., The basis of the venue: Defendants. CPLR 504 ____ ----------------------------------------------------------X the place of Plaintiff's injury
TO THE ABOVE NAMED DEFENDANT(s):
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or if the complaint is not served with this summons, to serve a notice of
appearance, on the plaintiff's attorney(s) within 20 days after the service of this summons,
exclusively of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.
Dated: New York, New York September 5, 2019
LERNER, ARNOLD & WINSTON, LLP Attorneys for Plaintiff
By: Jac b L. L ine 28th 475 Pa k Avenu outh, FlOOr New York, New York 10016
(212) 686-4655
To: American Airlines Group Inc.: c/o New York State Secretary of State American Airlines Inc.: c/o New York State Secretary of State
ER-ARNOLD-WINSTON
1 of 2 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 3 Document 1-5 Filed 02/27/20 Page 3RECEIVED of 12 PageID #: 28 NYSCEF: 09/05/2019
Index No.: Year:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS
SHIRLEY BROWN,
Plaintiff,
-against-
AMERICAN AIRLINES GROUP INC., JANE DOE and AMERICAN AIRLINES INC.,
Defendants.
AMENDED SUMMONS AND COMPLAINT
Pursu:::: to 22 NYCRR 130-1.1, the üiidersigized, an attorney duly :±:: to practice law in the State of New York, certifies that, upon infurmuiion and beliefbased upon .-:::::::5!: inquiry, the enntontions c:::: in the annexed document are not frivolous.
' Dated: September 5. 2019 Sig::ature: f p P c -
Print Signer's Name: Jacob L. Levi e
Service of a copy of the within ] is hereby ~±;;i:::3
Dated: .........................................................
Attorney(s) for
LERNER, ARNOLD & WINSTON, LLP 28th 475 Park Avenue South, PlOOr New York, New York 10016
(212) 686-4655
2 of 2 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 4RECEIVED of 12 PageID #: 29 NYSCEF: 09/05/2019
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --- --------------------------- -------------X SHIRLEY BROWN, Index No.:
Plaintiff, AMENDED -against- COMPLAINT
AMERICAN AIRLINES GROUP INC., JANE DOE and AMERICAN AIRLINES INC.,
Defendants. ------------------------------------- ------------X
Plaintiff, SHIRLEY BROWN, by her attorneys, LERNER, ARNOLD & WINSTON,
LLP, as and for their Verified Complaint herein alleges upon information and belief as follows:
1. At all times hereinafter mentioned, Plaintiff SHIRLEY BROWN ("Plaintiff") was
and still is an individual over the age of eighteen, and a resident and citizen of the State of New
York, County of New York.
2. At all times hereinafter mentioned, Defendant AMERICAN AIRLINES GROUP
INC. ("AMERICAN AIRLINES") was and still is a domestic corporation incorporated in the
State of Delaware with its principal place of business in Texas.
3. At all times hereinafter mentioned, Defendant AMERICAN AIRLINES INC. was
and still is a foreign corporation authorized to do business in the State of New York.
4. At all times herciñafter mentioned, Defendant JANE DOE was and still is an
individual over the age of eighteen, and a resident and citizen of the State of New York, County
of New York.
JER-ARNOLD-WINSTON
1 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 5RECEIVED of 12 PageID #: 30 NYSCEF: 09/05/2019
5. At all times hereinafter mentioned, Defendant AMERICAN AIRLINES INC.
("AMERICAN INC") was and still is a domestic corporation incorporated in the State of
Delaware with its principal place of business in Texas.
6. Upon information and belief, at all relevant times, AMERICAN AIRLINES is a
common carrier and operated cotiliileioial flights and operated the planes thereon.
7. Upon information and belief, at all relevant times, AMERICAN AIRLINES
owned the planes traversing the airways, including, but not limited to a plane designated flight
AA366 from New York (JFK) to San Diego on August 28, 2017.
8. Upon information and belief, at all relevant times, AMERICAN AIRLINES
leased the planes traversing the airways, including, but not limited to a plane designated flight
AA366 from New York (JFK) to San Diego on August 28, 2017.
9. Upon information and belief, at all relevant times, AMERICAN AIRLINES was
and still is responsible for maintaining the planes traversing the airways, including, but not
limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28,
2017.
10. Upon information and belief, at all relevant times, AMERICAN AIRLINES was
and still does operate for maintaining the planes traversing the airways, including, but not limited
to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017.
11. Upon information and belief, at all relevant times, AMERICAN AIRLINES was
and still is a common carrier for the planes traversing the airways, including, but not limited to a
2 NER-ARNOLD•WINSTON
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plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017.
12. Upon information and belief, at all relevant times, AMERICAN AIRLINES was
and still is responsible for providing safe passage for its paying customers on board the planes
traversing the airways, including, but not limited to a plane designated flight AA366 from New
York (JFK) to San Diego on August 28, 2017.
13. Upon information and belief, at all relevant times, AMERICAN AIRLINES had
the duty to protect and ñiaintain the physical safety of its customers and patrons while on board
the plane, including, but not limited to a plane designated flight AA366 from New York (JFK) to
San Diego on August 28, 2017.
14. Upon information and belief, at all relevant times, AMERICAN INC is a common
carrier and operated commercial flights and operated the planes thereon.
15. Upon information and belief, at all relevant times, AMERICAN INC owned the
planes traversing the airways, including, but not limited to a plane designated flight AA366 from
New York (JFK) to San Diego on August 28, 2017.
16. Upon information and belief, at all relevant times, AMERICAN INC leased the
planes traversing the airways, including, but not limited to a plane designated flight AA366 from
New York (JFK) to San Diego on August 28, 2017.
17. Upon information and belief, at all relevant times, AMERICAN INC was and still
is responsible for maintaining the planes traversing the airways, including, but not limited to a
plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017.
ER-ARNOLD•WINSTON
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18. Upon information and belief, at all relevant times, AMERICAN INC was and still
does operate for maintaining the planes traversing the airways, including, but not limited to a
plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017.
19. Upon information and belief, at all relevant times, AMERICAN INC was and still
is a common carrier for the planes traversing the airways, including, but not limited to a plane
designated flight AA366 from New York (JFK) to San Diego on August 28, 2017.
20. Upon information and belief, at all relevant times, AMERICAN INC was and still
is responsible for providing safe passage for its paying customers on board the planes traversing
the airways, including, but not limited to a plane designated flight AA366 from New York (JFK)
to San Diego on August 28, 2017.
21. Upon information and belief, at all relevant times, AMERICAN INC had the duty
to protect and maintain the physical safety of its customers and patrons while on board the plane,
including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego
on August 28, 2017.
22. On August 28, 2017, Defendant JANE DOE was a lawful paying customer of
AMERICAN AIRLINES and/or AMERICAN INC, on board flight AA366 from New York
(JFK) to San Diego.
23. On August 28, 2017, Plaintiff SHIRLEY BROWN was a lawful paying customer
of AMERICAN AIRLINES and/or AMERICAN INC, boarding flight AA366 from New York
(JFK) to San Diego.
4 NER-ARNOLD- WINSTON
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24. On August 28, 2017, Plaintiff SHIRLEY BROWN was a lawful paying customer
of AMERICAN AIRLINES and/or AMERICAN INC, boarding flight AA366 from New York
(JFK) to San Diego when she was seriously injured by JANE DOE before take-off.
25. On August 28, 2017, Plaintiff SHIRLEY BROWN was boarding flight AA366
from New York (JFK) to San Diego, which was docked/parked at the gate at John F. Kennedy
Airport in Queens, New York, when a heavy piece of luggage was negligently caused to fall on
her head, which caused serious injuries including, but not limited to head injuries including but
not limited to, traumatic brain injuries, post-concussion syndrome, migraines, face numbness and
nerve damage.
26. Upon information and belief, Defendants AMERICAN AIRLINES and/or
AMERICAN INC, its agents, servants, and/or employees, were negligent in: creating and/or
allowing the plane and its overhead compartments to become and remain in a dangerous,
defective and/or unsafe condition, including, but not limited to an inadequate warning of the
danger of falling luggage; causing and/or allowing flight AA366 and the overhead luggage to be
maintained in a negligent and careless manner; creating and/or permitting a dangerous, defective
and/or unsafe condition to exist and/or remain on flight AA366; failing to correct and/or change
the dangerous, defective and/or unsafe condition although AMERICAN AIRLINES and/or
AMERICAN INC, their agents, servants and/or employees knew of the existence of the
dangerous and unsafe condition; failing to warn Plaintiff and others lawfully upon its planes of
the dangerous and defective condition; failing to maintain and/or properly place warning signs, or
other devices upon flight AA366 to warn Plaintiff and others lawfully upon its plane of the
IER-ARNOLD-WINSTON
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dangerous, defective and/or unsafe condition; in failing to inspect and/or properly inspect the
aforementioned area of the occurrence; failing to repair and/or properly repair the dangerous,
defective and/or unsafe condition existing at the aforementioned flight AA366; failing to have
competent personnel operate, inspect, oversee and maintain the overhead compartments aboard
the plane and particularly the one from flight AA366; failing to instruct such personnel to
properly operate, inspect and maintain the overhead compartments; failing to properly supervise
such personnel and other passengers aboard the plane; failing to have competent personnel to
operate, control and oversee the handling of the overhead compartments; violating those statutes,
ordinances, rules and regulations relating to the maintenance, repair, oversight and complicit
conduct regending common carriers overseeing the loading of overhead compartments on a plane;
failing to properly create, design, configure and construct its planes for safe passage for all of its
customers; failing to exercise that degree of care required under the circumstances.
27. That on August 28, 2017, Defendants AMERICAN AIRLINES and/or
AMERICAN INC were negligent, careless and reckless in supervising its agents, servants,
employees, licensees, contractors and/or subcontractors at the subject airplañe; was negligent,
careless and recldess in failing to safely own, operate, manage and/or control said airplane and the
persons thereat; in failing to prevent the aforesaid physical injury from occurring; and in failing to
come to the accietance and aid of the Plaintiff after the injurious event.
28. The aforementioned occurrence took place due to the negligence of the
Defendants, AMERICAN AIRLINES and/or AMERICAN INC, its agents, servants, employees,
licensees, contractors and/or subcontractors, acting within the scope of their authority, within the
6 NER-ARNOLD- WINSTON
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scope of their employment and in the furtherance of their agency.
29. Upon information and belief, Defendants AMERICAN AIRLINES and/or
AMERICAN INC had actual and/or constructive notice of the dangerous, defective and/or unsafe
condition of its planes, including, but not limited to a designated flight AA366 from New York
(JFK) to San Diego on August 28, 2017.
30. Upon information and belief, Defendant JANE DOE caused the dangerous,
defective and/or unsafe condition on flight AA366 from New York (JFK) to San Diego on
August 28, 2017.
31. Upon information and belief, Defendant JANE DOE was negligent, careless and
reckless in causing injuries to Plaintiff during in-flight boarding; in failing to prevent the
aforesaid physical injury from occurring; in failing to properly load luggage to the overhead
compartment; and in failing to come to the assistance and aid of the Plaintiff after the injurious
event on flight AA366 from New York (JFK) to San Diego on August 28, 2017.
32. That no negligence on the part of the Plaintiff contributed to the occurrence
alleged herein in any manner whatsoever.
33. As a result of the incident, Plaintiff SHIRLEY BROWN has suffered serious
injuries, including, but not limited to head injuries including but not limited to, traumatic brain
injuries, post-concussion syndrome, migraines, face numbness and nerve damage. As a result of
said injuries Plaintiff has become sick, sore, lame and disabled; has suffered, and will continue to
suffer pain and anguish in body and mind; and has necessarily received hospital and medical care
7 ER-ARNOLD-WINSTON
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and treatment for her injuries for which expenses have been and will continue to be incurred.
34. AMERICAN AIRLINES has neglected and refused to adjust or pay Plaintiff's
claim.
35. AMERICAN INC has neglected and refused to adjust or pay Plaintiff's claim.
36. This action has been commenced within three (3) years after Plaintiff's claim
arose.
37. By reason of the foregoing, Plaintiff SHIRLEY BROWN is entitled to damages
upon his claim for pain and suffering, lost wages and economic damages, each in an amount to be
determined by a Queens County Jury at the time of trial.
WHEREFORE, Plaintiff demands judgment against Defêñdants AMERICAN
AIRLINES, JANE DOE and AMEICAN INC in an amount in excess of all courts of lower
jurisdiction, to be determined by a Queens County Jury at the time of trial, together with the costs
and disbursements of this action and such further relief as may be just.
Dated: New York, New York September 5, 2019
LERNER, ARNOLD & WINSTON, LLP Attorneys fo flaintiff .
JgeobfLe lb 288 475 Park Avenue So th, Floor New York, New York 10016
(212) 686-4655
8 ER-ARNOLD •WINSTON
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Index No.: Year:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS
SHIRLEY BROWN,
Plaintiff,
-against-
AMERICAN AIRLINES GROUP INC., JANE DOE and AMERICAN AIRLINES INC.,
Defendants.
AMENDED SUMMONS AND COMPLAINT
Pursuant to 22 NYCRR 130-1.1, the undäaigned, an attorney duly :dm!:::3 to practice law in the State of New York, certifies that, upon i;:for;::ction and belief based upon reasonable inquiry, the c ..;-:,..i in the annexed document are not frivolous.
Dated: September 5, 2019 Si;::::::::: p
Print Signer's Name: ( Jacob L{Levi e
Service of a copy of the within ] is hereby adm!"cd.
Dated: .........................................................
Attorney(s) for
LERNER, ARNOLD & WINSTON, LLP 28th 475 Park Avenue South, FlOOr New York, New York 10016
(212) 686-4655
9 of 9 | 2020-02-27 | [
"Case 1:20-cv-01092-AMD-JO Document 1-5 Filed 02/27/20 Page 1 of 12 PageID #: 26 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 3 Document 1-5 Filed 02/27/20 Page 2RECEIVED of 12 PageID #: 27 NYSCEF: 09/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---- --------------------------------------------X SHIRLEY BROWN, Index No. : Date Purchased: Plaintiff, Plaintiff designates -against- QUEENS County as the place of trial AMERICAN AIRLINES GROUP INC., AMENDED SUMMONS JANE DOE and AMERICAN AIRLINES INC., The basis of the venue: Defendants. CPLR 504 ____ ----------------------------------------------------------X the place of Plaintiff's injury TO THE ABOVE NAMED DEFENDANT(s): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiff's attorney(s) within 20 days after the service of this summons, exclusively of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York September 5, 2019 LERNER, ARNOLD & WINSTON, LLP Attorneys for Plaintiff By: Jac b L. L ine 28th 475 Pa k Avenu outh, FlOOr New York, New York 10016 (212) 686-4655 To: American Airlines Group Inc.: c/o New York State Secretary of State American Airlines Inc.: c/o New York State Secretary of State ER-ARNOLD-WINSTON 1 of 2 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO.",
"706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 3 Document 1-5 Filed 02/27/20 Page 3RECEIVED of 12 PageID #: 28 NYSCEF: 09/05/2019 Index No. : Year: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS SHIRLEY BROWN, Plaintiff, -against- AMERICAN AIRLINES GROUP INC., JANE DOE and AMERICAN AIRLINES INC., Defendants. AMENDED SUMMONS AND COMPLAINT Pursu:::: to 22 NYCRR 130-1.1, the üiidersigized, an attorney duly :±:: to practice law in the State of New York, certifies that, upon infurmuiion and beliefbased upon .-:::::::5! : inquiry, the enntontions c:::: in the annexed document are not frivolous. ' Dated: September 5. 2019 Sig::ature: f p P c - Print Signer's Name: Jacob L. Levi e Service of a copy of the within ] is hereby ~±;;i:::3 Dated: ......................................................... Attorney(s) for LERNER, ARNOLD & WINSTON, LLP 28th 475 Park Avenue South, PlOOr New York, New York 10016 (212) 686-4655 2 of 2 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO.",
"706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 4RECEIVED of 12 PageID #: 29 NYSCEF: 09/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --- --------------------------- -------------X SHIRLEY BROWN, Index No. : Plaintiff, AMENDED -against- COMPLAINT AMERICAN AIRLINES GROUP INC., JANE DOE and AMERICAN AIRLINES INC., Defendants. ------------------------------------- ------------X Plaintiff, SHIRLEY BROWN, by her attorneys, LERNER, ARNOLD & WINSTON, LLP, as and for their Verified Complaint herein alleges upon information and belief as follows: 1. At all times hereinafter mentioned, Plaintiff SHIRLEY BROWN (\"Plaintiff\") was and still is an individual over the age of eighteen, and a resident and citizen of the State of New York, County of New York. 2. At all times hereinafter mentioned, Defendant AMERICAN AIRLINES GROUP INC. (\"AMERICAN AIRLINES\") was and still is a domestic corporation incorporated in the State of Delaware with its principal place of business in Texas. 3. At all times hereinafter mentioned, Defendant AMERICAN AIRLINES INC. was and still is a foreign corporation authorized to do business in the State of New York.",
"4. At all times herciñafter mentioned, Defendant JANE DOE was and still is an individual over the age of eighteen, and a resident and citizen of the State of New York, County of New York. JER-ARNOLD-WINSTON 1 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 5RECEIVED of 12 PageID #: 30 NYSCEF: 09/05/2019 5. At all times hereinafter mentioned, Defendant AMERICAN AIRLINES INC. (\"AMERICAN INC\") was and still is a domestic corporation incorporated in the State of Delaware with its principal place of business in Texas. 6. Upon information and belief, at all relevant times, AMERICAN AIRLINES is a common carrier and operated cotiliileioial flights and operated the planes thereon.",
"7. Upon information and belief, at all relevant times, AMERICAN AIRLINES owned the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 8. Upon information and belief, at all relevant times, AMERICAN AIRLINES leased the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 9. Upon information and belief, at all relevant times, AMERICAN AIRLINES was and still is responsible for maintaining the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 10. Upon information and belief, at all relevant times, AMERICAN AIRLINES was and still does operate for maintaining the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 11.",
"Upon information and belief, at all relevant times, AMERICAN AIRLINES was and still is a common carrier for the planes traversing the airways, including, but not limited to a 2 NER-ARNOLD•WINSTON 2 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 6RECEIVED of 12 PageID #: 31 NYSCEF: 09/05/2019 plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 12. Upon information and belief, at all relevant times, AMERICAN AIRLINES was and still is responsible for providing safe passage for its paying customers on board the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 13. Upon information and belief, at all relevant times, AMERICAN AIRLINES had the duty to protect and ñiaintain the physical safety of its customers and patrons while on board the plane, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017.",
"14. Upon information and belief, at all relevant times, AMERICAN INC is a common carrier and operated commercial flights and operated the planes thereon. 15. Upon information and belief, at all relevant times, AMERICAN INC owned the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 16. Upon information and belief, at all relevant times, AMERICAN INC leased the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 17. Upon information and belief, at all relevant times, AMERICAN INC was and still is responsible for maintaining the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. ER-ARNOLD•WINSTON 3 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC.",
"NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 7RECEIVED of 12 PageID #: 32 NYSCEF: 09/05/2019 18. Upon information and belief, at all relevant times, AMERICAN INC was and still does operate for maintaining the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 19. Upon information and belief, at all relevant times, AMERICAN INC was and still is a common carrier for the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 20. Upon information and belief, at all relevant times, AMERICAN INC was and still is responsible for providing safe passage for its paying customers on board the planes traversing the airways, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 21.",
"Upon information and belief, at all relevant times, AMERICAN INC had the duty to protect and maintain the physical safety of its customers and patrons while on board the plane, including, but not limited to a plane designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 22. On August 28, 2017, Defendant JANE DOE was a lawful paying customer of AMERICAN AIRLINES and/or AMERICAN INC, on board flight AA366 from New York (JFK) to San Diego.",
"23. On August 28, 2017, Plaintiff SHIRLEY BROWN was a lawful paying customer of AMERICAN AIRLINES and/or AMERICAN INC, boarding flight AA366 from New York (JFK) to San Diego. 4 NER-ARNOLD- WINSTON 4 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 8RECEIVED of 12 PageID #: 33 NYSCEF: 09/05/2019 24. On August 28, 2017, Plaintiff SHIRLEY BROWN was a lawful paying customer of AMERICAN AIRLINES and/or AMERICAN INC, boarding flight AA366 from New York (JFK) to San Diego when she was seriously injured by JANE DOE before take-off. 25. On August 28, 2017, Plaintiff SHIRLEY BROWN was boarding flight AA366 from New York (JFK) to San Diego, which was docked/parked at the gate at John F. Kennedy Airport in Queens, New York, when a heavy piece of luggage was negligently caused to fall on her head, which caused serious injuries including, but not limited to head injuries including but not limited to, traumatic brain injuries, post-concussion syndrome, migraines, face numbness and nerve damage. 26. Upon information and belief, Defendants AMERICAN AIRLINES and/or AMERICAN INC, its agents, servants, and/or employees, were negligent in: creating and/or allowing the plane and its overhead compartments to become and remain in a dangerous, defective and/or unsafe condition, including, but not limited to an inadequate warning of the danger of falling luggage; causing and/or allowing flight AA366 and the overhead luggage to be maintained in a negligent and careless manner; creating and/or permitting a dangerous, defective and/or unsafe condition to exist and/or remain on flight AA366; failing to correct and/or change the dangerous, defective and/or unsafe condition although AMERICAN AIRLINES and/or AMERICAN INC, their agents, servants and/or employees knew of the existence of the dangerous and unsafe condition; failing to warn Plaintiff and others lawfully upon its planes of the dangerous and defective condition; failing to maintain and/or properly place warning signs, or other devices upon flight AA366 to warn Plaintiff and others lawfully upon its plane of the IER-ARNOLD-WINSTON 5 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO.",
"706805/2019 Case NYSCEF DOC. NO.1:20-cv-01092-AMD-JO 4 Document 1-5 Filed 02/27/20 Page 9RECEIVED of 12 PageID #: 34 NYSCEF: 09/05/2019 dangerous, defective and/or unsafe condition; in failing to inspect and/or properly inspect the aforementioned area of the occurrence; failing to repair and/or properly repair the dangerous, defective and/or unsafe condition existing at the aforementioned flight AA366; failing to have competent personnel operate, inspect, oversee and maintain the overhead compartments aboard the plane and particularly the one from flight AA366; failing to instruct such personnel to properly operate, inspect and maintain the overhead compartments; failing to properly supervise such personnel and other passengers aboard the plane; failing to have competent personnel to operate, control and oversee the handling of the overhead compartments; violating those statutes, ordinances, rules and regulations relating to the maintenance, repair, oversight and complicit conduct regending common carriers overseeing the loading of overhead compartments on a plane; failing to properly create, design, configure and construct its planes for safe passage for all of its customers; failing to exercise that degree of care required under the circumstances. 27. That on August 28, 2017, Defendants AMERICAN AIRLINES and/or AMERICAN INC were negligent, careless and reckless in supervising its agents, servants, employees, licensees, contractors and/or subcontractors at the subject airplañe; was negligent, careless and recldess in failing to safely own, operate, manage and/or control said airplane and the persons thereat; in failing to prevent the aforesaid physical injury from occurring; and in failing to come to the accietance and aid of the Plaintiff after the injurious event.",
"28. The aforementioned occurrence took place due to the negligence of the Defendants, AMERICAN AIRLINES and/or AMERICAN INC, its agents, servants, employees, licensees, contractors and/or subcontractors, acting within the scope of their authority, within the 6 NER-ARNOLD- WINSTON 6 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. 1:20-cv-01092-AMD-JO NO. 4 Document 1-5 Filed 02/27/20 Page 10 of 12 PageID RECEIVED #: 35 NYSCEF: 09/05/2019 scope of their employment and in the furtherance of their agency. 29. Upon information and belief, Defendants AMERICAN AIRLINES and/or AMERICAN INC had actual and/or constructive notice of the dangerous, defective and/or unsafe condition of its planes, including, but not limited to a designated flight AA366 from New York (JFK) to San Diego on August 28, 2017. 30. Upon information and belief, Defendant JANE DOE caused the dangerous, defective and/or unsafe condition on flight AA366 from New York (JFK) to San Diego on August 28, 2017. 31. Upon information and belief, Defendant JANE DOE was negligent, careless and reckless in causing injuries to Plaintiff during in-flight boarding; in failing to prevent the aforesaid physical injury from occurring; in failing to properly load luggage to the overhead compartment; and in failing to come to the assistance and aid of the Plaintiff after the injurious event on flight AA366 from New York (JFK) to San Diego on August 28, 2017.",
"32. That no negligence on the part of the Plaintiff contributed to the occurrence alleged herein in any manner whatsoever. 33. As a result of the incident, Plaintiff SHIRLEY BROWN has suffered serious injuries, including, but not limited to head injuries including but not limited to, traumatic brain injuries, post-concussion syndrome, migraines, face numbness and nerve damage. As a result of said injuries Plaintiff has become sick, sore, lame and disabled; has suffered, and will continue to suffer pain and anguish in body and mind; and has necessarily received hospital and medical care 7 ER-ARNOLD-WINSTON 7 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO.",
"706805/2019 Case NYSCEF DOC. 1:20-cv-01092-AMD-JO NO. 4 Document 1-5 Filed 02/27/20 Page 11 of 12 PageID RECEIVED #: 36 NYSCEF: 09/05/2019 and treatment for her injuries for which expenses have been and will continue to be incurred. 34. AMERICAN AIRLINES has neglected and refused to adjust or pay Plaintiff's claim. 35. AMERICAN INC has neglected and refused to adjust or pay Plaintiff's claim. 36. This action has been commenced within three (3) years after Plaintiff's claim arose. 37. By reason of the foregoing, Plaintiff SHIRLEY BROWN is entitled to damages upon his claim for pain and suffering, lost wages and economic damages, each in an amount to be determined by a Queens County Jury at the time of trial. WHEREFORE, Plaintiff demands judgment against Defêñdants AMERICAN AIRLINES, JANE DOE and AMEICAN INC in an amount in excess of all courts of lower jurisdiction, to be determined by a Queens County Jury at the time of trial, together with the costs and disbursements of this action and such further relief as may be just. Dated: New York, New York September 5, 2019 LERNER, ARNOLD & WINSTON, LLP Attorneys fo flaintiff .",
"JgeobfLe lb 288 475 Park Avenue So th, Floor New York, New York 10016 (212) 686-4655 8 ER-ARNOLD •WINSTON 8 of 9 FILED: QUEENS COUNTY CLERK 09/05/2019 10:38 AM INDEX NO. 706805/2019 Case NYSCEF DOC. 1:20-cv-01092-AMD-JO NO. 4 Document 1-5 Filed 02/27/20 Page 12 of 12 PageID RECEIVED #: 37 NYSCEF: 09/05/2019 Index No. : Year: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS SHIRLEY BROWN, Plaintiff, -against- AMERICAN AIRLINES GROUP INC., JANE DOE and AMERICAN AIRLINES INC., Defendants. AMENDED SUMMONS AND COMPLAINT Pursuant to 22 NYCRR 130-1.1, the undäaigned, an attorney duly :dm! :::3 to practice law in the State of New York, certifies that, upon i;:for;::ction and belief based upon reasonable inquiry, the c ..;-:,..i in the annexed document are not frivolous. Dated: September 5, 2019 Si;::::::::: p Print Signer's Name: ( Jacob L{Levi e Service of a copy of the within ] is hereby adm!\"cd. Dated: ......................................................... Attorney(s) for LERNER, ARNOLD & WINSTON, LLP 28th 475 Park Avenue South, FlOOr New York, New York 10016 (212) 686-4655 9 of 9"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/144045174/ | 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 . Election/Restrictions Applicant’s election of I in the reply filed on February 26, 2021 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Von Ruedgisch (GB 1170986 A). (Claim 1) Von Ruedgisch (“Von Rue”) discloses a fixture (Figs. 1, 5) capable of assisting in working an aircraft component (68) having an aircraft component surface (Fig. 5). The fixture includes a mount (22, 18, 16) capable of being coupled to a worksurface (surface upon which 10 rests (i.e., floor)) that has a first mount end and a second mount end spaced apart from the first mount end (Figs. 1, 3, 5). The mount includes a collet (22) including the mount front end. The collet defines an aperture (for receiving 23 of rib) and an opening opposite the aperture (screw holes on flange, Figs. 1, 3, 5). The mount also includes a base (16, 18, 14, and screws for (Claim 6) The mount further includes a connector (14) that includes the second mount end. The connector is capable of being coupled to the worksurface for coupling the mount to the worksurface (i.e., floor, Figs. 1, 5). Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Reilly (US Patent No. 1,369,707) in view of Von Ruedgisch (GB 1170986 A). (Claim 1) Reilly discloses a fixture (Figs. 1-4) capable of assisting in working an aircraft component having an aircraft component surface. The fixture includes a mount (Fig. 2), capable of being coupled to a worksurface (Page 1, Lines 39-43), that has a first mount end (at approx.. 13, 15) and a second mount end (at approx.. end of detail 1) spaced apart from the first mount end (Figs. 1, 2). The mount includes a collet (15, 13) including the mount front end. The collet Von Rue discloses a fixture (Figs. 1, 5) capable of assisting in working an aircraft component (68) having an aircraft component surface (Fig. 5). The fixture also includes a rib (66, 60, 56, 23) having a rib surface configured to receive the aircraft component (Figs. 1, 5, 6). The rib surface is capable of being in abutting contact with at least a portion of the aircraft component surface (Figs. 1, 5). An extension (23) extends away from the rib and is capable of being received by the aperture (22) to couple to rib to the mount (Figs. 1, 5). At a time prior to filing it would have been obvious to one of ordinary skill in the art to provide the fixture disclosed in Reilly with a rib as taught by Von Rue in order to connect the rib for working a component having a flat seat surface. (Claim 4) The base (Reilly 5, 1) includes a stationary portion (Reilly 1) and an adjustable portion (Reilly 5) moveably coupled to the stationary portion and the adjustable portion is removably coupled to the collet (Reilly Fig. 2). (Claim 5) The mount is not explicitly disclosed as including a shielding component overlying the base for minimizing exposure of the base to contaminants. Nevertheless, Examiner takes official notice that shielding components for protecting movable parts from debris is well known in the art. Therefore, at a time prior to filing it would have been obvious to one of . Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Reilly (US Patent No. 1,369,707) in view of Von Ruedgisch (GB 1170986 A) further in view of Huang (US Pub. No. 2015/0202693 A1). Reilly discloses that the base may be connected to a worksurface, but the reference fails to explicitly disclose a connector removably connected to other features of the mount adjacent the second end such that is it capable of being mounted within a vice. Huang discloses a connector (11) removably connected to other features of a mount (1) adjacent a second end such that is it capable of being mounted within a vice (Fig. 6). At a time prior to filing it would have been obvious to one of ordinary skill in the art to provide the fixture disclosed in Reilly with a connector and vice as taught by Huang in order to connect the fixture to stably fix a worksurface. Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Reiling et al. (DE 102005001348 A1) in view of Von Ruedgisch (GB 1170986 A). Reiling et al. (“Reiling”) discloses a fixture (Figs. 1-7) capable of assisting in working an aircraft component having an aircraft component surface. The fixture includes a mount (Fig. 1), capable of being coupled to a worksurface (via 3), that has a first mount end (at approx.. 25) and a second mount end (at approx.. end of detail 4) spaced apart from the first mount end (Figs. 1, 2). The mount includes a collet (25) including the mount front end. The collet defines an aperture (at top end of 25; Figs. 1, 2) and an opening opposite the aperture (for screw and nut to connect to 24 of base). The mount also includes a base (20-24) that is disposed adjacent to the second mount end (Figs. 1, 2). The opening is capable of receiving the base to removably couple Von Rue discloses a fixture (Figs. 1, 5) capable of assisting in working an aircraft component (68) having an aircraft component surface (Fig. 5). The fixture also includes a rib (66, 60, 56, 23) having a rib surface configured to receive the aircraft component (Figs. 1, 5, 6). The rib surface is capable of being in abutting contact with at least a portion of the aircraft component surface (Figs. 1, 5). An extension (23) extends away from the rib and is capable of being received by the aperture (22) to couple to rib to the mount (Figs. 1, 5). At a time prior to filing it would have been obvious to one of ordinary skill in the art to provide the fixture disclosed in Reiling with a rib as taught by Von Rue in order to connect the rib for working a component having a flat seat surface. Response to Arguments Applicant's arguments filed February 23, 2021 have been fully considered but they are not persuasive. Applicant argues that the prior art of record fails to disclose an opening opposite the aperture as per amended claim 1. As indicated in the Rejection above, Examiner disagrees. Under the broadest reasonable interpretation of the prior art of record, an opening opposite to the collet aperture exists in each of the Von Rue and Reilly references. 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 Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN RUFO whose telephone number is (571)272-4604. The examiner can normally be reached on Mon-Thurs. 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, Boyer Ashley can be reached on (571) 272-4502. 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
/RYAN C RUFO/Primary Examiner, Art Unit 3722 | 2021-03-09T12:59:48 | [
"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 . Election/Restrictions Applicant’s election of I in the reply filed on February 26, 2021 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).",
"Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claims 1 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Von Ruedgisch (GB 1170986 A). (Claim 1) Von Ruedgisch (“Von Rue”) discloses a fixture (Figs. 1, 5) capable of assisting in working an aircraft component (68) having an aircraft component surface (Fig. 5).",
"The fixture includes a mount (22, 18, 16) capable of being coupled to a worksurface (surface upon which 10 rests (i.e., floor)) that has a first mount end and a second mount end spaced apart from the first mount end (Figs. 1, 3, 5). The mount includes a collet (22) including the mount front end. The collet defines an aperture (for receiving 23 of rib) and an opening opposite the aperture (screw holes on flange, Figs. 1, 3, 5). The mount also includes a base (16, 18, 14, and screws for (Claim 6) The mount further includes a connector (14) that includes the second mount end. The connector is capable of being coupled to the worksurface for coupling the mount to the worksurface (i.e., floor, Figs. 1, 5). Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 1, 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Reilly (US Patent No. 1,369,707) in view of Von Ruedgisch (GB 1170986 A). (Claim 1) Reilly discloses a fixture (Figs. 1-4) capable of assisting in working an aircraft component having an aircraft component surface. The fixture includes a mount (Fig. 2), capable of being coupled to a worksurface (Page 1, Lines 39-43), that has a first mount end (at approx.. 13, 15) and a second mount end (at approx.. end of detail 1) spaced apart from the first mount end (Figs. 1, 2). The mount includes a collet (15, 13) including the mount front end. The collet Von Rue discloses a fixture (Figs. 1, 5) capable of assisting in working an aircraft component (68) having an aircraft component surface (Fig. 5).",
"The fixture also includes a rib (66, 60, 56, 23) having a rib surface configured to receive the aircraft component (Figs. 1, 5, 6). The rib surface is capable of being in abutting contact with at least a portion of the aircraft component surface (Figs. 1, 5). An extension (23) extends away from the rib and is capable of being received by the aperture (22) to couple to rib to the mount (Figs. 1, 5). At a time prior to filing it would have been obvious to one of ordinary skill in the art to provide the fixture disclosed in Reilly with a rib as taught by Von Rue in order to connect the rib for working a component having a flat seat surface.",
"(Claim 4) The base (Reilly 5, 1) includes a stationary portion (Reilly 1) and an adjustable portion (Reilly 5) moveably coupled to the stationary portion and the adjustable portion is removably coupled to the collet (Reilly Fig. 2). (Claim 5) The mount is not explicitly disclosed as including a shielding component overlying the base for minimizing exposure of the base to contaminants. Nevertheless, Examiner takes official notice that shielding components for protecting movable parts from debris is well known in the art. Therefore, at a time prior to filing it would have been obvious to one of . Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Reilly (US Patent No.",
"1,369,707) in view of Von Ruedgisch (GB 1170986 A) further in view of Huang (US Pub. No. 2015/0202693 A1). Reilly discloses that the base may be connected to a worksurface, but the reference fails to explicitly disclose a connector removably connected to other features of the mount adjacent the second end such that is it capable of being mounted within a vice. Huang discloses a connector (11) removably connected to other features of a mount (1) adjacent a second end such that is it capable of being mounted within a vice (Fig. 6).",
"At a time prior to filing it would have been obvious to one of ordinary skill in the art to provide the fixture disclosed in Reilly with a connector and vice as taught by Huang in order to connect the fixture to stably fix a worksurface. Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Reiling et al. (DE 102005001348 A1) in view of Von Ruedgisch (GB 1170986 A). Reiling et al. (“Reiling”) discloses a fixture (Figs. 1-7) capable of assisting in working an aircraft component having an aircraft component surface. The fixture includes a mount (Fig. 1), capable of being coupled to a worksurface (via 3), that has a first mount end (at approx.. 25) and a second mount end (at approx.. end of detail 4) spaced apart from the first mount end (Figs. 1, 2).",
"The mount includes a collet (25) including the mount front end. The collet defines an aperture (at top end of 25; Figs. 1, 2) and an opening opposite the aperture (for screw and nut to connect to 24 of base). The mount also includes a base (20-24) that is disposed adjacent to the second mount end (Figs. 1, 2). The opening is capable of receiving the base to removably couple Von Rue discloses a fixture (Figs. 1, 5) capable of assisting in working an aircraft component (68) having an aircraft component surface (Fig. 5). The fixture also includes a rib (66, 60, 56, 23) having a rib surface configured to receive the aircraft component (Figs. 1, 5, 6). The rib surface is capable of being in abutting contact with at least a portion of the aircraft component surface (Figs.",
"1, 5). An extension (23) extends away from the rib and is capable of being received by the aperture (22) to couple to rib to the mount (Figs. 1, 5). At a time prior to filing it would have been obvious to one of ordinary skill in the art to provide the fixture disclosed in Reiling with a rib as taught by Von Rue in order to connect the rib for working a component having a flat seat surface. Response to Arguments Applicant's arguments filed February 23, 2021 have been fully considered but they are not persuasive.",
"Applicant argues that the prior art of record fails to disclose an opening opposite the aperture as per amended claim 1. As indicated in the Rejection above, Examiner disagrees. Under the broadest reasonable interpretation of the prior art of record, an opening opposite to the collet aperture exists in each of the Von Rue and Reilly references. 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 Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN RUFO whose telephone number is (571)272-4604.",
"The examiner can normally be reached on Mon-Thurs. 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, Boyer Ashley can be reached on (571) 272-4502. 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 /RYAN C RUFO/Primary Examiner, Art Unit 3722"
]
| 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 |
1 Reported in 183 P.2d 813. MILLARD, J., dissents. *Page 576 The facts in this case are not in dispute. Plaintiff, a resident and taxpayer of the city of Vancouver, Washington, brought this action for a writ of mandate to compel defendants, the mayor and commissioners of the city of Vancouver, to pass an ordinance or submit it to a vote of the city electors. The 1940 census gave Vancouver a population of 18,788. On June 15, 1942, the city, being then a municipal corporation of the third class, adopted the commission form of government under which it is now operated. Plaintiff filed with the city clerk of Vancouver a petition which conformed with the provisions of Rem. Rev. Stat., § 9110 [P.P.C. § 292-41], concerning special elections under the city's form of government. This petition followed the provisions of Rem. Rev. Stat., §§ 8951, 8952, 8953, and 8954 [P.P.C. §§ 364-3, -5, -7, -9] which sections provide that a city of more than twenty thousand population may adopt a charter and qualify as a city of the first class. The city clerk found the petition to be sufficient, made his certificate to that effect, and presented the petition to the defendant commissioners. The petition requested the mayor and city commissioners to enact or submit to a vote of the people a proposed ordinance contained in the petition. The proposed ordinance, if passed, would initiate the statutory proceedings to adopt a charter and to qualify the city of Vancouver as a city of the first class. The defendant mayor and commissioners have refused either to enact the ordinance or to submit it to a vote of the people, and they will continue to refuse to act unless ordered by this court to do so. The superior court of Clark county entered judgment, ordering defendants forthwith to take action upon the petition *Page 577 by enacting the ordinance or by submitting it to a vote of the people of the city of Vancouver, and, further, ordered issuance of a peremptory writ of mandate compelling such action. Defendants, the mayor and commissioners of the city of Vancouver, have appealed. Appellants claim error because of the fact that the city of Vancouver adopted the commission form of government on June 15, 1942, and Rem. Rev. Stat., § 9112 [P.P.C. § 392-45], provides, in part, as follows: "Any city which shall have operated for more than six years under the provisions of this act may abandon such organization hereunder and accept the provisions of the general law of the state of Washington applicable to cities of its population." The petition upon which this action is based was filed with the city clerk of Vancouver on February 13, 1946, and appellants claim that, in the event the commissioners of the city of Vancouver enacted this ordinance or submitted it to a vote of the people, they would be violating the provisions of Rem. Rev. Stat., § 9112, by requiring the abandonment of the commission form of government before the expiration of the six-year period. Respondent claims that the language of Rem. Rev. Stat., § 9112, is not exclusive, but is simply one method of abandoning the commission form of government, and that, under Art. XI, § 10, of our state constitution, the residents of a city containing twenty thousand or more inhabitants have a constitutional right to frame a charter for their own government, and that this constitutional right cannot be abrogated, restricted, or limited in any manner by the legislature. This section of the constitution provides: "Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed. Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith; and cities or *Page 578 towns heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall be subject to and controlled by general laws. Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had, at which election there shall be chosen by the qualified electors of said city fifteen freeholders thereof, who shall have been residents of said city for a period of at least two years preceding their election, and qualified electors, whose duty it shall be to convene within ten days after their election, and prepare and propose a charter for such city. Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof, and supersede any existing charter, including amendments thereto, and all special laws inconsistent with such charter. Said proposed charter shall be published in two daily newspapers published in said city for at least thirty days prior to the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given for at least ten days before the day of election in all election districts of said city. Said elections may be general or special elections, and, except as herein provided, shall be governed by the law regulating and controlling general or special elections in said city. Such charter may be amended by proposals therefor submitted by the legislative authority of such city to the electors thereof at any general election, after notice of said submission published as above specified, and ratified by a majority of the qualified electors voting thereon. In submitting any such charter or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others." The first legislature that met, after the adoption of the constitution, passed Laws of 1890, chapter 7, p. 140, § 12 (Rem. Rev. Stat., § 8933 [P.P.C. § 391-3]), which has been modified, but is still the law, and which provides, in part, that cities having twenty thousand or more inhabitants, *Page 579 according to the last preceding Federal or state census, shall constitute cities of the first class, and shall be organized and governed under the laws relating to cities authorized to frame and adopt their own charters. The same legislature passed the following acts, which are still the law: Laws of 1890, chapter 7, p. 143, § 23 (Rem. Rev. Stat., § 8947 [P.P.C. § 364-1]): "Cities of the first class shall be organized and governed according to the law providing for the government of cities having a population of twenty thousand or more inhabitants, in accordance with section ten, article eleven (11), of the constitution of this state." Laws of 1890, p. 215, § 1 (Rem. Rev. Stat., § 8951): "Any city now having, or which may hereafter have, a population of twenty thousand or more inhabitants may frame a charter for its own government." Laws of 1890, p. 216, § 2 (Rem. Rev. Stat., § 8952), provides for a census enumeration to determine the city's population. [1] In the interpretation of constitutional provisions, courts are required to give effect to the intent and purpose of the framers. In 16 C.J.S. 51, § 16, the rule is stated as follows: "The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. Effect should be given to the purpose indicated by a fair interpretation of the language used. The intent may be shown by implications as well as by express provisions." In 1 Cooley's Constitutional Limitations (8th ed.) 124, 127, the same rule is stated as follows: "The object of construction, as applied to a written constitution, is to give effect to the intent of the people inadopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, *Page 580 and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. . . . "`Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which itexpresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.'" Rottschaefer on Constitutional Law, p. 18, states the rule as follows: "The judicial duty in passing on the constitutionality of legislation is to determine its conformity to constitutional requirements. The purpose is to ascertain the intention of the people from whom the constitution emanated. The most important single factor in determining that intention is the language in which it is expressed." In examining this section of the constitution, we find that the verbs "shall" and "may" are used, and it is important to consider the effect of these words in determining whether the constitutional provision is mandatory or permissive. The distinction between these words is set out in 50 Am. Jur. 36, § 18: "Statutes, or particular provisions of statutes, may be mandatory or prohibitory, or they may be directory, permissive, or discretionary, or one provision of a statute may be mandatory, and another directory. Statutes may also be permissive as to some matters and mandatory as to others." On p. 47, § 24, of the same text, it is stated: "There is no well-defined rule by which directory provisions in a statute may, in all circumstances, be distinguished from those which are mandatory. In the *Page 581 determination of this question, as of every other question of statutory construction, the prime object is to ascertain the legislative intention as disclosed by the terms of the statute, in relation to the scope, history, context, provisions, and subject matter of the legislation, the spirit or nature of the act, the evil intended to be remedied, and the general object sought to be accomplished." And, on p. 49, § 28, the rule is given as follows: "The intention of the legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof. Words or phrases which are generally regarded as making a provision mandatory, include `shall,' and `must.' On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary. This is true of the word, `may.'" [2] In 16 C.J.S. 120, § 61, the rule is stated as follows: "As stated in Corpus Juris, it is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest. Usually, therefore, constitutional provisions are mandatory rather than directory, and there are expressions to the effect that all constitutional provisions are mandatory. The intention of those who framed and adopted the constitution has, however, been considered, and, while there is a strong presumption in favor of its being mandatory, according to some cases, certain detailed provisions are to be treated as directory only, and if it appears from the express terms of a provision, or by necessary implication from the language used, that it was intended to be directory only, it will be so construed. "A declaration of a constitution that the provisions of the constitution are mandatory, or mandatory and prohibitory, unless by express words they are declared to be otherwise, has been considered in declaring or recognizing that particular provisions are mandatory. Such a declaration applies to all provisions of the constitution. "The word `shall' or `ought,' as used in a constitutional provision, is usually imperative or mandatory, and the word `may' does not necessarily have a permissive import, but sometimes means `shall' or `must.' "Mandatory constitutional provisions are binding on all departments of the government. Long usage can neither *Page 582 repeal, nor justify the violation of, such provisions, and disobedience or evasion is not permissible, even though the best interests of the public might apparently be promoted in some respects." In the case of Spokane County ex rel. Sullivan v. Glover,2 Wn.2d 162, 97 P.2d 628, this court had under consideration the use of the verb "shall" in discussing a statute regarding the collection of taxes, and we made the following observation: "Generally speaking, however, where the provisions affect the public interest or are intended to protect a private citizen against loss or injury to his property, they are held to be mandatory rather than directory. 59 C.J. 1076 et seq., § 633; 25 R.C.L. 770 et seq., §§ 17, 18. Always, however, the prime consideration is the intent of the legislature as reflected in its general, as well as its specific, legislation upon the particular subject." In examining this section of our state constitution, we find that it starts out by providing that the legislature, by general laws, shall provide for the incorporation, organization, and classification of cities in proportion to population, and, pursuant to this provision of the constitution, the legislature of 1889-1890 passed the laws heretofore referred to (Rem. Rev. Stat., §§ 8933, 8947, 8951, 8952). [3] The same section of the constitution then provides that such laws may be altered, amended, or repealed. Following this is a provision that cities and towns organized or incorporated before the adoption of the constitution may become organized under the general laws. Then there is a provision that cities or towns ". . . heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall be subject to and controlled by general laws." We have held, in numerous cases, beginning with Tacoma Gas Electric Light Co. v. Tacoma, 14 Wn. 288, 44 P. 655, and down to Martin v. Tollefson, 24 Wn.2d 211, 163 P.2d 594, that city charters are subject to the control of the general laws of the state. This interpretation is sound because of the specific provision of the constitution *Page 583 that all city charters shall be subject to and controlled by general laws. [4] The next provision is controlling of the instant case, and will, therefore, be repeated. It is: ". . . Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had, at which election there shall be chosen by the qualified electors of said city fifteen freeholders thereof, . . ." It will be noticed that the constitutional provision is that ".. . Any city containing a population of twenty thousandinhabitants or more shall be permitted to frame a charter . . ." (Italics ours.) The framers of the constitution could not have used more emphatic language in granting a right to the inhabitants of a city containing a population of twenty thousand or more. There is no qualification or reservation of this right. [5, 6] Of course, in construing this constitutional provision, we must keep in mind the rule that the constitution is a limitation of power, and that the legislature is supreme, except as its power is limited by the constitution. There is a further rule that all doubts or ambiguities are to be resolved in favor of the constitutionality of an act of the legislature. SeeState ex rel. Banker v. Clausen, 142 Wn. 450, 253 P. 805, and the cases therein cited. [7] Although this particular question has never been directly passed upon, we have at least indirectly held that the right of a city, with a population of more than twenty thousand people, to adopt a charter and become a city of the first class is inviolate. The case that comes closest to this question isWalker v. Spokane, 62 Wn. 312, 113 P. 775, Ann. Cas. 1912C, 994, in which the question involved was the right of the people of the city of Spokane to adopt a charter providing for five commissioners, with certain limitations on the authority of the mayor, and dividing the city government into five different departments, the claim being *Page 584 made that the charter violated certain statutes. In discussing this question, we stated: "It may be conceded from the outset that, while cities of the first class have the constitutional right to frame their own charters, the charters so framed are subject to, and controlled by, general laws. Const., art 11, § 10. And this is all the constitutional limitation that there is. So that it becomes our duty to see if any of the provisions of the charter are in contravention of any legislative enactment." Apparently, as early as the above case, which was decided in 1911, this court assumed that cities of the first class had a constitutional right to frame their own charters and that "the charters so framed are subject to, and controlled by, general laws." And then we stated: "And this is all the constitutional limitation that there is." The above quotation was set forth in full in the case of Stateex rel. Ennis v. Superior Court, 153 Wn. 139, 279 P. 601, and, in the case of State ex rel. Griffiths v. Superior Court,177 Wn. 619, 33 P.2d 94, we stated as follows: "While the charter framed by the city is subject to, and controlled by, general laws, the limitation simply means that the provisions of the charter shall not be in contravention of any legislative enactment. Walker v. Spokane, 62 Wn. 312,113 P. 775, Ann. Cas. 1912C, 994." The same point, in the case of Walker v. Spokane, supra, was cited with approval in the case of Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348. In the case of Hindman v. Boyd, 42 Wn. 17, 84 P. 609, a writ of mandate had been issued in the trial court to compel the municipal authorities to submit certain charter amendments to a vote of the people, and, although the following was not pertinent to the decision, this court stated: "It is the evident policy of the state constitution that the charters of cities of the first class and amendments thereto shall be subject to the control of general laws. Const., art. 11, § 10. The power is vested in the people to adopt their own charter, and also to amend it; but the matter is subject to the control of general laws." The case of Hartig v. Seattle, 53 Wn. 432, 102 P. 408, involved the validity of an amendment to the charter of the *Page 585 city of Seattle, commonly known as the initiative and referendum amendment, and the effect of an amendment which was adopted pursuant thereto. The referendum provided: "`. . . and there is further reserved by a provision made for the exercise by the people of Seattle of the power, at their own option, to require submission to the vote of the qualified electors, and thereby to approve or reject at the polls any ordinance, or any section, item or part of any ordinance, dealing with any matter within the realm of local affairs or municipal business, which may have passed the city council and mayor.'" The question involved was whether an application for a license to sell intoxicating liquors could be acted upon by the mayor and city council, or whether it should have been submitted to the voters. In discussing the question, this court said: "The constitution provides that any city, containing a population of 20,000 inhabitants or more, shall be permitted to frame a charter for its own government, consistent with and subject to the constitution and laws of this state. So that, under the power of the constitution, subject to the limitation above mentioned, there can be no question of the right of the city to adopt and carry into effect the initiative and referendum plan of government; for it can scarcely be contended that this plan is inconsistent with a republican form of government, the central idea of which is a government by the people." In the case of State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 146 P.2d 543, the relator had filed with the clerk of the city council a petition, in which the signers had demanded that the city council submit to the voters of Seattle a proposed amendment to the city charter. The petitioners had asked that the proposed amendment be submitted at an approaching election, and the city council rejected the petition as not having been filed within the time required by law, directing, however, that the petition be placed on file. Relator asked for a writ of mandamus in the trial court, and an order was entered denying the writ and dismissing the proceedings. The case came before this court on a writ of certiorari, and we held that the constitutional provision in *Page 586 Art. XI, § 10, of the constitution, requiring the giving of notice is mandatory, and that the phrase "legislative authority," as used therein, includes the voters, acting by way of an initiative or referendum. In discussing the question, we stated: "Rem. Rev. Stat., § 9090 [P.C. § 897], provides for a commission form of government in cities having a population of less than thirty thousand persons. This form of government was not known in our state prior to the enactment of chapter 116, Laws of 1911, but it would be unreasonable to construe the constitutional provision as not now applying to a municipality which has adopted that form of city government. It is true that, at the time of the adoption of the constitution, the people in this state did not participate in legislation by means of the initiative or referendum, but since the enactment of chapter 186, Laws of 1903, the people of any city having a population of over twenty thousand persons may so participate directly in their municipal government, and without question are an important portion of the legislative authority of such city." In discussing this section of the constitution, we stated, inMartin v. Tollefson, supra, at p. 216: "We agree with appellants that § 10 of Art. XI of the state constitution is chiefly concerned with grants. The people, under our system of government, are the source of all governmental power, and they adopted the constitution for the purpose of creating certain agencies through which that power should be exercised. In so doing, they made a grant of legislative power directly to the cities in § 10, Art. XI. We quote the exact terms of this grant: "`Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state.'" Appellants cite the cases of State ex rel. Alexander v.Evanson, 64 N.D. 603, 255 N.W. 98, and Meier v. City Council ofBoise City, 43 Idaho 693, 254 P. 221. We have examined both of these cases and, since they are not based upon the same constitutional provision which we have in this state, their holdings do not apply to the instant case. The judgment of the lower court is affirmed. MALLERY, C.J., JEFFERS, and HILL, JJ., concur. *Page 587 | 07-06-2016 | [
"1 Reported in 183 P.2d 813. MILLARD, J., dissents. *Page 576 The facts in this case are not in dispute. Plaintiff, a resident and taxpayer of the city of Vancouver, Washington, brought this action for a writ of mandate to compel defendants, the mayor and commissioners of the city of Vancouver, to pass an ordinance or submit it to a vote of the city electors. The 1940 census gave Vancouver a population of 18,788. On June 15, 1942, the city, being then a municipal corporation of the third class, adopted the commission form of government under which it is now operated. Plaintiff filed with the city clerk of Vancouver a petition which conformed with the provisions of Rem. Rev. Stat., § 9110 [P.P.C. § 292-41], concerning special elections under the city's form of government. This petition followed the provisions of Rem. Rev. Stat., §§ 8951, 8952, 8953, and 8954 [P.P.C. §§ 364-3, -5, -7, -9] which sections provide that a city of more than twenty thousand population may adopt a charter and qualify as a city of the first class. The city clerk found the petition to be sufficient, made his certificate to that effect, and presented the petition to the defendant commissioners. The petition requested the mayor and city commissioners to enact or submit to a vote of the people a proposed ordinance contained in the petition.",
"The proposed ordinance, if passed, would initiate the statutory proceedings to adopt a charter and to qualify the city of Vancouver as a city of the first class. The defendant mayor and commissioners have refused either to enact the ordinance or to submit it to a vote of the people, and they will continue to refuse to act unless ordered by this court to do so. The superior court of Clark county entered judgment, ordering defendants forthwith to take action upon the petition *Page 577 by enacting the ordinance or by submitting it to a vote of the people of the city of Vancouver, and, further, ordered issuance of a peremptory writ of mandate compelling such action. Defendants, the mayor and commissioners of the city of Vancouver, have appealed. Appellants claim error because of the fact that the city of Vancouver adopted the commission form of government on June 15, 1942, and Rem. Rev.",
"Stat., § 9112 [P.P.C. § 392-45], provides, in part, as follows: \"Any city which shall have operated for more than six years under the provisions of this act may abandon such organization hereunder and accept the provisions of the general law of the state of Washington applicable to cities of its population.\" The petition upon which this action is based was filed with the city clerk of Vancouver on February 13, 1946, and appellants claim that, in the event the commissioners of the city of Vancouver enacted this ordinance or submitted it to a vote of the people, they would be violating the provisions of Rem. Rev.",
"Stat., § 9112, by requiring the abandonment of the commission form of government before the expiration of the six-year period. Respondent claims that the language of Rem. Rev. Stat., § 9112, is not exclusive, but is simply one method of abandoning the commission form of government, and that, under Art. XI, § 10, of our state constitution, the residents of a city containing twenty thousand or more inhabitants have a constitutional right to frame a charter for their own government, and that this constitutional right cannot be abrogated, restricted, or limited in any manner by the legislature. This section of the constitution provides: \"Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed.",
"Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith; and cities or *Page 578 towns heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall be subject to and controlled by general laws. Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had, at which election there shall be chosen by the qualified electors of said city fifteen freeholders thereof, who shall have been residents of said city for a period of at least two years preceding their election, and qualified electors, whose duty it shall be to convene within ten days after their election, and prepare and propose a charter for such city.",
"Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof, and supersede any existing charter, including amendments thereto, and all special laws inconsistent with such charter. Said proposed charter shall be published in two daily newspapers published in said city for at least thirty days prior to the day of submitting the same to the electors for their approval, as above provided. All elections in this section authorized shall only be had upon notice, which notice shall specify the object of calling such election, and shall be given for at least ten days before the day of election in all election districts of said city. Said elections may be general or special elections, and, except as herein provided, shall be governed by the law regulating and controlling general or special elections in said city. Such charter may be amended by proposals therefor submitted by the legislative authority of such city to the electors thereof at any general election, after notice of said submission published as above specified, and ratified by a majority of the qualified electors voting thereon.",
"In submitting any such charter or amendment thereto, any alternate article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others.\" The first legislature that met, after the adoption of the constitution, passed Laws of 1890, chapter 7, p. 140, § 12 (Rem. Rev. Stat., § 8933 [P.P.C. § 391-3]), which has been modified, but is still the law, and which provides, in part, that cities having twenty thousand or more inhabitants, *Page 579 according to the last preceding Federal or state census, shall constitute cities of the first class, and shall be organized and governed under the laws relating to cities authorized to frame and adopt their own charters.",
"The same legislature passed the following acts, which are still the law: Laws of 1890, chapter 7, p. 143, § 23 (Rem. Rev. Stat., § 8947 [P.P.C. § 364-1]): \"Cities of the first class shall be organized and governed according to the law providing for the government of cities having a population of twenty thousand or more inhabitants, in accordance with section ten, article eleven (11), of the constitution of this state.\" Laws of 1890, p. 215, § 1 (Rem. Rev. Stat., § 8951): \"Any city now having, or which may hereafter have, a population of twenty thousand or more inhabitants may frame a charter for its own government.\"",
"Laws of 1890, p. 216, § 2 (Rem. Rev. Stat., § 8952), provides for a census enumeration to determine the city's population. [1] In the interpretation of constitutional provisions, courts are required to give effect to the intent and purpose of the framers. In 16 C.J.S. 51, § 16, the rule is stated as follows: \"The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. Effect should be given to the purpose indicated by a fair interpretation of the language used. The intent may be shown by implications as well as by express provisions.\" In 1 Cooley's Constitutional Limitations (8th ed.)",
"124, 127, the same rule is stated as follows: \"The object of construction, as applied to a written constitution, is to give effect to the intent of the people inadopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, *Page 580 and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. . . . \"`Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which itexpresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them.",
"If, thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.'\" Rottschaefer on Constitutional Law, p. 18, states the rule as follows: \"The judicial duty in passing on the constitutionality of legislation is to determine its conformity to constitutional requirements. The purpose is to ascertain the intention of the people from whom the constitution emanated. The most important single factor in determining that intention is the language in which it is expressed.\" In examining this section of the constitution, we find that the verbs \"shall\" and \"may\" are used, and it is important to consider the effect of these words in determining whether the constitutional provision is mandatory or permissive. The distinction between these words is set out in 50 Am. Jur.",
"36, § 18: \"Statutes, or particular provisions of statutes, may be mandatory or prohibitory, or they may be directory, permissive, or discretionary, or one provision of a statute may be mandatory, and another directory. Statutes may also be permissive as to some matters and mandatory as to others.\" On p. 47, § 24, of the same text, it is stated: \"There is no well-defined rule by which directory provisions in a statute may, in all circumstances, be distinguished from those which are mandatory. In the *Page 581 determination of this question, as of every other question of statutory construction, the prime object is to ascertain the legislative intention as disclosed by the terms of the statute, in relation to the scope, history, context, provisions, and subject matter of the legislation, the spirit or nature of the act, the evil intended to be remedied, and the general object sought to be accomplished.\"",
"And, on p. 49, § 28, the rule is given as follows: \"The intention of the legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof. Words or phrases which are generally regarded as making a provision mandatory, include `shall,' and `must.' On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary. This is true of the word, `may.'\" [2] In 16 C.J.S. 120, § 61, the rule is stated as follows: \"As stated in Corpus Juris, it is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest. Usually, therefore, constitutional provisions are mandatory rather than directory, and there are expressions to the effect that all constitutional provisions are mandatory. The intention of those who framed and adopted the constitution has, however, been considered, and, while there is a strong presumption in favor of its being mandatory, according to some cases, certain detailed provisions are to be treated as directory only, and if it appears from the express terms of a provision, or by necessary implication from the language used, that it was intended to be directory only, it will be so construed.",
"\"A declaration of a constitution that the provisions of the constitution are mandatory, or mandatory and prohibitory, unless by express words they are declared to be otherwise, has been considered in declaring or recognizing that particular provisions are mandatory. Such a declaration applies to all provisions of the constitution. \"The word `shall' or `ought,' as used in a constitutional provision, is usually imperative or mandatory, and the word `may' does not necessarily have a permissive import, but sometimes means `shall' or `must.' \"Mandatory constitutional provisions are binding on all departments of the government. Long usage can neither *Page 582 repeal, nor justify the violation of, such provisions, and disobedience or evasion is not permissible, even though the best interests of the public might apparently be promoted in some respects.\" In the case of Spokane County ex rel. Sullivan v. Glover,2 Wn.2d 162, 97 P.2d 628, this court had under consideration the use of the verb \"shall\" in discussing a statute regarding the collection of taxes, and we made the following observation: \"Generally speaking, however, where the provisions affect the public interest or are intended to protect a private citizen against loss or injury to his property, they are held to be mandatory rather than directory. 59 C.J. 1076 et seq., § 633; 25 R.C.L.",
"770 et seq., §§ 17, 18. Always, however, the prime consideration is the intent of the legislature as reflected in its general, as well as its specific, legislation upon the particular subject.\" In examining this section of our state constitution, we find that it starts out by providing that the legislature, by general laws, shall provide for the incorporation, organization, and classification of cities in proportion to population, and, pursuant to this provision of the constitution, the legislature of 1889-1890 passed the laws heretofore referred to (Rem. Rev.",
"Stat., §§ 8933, 8947, 8951, 8952). [3] The same section of the constitution then provides that such laws may be altered, amended, or repealed. Following this is a provision that cities and towns organized or incorporated before the adoption of the constitution may become organized under the general laws. Then there is a provision that cities or towns \". . . heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall be subject to and controlled by general laws.\" We have held, in numerous cases, beginning with Tacoma Gas Electric Light Co. v. Tacoma, 14 Wn. 288, 44 P. 655, and down to Martin v. Tollefson, 24 Wn.2d 211, 163 P.2d 594, that city charters are subject to the control of the general laws of the state.",
"This interpretation is sound because of the specific provision of the constitution *Page 583 that all city charters shall be subject to and controlled by general laws. [4] The next provision is controlling of the instant case, and will, therefore, be repeated. It is: \". . . Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and for such purpose the legislative authority of such city may cause an election to be had, at which election there shall be chosen by the qualified electors of said city fifteen freeholders thereof, .",
". .\" It will be noticed that the constitutional provision is that \".. . Any city containing a population of twenty thousandinhabitants or more shall be permitted to frame a charter . . .\" (Italics ours.) The framers of the constitution could not have used more emphatic language in granting a right to the inhabitants of a city containing a population of twenty thousand or more. There is no qualification or reservation of this right. [5, 6] Of course, in construing this constitutional provision, we must keep in mind the rule that the constitution is a limitation of power, and that the legislature is supreme, except as its power is limited by the constitution.",
"There is a further rule that all doubts or ambiguities are to be resolved in favor of the constitutionality of an act of the legislature. SeeState ex rel. Banker v. Clausen, 142 Wn. 450, 253 P. 805, and the cases therein cited. [7] Although this particular question has never been directly passed upon, we have at least indirectly held that the right of a city, with a population of more than twenty thousand people, to adopt a charter and become a city of the first class is inviolate. The case that comes closest to this question isWalker v. Spokane, 62 Wn. 312, 113 P. 775, Ann. Cas. 1912C, 994, in which the question involved was the right of the people of the city of Spokane to adopt a charter providing for five commissioners, with certain limitations on the authority of the mayor, and dividing the city government into five different departments, the claim being *Page 584 made that the charter violated certain statutes. In discussing this question, we stated: \"It may be conceded from the outset that, while cities of the first class have the constitutional right to frame their own charters, the charters so framed are subject to, and controlled by, general laws. Const., art 11, § 10.",
"And this is all the constitutional limitation that there is. So that it becomes our duty to see if any of the provisions of the charter are in contravention of any legislative enactment.\" Apparently, as early as the above case, which was decided in 1911, this court assumed that cities of the first class had a constitutional right to frame their own charters and that \"the charters so framed are subject to, and controlled by, general laws.\" And then we stated: \"And this is all the constitutional limitation that there is.\" The above quotation was set forth in full in the case of Stateex rel. Ennis v. Superior Court, 153 Wn. 139, 279 P. 601, and, in the case of State ex rel. Griffiths v. Superior Court,177 Wn.",
"619, 33 P.2d 94, we stated as follows: \"While the charter framed by the city is subject to, and controlled by, general laws, the limitation simply means that the provisions of the charter shall not be in contravention of any legislative enactment. Walker v. Spokane, 62 Wn. 312,113 P. 775, Ann. Cas. 1912C, 994.\" The same point, in the case of Walker v. Spokane, supra, was cited with approval in the case of Ayers v. Tacoma, 6 Wn.2d 545, 108 P.2d 348. In the case of Hindman v. Boyd, 42 Wn. 17, 84 P. 609, a writ of mandate had been issued in the trial court to compel the municipal authorities to submit certain charter amendments to a vote of the people, and, although the following was not pertinent to the decision, this court stated: \"It is the evident policy of the state constitution that the charters of cities of the first class and amendments thereto shall be subject to the control of general laws.",
"Const., art. 11, § 10. The power is vested in the people to adopt their own charter, and also to amend it; but the matter is subject to the control of general laws.\" The case of Hartig v. Seattle, 53 Wn. 432, 102 P. 408, involved the validity of an amendment to the charter of the *Page 585 city of Seattle, commonly known as the initiative and referendum amendment, and the effect of an amendment which was adopted pursuant thereto. The referendum provided: \"`. . . and there is further reserved by a provision made for the exercise by the people of Seattle of the power, at their own option, to require submission to the vote of the qualified electors, and thereby to approve or reject at the polls any ordinance, or any section, item or part of any ordinance, dealing with any matter within the realm of local affairs or municipal business, which may have passed the city council and mayor.'\" The question involved was whether an application for a license to sell intoxicating liquors could be acted upon by the mayor and city council, or whether it should have been submitted to the voters.",
"In discussing the question, this court said: \"The constitution provides that any city, containing a population of 20,000 inhabitants or more, shall be permitted to frame a charter for its own government, consistent with and subject to the constitution and laws of this state. So that, under the power of the constitution, subject to the limitation above mentioned, there can be no question of the right of the city to adopt and carry into effect the initiative and referendum plan of government; for it can scarcely be contended that this plan is inconsistent with a republican form of government, the central idea of which is a government by the people.\" In the case of State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 146 P.2d 543, the relator had filed with the clerk of the city council a petition, in which the signers had demanded that the city council submit to the voters of Seattle a proposed amendment to the city charter.",
"The petitioners had asked that the proposed amendment be submitted at an approaching election, and the city council rejected the petition as not having been filed within the time required by law, directing, however, that the petition be placed on file. Relator asked for a writ of mandamus in the trial court, and an order was entered denying the writ and dismissing the proceedings. The case came before this court on a writ of certiorari, and we held that the constitutional provision in *Page 586 Art. XI, § 10, of the constitution, requiring the giving of notice is mandatory, and that the phrase \"legislative authority,\" as used therein, includes the voters, acting by way of an initiative or referendum.",
"In discussing the question, we stated: \"Rem. Rev. Stat., § 9090 [P.C. § 897], provides for a commission form of government in cities having a population of less than thirty thousand persons. This form of government was not known in our state prior to the enactment of chapter 116, Laws of 1911, but it would be unreasonable to construe the constitutional provision as not now applying to a municipality which has adopted that form of city government. It is true that, at the time of the adoption of the constitution, the people in this state did not participate in legislation by means of the initiative or referendum, but since the enactment of chapter 186, Laws of 1903, the people of any city having a population of over twenty thousand persons may so participate directly in their municipal government, and without question are an important portion of the legislative authority of such city.\" In discussing this section of the constitution, we stated, inMartin v. Tollefson, supra, at p. 216: \"We agree with appellants that § 10 of Art. XI of the state constitution is chiefly concerned with grants. The people, under our system of government, are the source of all governmental power, and they adopted the constitution for the purpose of creating certain agencies through which that power should be exercised.",
"In so doing, they made a grant of legislative power directly to the cities in § 10, Art. XI. We quote the exact terms of this grant: \"`Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state.'\" Appellants cite the cases of State ex rel. Alexander v.Evanson, 64 N.D. 603, 255 N.W. 98, and Meier v. City Council ofBoise City, 43 Idaho 693, 254 P. 221. We have examined both of these cases and, since they are not based upon the same constitutional provision which we have in this state, their holdings do not apply to the instant case.",
"The judgment of the lower court is affirmed. MALLERY, C.J., JEFFERS, and HILL, JJ., concur. *Page 587"
]
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FILED NOT FOR PUBLICATION APR 26 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTA ROSA MEMORIAL HOSPITAL, No. 15-16650 a California corporation; ST. HELENA HOSPITAL, a California corporation; D.C. No. 3:08-cv-05173-SC QUEEN OF THE VALLEY MEDICAL CENTER, a California corporation; CENTRAL VALLEY GENERAL MEMORANDUM* HOSPITAL, a California corporation; SAN JOAQUIN COMMUNITY HOSPITAL, a California corporation; SAN ANTONIO COMMUNITY HOSPITAL, a California corporation; CHILDREN’S HOSPITAL AT MISSION, a California corporation, dba as CHOC at Mission; SADDLEBACK MEMORIAL MEDICAL CENTER, a California corporation; ORANGE COAST MEMORIAL MEDICAL CENTER, a California corporation; ANAHEIM MEMORIAL MEDICAL CENTER, a California corporation; HOAG MEMORIAL HOSP., a California corporation; HEART HOSPITAL OF BK, LLC, a North Carolina limited liability company, dba Bakersfield Heart Hospital; JOHN MUIR HEALTH, a California corporation, dba John Muir Medical Center-Concord Campus and as John Muir Medical Center-Walnut Creek Campus;
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. SRM ALLIANCE HOSPITAL SERVICES, a California corporation dba Petuluma Valley Hospital; LANCASTER HOSPITAL CORPORATION, a California corporation, dba Lancaster Community Hospital; FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER, a California corporation; MISSION HOSPITAL REGIONAL MEDICAL CENTER, a California corporation, dba Mission Hospital,
Plaintiffs-Appellees,
v.
JENNIFER KENT, Director of the California Department of Health Care Services,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding
Submitted April 21, 2017** San Francisco, California
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,*** District Judge.
The California Department of Health Care Services (“Department”) appeals
the district court’s dismissal of the action below without prejudice and without an
award of costs and fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm. Because the parties are familiar with the history of this case, we need
not recount it here.
I
The district court did not abuse its discretion by dismissing the action below
without prejudice. “A district court should grant a motion for voluntary dismissal
. . . unless a defendant can show that it will suffer some plain legal prejudice as a
result.” Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001) (citing Waller v. Fin
Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987)). “‘[L]egal prejudice’ means
‘prejudice to some legal interest, some legal claim, some legal argument.’” Id.
(citing Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996)).
Plain legal prejudice does not result merely because a dispute remains unresolved,
there is a threat of future litigation, the defendant will be inconvenienced by having
to defend in another forum, or the plaintiff would gain a tactical advantage by that
*** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 3 dismissal. Id. (citations omitted). Our analysis instead “focus[es] on the rights and
defenses available to a defendant in future litigation.” Westlands, 100 F.3d at 97.
An unresolved dispute of the kind here or in Zanowick v. Baxter Healthcare
Corporation, 2017 WL 929203 (9th Cir. 2017), does not constitute prejudice. The
Department argues that it lost the ability to litigate the federal issues in federal
court, the claims are continuing in state court, and summary judgment motions
were before the court. However, this does not constitute plain legal prejudice,
especially when the only procedural protection the Department claims it would
lose in state court is the ability to assert the defense of res judicata. See Zanowick,
2017 WL 929203, at *2 n.2, 4 (noting that “while a change from federal to state
court might create a tactical disadvantage to [defendants], that [is] not legal
prejudice” and finding no abuse of discretion when a decision either dismissing
with or without prejudice was well within the court’s ambit) (quoting Smith, 263
F.3d at 976).
Contrary to the Department’s arguments that Santa Rosa Mem’l Hosp. v.
Douglas, 552 F. App’x 637 (9th Cir. 2014), or Exceptional Child Care Center, Inc.
v. Armstrong, __ U.S. __, 135 S.Ct. 1378, 1385 (2015), left the district court no
discretion to dismiss without prejudice, dismissing either with or without prejudice
was well within the court’s ambit. See, e.g., Milgard Tempering, Inc. v. Selas
4 Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (noting “that dicta have no
preclusive effect”) (internal citation omitted); see also WPP Luxembourg Gamma
Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1058 (9th Cir. 2011) (“District
courts have broad discretion in deciding . . . whether to dismiss actions with or
without prejudice.”).
Because the district court’s assessment of legal prejudice and its grant of the
motion for voluntary dismissal were not based on an erroneous view of the law or a
clearly erroneous assessment of the facts, the court did not abuse its discretion.
II
The district court did not abuse its discretion when it declined to award costs
and attorney’s fees to the Department. Although costs and attorney’s fees are often
imposed on a plaintiff who is granted a voluntary dismissal, a district court does
not automatically abuse its discretion by refusing to award such costs and fees.
Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989).
“In determining whether to award costs . . . to [a] defendant[] after a voluntary
dismissal without prejudice, courts generally consider the following factors: (1)
any excessive and duplicative expense of a second litigation; (2) the effort and
expense incurred by a defendant in preparing for trial; (3) the extent to which the
litigation has progressed; and (4) the plaintiff’s diligence in moving to dismiss.”
5 Williams v. Peralta Cmty. Coll. Dist., 227 F.R.D. 538, 540 (N.D. Cal. April 28,
2005) (quoting 8 James Wm. Moore et al., Moore’s Federal Practice §
41.40[10][d][I] (3d ed. 1999)). The merits of the plaintiff’s case are also relevant.
Id.; see Stevedoring, 889 F.2d at 922.
The Department has incurred duplicative expenses, and summary judgment
motions were before the court. However, the district court did not abuse its
discretion in refusing to order the payment of the Department’s costs and fees as a
condition precedent to the Plaintiffs’ voluntary dismissal without prejudice. The
district court’s decision is justified by its consideration of the legitimate factor of
the merit of the Plaintiffs’ claims. See Stevedoring, 889 F.2d at 922 (finding that
the plaintiff raised a substantial legal question that, upon adverse determination,
was dispositive of the action sufficient to support a decision to dismiss without
prejudice without payment of attorney’s fees); see also Cerciello v. Blackburn
Truck Lines Holding Co. Inc., 917 F.2d 27, at *2 (9th Cir. 1990) (unpublished)
(citing Stevedoring, 889 F.2d at 920–22).
AFFIRMED.1
1 The Plaintiffs’ motions for judicial notice are GRANTED. 6 | 04-26-2017 | [
"FILED NOT FOR PUBLICATION APR 26 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SANTA ROSA MEMORIAL HOSPITAL, No. 15-16650 a California corporation; ST. HELENA HOSPITAL, a California corporation; D.C. No. 3:08-cv-05173-SC QUEEN OF THE VALLEY MEDICAL CENTER, a California corporation; CENTRAL VALLEY GENERAL MEMORANDUM* HOSPITAL, a California corporation; SAN JOAQUIN COMMUNITY HOSPITAL, a California corporation; SAN ANTONIO COMMUNITY HOSPITAL, a California corporation; CHILDREN’S HOSPITAL AT MISSION, a California corporation, dba as CHOC at Mission; SADDLEBACK MEMORIAL MEDICAL CENTER, a California corporation; ORANGE COAST MEMORIAL MEDICAL CENTER, a California corporation; ANAHEIM MEMORIAL MEDICAL CENTER, a California corporation; HOAG MEMORIAL HOSP., a California corporation; HEART HOSPITAL OF BK, LLC, a North Carolina limited liability company, dba Bakersfield Heart Hospital; JOHN MUIR HEALTH, a California corporation, dba John Muir Medical Center-Concord Campus and as John Muir Medical Center-Walnut Creek Campus; * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. SRM ALLIANCE HOSPITAL SERVICES, a California corporation dba Petuluma Valley Hospital; LANCASTER HOSPITAL CORPORATION, a California corporation, dba Lancaster Community Hospital; FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER, a California corporation; MISSION HOSPITAL REGIONAL MEDICAL CENTER, a California corporation, dba Mission Hospital, Plaintiffs-Appellees, v. JENNIFER KENT, Director of the California Department of Health Care Services, Defendant-Appellant.",
"Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding Submitted April 21, 2017** San Francisco, California ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,*** District Judge. The California Department of Health Care Services (“Department”) appeals the district court’s dismissal of the action below without prejudice and without an award of costs and fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the history of this case, we need not recount it here. I The district court did not abuse its discretion by dismissing the action below without prejudice.",
"“A district court should grant a motion for voluntary dismissal . . . unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001) (citing Waller v. Fin Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987)). “‘[L]egal prejudice’ means ‘prejudice to some legal interest, some legal claim, some legal argument.’” Id. (citing Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996)). Plain legal prejudice does not result merely because a dispute remains unresolved, there is a threat of future litigation, the defendant will be inconvenienced by having to defend in another forum, or the plaintiff would gain a tactical advantage by that *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 3 dismissal.",
"Id. (citations omitted). Our analysis instead “focus[es] on the rights and defenses available to a defendant in future litigation.” Westlands, 100 F.3d at 97. An unresolved dispute of the kind here or in Zanowick v. Baxter Healthcare Corporation, 2017 WL 929203 (9th Cir. 2017), does not constitute prejudice. The Department argues that it lost the ability to litigate the federal issues in federal court, the claims are continuing in state court, and summary judgment motions were before the court. However, this does not constitute plain legal prejudice, especially when the only procedural protection the Department claims it would lose in state court is the ability to assert the defense of res judicata. See Zanowick, 2017 WL 929203, at *2 n.2, 4 (noting that “while a change from federal to state court might create a tactical disadvantage to [defendants], that [is] not legal prejudice” and finding no abuse of discretion when a decision either dismissing with or without prejudice was well within the court’s ambit) (quoting Smith, 263 F.3d at 976). Contrary to the Department’s arguments that Santa Rosa Mem’l Hosp. v. Douglas, 552 F. App’x 637 (9th Cir. 2014), or Exceptional Child Care Center, Inc. v. Armstrong, __ U.S. __, 135 S.Ct.",
"1378, 1385 (2015), left the district court no discretion to dismiss without prejudice, dismissing either with or without prejudice was well within the court’s ambit. See, e.g., Milgard Tempering, Inc. v. Selas 4 Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (noting “that dicta have no preclusive effect”) (internal citation omitted); see also WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1058 (9th Cir.",
"2011) (“District courts have broad discretion in deciding . . . whether to dismiss actions with or without prejudice.”). Because the district court’s assessment of legal prejudice and its grant of the motion for voluntary dismissal were not based on an erroneous view of the law or a clearly erroneous assessment of the facts, the court did not abuse its discretion. II The district court did not abuse its discretion when it declined to award costs and attorney’s fees to the Department. Although costs and attorney’s fees are often imposed on a plaintiff who is granted a voluntary dismissal, a district court does not automatically abuse its discretion by refusing to award such costs and fees. Stevedoring Servs.",
"of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989). “In determining whether to award costs . . . to [a] defendant[] after a voluntary dismissal without prejudice, courts generally consider the following factors: (1) any excessive and duplicative expense of a second litigation; (2) the effort and expense incurred by a defendant in preparing for trial; (3) the extent to which the litigation has progressed; and (4) the plaintiff’s diligence in moving to dismiss.” 5 Williams v. Peralta Cmty. Coll. Dist., 227 F.R.D. 538, 540 (N.D. Cal. April 28, 2005) (quoting 8 James Wm. Moore et al., Moore’s Federal Practice § 41.40[10][d][I] (3d ed. 1999)). The merits of the plaintiff’s case are also relevant. Id. ; see Stevedoring, 889 F.2d at 922. The Department has incurred duplicative expenses, and summary judgment motions were before the court. However, the district court did not abuse its discretion in refusing to order the payment of the Department’s costs and fees as a condition precedent to the Plaintiffs’ voluntary dismissal without prejudice. The district court’s decision is justified by its consideration of the legitimate factor of the merit of the Plaintiffs’ claims.",
"See Stevedoring, 889 F.2d at 922 (finding that the plaintiff raised a substantial legal question that, upon adverse determination, was dispositive of the action sufficient to support a decision to dismiss without prejudice without payment of attorney’s fees); see also Cerciello v. Blackburn Truck Lines Holding Co. Inc., 917 F.2d 27, at *2 (9th Cir. 1990) (unpublished) (citing Stevedoring, 889 F.2d at 920–22). AFFIRMED.1 1 The Plaintiffs’ motions for judicial notice are GRANTED. 6"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4163526/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
United States Securities and Exchange Commission Washington, D.C. 20549 Form 10-Q (Mark One) x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 2016 ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 000-54378 ATLAS RESOURCES SERIES 28-2010 L.P. (Name of small business issuer in its charter) Delaware 27-2101952 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) Park Place Corporate Center One 1000 Commerce Drive, 4th Floor Pittsburgh, PA (Address of principal executive offices) (zip code) Issuer’s telephone number, including area code: (412)-489-0006 Indicate by check mark whether the registrant (1)has filed all reports required to be filed by Section13 or 15 (d)of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90 days.YesxNo¨ Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). YesxNo¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “non accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one): Large accelerated filer¨Accelerated filer¨Non-accelerated filer¨Smaller reporting companyx Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes¨Nox ATLAS RESOURCES SERIES 28-2010 L.P. (A Delaware Limited Partnership) INDEX TO QUARTERLY REPORT ON FORM 10-Q PAGE PARTI. FINANCIAL INFORMATION (Unaudited) Item1: Condensed Balance Sheets as of March 31, 2016 and December 31, 2015 3 Condensed Statements of Operations for the Three Months ended March 31, 2016 and 2015 4 Condensed Statements of Comprehensive (Loss) Income for the Three Months ended March 31, 2016 and 2015 5 Condensed Statement of Changes in Partners’ Capital for the Three Months ended March 31, 2016 6 Condensed Statements of Cash Flows for the Three Months ended March 31, 2016 and 2015 7 Notes to Condensed Financial Statements 8 Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations 13 Item 4: Controls and Procedures 17 PART II. OTHER INFORMATION Item 1: Legal Proceedings 18 Item 6: Exhibits 19 SIGNATURES 20 CERTIFICATIONS 2 PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED BALANCE SHEETS (Unaudited) March31,2016 December31,2015 ASSETS Current assets: Cash $ - $ Accounts receivable trade -affiliate Current portion of derivative assets Total current assets Gas and oil properties, net Long-term asset retirement receivable-affiliate Total assets $ $ LIABILITIES AND PARTNERS’ CAPITAL Current liabilities: Accrued liabilities $ $ Put premiums payable-affiliate Total current liabilities Asset retirement obligations Commitments and contingencies (Note 6) Partners’ capital: Managing general partner’s interest Limited partners’ interest (7,500 units) Accumulated other comprehensive income Total partners’ capital Total liabilities and partners’ capital $ $ See accompanying notes to condensed financial statements. 3 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENTS OF OPERATIONS (Unaudited) ThreeMonthsEndedMarch31, REVENUES Natural gas $ $ Gain on mark-to-market derivatives Total revenues COSTS AND EXPENSES Production Depletion Accretion of asset retirement obligations General and administrative Total costs and expenses Net (loss) income $ ) $ Allocation of net (loss) income: Managing general partner $ ) $ Limited partners $ ) $ Net (loss) income per limited partnership unit $ ) $ 58 See accompanying notes to condensed financial statements. 4 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME (Unaudited) Three Months EndedMarch31, Net (loss) income $ ) $ Other comprehensive loss: Difference in estimated hedge receivable - Reclassification adjustment to net (loss) income of mark-to-market gains on cash flow hedges ) ) Total other comprehensive loss ) ) Comprehensive (loss) income $ ) $ See accompanying notes to condensed financial statements. 5 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENT OF CHANGES IN PARTNERS’ CAPITAL FOR THE THREE MONTHS ENDED March 31, 2016 (Unaudited) ManagingGeneralPartner LimitedPartners Accumulated OtherComprehensiveIncome (Loss) Total Balance at December 31, 2015 $ Participation in revenues, costs and expenses: Net production revenues - Gain on mark-to-market derivatives - - Depletion ) ) - ) Accretion of asset retirement obligations ) ) - ) General and administrative ) ) - ) Net loss ) ) - ) Other comprehensive loss - - ) ) Subordination ) - - Distributions to partners - ) - ) Balance at March 31, 2016 $ See accompanying notes to condensed financial statements. 6 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENTS OF CASH FLOWS (Unaudited) Three Months EndedMarch31, Cash flows from operating activities: Net (loss) income $ ) $ Adjustments to reconcile net (loss) income to net cash provided by operating activities: Depletion Non-cash loss (gain) on derivative value ) Accretion of asset retirement obligations Changes in operating assets and liabilities: Decrease in accounts receivable trade-affiliate Increase in asset retirement receivable-affiliate ) ) Increase (decrease) in accrued liabilities ) Net cash provided by operating activities Cash flows from investing activities: Proceeds from the sale of gas and oil properties - Net cash provided by investing activities - Cash flows from financing activities: Distributions to partners ) ) Net cash used in financing activities ) ) Net change in cash ) Cash beginning of period - Cash at end of period $ - $ See accompanying notes to condensed financial statements. 7 ATLAS RESOURCES SERIES 28-2010 L.P. NOTES TO CONDENSED FINANCIAL STATEMENTS March 31, 2016 (Unaudited) NOTE 1 - DESCRIPTION OF BUSINESS Atlas Resources Series 28-2010 L.P. (the “Partnership”) is a Delaware limited partnership, formed on April1, 2010 with Atlas Resources, LLC serving as its Managing General Partner and Operator (“Atlas Resources” or the “MGP”). Atlas Resources is an indirect subsidiary of Atlas Resource Partners, L.P. (“ARP”) (NYSE: ARP). Unless the context otherwise requires, references to “the Partnership,” “we,” “us” and “our”, refer to Atlas Resources Series 28-2010 L.P. | [
"United States Securities and Exchange Commission Washington, D.C. 20549 Form 10-Q (Mark One) x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 2016 ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 000-54378 ATLAS RESOURCES SERIES 28-2010 L.P. (Name of small business issuer in its charter) Delaware 27-2101952 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) Park Place Corporate Center One 1000 Commerce Drive, 4th Floor Pittsburgh, PA (Address of principal executive offices) (zip code) Issuer’s telephone number, including area code: (412)-489-0006 Indicate by check mark whether the registrant (1)has filed all reports required to be filed by Section13 or 15 (d)of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90 days.YesxNo¨ Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).",
"YesxNo¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “non accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one): Large accelerated filer¨Accelerated filer¨Non-accelerated filer¨Smaller reporting companyx Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes¨Nox ATLAS RESOURCES SERIES 28-2010 L.P. (A Delaware Limited Partnership) INDEX TO QUARTERLY REPORT ON FORM 10-Q PAGE PARTI. FINANCIAL INFORMATION (Unaudited) Item1: Condensed Balance Sheets as of March 31, 2016 and December 31, 2015 3 Condensed Statements of Operations for the Three Months ended March 31, 2016 and 2015 4 Condensed Statements of Comprehensive (Loss) Income for the Three Months ended March 31, 2016 and 2015 5 Condensed Statement of Changes in Partners’ Capital for the Three Months ended March 31, 2016 6 Condensed Statements of Cash Flows for the Three Months ended March 31, 2016 and 2015 7 Notes to Condensed Financial Statements 8 Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations 13 Item 4: Controls and Procedures 17 PART II. OTHER INFORMATION Item 1: Legal Proceedings 18 Item 6: Exhibits 19 SIGNATURES 20 CERTIFICATIONS 2 PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED BALANCE SHEETS (Unaudited) March31,2016 December31,2015 ASSETS Current assets: Cash $ - $ Accounts receivable trade -affiliate Current portion of derivative assets Total current assets Gas and oil properties, net Long-term asset retirement receivable-affiliate Total assets $ $ LIABILITIES AND PARTNERS’ CAPITAL Current liabilities: Accrued liabilities $ $ Put premiums payable-affiliate Total current liabilities Asset retirement obligations Commitments and contingencies (Note 6) Partners’ capital: Managing general partner’s interest Limited partners’ interest (7,500 units) Accumulated other comprehensive income Total partners’ capital Total liabilities and partners’ capital $ $ See accompanying notes to condensed financial statements.",
"3 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENTS OF OPERATIONS (Unaudited) ThreeMonthsEndedMarch31, REVENUES Natural gas $ $ Gain on mark-to-market derivatives Total revenues COSTS AND EXPENSES Production Depletion Accretion of asset retirement obligations General and administrative Total costs and expenses Net (loss) income $ ) $ Allocation of net (loss) income: Managing general partner $ ) $ Limited partners $ ) $ Net (loss) income per limited partnership unit $ ) $ 58 See accompanying notes to condensed financial statements. 4 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME (Unaudited) Three Months EndedMarch31, Net (loss) income $ ) $ Other comprehensive loss: Difference in estimated hedge receivable - Reclassification adjustment to net (loss) income of mark-to-market gains on cash flow hedges ) ) Total other comprehensive loss ) ) Comprehensive (loss) income $ ) $ See accompanying notes to condensed financial statements. 5 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENT OF CHANGES IN PARTNERS’ CAPITAL FOR THE THREE MONTHS ENDED March 31, 2016 (Unaudited) ManagingGeneralPartner LimitedPartners Accumulated OtherComprehensiveIncome (Loss) Total Balance at December 31, 2015 $ Participation in revenues, costs and expenses: Net production revenues - Gain on mark-to-market derivatives - - Depletion ) ) - ) Accretion of asset retirement obligations ) ) - ) General and administrative ) ) - ) Net loss ) ) - ) Other comprehensive loss - - ) ) Subordination ) - - Distributions to partners - ) - ) Balance at March 31, 2016 $ See accompanying notes to condensed financial statements.",
"6 ATLAS RESOURCES SERIES 28-2010 L.P. CONDENSED STATEMENTS OF CASH FLOWS (Unaudited) Three Months EndedMarch31, Cash flows from operating activities: Net (loss) income $ ) $ Adjustments to reconcile net (loss) income to net cash provided by operating activities: Depletion Non-cash loss (gain) on derivative value ) Accretion of asset retirement obligations Changes in operating assets and liabilities: Decrease in accounts receivable trade-affiliate Increase in asset retirement receivable-affiliate ) ) Increase (decrease) in accrued liabilities ) Net cash provided by operating activities Cash flows from investing activities: Proceeds from the sale of gas and oil properties - Net cash provided by investing activities - Cash flows from financing activities: Distributions to partners ) ) Net cash used in financing activities ) ) Net change in cash ) Cash beginning of period - Cash at end of period $ - $ See accompanying notes to condensed financial statements. 7 ATLAS RESOURCES SERIES 28-2010 L.P. NOTES TO CONDENSED FINANCIAL STATEMENTS March 31, 2016 (Unaudited) NOTE 1 - DESCRIPTION OF BUSINESS Atlas Resources Series 28-2010 L.P. (the “Partnership”) is a Delaware limited partnership, formed on April1, 2010 with Atlas Resources, LLC serving as its Managing General Partner and Operator (“Atlas Resources” or the “MGP”).",
"Atlas Resources is an indirect subsidiary of Atlas Resource Partners, L.P. (“ARP”) (NYSE: ARP). Unless the context otherwise requires, references to “the Partnership,” “we,” “us” and “our”, refer to Atlas Resources Series 28-2010 L.P."
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Per Cubiam. There was a verdict for the plaintiff in the Hudson County Circuit against the defendant for the sum of $3,765, and a verdict against the defendant, and in favor of the plaintiff on a counter-claim, filed by the defendant in the action. A rule to show cause was obtained from the trial judge why both of these verdicts should not be set aside and a new trial granted. The record before us shows, that after the commencement of the action by George Eixter, the plaintiff herein, he died, and Mary Eixter, his executrix, was substituted on the record. The testimony discloses, that on April 15th, 1920, Eixter and his wife, entered into a written contract with the defendant, whereby the former agreed to sell to the latter, certain land in the town of Harrison for $25,000. The sum of $5,000 was to be paid on the signing of the contract, and the balance of- $20,000 at the time of the passing of title, which was to take place on or before the second day of August, 1920. *545Tlie sum oí $5,000 was paid on the day of the execution of the contract. When the time for passing of the title arrived, it was mutually agreed between the parties to extend its performance to August 5th, 1920. On that date, a further agreement was entered into between the respective parties, as to the payment of the consideration money. The agreement acknowledges the receipt of $5,000 by the plaintiff, on account of the purchase price of the property, according to the terms and conditions of the contract, and also acknowledges the receipt on August oth, 1920, of the further sum of $15,000 on account of the sale price of the property, and provided that as soon as the question of the riparian rights is settled, according to said contract, the plaintiff is to receive the balance of $5,000. Prom that time on, till 1925, live years after the last payment was made, the matter seems to have slumbered, for nothing appears to have been done by the defendant, to settle the question of riparian rights, and it was only after this great lapse of time, that Pixter brought his action to recover the $5,000 which was held by the defendant, with the former’s consent, so that the defendant should he afforded an opportunity to settle the question of riparian rights, as stipulated in the contract of August oth, 1920. The testimony further discloses that the defendant in acquiring title to the Pixter property, was acting for the Otis Elevator Company, but in his own name, and that he also acquired other tracts of land in that vicinity for the same purpose and in like manner. It further appears that by deed dated March 8th, 1922, but which deed was not recorded until December 11th, 1925, the defendant conveyed to the Otis Elevator Company, together with other tracts of land he had acquired, the same premises he bought from Pixter, and as has already been pointed out, the defendant had done nothing whatever in regard to having the riparian rights settled. It seems, that before the case came on for trial, through negotiations or otherwise, the defendant paid to the plaintiff the sum of *546$3,500 on account of the $5,000, leaving $1,500 which the plaintiff claimed was due and owing to the estate of George Fixter, he having died in the meanwhile, so that at the time of the trial, the claim of the plaintiff was that the estate was entitled to recover interest on the sum of $5,000 from August 5th, 1920, to February 4th, 1928, at which time the defendant paid $3,500 on account, to the plaintiff, and the sum of $1,500 with interest, from Februaiy 4th, 1928, to the date of the trial. On behalf of the defendant, it was insisted that the plaintiff was not entitled to any interest, either on the $5,000 or the $1,500, under the circumstances under which the payment of the said sums was withheld by the defendant. Under the counter-claim, defendant insisted he was entitled to .be reimbursed by the plaintiff for the expenses which he incurred as a result of the application made by him in the name of the Otis Elevator Company, to the board of commerce and navigation, to obtain a deed for the riparian rights, for which deed the defendant claimed he expended altogether, the sum of $865.65. At the close of the ease, counsel of the defendant requested the trial judge to direct a verdict for the defendant on the counter-claim, in the sum of $865.65, which motion was denied. On behalf of the plaintiff a motion was also made for the direction of a verdict, on the ground that the defendant had not sustained the burden of proof of his defense. This motion was also denied. We think both of these motions were properly denied, since the questions involved were mixed questions of law and fact. Counsel for defendant in his brief submitted to the court, says: “Two main questions, therefore, arise on this rule to show cause: (1) Did the trial judge commit error at law in leaving the case to the 'jury in charging them to construe the contract? “2. Assuming he correctly left the case to the jury, should the verdict be set aside as contrary to the weight of the evidence ?” *547The first question assumed that the trial judge in his charge to the jury instructed it to -construe the contract, whereas a plain reading of the charge makes it clear he did not do so. From the testimony in the cause it appears, that at the time the contract was entered into between the paries, there existed certain riparian rights which the plaintiff had acquired and which his grantors had secured from the hoard of freeholders, &c., and that the plaintiff could only have had in mind to give such riparian rights as he then had, whilst for the defendant It was claimed that the term “riparian rights,” as used in the contract, was intended to cover more than the limited grant made by the board of freeholders, and this situation, manifestly, raised a factual question, as to what the intention of the parties was, and therefore was for the decision of a jury. We think the trial judge accurately applied the legal rule to the facts developed by the testimonjy and properly submitted the question to the jury. After a careful examination of the testimony in the cause, we have also reached the conclusion that the verdicts rendered by the jury were warranted by the evidence. The rule to show cause is discharged, with costs. | 07-25-2022 | [
"Per Cubiam. There was a verdict for the plaintiff in the Hudson County Circuit against the defendant for the sum of $3,765, and a verdict against the defendant, and in favor of the plaintiff on a counter-claim, filed by the defendant in the action. A rule to show cause was obtained from the trial judge why both of these verdicts should not be set aside and a new trial granted. The record before us shows, that after the commencement of the action by George Eixter, the plaintiff herein, he died, and Mary Eixter, his executrix, was substituted on the record. The testimony discloses, that on April 15th, 1920, Eixter and his wife, entered into a written contract with the defendant, whereby the former agreed to sell to the latter, certain land in the town of Harrison for $25,000.",
"The sum of $5,000 was to be paid on the signing of the contract, and the balance of- $20,000 at the time of the passing of title, which was to take place on or before the second day of August, 1920. *545Tlie sum oí $5,000 was paid on the day of the execution of the contract. When the time for passing of the title arrived, it was mutually agreed between the parties to extend its performance to August 5th, 1920. On that date, a further agreement was entered into between the respective parties, as to the payment of the consideration money. The agreement acknowledges the receipt of $5,000 by the plaintiff, on account of the purchase price of the property, according to the terms and conditions of the contract, and also acknowledges the receipt on August oth, 1920, of the further sum of $15,000 on account of the sale price of the property, and provided that as soon as the question of the riparian rights is settled, according to said contract, the plaintiff is to receive the balance of $5,000. Prom that time on, till 1925, live years after the last payment was made, the matter seems to have slumbered, for nothing appears to have been done by the defendant, to settle the question of riparian rights, and it was only after this great lapse of time, that Pixter brought his action to recover the $5,000 which was held by the defendant, with the former’s consent, so that the defendant should he afforded an opportunity to settle the question of riparian rights, as stipulated in the contract of August oth, 1920.",
"The testimony further discloses that the defendant in acquiring title to the Pixter property, was acting for the Otis Elevator Company, but in his own name, and that he also acquired other tracts of land in that vicinity for the same purpose and in like manner. It further appears that by deed dated March 8th, 1922, but which deed was not recorded until December 11th, 1925, the defendant conveyed to the Otis Elevator Company, together with other tracts of land he had acquired, the same premises he bought from Pixter, and as has already been pointed out, the defendant had done nothing whatever in regard to having the riparian rights settled. It seems, that before the case came on for trial, through negotiations or otherwise, the defendant paid to the plaintiff the sum of *546$3,500 on account of the $5,000, leaving $1,500 which the plaintiff claimed was due and owing to the estate of George Fixter, he having died in the meanwhile, so that at the time of the trial, the claim of the plaintiff was that the estate was entitled to recover interest on the sum of $5,000 from August 5th, 1920, to February 4th, 1928, at which time the defendant paid $3,500 on account, to the plaintiff, and the sum of $1,500 with interest, from Februaiy 4th, 1928, to the date of the trial.",
"On behalf of the defendant, it was insisted that the plaintiff was not entitled to any interest, either on the $5,000 or the $1,500, under the circumstances under which the payment of the said sums was withheld by the defendant. Under the counter-claim, defendant insisted he was entitled to .be reimbursed by the plaintiff for the expenses which he incurred as a result of the application made by him in the name of the Otis Elevator Company, to the board of commerce and navigation, to obtain a deed for the riparian rights, for which deed the defendant claimed he expended altogether, the sum of $865.65.",
"At the close of the ease, counsel of the defendant requested the trial judge to direct a verdict for the defendant on the counter-claim, in the sum of $865.65, which motion was denied. On behalf of the plaintiff a motion was also made for the direction of a verdict, on the ground that the defendant had not sustained the burden of proof of his defense. This motion was also denied. We think both of these motions were properly denied, since the questions involved were mixed questions of law and fact. Counsel for defendant in his brief submitted to the court, says: “Two main questions, therefore, arise on this rule to show cause: (1) Did the trial judge commit error at law in leaving the case to the 'jury in charging them to construe the contract?",
"“2. Assuming he correctly left the case to the jury, should the verdict be set aside as contrary to the weight of the evidence ?” *547The first question assumed that the trial judge in his charge to the jury instructed it to -construe the contract, whereas a plain reading of the charge makes it clear he did not do so. From the testimony in the cause it appears, that at the time the contract was entered into between the paries, there existed certain riparian rights which the plaintiff had acquired and which his grantors had secured from the hoard of freeholders, &c., and that the plaintiff could only have had in mind to give such riparian rights as he then had, whilst for the defendant It was claimed that the term “riparian rights,” as used in the contract, was intended to cover more than the limited grant made by the board of freeholders, and this situation, manifestly, raised a factual question, as to what the intention of the parties was, and therefore was for the decision of a jury. We think the trial judge accurately applied the legal rule to the facts developed by the testimonjy and properly submitted the question to the jury. After a careful examination of the testimony in the cause, we have also reached the conclusion that the verdicts rendered by the jury were warranted by the evidence.",
"The rule to show cause is discharged, with costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7286958/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from, a judgment of the Superior Court for King County, No. 94-2-21379-2, Charles W. Mertel, J., entered October 25, 1995. Affirmed by unpublished opinion per Coleman, J., concurred in by Webster and Becker, JJ. | 07-23-2022 | [
"Appeal from, a judgment of the Superior Court for King County, No. 94-2-21379-2, Charles W. Mertel, J., entered October 25, 1995. Affirmed by unpublished opinion per Coleman, J., concurred in by Webster and Becker, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6896237/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
United States Court of Appeals for the Federal Circuit ______________________
October 17, 2011 ERRATA ______________________
2010-7096
RICHARD D. BOND, Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS Respondent-Appellee,
______________________
Decided October 7, 2011 Precedential Opinion ______________________
Please make the following change:
Pages 1 and 2, the following corrections
Lauren A Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent- appellee. On the brief were Tony West, Assistant Attor- ney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Christa A. Shriber, Attorney, United States Depart- ment of Veterans Affairs, of Washington, DC. | 10-17-2011 | [
"United States Court of Appeals for the Federal Circuit ______________________ October 17, 2011 ERRATA ______________________ 2010-7096 RICHARD D. BOND, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS Respondent-Appellee, ______________________ Decided October 7, 2011 Precedential Opinion ______________________ Please make the following change: Pages 1 and 2, the following corrections Lauren A Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent- appellee. On the brief were Tony West, Assistant Attor- ney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Christa A. Shriber, Attorney, United States Depart- ment of Veterans Affairs, of Washington, DC."
]
| https://www.courtlistener.com/api/rest/v3/opinions/615443/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Opinion by Mr. Justice Brown, The claim filed in this case is that of subcontractors. A con*127dition precedent to their right to file it was that they had given Kaufmann Brothers, the owners of the building, written notice of their intention to file it, together with a sworn statement setting forth the contract under which they claimed, the amount alleged to be still due and how made up, the kind of labor or materials furnished and the date when the last work was done or materials were furnished. This is the requirement of sec. 8 of the Act of June 4,1901, P. L. 431. The sixth point presented by the defendants on the trial asked that a verdict be directed for them because the notice of the intention to file the lien was not in compliance with the statutory requirement. This was refused, and from the judgment on the verdict for the plaintiffs the defendants have appealed, alleging error in the court’s refusal of their sixth point, because the sworn statement attached to the notice served upon them of the intention to file a lien did not set forth the contract under which the subcontractors claimed. If the notice of the intention to file the lien was defective, the appellants did not, by pleading to the scire facias on it, waive their right to make defense on the trial that a condition of the right to file it had not been complied with. Though notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it. All that need appear on the face of the lien is “when and how notice was given.” These are the words of clause 11, sec. 11 of the act of 1901; and in interpreting them we have said: “A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provision of sec. 8 are matters to be determined at the trial:” Thirsk v. Evans, 211 Pa. 239. The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defense may be made on the trial that there was no right to file it, though regular on its face, just as such defense may be made, if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defense on a matter dehors the lien. The sworn statement attached to the notice of the appellees *128of their intention to file their claim was in the following form: “Before me personally came James S. McVey, of the Iron City Heating Company, who signed the foregoing notice and being by me duly sworn according to law did depose and say that the contract under which he claims is as follows: for work and labor done and material furnished in and about the construction of the Kaufmann Building, corner of Diamond street and Cherry Alley, Pittsburg, Pa.; that the amount still due and owing to him under said contract is the sum of Thirty-three hundred fourteen 40/100 dollars with interest from November 10, 1904, which is made up as follows, to wit: (here insert debts and items with credits if any): Attached hereto find Exhibits ‘A,’ ‘B,’ ‘C,’ ‘D,’ 'E,’ and ‘F’ and made part hereof. That the kind of labor furnished was the pipes, fittings and labor for connecting boilers for C. H. Bradley, Jr., & Co., the contractors for the furnishing and erecting of boilers in said Kaufmann Building (the materials furnished),.pipes and fittings and valves and the date when the last labor (or materials) was furnished was on the tenth day of November, 1904. James S. McVey. Sworn to and subscribed before me this 7th day of February, a. d. 1905. Geo. Johnston, Notary Public.”' Neither in the notice nor in the attached affidavit is the contract set forth under which the appellees claimed. Nothing can be gathered from them as to a contract between the subcontractors and the contractor except that there was one. The date of it is not given, not one of its terms is stated, and whether it was written or verbal no one can tell. The six exhibits are mere itemized bills made out to the contractor for the labor and materials furnished. Under the notice the appellees might have proved any kind of a contract with the contractor, and the notice of their contract, instead of being a substantial compliance with the statute, as the learned trial judge held in overruling the motion for judgment for the defendants, n. o. v., was no compliance at all. Not even the contract price for what had been furnished was given. From all that the owners could have learned from the notice as to the contract between their contractor and the subcontractors the reference to it might as well have been omitted altogether. The evident purpose of the re*129quirement that a subcontractor must set forth in his notice to the owner of the building the contract under which he claims, is to enable the owner to know just what the rights of the claimant are and to protect himself accordingly. If this contract had been to furnish labor and materials in consideration and payment of existing indebtedness of the subcontractors to the contractor, the owners could safely have disregarded the notice and settled with their contractor; or, if the amount claimed had been in excess of the price stipulated in the contract, the owners could, have settled with their contractor, knowing that their building would not be liable for more than the contract price for the labor and materials furnished by the subcontractors. Other illustrations might be given of the wisdom of the legislature in requiring that the contract of a subcontractor be set forth in his notice of an intention to file a lien, but they are not needed, for those who would enjoy the benefits of the mechanics' lien act can do so only by complying with its requirements: Westmoreland Guarantee Building & Loan Association v. Connor, 216 Pa. 543; Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. 581. The assignments of error are sustained, the judgment below is reversed and is entered here for the defendants. | 02-17-2022 | [
"Opinion by Mr. Justice Brown, The claim filed in this case is that of subcontractors. A con*127dition precedent to their right to file it was that they had given Kaufmann Brothers, the owners of the building, written notice of their intention to file it, together with a sworn statement setting forth the contract under which they claimed, the amount alleged to be still due and how made up, the kind of labor or materials furnished and the date when the last work was done or materials were furnished. This is the requirement of sec.",
"8 of the Act of June 4,1901, P. L. 431. The sixth point presented by the defendants on the trial asked that a verdict be directed for them because the notice of the intention to file the lien was not in compliance with the statutory requirement. This was refused, and from the judgment on the verdict for the plaintiffs the defendants have appealed, alleging error in the court’s refusal of their sixth point, because the sworn statement attached to the notice served upon them of the intention to file a lien did not set forth the contract under which the subcontractors claimed. If the notice of the intention to file the lien was defective, the appellants did not, by pleading to the scire facias on it, waive their right to make defense on the trial that a condition of the right to file it had not been complied with. Though notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it.",
"All that need appear on the face of the lien is “when and how notice was given.” These are the words of clause 11, sec. 11 of the act of 1901; and in interpreting them we have said: “A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provision of sec. 8 are matters to be determined at the trial:” Thirsk v. Evans, 211 Pa. 239. The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defense may be made on the trial that there was no right to file it, though regular on its face, just as such defense may be made, if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defense on a matter dehors the lien. The sworn statement attached to the notice of the appellees *128of their intention to file their claim was in the following form: “Before me personally came James S. McVey, of the Iron City Heating Company, who signed the foregoing notice and being by me duly sworn according to law did depose and say that the contract under which he claims is as follows: for work and labor done and material furnished in and about the construction of the Kaufmann Building, corner of Diamond street and Cherry Alley, Pittsburg, Pa.; that the amount still due and owing to him under said contract is the sum of Thirty-three hundred fourteen 40/100 dollars with interest from November 10, 1904, which is made up as follows, to wit: (here insert debts and items with credits if any): Attached hereto find Exhibits ‘A,’ ‘B,’ ‘C,’ ‘D,’ 'E,’ and ‘F’ and made part hereof.",
"That the kind of labor furnished was the pipes, fittings and labor for connecting boilers for C. H. Bradley, Jr., & Co., the contractors for the furnishing and erecting of boilers in said Kaufmann Building (the materials furnished),.pipes and fittings and valves and the date when the last labor (or materials) was furnished was on the tenth day of November, 1904. James S. McVey. Sworn to and subscribed before me this 7th day of February, a. d. 1905. Geo. Johnston, Notary Public.”' Neither in the notice nor in the attached affidavit is the contract set forth under which the appellees claimed. Nothing can be gathered from them as to a contract between the subcontractors and the contractor except that there was one. The date of it is not given, not one of its terms is stated, and whether it was written or verbal no one can tell. The six exhibits are mere itemized bills made out to the contractor for the labor and materials furnished. Under the notice the appellees might have proved any kind of a contract with the contractor, and the notice of their contract, instead of being a substantial compliance with the statute, as the learned trial judge held in overruling the motion for judgment for the defendants, n. o. v., was no compliance at all.",
"Not even the contract price for what had been furnished was given. From all that the owners could have learned from the notice as to the contract between their contractor and the subcontractors the reference to it might as well have been omitted altogether. The evident purpose of the re*129quirement that a subcontractor must set forth in his notice to the owner of the building the contract under which he claims, is to enable the owner to know just what the rights of the claimant are and to protect himself accordingly. If this contract had been to furnish labor and materials in consideration and payment of existing indebtedness of the subcontractors to the contractor, the owners could safely have disregarded the notice and settled with their contractor; or, if the amount claimed had been in excess of the price stipulated in the contract, the owners could, have settled with their contractor, knowing that their building would not be liable for more than the contract price for the labor and materials furnished by the subcontractors. Other illustrations might be given of the wisdom of the legislature in requiring that the contract of a subcontractor be set forth in his notice of an intention to file a lien, but they are not needed, for those who would enjoy the benefits of the mechanics' lien act can do so only by complying with its requirements: Westmoreland Guarantee Building & Loan Association v. Connor, 216 Pa. 543; Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. 581.",
"The assignments of error are sustained, the judgment below is reversed and is entered here for the defendants."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6249612/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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 .
Response to Amendment This communication is in response to applicant's amendment filed on 05/17/2022. Claims 1, 2, 4, 5, 7, 8, 10-12, 15 and 17-26 remain pending. Claims 7, 18, 19, and 26 are amended. Claims 3, 6, 9, 13-14 and 16 are canceled. No claims are newly added.
Response to Arguments Claim Rejections - 35 U.S.C. § 101: Applicants’ arguments with respect to claims 18-20 and 26 have been fully considered and are persuasive. The rejection of 35 U.S.C. §101 regarding claims 18-20 and 26 have been withdrawn in view of the amendment to claim.
Claim Rejections - 35 U.S.C. § 103: Applicants’ arguments with respect to claims rejected under prior art have been fully considered and are persuasive. The rejection of 35 U.S.C. § 103 have been withdrawn.
Allowable Subject Matter Claims 1, 2, 4, 5, 7, 8, 10-12, 15 and 17-26 are allowed. This communication warrants No Examiner's Reason for Allowance, applicant's reply make evident the reasons for allowance, satisfying the “record as a whole” proviso of the rule 37 CFR 1.104(e). Specifically, the substance of applicant's arguments filed on 05/17/2022 are persuasive, as such the reasons for allowance are in all probability evident from the record and no statement is deemed necessary (see MPEP 1302.14). Any comments Applicants considers necessary must be submitted no later than the payment of the Issue Fee and to avoid processing delays, should preferable accompany the Issue Fees. Such submission should be clearly labeled "Comments on Statement of Reasons for Allowance". In event of any post-allowance papers (e.g. IDS, 312 amendment, petition, etc.), Applicant is exhorted to mail papers to the Production Control branch in Publications or faxed to post-allowance papers correspondence branch at (703) 308-5864 to expedite issuing process or call PUB's Customer Service if any questions at (703) 305-8497.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHENG-FENG HUANG whose telephone number is (571)272-6186. The examiner can normally be reached on Monday-Friday: 9 am - 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, Eleni A Shiferaw can be reached on (571) 272-3867. 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.
/CHENG-FENG HUANG/Primary Examiner, Art Unit 2497 | 2022-06-09T15:42:25 | [
"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 . Response to Amendment This communication is in response to applicant's amendment filed on 05/17/2022. Claims 1, 2, 4, 5, 7, 8, 10-12, 15 and 17-26 remain pending. Claims 7, 18, 19, and 26 are amended. Claims 3, 6, 9, 13-14 and 16 are canceled. No claims are newly added. Response to Arguments Claim Rejections - 35 U.S.C. § 101: Applicants’ arguments with respect to claims 18-20 and 26 have been fully considered and are persuasive. The rejection of 35 U.S.C. §101 regarding claims 18-20 and 26 have been withdrawn in view of the amendment to claim. Claim Rejections - 35 U.S.C. § 103: Applicants’ arguments with respect to claims rejected under prior art have been fully considered and are persuasive. The rejection of 35 U.S.C. § 103 have been withdrawn. Allowable Subject Matter Claims 1, 2, 4, 5, 7, 8, 10-12, 15 and 17-26 are allowed. This communication warrants No Examiner's Reason for Allowance, applicant's reply make evident the reasons for allowance, satisfying the “record as a whole” proviso of the rule 37 CFR 1.104(e). Specifically, the substance of applicant's arguments filed on 05/17/2022 are persuasive, as such the reasons for allowance are in all probability evident from the record and no statement is deemed necessary (see MPEP 1302.14). Any comments Applicants considers necessary must be submitted no later than the payment of the Issue Fee and to avoid processing delays, should preferable accompany the Issue Fees.",
"Such submission should be clearly labeled \"Comments on Statement of Reasons for Allowance\". In event of any post-allowance papers (e.g. IDS, 312 amendment, petition, etc. ), Applicant is exhorted to mail papers to the Production Control branch in Publications or faxed to post-allowance papers correspondence branch at (703) 308-5864 to expedite issuing process or call PUB's Customer Service if any questions at (703) 305-8497. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHENG-FENG HUANG whose telephone number is (571)272-6186. The examiner can normally be reached on Monday-Friday: 9 am - 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, Eleni A Shiferaw can be reached on (571) 272-3867. 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. /CHENG-FENG HUANG/Primary Examiner, Art Unit 2497"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-12.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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)(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.
Claim(s) 34-39 and 42-46 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2017/0056853 A1. The abstract and also paragraph number 9 in this US 2017/0056853 A1 speak of a composition that may be a combination of powdered activated carbon together w/ 30 weight percent diammonium phosphate which is useful for abating the emissions of at least mercury our of a coal combustion exhaust gas that may also be contaminated w/ impurities such as sulfur trioxide, nitrogen oxides, etc. (please also note paragraph numbers 5 and 26), in a manner that seems to meet the limitations described in at least the Applicants’ claims 34, 35, 37, and 42-46. Paragraph number 14 in this US
Allowable Subject Matter The Applicants’ dependent claims 40 and 41 have been allowed over this US 2017/0056853 A1 because these claims also require the presence of a halogen impregnant in conjunction w/ the activated carbon that is also associated w/ the ammonium phosphate, and at least this particular feature is not taught or suggested in this US 2017/0056853 A1. The powdered activated carbon that is associated w/ the diammonium phosphate mentioned in paragraph number 9 in this US 2017/0056853 A1 does not contain any halogen (contrary to the limitations described in at least the Applicants’ dependent claims 40 and 41). The only activated carbon that also contains halogens mentioned in paragraph number 9 in this US 2017/0056853 A1 is not associated w/ ammonium phosphate (contrary to the limitations described in at least the Applicants’ independent claim 34). Additionally, paragraph number 9 in this US 2017/0056853 A1 also mentions that the halogen agent (i. e. the potassium chloride and also the sodium bromide) may be present in that composition in amounts that may be 10 or 20 weight percent, respectively (which is outside of the 3.5 to 7 weight percent range of halogen mentioned in the Applicants’ dependent claim 41). Again, please note that the compositions that these halogen agents are associated w/ do not contain any ammonium phosphate, contrary to the limitations set forth in the Applicants’ independent claim 34. Hence, the Applicants’ dependent claims 40 and 41 are allowed over the teachings provided in this US 2017/0056853 A1.
References Made of Record The following additional references from the examiner’s search are also made of record: US 2017/0100692 A1; U. S. Pat. 10,130,930 B2; U. S. Pat. 3,960,687 and also U. S. Pat. 2,170,601.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY C VANOY whose telephone number is (571)272-8158. The examiner can normally be reached on 8-4:30 (Mon-Fri). 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, Stanley Silverman can be reached on 571-272-1358. 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.
/TIMOTHY C VANOY/ Primary Examiner, Art Unit 1736 | 2021-04-01T10:38:52 | [
"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 . 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)(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.",
"Claim(s) 34-39 and 42-46 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2017/0056853 A1. The abstract and also paragraph number 9 in this US 2017/0056853 A1 speak of a composition that may be a combination of powdered activated carbon together w/ 30 weight percent diammonium phosphate which is useful for abating the emissions of at least mercury our of a coal combustion exhaust gas that may also be contaminated w/ impurities such as sulfur trioxide, nitrogen oxides, etc.",
"(please also note paragraph numbers 5 and 26), in a manner that seems to meet the limitations described in at least the Applicants’ claims 34, 35, 37, and 42-46. Paragraph number 14 in this US Allowable Subject Matter The Applicants’ dependent claims 40 and 41 have been allowed over this US 2017/0056853 A1 because these claims also require the presence of a halogen impregnant in conjunction w/ the activated carbon that is also associated w/ the ammonium phosphate, and at least this particular feature is not taught or suggested in this US 2017/0056853 A1. The powdered activated carbon that is associated w/ the diammonium phosphate mentioned in paragraph number 9 in this US 2017/0056853 A1 does not contain any halogen (contrary to the limitations described in at least the Applicants’ dependent claims 40 and 41).",
"The only activated carbon that also contains halogens mentioned in paragraph number 9 in this US 2017/0056853 A1 is not associated w/ ammonium phosphate (contrary to the limitations described in at least the Applicants’ independent claim 34). Additionally, paragraph number 9 in this US 2017/0056853 A1 also mentions that the halogen agent (i. e. the potassium chloride and also the sodium bromide) may be present in that composition in amounts that may be 10 or 20 weight percent, respectively (which is outside of the 3.5 to 7 weight percent range of halogen mentioned in the Applicants’ dependent claim 41). Again, please note that the compositions that these halogen agents are associated w/ do not contain any ammonium phosphate, contrary to the limitations set forth in the Applicants’ independent claim 34.",
"Hence, the Applicants’ dependent claims 40 and 41 are allowed over the teachings provided in this US 2017/0056853 A1. References Made of Record The following additional references from the examiner’s search are also made of record: US 2017/0100692 A1; U. S. Pat. 10,130,930 B2; U. S. Pat. 3,960,687 and also U. S. Pat. 2,170,601. Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY C VANOY whose telephone number is (571)272-8158. The examiner can normally be reached on 8-4:30 (Mon-Fri). 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, Stanley Silverman can be reached on 571-272-1358. 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. /TIMOTHY C VANOY/ Primary Examiner, Art Unit 1736"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-14.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 Response to Amendment 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 amendment of the claims filed 17 December 2021 has been entered. Applicant’s remarks filed 17 December 2021 are acknowledged. Claims 1-30, 37-38, 40, 51-52 and 54 are cancelled. Claims 31-36, 39, 41-50, 53 and 55-63 are pending and under examination to the extent they read on the elected species of SEQ ID NO: 5.
Claim Objections/Rejections Withdrawn The objections to claims 31 and 41 for informalities are withdrawn in response to Applicant’s amendment of the claims. The rejection of claims 31-33, 35-36, 41-44, 46, 49-50 and 55-61 on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 8,198,242 B2, in view of Lorget et al. (Am. J. Hum. Genet., 2012, Vol. 91(6):1108-1114), and further in view of Warne et al. (US 2008/0064856 A1, Pub. Date: Mar. 13, 2008), is withdrawn; and the rejection of claim 45 on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 8,198,242 B2, in view of Lorget et al. and Legler et al. (Am. Fam. Physician., 1998 Jul 1; 58(1):153-158), and further in view of Warne et al. (US 2008/064856 A1), is withdrawn.
Claim Rejections Maintained Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 31-36, 41-50 and 55-61 remain rejected under 35 U.S.C. 103 as being unpatentable over Wendt et al. (US 2010/0297021 A1, Pub. Date: Nov. 25, 2010), in view of Gupta et al. (US 2009/0163421 A1, Pub. Date: Jun. 25, 2009). Ground of Rejection Wendt teaches the use of variants of C-type natriuretic peptide (CNP) and pharmaceutical compositions thereof for treatment of diseases responsive to CNP, including skeletal dysplasias, e.g., achondroplasia (see Abstract). Wendt teaches that the CNP variants can elongate a bone or increase long bone growth [0155], and provide an acceptable rate of growth (i.e., growth velocity), as measure by height for age, head circumference, and segmental growth, in children with achondroplasia [0596]. Wendt teaches that the CNP variants include, e.g., Pro-Gly-CNP37 of SEQ ID NO: 145 [0378], which is identical to SEQ ID NO: 5 of the instant application. Wendt teaches that the CNP variants may be administered, e.g., subcutaneously or intravenously, in an amount at least 7.5 g/kg, or at least 60 g/kg, and the dosing frequency may be daily or weekly as deemed appropriate by a treating physician [0156-0158]. Wendt teaches that for treatment of skeletal dysplasias, e.g., achondroplasia, a daily or weekly dose of a CNP variant is administered to patients until and/or through adulthood [0597], and the ideal age range of achondroplasia patients for treatment includes from infant (<1 year of age) to pre-adolescent (<13 years of age) [0798]. Regarding claims 43-44 and 55-59, the treatment effects recited in these claims would naturally flow from administering the same CNP variants to the same population in the same amount as in the instant claims. Regarding the claim limitations in claims 31 and 41 that the composition further comprises “(b) citric acid monohydrate, sodium citrate dihydrate, trehalose dihydrate, D-mannitol, L-methionine and polysorbate 80”, Wendt teaches that the pharmaceutical composition comprising a CNP variant can be a lyophilized formulation comprising a buffer, a bulking agent, and an antioxidant; exemplary buffers include acetate buffer and citrate buffer; exemplary bulking agents include mannitol and sucrose; and exemplary antioxidants include methionine and ascorbic acid [0591]. Wendt teaches that to minimize or prevent adsorption of a CNP variant to plastic or glass, polysorbate 80 may be added to a CNP formulation [0793]. In Table 17 (at p. 73), Wendt teaches the concentrations of the excipients; for example, a buffer can be a citric acid/citrate buffer at a concentration range 10mM ± 5mM, pH 4 to 6; an isotonically-adjusting agent/bulking agent can be mannitol at a concentration range 5% ± 3%; a stabilizer can be methionine at a concentration range 0.01%-0.2%; and an anti-adsorbent can be polysorbate 80 at a concentration range 0.001%-0.5%. Wendt, however, does not teach adding trehalose dihydrate in the formulation. Gupta cures this deficiency. Gupta teaches a method for preparing a lyophilized pharmaceutical composition comprising a natriuretic peptide by adding a lyoprotectant to the formulation. Gupta teaches that lyoprotectants provide stability to the protein during the lyophilization process, and lyoprotectants are well known in the art and commercially available, e.g., trehalose [0052]. Gupta teaches that lyoprotectants (e.g., trehalose) are used at a concentration between 1-10% (10 mg/mL-100 mg/mL) or at 1% (10 mg/mL), 2% (20 mg/mL), or 3% (30 mg/mL) [0065]. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a lyoprotectant, e.g., trehalose or a dihydrate form thereof, into the lyophilized formulation of the CNP variant taught by Wendt. One of ordinary skill in the art would have been motivated to do so, because Wendt teaches preparing a lyophilized formulation comprising a CNP variant useful for treatment, and Gupta further teaches that adding a lyoprotectant, e.g., trehalose, into a lyophilized formulation provides stability to the protein during the lyophilization process. Therefore, the combined teachings provide a reasonable expectation of success in making a lyophilized formulation comprising a CNP variant useful for treatment. Response to Applicant’s Arguments Applicant argues that Wendt fails to teach or suggest a method of treatment using the formulation comprising both a CNP variant and the specific combination of elements of citric acid monohydrate, sodium citrate dehydrate, trehalose dehydrate, D-mannitol, L-methionine, and polysorbate 80. Applicant argues that Wendt merely provides a general listing of possible “excipients, carriers, diluents, vehicles, liquids, buffers, isotonicity agents, additives, stabilizers, preservatives, solubilizers, surfactants, emulsifiers, wetting agents, adjuvants, and so on” (Wendt at paragraph [0509]), and the disclosure of Wendt, particularly at paragraphs [0711] [0712], would result in many possible formulations. Applicant further argues that Gupta discloses that natriuretic peptides can be formulated in many different excipients for lyophilization, including lyoprotectants or cryoprotectants such as trehalose, sucrose, or other sugars, however, Gupta describes that trehalose is not as effective as other excipients such as sucrose, or lack of a sugar, in providing stable formulations. Applicant argues that the combination of the cited art does not render obvious a formulation comprising the recited concentrations of the specific elements of citric acid, citrate dihydrate, trehalose, D-mannitol, L-methionine, and polysorbate 80, because Wendt in combination with Gupta fails to provide any motivation to choose the recited excipients, and there is nothing in Wendt that would point one of skill to look to Gupta and use trehalose in a CNP composition. Applicant further argues that one of ordinary skill would not have had the motivation or guidance necessary to achieve the presently claimed formulations with a reasonable, predictable expectation of success. Applicant’s arguments have been fully considered but have not been found to be persuasive. Wendt describes that “Compositions comprising a CNP variant can also be lyophilized formulations. In certain embodiments, the lyophilized formulations comprise a buffer and bulking agent, and optionally an antioxidant. Exemplary buffers include without limitation acetate buffers and citrate buffers. Exemplary bulking agents include without limitation mannitol, sucrose, dextran, lactose, trehalose, and povidone (PVP K24). In certain embodiments, mannitol is in an amount from about 3% to about 10%, or from about 4% to about 8%, or from about 4% to about 6%. In certain embodiments, sucrose is in an amount from about 6% to about 20%, or from about 6% to about 15%, or from about 8% to about 12%. Exemplary anti-oxidants include, but are not limited to, methionine and ascorbic acid.” [0591] Wendt further teaches that to minimize or prevent adsorption of a CNP variant to plastic or glass, polysorbate 20, polysorbate 80 or benzyl alcohol is added to a CNP formulation (as an anti-adsorbent) [0793]. One skilled in the art would recognize that Wendt teaches preparing a CNP variant composition by using a buffer (exemplary buffers include an acetate buffer and a citrate buffer), a bulking agent (exemplary bulking agents include mannitol, sucrose, dextran, lactose, trehalose, and povidone), and an antioxidant (exemplary anti-oxidants include methionine and ascorbic acid), and further including an anti-adsorbent (e.g., polysorbate 20, polysorbate 80 or benzyl alcohol) in the composition. While Wendt describes the categories of the ingredients (e.g., a buffer, a bulking agent, an antioxidant, and an anti-adsorbent), Wendt, however, specifically names the exemplary molecules for each of the categories of ingredients, i.e., the buffer, bulking agent, antioxidant, and anti-adsorbent, and the claimed excipients, i.e., citrate buffer, mannitol, methionine, and polysorbate 80, are specifically named as preferred ingredients. In Table 17 (at p. 73), Wendt further teaches the concentrations of these ingredients in the composition; for example, a buffer can be a citric acid/citrate buffer at a concentration range 10mM ± 5mM, pH 4 to 6; an isotonically-adjusting agent/bulking agent can be mannitol at a concentration range 5% ± 3%; a stabilizer can be methionine at a concentration range 0.01%-0.2%; and an anti-adsorbent can be polysorbate 80 at a concentration range 0.001%-0.5%. Thus, a skilled artisan would be motivated to choose these ingredients for preparing a CNP variant composition. Applicant argues that the Wendt disclosure merely provides a very broad and general disclosure that encompasses virtually any CNP variant mixed with many different classes, combinations and amounts of formulation ingredients. However, while Wendt teaches that the formulations comprise a buffer, a bulking agent, and an antioxidant, and to minimize or prevent adsorption of a CNP variant to plastic or glass, an anti-adsorbent is added to a CNP formulation, Wendt specifically names the preferred excipients for each of the categories of ingredients. For the buffer, Wendt teaches the use of an acetate buffer or a citrate buffer; for the bulking agent, Wendt teaches the use of mannitol, sucrose, dextran, lactose, trehalose, or povidone, with a specific emphasis on the use of mannitol (see [0591]); for the antioxidant, Wendt teaches the use of methionine or ascorbic acid; and for the anti- anti-adsorbent agent, Wendt teaches the use of polysorbate 20, polysorbate 80 or benzyl alcohol. Contrary to Applicant’s arguments, Wendt does not merely include virtually any CNP variant mixed with many different classes, combinations and amounts of formulation ingredients, and Wendt provides specific teachings and guidance that motivate a person of skill to combine the recited excipients to arrive at the presently claimed combination. Furthermore, independent claims 31 and 41 recite “administering to said subject a composition comprising (a) a CNP variant peptide …”. The open-ended transitional term “comprising” encompasses any additional components in the composition. Thus, the claimed formulation is not limited to the recited excipients. Wendt does not teach adding trehalose dihydrate in the formulation, and this deficiency is cured by Gupta. Gupta teaches a method for preparing a lyophilized pharmaceutical composition comprising a natriuretic peptide by adding a lyoprotectant to the formulation to provide stability to the protein during the lyophilization process. Gupta describes that “Lyoprotectants are well known in the art and commercially available. Examples include, but are not limited to, polyols or sugars, such as sucrose and trehalose.” [0052] Gupta specifically names two examples of lyoprotectants to be used for preparing a lyophilized pharmaceutical composition comprising a natriuretic peptide, and one of the two is trehalose. Gupta further teaches that the lyoprotectant is used at a concentration between 1-10% (10 mg/mL-100 mg/mL) or at 1% (10 mg/mL), 2% (20 mg/mL), or 3% (30 mg/mL) [0065]. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adding a lyoprotectant, e.g., trehalose or a dihydrate form thereof, into the lyophilized formulation of the CNP variant taught by Wendt. One of ordinary skill in the art would have been motivated to do so, because Wendt teaches preparing a lyophilized formulation comprising a CNP variant useful for treatment, and Gupta further teaches that adding a lyoprotectant, e.g., trehalose, into a lyophilized formulation provides stability to the protein during the lyophilization process. Therefore, the combined teachings provide a reasonable expectation of success in making a lyophilized formulation comprising a CNP variant useful for treatment. Applicant argues that in Example 3, at Table 5, Gupta showed that trehalose is not as effective as other excipients such as sucrose, or lack of a sugar, in providing stable formulations. However, the data in Table 5 shows that i) the drug product (DP) is not stable at pH 4.0 in succinate buffer for formulations containing mannitol or glycine; and the mannitol and glycine formulations at pH 5.5 demonstrated improved stability relative to the pH 4.0 succinate formulations; and ii) the formulation containing mannitol_trehalose_histidine pH 5.5 performs better than the formulations containing mannitol_sucrose_histidine pH 5.5 (with sucrose) and mannitol_glycine_histidine pH 5.5 (lack of a sugar); and the formulation containing glycine_trehalose_histidine pH 5.5 performs better than the formulations containing glycine_sucrose_histidine pH 5.5 (with sucrose) and glycine_mannitol_histidine pH 5.5 (lack of a sugar). Clearly, the data in Table 5 demonstrates that including trehalose in the formulations improves the stability of DP, and that trehalose performs better than sucrose in several tested formulations. With respect to Applicant’s arguments that in Example 4, the impact of sugars on the formulation was not clear, however, formulations containing trehalose were not tested in Example 4. Even the impact of sucrose on the formulations was not clear in the data shown in Example 4, the data does not suggest that trehalose would have no impact on the stability of the formulations. Based on the disclosure of Gupta, particularly the data shown in Table 5, one of skill in the art would recognize that trehalose can improve the stability of the CNP variant formulations, and the person of skill would have been motivated to add trehalose or a dihydrate form thereof into the lyophilized formulation of the CNP variant taught by Wendt, and would have a reasonable expectation of success in making a stable lyophilized formulation comprising a CNP variant useful for treatment. With respect to Applicant’s arguments that the combination of the cited art does not render obvious a formulation comprising the recited concentrations of the specific excipients, however, the claims that recite the concentrations of the claimed excipients (e.g., claims 39, 53 and 62-63) are not included in this rejection. For the foregoing reasons, the combined teachings of the cited art render the instant claims obvious.
Double Patenting Claims 31-36, 39, 41-44, 46-50, 53, and 55-63 remain provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 34, 56-63 and 65 of co-pending Application No. 16/837,910; and claim 45 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of co-pending Application No. 16/837,910, in further view of Legler et al. (Am. Fam. Physician., 1998 Jul 1; 58(1):153-158). Applicant requests the rejection be held in abeyance until notification of allowable subject matter.
Conclusion NO CLAIM IS ALLOWED.
All claims are either identical to or patentably indistinct from claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Xiaozhen Xie, whose telephone number is 571-272-5569. The examiner can normally be reached on M-F, 8:30-5. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Vanessa L. Ford, can be reached on 571-272-0857. 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).
/XIAOZHEN XIE/Primary Examiner, Art Unit 1646 July 29, 2022 | 2022-08-04T22:05:20 | [
"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 Response to Amendment 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 amendment of the claims filed 17 December 2021 has been entered. Applicant’s remarks filed 17 December 2021 are acknowledged. Claims 1-30, 37-38, 40, 51-52 and 54 are cancelled.",
"Claims 31-36, 39, 41-50, 53 and 55-63 are pending and under examination to the extent they read on the elected species of SEQ ID NO: 5. Claim Objections/Rejections Withdrawn The objections to claims 31 and 41 for informalities are withdrawn in response to Applicant’s amendment of the claims. The rejection of claims 31-33, 35-36, 41-44, 46, 49-50 and 55-61 on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 8,198,242 B2, in view of Lorget et al. (Am. J. Hum. Genet., 2012, Vol. 91(6):1108-1114), and further in view of Warne et al. (US 2008/0064856 A1, Pub. Date: Mar. 13, 2008), is withdrawn; and the rejection of claim 45 on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No.",
"8,198,242 B2, in view of Lorget et al. and Legler et al. (Am. Fam. Physician., 1998 Jul 1; 58(1):153-158), and further in view of Warne et al. (US 2008/064856 A1), is withdrawn. Claim Rejections Maintained Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 31-36, 41-50 and 55-61 remain rejected under 35 U.S.C. 103 as being unpatentable over Wendt et al. (US 2010/0297021 A1, Pub. Date: Nov. 25, 2010), in view of Gupta et al. (US 2009/0163421 A1, Pub. Date: Jun. 25, 2009). Ground of Rejection Wendt teaches the use of variants of C-type natriuretic peptide (CNP) and pharmaceutical compositions thereof for treatment of diseases responsive to CNP, including skeletal dysplasias, e.g., achondroplasia (see Abstract). Wendt teaches that the CNP variants can elongate a bone or increase long bone growth [0155], and provide an acceptable rate of growth (i.e., growth velocity), as measure by height for age, head circumference, and segmental growth, in children with achondroplasia [0596]. Wendt teaches that the CNP variants include, e.g., Pro-Gly-CNP37 of SEQ ID NO: 145 [0378], which is identical to SEQ ID NO: 5 of the instant application. Wendt teaches that the CNP variants may be administered, e.g., subcutaneously or intravenously, in an amount at least 7.5 g/kg, or at least 60 g/kg, and the dosing frequency may be daily or weekly as deemed appropriate by a treating physician [0156-0158].",
"Wendt teaches that for treatment of skeletal dysplasias, e.g., achondroplasia, a daily or weekly dose of a CNP variant is administered to patients until and/or through adulthood [0597], and the ideal age range of achondroplasia patients for treatment includes from infant (<1 year of age) to pre-adolescent (<13 years of age) [0798]. Regarding claims 43-44 and 55-59, the treatment effects recited in these claims would naturally flow from administering the same CNP variants to the same population in the same amount as in the instant claims.",
"Regarding the claim limitations in claims 31 and 41 that the composition further comprises “(b) citric acid monohydrate, sodium citrate dihydrate, trehalose dihydrate, D-mannitol, L-methionine and polysorbate 80”, Wendt teaches that the pharmaceutical composition comprising a CNP variant can be a lyophilized formulation comprising a buffer, a bulking agent, and an antioxidant; exemplary buffers include acetate buffer and citrate buffer; exemplary bulking agents include mannitol and sucrose; and exemplary antioxidants include methionine and ascorbic acid [0591].",
"Wendt teaches that to minimize or prevent adsorption of a CNP variant to plastic or glass, polysorbate 80 may be added to a CNP formulation [0793]. In Table 17 (at p. 73), Wendt teaches the concentrations of the excipients; for example, a buffer can be a citric acid/citrate buffer at a concentration range 10mM ± 5mM, pH 4 to 6; an isotonically-adjusting agent/bulking agent can be mannitol at a concentration range 5% ± 3%; a stabilizer can be methionine at a concentration range 0.01%-0.2%; and an anti-adsorbent can be polysorbate 80 at a concentration range 0.001%-0.5%.",
"Wendt, however, does not teach adding trehalose dihydrate in the formulation. Gupta cures this deficiency. Gupta teaches a method for preparing a lyophilized pharmaceutical composition comprising a natriuretic peptide by adding a lyoprotectant to the formulation. Gupta teaches that lyoprotectants provide stability to the protein during the lyophilization process, and lyoprotectants are well known in the art and commercially available, e.g., trehalose [0052]. Gupta teaches that lyoprotectants (e.g., trehalose) are used at a concentration between 1-10% (10 mg/mL-100 mg/mL) or at 1% (10 mg/mL), 2% (20 mg/mL), or 3% (30 mg/mL) [0065]. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add a lyoprotectant, e.g., trehalose or a dihydrate form thereof, into the lyophilized formulation of the CNP variant taught by Wendt. One of ordinary skill in the art would have been motivated to do so, because Wendt teaches preparing a lyophilized formulation comprising a CNP variant useful for treatment, and Gupta further teaches that adding a lyoprotectant, e.g., trehalose, into a lyophilized formulation provides stability to the protein during the lyophilization process.",
"Therefore, the combined teachings provide a reasonable expectation of success in making a lyophilized formulation comprising a CNP variant useful for treatment. Response to Applicant’s Arguments Applicant argues that Wendt fails to teach or suggest a method of treatment using the formulation comprising both a CNP variant and the specific combination of elements of citric acid monohydrate, sodium citrate dehydrate, trehalose dehydrate, D-mannitol, L-methionine, and polysorbate 80. Applicant argues that Wendt merely provides a general listing of possible “excipients, carriers, diluents, vehicles, liquids, buffers, isotonicity agents, additives, stabilizers, preservatives, solubilizers, surfactants, emulsifiers, wetting agents, adjuvants, and so on” (Wendt at paragraph [0509]), and the disclosure of Wendt, particularly at paragraphs [0711] [0712], would result in many possible formulations. Applicant further argues that Gupta discloses that natriuretic peptides can be formulated in many different excipients for lyophilization, including lyoprotectants or cryoprotectants such as trehalose, sucrose, or other sugars, however, Gupta describes that trehalose is not as effective as other excipients such as sucrose, or lack of a sugar, in providing stable formulations. Applicant argues that the combination of the cited art does not render obvious a formulation comprising the recited concentrations of the specific elements of citric acid, citrate dihydrate, trehalose, D-mannitol, L-methionine, and polysorbate 80, because Wendt in combination with Gupta fails to provide any motivation to choose the recited excipients, and there is nothing in Wendt that would point one of skill to look to Gupta and use trehalose in a CNP composition.",
"Applicant further argues that one of ordinary skill would not have had the motivation or guidance necessary to achieve the presently claimed formulations with a reasonable, predictable expectation of success. Applicant’s arguments have been fully considered but have not been found to be persuasive. Wendt describes that “Compositions comprising a CNP variant can also be lyophilized formulations. In certain embodiments, the lyophilized formulations comprise a buffer and bulking agent, and optionally an antioxidant. Exemplary buffers include without limitation acetate buffers and citrate buffers.",
"Exemplary bulking agents include without limitation mannitol, sucrose, dextran, lactose, trehalose, and povidone (PVP K24). In certain embodiments, mannitol is in an amount from about 3% to about 10%, or from about 4% to about 8%, or from about 4% to about 6%. In certain embodiments, sucrose is in an amount from about 6% to about 20%, or from about 6% to about 15%, or from about 8% to about 12%. Exemplary anti-oxidants include, but are not limited to, methionine and ascorbic acid.” [0591] Wendt further teaches that to minimize or prevent adsorption of a CNP variant to plastic or glass, polysorbate 20, polysorbate 80 or benzyl alcohol is added to a CNP formulation (as an anti-adsorbent) [0793]. One skilled in the art would recognize that Wendt teaches preparing a CNP variant composition by using a buffer (exemplary buffers include an acetate buffer and a citrate buffer), a bulking agent (exemplary bulking agents include mannitol, sucrose, dextran, lactose, trehalose, and povidone), and an antioxidant (exemplary anti-oxidants include methionine and ascorbic acid), and further including an anti-adsorbent (e.g., polysorbate 20, polysorbate 80 or benzyl alcohol) in the composition.",
"While Wendt describes the categories of the ingredients (e.g., a buffer, a bulking agent, an antioxidant, and an anti-adsorbent), Wendt, however, specifically names the exemplary molecules for each of the categories of ingredients, i.e., the buffer, bulking agent, antioxidant, and anti-adsorbent, and the claimed excipients, i.e., citrate buffer, mannitol, methionine, and polysorbate 80, are specifically named as preferred ingredients. In Table 17 (at p. 73), Wendt further teaches the concentrations of these ingredients in the composition; for example, a buffer can be a citric acid/citrate buffer at a concentration range 10mM ± 5mM, pH 4 to 6; an isotonically-adjusting agent/bulking agent can be mannitol at a concentration range 5% ± 3%; a stabilizer can be methionine at a concentration range 0.01%-0.2%; and an anti-adsorbent can be polysorbate 80 at a concentration range 0.001%-0.5%.",
"Thus, a skilled artisan would be motivated to choose these ingredients for preparing a CNP variant composition. Applicant argues that the Wendt disclosure merely provides a very broad and general disclosure that encompasses virtually any CNP variant mixed with many different classes, combinations and amounts of formulation ingredients. However, while Wendt teaches that the formulations comprise a buffer, a bulking agent, and an antioxidant, and to minimize or prevent adsorption of a CNP variant to plastic or glass, an anti-adsorbent is added to a CNP formulation, Wendt specifically names the preferred excipients for each of the categories of ingredients.",
"For the buffer, Wendt teaches the use of an acetate buffer or a citrate buffer; for the bulking agent, Wendt teaches the use of mannitol, sucrose, dextran, lactose, trehalose, or povidone, with a specific emphasis on the use of mannitol (see [0591]); for the antioxidant, Wendt teaches the use of methionine or ascorbic acid; and for the anti- anti-adsorbent agent, Wendt teaches the use of polysorbate 20, polysorbate 80 or benzyl alcohol. Contrary to Applicant’s arguments, Wendt does not merely include virtually any CNP variant mixed with many different classes, combinations and amounts of formulation ingredients, and Wendt provides specific teachings and guidance that motivate a person of skill to combine the recited excipients to arrive at the presently claimed combination. Furthermore, independent claims 31 and 41 recite “administering to said subject a composition comprising (a) a CNP variant peptide …”. The open-ended transitional term “comprising” encompasses any additional components in the composition.",
"Thus, the claimed formulation is not limited to the recited excipients. Wendt does not teach adding trehalose dihydrate in the formulation, and this deficiency is cured by Gupta. Gupta teaches a method for preparing a lyophilized pharmaceutical composition comprising a natriuretic peptide by adding a lyoprotectant to the formulation to provide stability to the protein during the lyophilization process. Gupta describes that “Lyoprotectants are well known in the art and commercially available. Examples include, but are not limited to, polyols or sugars, such as sucrose and trehalose.” [0052] Gupta specifically names two examples of lyoprotectants to be used for preparing a lyophilized pharmaceutical composition comprising a natriuretic peptide, and one of the two is trehalose. Gupta further teaches that the lyoprotectant is used at a concentration between 1-10% (10 mg/mL-100 mg/mL) or at 1% (10 mg/mL), 2% (20 mg/mL), or 3% (30 mg/mL) [0065].",
"It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adding a lyoprotectant, e.g., trehalose or a dihydrate form thereof, into the lyophilized formulation of the CNP variant taught by Wendt. One of ordinary skill in the art would have been motivated to do so, because Wendt teaches preparing a lyophilized formulation comprising a CNP variant useful for treatment, and Gupta further teaches that adding a lyoprotectant, e.g., trehalose, into a lyophilized formulation provides stability to the protein during the lyophilization process. Therefore, the combined teachings provide a reasonable expectation of success in making a lyophilized formulation comprising a CNP variant useful for treatment. Applicant argues that in Example 3, at Table 5, Gupta showed that trehalose is not as effective as other excipients such as sucrose, or lack of a sugar, in providing stable formulations.",
"However, the data in Table 5 shows that i) the drug product (DP) is not stable at pH 4.0 in succinate buffer for formulations containing mannitol or glycine; and the mannitol and glycine formulations at pH 5.5 demonstrated improved stability relative to the pH 4.0 succinate formulations; and ii) the formulation containing mannitol_trehalose_histidine pH 5.5 performs better than the formulations containing mannitol_sucrose_histidine pH 5.5 (with sucrose) and mannitol_glycine_histidine pH 5.5 (lack of a sugar); and the formulation containing glycine_trehalose_histidine pH 5.5 performs better than the formulations containing glycine_sucrose_histidine pH 5.5 (with sucrose) and glycine_mannitol_histidine pH 5.5 (lack of a sugar). Clearly, the data in Table 5 demonstrates that including trehalose in the formulations improves the stability of DP, and that trehalose performs better than sucrose in several tested formulations. With respect to Applicant’s arguments that in Example 4, the impact of sugars on the formulation was not clear, however, formulations containing trehalose were not tested in Example 4.",
"Even the impact of sucrose on the formulations was not clear in the data shown in Example 4, the data does not suggest that trehalose would have no impact on the stability of the formulations. Based on the disclosure of Gupta, particularly the data shown in Table 5, one of skill in the art would recognize that trehalose can improve the stability of the CNP variant formulations, and the person of skill would have been motivated to add trehalose or a dihydrate form thereof into the lyophilized formulation of the CNP variant taught by Wendt, and would have a reasonable expectation of success in making a stable lyophilized formulation comprising a CNP variant useful for treatment. With respect to Applicant’s arguments that the combination of the cited art does not render obvious a formulation comprising the recited concentrations of the specific excipients, however, the claims that recite the concentrations of the claimed excipients (e.g., claims 39, 53 and 62-63) are not included in this rejection. For the foregoing reasons, the combined teachings of the cited art render the instant claims obvious. Double Patenting Claims 31-36, 39, 41-44, 46-50, 53, and 55-63 remain provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 34, 56-63 and 65 of co-pending Application No. 16/837,910; and claim 45 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of co-pending Application No.",
"16/837,910, in further view of Legler et al. (Am. Fam. Physician., 1998 Jul 1; 58(1):153-158). Applicant requests the rejection be held in abeyance until notification of allowable subject matter. Conclusion NO CLAIM IS ALLOWED. All claims are either identical to or patentably indistinct from claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Xiaozhen Xie, whose telephone number is 571-272-5569. The examiner can normally be reached on M-F, 8:30-5. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Vanessa L. Ford, can be reached on 571-272-0857. 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). /XIAOZHEN XIE/Primary Examiner, Art Unit 1646 July 29, 2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-07.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/27/2021 08:09 AM CDT
- 644 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
State of Nebraska, appellee, v. Yahia Hassan, appellant. ___ N.W.2d ___
Filed July 2, 2021. No. S-20-562.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay rul- ing and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection. 2. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favor- ably to the State, is sufficient to support the conviction. 3. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. 4. Rules of Evidence: Hearsay. Hearsay is not admissible unless other- wise provided for in the Nebraska Evidence Rules or elsewhere. 5. Hearsay: Words and Phrases. A verbal act is a statement that has legal significance, i.e., it brings about legal consequences simply because it was spoken. 6. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. 7. Statutes. It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. - 645 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
Appeal from the District Court for Hall County: Andrew C. Butler, Judge. Affirmed. Jerrod P. Jaeger, Deputy Hall County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. After the State charged Yahia Hassan with various drug offenses, the county court ordered Hassan to appear at a pre- liminary hearing on an upcoming Thursday. Hassan did not appear for the hearing, a bench warrant was issued, and Hassan was arrested on the following Monday. Although Hassan was not convicted of any of the underlying drug offenses, he was charged and convicted in district court for failure to appear. Two questions are at issue in this appeal. The first is whether the court records the State relied upon to prove Hassan’s fail- ure to appear were properly admitted. The second is whether there was sufficient evidence to support Hassan’s conviction. Hassan claims there was insufficient evidence of an essential element of a failure to appear violation: that he willfully failed to surrender himself within 3 days of being ordered to appear. Hassan argues that the 3-day period must be determined with reference to Neb. Rev. Stat. § 25-2221 (Reissue 2016), a stat- ute setting out a method for the computation of time. He con- tends that if that statute applied, the period in which he could lawfully surrender himself extends to the Monday on which he was arrested, and there was thus insufficient evidence he committed the offense. We find that there was no error in the admission of the court records and that § 25-2221 should not be used to calculate the 3-day period in the failure to appear statute, and thus, we affirm. - 646 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
BACKGROUND After police conducted a search of a car in which Hassan was riding as a passenger and discovered drugs and drug paraphernalia, Hassan was charged with criminal offenses in the county court for Hall County, and he was released from custody. The State later added an additional charge for failure to appear, alleging that Hassan willfully failed to appear for a preliminary hearing in the county court. After the case was bound over to the district court, it pro- ceeded to trial before a jury. Most of the State’s evidence was relevant to the possession charges. The State sought to prove the failure to appear charge through exhibit 7. Exhibit 7 consisted of multiple records from the county court, includ- ing a journal entry from September 3, 2019, ordering Hassan to appear for a preliminary hearing on October 24 and warn- ing that failure to appear could result in the issuance of an arrest warrant, an additional charge for failure to appear, and a finding of contempt; an October 24 journal entry noting that Hassan failed to appear for the preliminary hearing; an October 24 bench warrant issued by the county court as a result of Hassan’s failure to appear; and a warrant return indicating that law enforcement arrested Hassan pursuant to the warrant on October 28. Hassan objected to the admission of exhibit 7. Following a sidebar discussion not reflected in the bill of exceptions, the district court stated it was overruling the objection. Hassan’s counsel noted for the record that “the objection was under the public records exception.” The district court acknowledged the objection and again noted it was overruled. Following the conclusion of the State’s case, Hassan moved for a directed verdict on all charges. The district court granted Hassan a directed verdict on one of the possession charges, but denied a directed verdict on all others. Hassan did not intro- duce evidence. The jury returned a verdict finding Hassan not guilty of the remaining possession charges and guilty of the failure to - 647 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
appear charge. For the failure to appear conviction, the district court sentenced Hassan to 10 days’ incarceration with credit given for 10 days’ time served. ASSIGNMENTS OF ERROR Hassan assigns that the district court erred (1) by admitting exhibit 7 under the public records exception to the hearsay rule and (2) by overruling Hassan’s motion for directed verdict and finding the evidence sufficient to support his conviction for failure to appear. STANDARD OF REVIEW [1] Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the court’s ulti- mate determination to admit evidence over a hearsay objection. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). [2] Regardless of whether the evidence is direct, circumstan- tial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the stan- dard is the same: In reviewing a criminal conviction, an appel- late court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such mat- ters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is suf- ficient to support the conviction. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). ANALYSIS Admissibility of County Court Records. Hassan contends that the county court records found in exhibit 7 should not have been admitted into evidence at trial. He asserts that exhibit 7 is hearsay and was not admissible under the public records exception to the hearsay rule. See Neb. Rev. Stat. § 27-803(7) (Reissue 2016). Specifically, he - 648 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
claims that the State did not provide adequate notice or show that exhibit 7 contained records of facts required to be observed and recorded pursuant to a duty imposed by law, both of which are required by § 27-803(7). We find that it is unnecessary to determine whether exhibit 7 was admissible under § 27-803(7), because Hassan objected to exhibit 7 as a whole, but exhibit 7 is not entirely inadmissible hearsay. [3,4] Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015). Hearsay is not admissible unless otherwise provided for in the Nebraska Evidence Rules or elsewhere. State v. Poe, supra. But an out-of-court statement is not hearsay if the proponent offers it for a purpose other than proving the truth of the matter asserted. Id. This last principle is crucial here, because at least part of exhibit 7 could not have been offered for the truth of the matter asserted. [5] Included within exhibit 7 was a journal entry ordering Hassan to appear for a preliminary hearing on October 24, 2019. This journal entry was a “verbal act” and was thus not hearsay. A verbal act is a statement that has legal significance, i.e., it brings about legal consequences simply because it was spoken. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). Such statements are not hearsay. See id. As a com- mentator has explained, verbal acts are not hearsay, because they “involve words that have a legal effect that is not con- cerned with the out-of-court declarant’s memory, perceptions, or honesty.” G. Michael Fenner, The Hearsay Rule, 26 (3d ed. 2013). The county court’s order directing Hassan to appear for a preliminary hearing had legal significance simply because it was spoken. Because the county court issued the order, Hassan was obligated to appear and faced legal consequences if he did not. His failure to appear as ordered formed the basis for the conviction at issue. Several courts have concluded that imperative statements in court orders are not hearsay, because - 649 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
they bring about legal consequences as a result of being spo- ken. See, e.g., U.S. v. Dupree, 706 F.3d 131, 137 (2d Cir. 2013) (“the question whether a court’s command imposes legal obligations on a party is outside the hearsay rule’s concerns”); U.S. v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004) (“[a] prior judgment is not hearsay . . . to the extent that it is offered as legally operative verbal conduct that determined the rights and duties of the parties”); Prudential Ins. Co. of America v. Sagers, 421 F. Supp. 3d 1199, 1204 (D. Utah 2019) (“orders by the court are not offered for the truth of those statements, but rather to demonstrate the legal effect of the statements on the parties”). See, also, U.S. v. Hayes, 369 F.3d 564, 568 (D.C. Cir. 2004) (reasoning that because imperative statements were not assertive, they did not “express a ‘truth’ for which they could be offered”). For the same reason, we conclude that the journal entry and order directing Hassan to appear for a preliminary hearing was a verbal act and not hearsay. Hassan may contend that other portions of exhibit 7 con- tained inadmissible hearsay, but we need not reach that ques- tion. Hassan objected to exhibit 7 as a whole. We have held that even if there are inadmissible parts within an exhibit, “an objection to an exhibit as a whole is properly overruled where a part of the exhibit is admissible.” State v. Merrill, 252 Neb. 736, 743, 566 N.W.2d 742, 748 (1997). Because part of exhibit 7 was admissible, the district court did not err in overruling Hassan’s objection to its admission.
Sufficiency of Evidence. Hassan also contends that his conviction cannot stand, because the State failed to introduce sufficient evidence of all of the essential elements of a failure to appear offense. The statute underlying the basis of the failure to appear charge, Neb. Rev. Stat. § 29-908 (Reissue 2016), provides in relevant part: Whoever is charged with a felony and is released from custody under bail, recognizance, or a conditioned release - 650 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
and willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a Class IV felony . . . . We have held that to sustain a conviction under § 29-908, the State must establish that (1) the defendant was charged with a felony; (2) the defendant was released from custody under bail, recognizance, or a conditioned release; and (3) the defendant willfully failed (a) to appear before the court when legally required or (b) to surrender himself or herself within 3 days thereafter. State v. Valdez, 236 Neb. 627, 463 N.W.2d 326 (1990). Hassan does not contest that the State introduced evidence that he was charged with a felony; that he was released from custody under bail, recognizance, or a conditioned release; or that he willfully failed to appear for the preliminary hearing as ordered. He does claim that the State failed to show that he willfully failed to surrender himself within 3 days of failing to appear for the preliminary hearing. Hassan argues that the 3-day period referred to in § 29-908 must be determined with reference to § 25-2221. Section 25-2221 provides in pertinent part: Except as may be otherwise more specifically pro- vided, the period of time within which an act is to be done in any action or proceeding shall be computed by excluding the day of the act, event, or default after which the designated period of time begins to run. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a day during which the offices of courts of record may be legally closed as provided in this section, in which event the period shall run until the end of the next day on which the office will be open. Hassan argues that although § 29-908 obligates defendants to surrender themselves within 3 days of a failure to appear before the court, § 25-2221 dictates that when the failure to appear occurs on a Thursday and the third day thereafter thus - 651 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
falls on a Sunday, as it did here, the time in which the defend ant can surrender himself or herself and avoid a violation of § 29-908 includes the following Monday. And because the State’s evidence showed that Hassan was arrested on the fol- lowing Monday, he claims the State did not prove he failed to surrender himself as required by § 29-908. The State counters that § 25-2221 should not be applied here. The State does not contend that § 25-2221 has no application in the criminal context, but acknowledges that we have applied § 25-2221 in many such cases. See, e.g., State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994) (applying § 25-2221 in determining whether prosecution was time barred); State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993) (applying § 25-2221 in determining whether motion for new trial was timely filed); State v. Bridger, 223 Neb. 250, 388 N.W.2d 831 (1986) (applying § 25-2221 in determining whether appeal was timely filed); State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981) (applying § 25-2221 in speedy trial computation). Instead, the State attempts to distinguish those cases, argu- ing that the deadlines in those cases were “administrative” or “procedural,” while the deadline in § 29-908 is not. Brief for appellee at 14 and 15. [6,7] To answer whether the 3-day period in § 29-908 should be determined with reference to § 25-2221, we must interpret § 25-2221. To do so, we apply our familiar principles of statu- tory interpretation, which we briefly review here. When inter- preting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020). Our analysis begins with the text, because statu- tory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascer- tain the meaning of statutory words which are plain, direct, and unambiguous. See id. Neither is it within the province of courts to read meaning into a statute that is not there or to read - 652 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
anything direct and plain out of a statute. Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). Applying these principles to the question at hand, we con- clude that § 25-2221 should not be used to determine the 3-day surrender period in § 29-908. Section 25-2221 provides that its procedure for counting days is to be applied when there is a “period of time within which an act is to be done in any action or proceeding” (emphasis supplied). There is no question that by requiring defendants to surrender themselves within 3 days of failing to appear as ordered, § 29-908 creates a period of time in which an act is to be done. In addition, our prior cases appear to have treated a criminal prosecution as an “action or proceeding” for purposes of § 25-2551. We do not, however, understand § 29-908 to require defendants to perform the time- sensitive act of surrendering themselves following a failure to appear in the action or proceeding. Section 29-908 makes it a crime for certain individuals to willfully fail (1) to appear for court when legally required and (2) to surrender themselves within 3 days. It does not, however, direct to whom those defendants must surrender or provide any indication that their required surrender must take place to the court in the criminal proceeding. We see nothing in the statute that would prevent a defendant who failed to appear for a required court appearance from surrendering to law enforce- ment in the county in which he or she was ordered to appear within 3 days and thereby avoiding a violation of § 29-908. Yet, in that scenario, the defendant is not taking any action in the criminal proceeding. The defendant is simply surrendering to law enforcement to avoid committing a criminal offense. The failure to surrender within 3 days of being ordered to appear is an essential element of a violation of § 29-908, but the defendant is not required to take that action in the under- lying proceeding. Accordingly, § 25-2221, by its terms, does not apply. We acknowledge that this court has not always adhered closely to the text of § 25-2221 in determining whether its - 653 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
method for computing time should be applied. In State ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 (1994), we applied § 25-2221 as we were determining whether state- ments describing proposed constitutional amendments were timely filed with the Secretary of State. We concluded that § 25-2221 applied in reliance on a treatise, which stated that “[a] statutory rule for the computation of time is usually con- strued as a general provision relating to all acts required and permitted by law, unless an intention to the contrary affirma- tively appears or a different construction seems imperative . . . .” State ex rel. Wieland v. Beermann, 246 Neb. at 812, 523 N.W.2d at 523, quoting 86 C.J.S. Time § 8 (1954) (internal quotation marks omitted). To the extent we suggested in State ex rel. Wieland that § 25-2221 should be “construed as a general provision relat- ing to all acts required and permitted by law,” we glossed over § 25-2221’s text. Unlike some time computation statutes from other states, see, e.g., 5 Ill. Comp. Stat. Ann. 70/1.11 (West 2016) (“[t]he time within which any act provided by law is to be done shall be computed by . . . .”), § 25-2221 does not state that its method of time computation should be applied to any and all acts required by law. As we have noted, it applies only to those acts which must be done “in any action or pro- ceeding.” It is the function of the Legislature, through the enactment of statutes, to declare what is the law and public policy of this state. Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d 754 (2019). The Legislature has specified the circumstances in which the method of computing time outlined in § 25-2221 is to be applied. We are obligated to follow its policy direction. Because § 25-2221 does not apply to determining the 3-day surrender period of § 29-908, we interpret the reference in § 29-908 to 3 days according to its plain and ordinary meaning of 3 calendar days. See In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020). With this understanding in mind, it becomes clear that the State introduced sufficient - 654 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644
evidence that Hassan failed to surrender himself within 3 days of the preliminary hearing. As we have discussed, Hassan failed to appear for the preliminary hearing on Thursday, October 24, 2019, and was then arrested on Monday, October 28. As more than 3 calendar days elapsed between his failure to appear and his arrest, there was evidence by which the jury could have found each of the essential elements of a violation of § 29-908.
CONCLUSION Because we find that Hassan’s assignments of error lack merit, we affirm. Affirmed. | 08-27-2021 | [
"Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/27/2021 08:09 AM CDT - 644 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 State of Nebraska, appellee, v. Yahia Hassan, appellant. ___ N.W.2d ___ Filed July 2, 2021. No. S-20-562. 1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay rul- ing and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection. 2. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favor- ably to the State, is sufficient to support the conviction.",
"3. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. 4. Rules of Evidence: Hearsay. Hearsay is not admissible unless other- wise provided for in the Nebraska Evidence Rules or elsewhere. 5. Hearsay: Words and Phrases. A verbal act is a statement that has legal significance, i.e., it brings about legal consequences simply because it was spoken. 6. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. 7.",
"Statutes. It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute. - 645 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 Appeal from the District Court for Hall County: Andrew C. Butler, Judge. Affirmed. Jerrod P. Jaeger, Deputy Hall County Public Defender, for appellant.",
"Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. After the State charged Yahia Hassan with various drug offenses, the county court ordered Hassan to appear at a pre- liminary hearing on an upcoming Thursday. Hassan did not appear for the hearing, a bench warrant was issued, and Hassan was arrested on the following Monday. Although Hassan was not convicted of any of the underlying drug offenses, he was charged and convicted in district court for failure to appear. Two questions are at issue in this appeal. The first is whether the court records the State relied upon to prove Hassan’s fail- ure to appear were properly admitted. The second is whether there was sufficient evidence to support Hassan’s conviction. Hassan claims there was insufficient evidence of an essential element of a failure to appear violation: that he willfully failed to surrender himself within 3 days of being ordered to appear. Hassan argues that the 3-day period must be determined with reference to Neb.",
"Rev. Stat. § 25-2221 (Reissue 2016), a stat- ute setting out a method for the computation of time. He con- tends that if that statute applied, the period in which he could lawfully surrender himself extends to the Monday on which he was arrested, and there was thus insufficient evidence he committed the offense. We find that there was no error in the admission of the court records and that § 25-2221 should not be used to calculate the 3-day period in the failure to appear statute, and thus, we affirm. - 646 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 BACKGROUND After police conducted a search of a car in which Hassan was riding as a passenger and discovered drugs and drug paraphernalia, Hassan was charged with criminal offenses in the county court for Hall County, and he was released from custody. The State later added an additional charge for failure to appear, alleging that Hassan willfully failed to appear for a preliminary hearing in the county court. After the case was bound over to the district court, it pro- ceeded to trial before a jury. Most of the State’s evidence was relevant to the possession charges. The State sought to prove the failure to appear charge through exhibit 7. Exhibit 7 consisted of multiple records from the county court, includ- ing a journal entry from September 3, 2019, ordering Hassan to appear for a preliminary hearing on October 24 and warn- ing that failure to appear could result in the issuance of an arrest warrant, an additional charge for failure to appear, and a finding of contempt; an October 24 journal entry noting that Hassan failed to appear for the preliminary hearing; an October 24 bench warrant issued by the county court as a result of Hassan’s failure to appear; and a warrant return indicating that law enforcement arrested Hassan pursuant to the warrant on October 28.",
"Hassan objected to the admission of exhibit 7. Following a sidebar discussion not reflected in the bill of exceptions, the district court stated it was overruling the objection. Hassan’s counsel noted for the record that “the objection was under the public records exception.” The district court acknowledged the objection and again noted it was overruled. Following the conclusion of the State’s case, Hassan moved for a directed verdict on all charges. The district court granted Hassan a directed verdict on one of the possession charges, but denied a directed verdict on all others. Hassan did not intro- duce evidence.",
"The jury returned a verdict finding Hassan not guilty of the remaining possession charges and guilty of the failure to - 647 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 appear charge. For the failure to appear conviction, the district court sentenced Hassan to 10 days’ incarceration with credit given for 10 days’ time served. ASSIGNMENTS OF ERROR Hassan assigns that the district court erred (1) by admitting exhibit 7 under the public records exception to the hearsay rule and (2) by overruling Hassan’s motion for directed verdict and finding the evidence sufficient to support his conviction for failure to appear. STANDARD OF REVIEW [1] Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the court’s ulti- mate determination to admit evidence over a hearsay objection. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). [2] Regardless of whether the evidence is direct, circumstan- tial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the stan- dard is the same: In reviewing a criminal conviction, an appel- late court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such mat- ters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is suf- ficient to support the conviction.",
"State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). ANALYSIS Admissibility of County Court Records. Hassan contends that the county court records found in exhibit 7 should not have been admitted into evidence at trial. He asserts that exhibit 7 is hearsay and was not admissible under the public records exception to the hearsay rule. See Neb. Rev. Stat. § 27-803(7) (Reissue 2016). Specifically, he - 648 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 claims that the State did not provide adequate notice or show that exhibit 7 contained records of facts required to be observed and recorded pursuant to a duty imposed by law, both of which are required by § 27-803(7).",
"We find that it is unnecessary to determine whether exhibit 7 was admissible under § 27-803(7), because Hassan objected to exhibit 7 as a whole, but exhibit 7 is not entirely inadmissible hearsay. [3,4] Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015). Hearsay is not admissible unless otherwise provided for in the Nebraska Evidence Rules or elsewhere. State v. Poe, supra. But an out-of-court statement is not hearsay if the proponent offers it for a purpose other than proving the truth of the matter asserted.",
"Id. This last principle is crucial here, because at least part of exhibit 7 could not have been offered for the truth of the matter asserted. [5] Included within exhibit 7 was a journal entry ordering Hassan to appear for a preliminary hearing on October 24, 2019. This journal entry was a “verbal act” and was thus not hearsay. A verbal act is a statement that has legal significance, i.e., it brings about legal consequences simply because it was spoken. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). Such statements are not hearsay. See id. As a com- mentator has explained, verbal acts are not hearsay, because they “involve words that have a legal effect that is not con- cerned with the out-of-court declarant’s memory, perceptions, or honesty.” G. Michael Fenner, The Hearsay Rule, 26 (3d ed.",
"2013). The county court’s order directing Hassan to appear for a preliminary hearing had legal significance simply because it was spoken. Because the county court issued the order, Hassan was obligated to appear and faced legal consequences if he did not. His failure to appear as ordered formed the basis for the conviction at issue. Several courts have concluded that imperative statements in court orders are not hearsay, because - 649 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 they bring about legal consequences as a result of being spo- ken.",
"See, e.g., U.S. v. Dupree, 706 F.3d 131, 137 (2d Cir. 2013) (“the question whether a court’s command imposes legal obligations on a party is outside the hearsay rule’s concerns”); U.S. v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004) (“[a] prior judgment is not hearsay . . . to the extent that it is offered as legally operative verbal conduct that determined the rights and duties of the parties”); Prudential Ins. Co. of America v. Sagers, 421 F. Supp. 3d 1199, 1204 (D. Utah 2019) (“orders by the court are not offered for the truth of those statements, but rather to demonstrate the legal effect of the statements on the parties”). See, also, U.S. v. Hayes, 369 F.3d 564, 568 (D.C. Cir. 2004) (reasoning that because imperative statements were not assertive, they did not “express a ‘truth’ for which they could be offered”). For the same reason, we conclude that the journal entry and order directing Hassan to appear for a preliminary hearing was a verbal act and not hearsay. Hassan may contend that other portions of exhibit 7 con- tained inadmissible hearsay, but we need not reach that ques- tion.",
"Hassan objected to exhibit 7 as a whole. We have held that even if there are inadmissible parts within an exhibit, “an objection to an exhibit as a whole is properly overruled where a part of the exhibit is admissible.” State v. Merrill, 252 Neb. 736, 743, 566 N.W.2d 742, 748 (1997). Because part of exhibit 7 was admissible, the district court did not err in overruling Hassan’s objection to its admission. Sufficiency of Evidence. Hassan also contends that his conviction cannot stand, because the State failed to introduce sufficient evidence of all of the essential elements of a failure to appear offense. The statute underlying the basis of the failure to appear charge, Neb. Rev.",
"Stat. § 29-908 (Reissue 2016), provides in relevant part: Whoever is charged with a felony and is released from custody under bail, recognizance, or a conditioned release - 650 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 and willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a Class IV felony .",
". . . We have held that to sustain a conviction under § 29-908, the State must establish that (1) the defendant was charged with a felony; (2) the defendant was released from custody under bail, recognizance, or a conditioned release; and (3) the defendant willfully failed (a) to appear before the court when legally required or (b) to surrender himself or herself within 3 days thereafter. State v. Valdez, 236 Neb. 627, 463 N.W.2d 326 (1990). Hassan does not contest that the State introduced evidence that he was charged with a felony; that he was released from custody under bail, recognizance, or a conditioned release; or that he willfully failed to appear for the preliminary hearing as ordered. He does claim that the State failed to show that he willfully failed to surrender himself within 3 days of failing to appear for the preliminary hearing.",
"Hassan argues that the 3-day period referred to in § 29-908 must be determined with reference to § 25-2221. Section 25-2221 provides in pertinent part: Except as may be otherwise more specifically pro- vided, the period of time within which an act is to be done in any action or proceeding shall be computed by excluding the day of the act, event, or default after which the designated period of time begins to run. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a day during which the offices of courts of record may be legally closed as provided in this section, in which event the period shall run until the end of the next day on which the office will be open. Hassan argues that although § 29-908 obligates defendants to surrender themselves within 3 days of a failure to appear before the court, § 25-2221 dictates that when the failure to appear occurs on a Thursday and the third day thereafter thus - 651 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb.",
"644 falls on a Sunday, as it did here, the time in which the defend ant can surrender himself or herself and avoid a violation of § 29-908 includes the following Monday. And because the State’s evidence showed that Hassan was arrested on the fol- lowing Monday, he claims the State did not prove he failed to surrender himself as required by § 29-908. The State counters that § 25-2221 should not be applied here. The State does not contend that § 25-2221 has no application in the criminal context, but acknowledges that we have applied § 25-2221 in many such cases. See, e.g., State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994) (applying § 25-2221 in determining whether prosecution was time barred); State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993) (applying § 25-2221 in determining whether motion for new trial was timely filed); State v. Bridger, 223 Neb.",
"250, 388 N.W.2d 831 (1986) (applying § 25-2221 in determining whether appeal was timely filed); State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981) (applying § 25-2221 in speedy trial computation). Instead, the State attempts to distinguish those cases, argu- ing that the deadlines in those cases were “administrative” or “procedural,” while the deadline in § 29-908 is not. Brief for appellee at 14 and 15. [6,7] To answer whether the 3-day period in § 29-908 should be determined with reference to § 25-2221, we must interpret § 25-2221. To do so, we apply our familiar principles of statu- tory interpretation, which we briefly review here. When inter- preting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context. In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).",
"Our analysis begins with the text, because statu- tory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascer- tain the meaning of statutory words which are plain, direct, and unambiguous. See id. Neither is it within the province of courts to read meaning into a statute that is not there or to read - 652 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 anything direct and plain out of a statute. Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). Applying these principles to the question at hand, we con- clude that § 25-2221 should not be used to determine the 3-day surrender period in § 29-908. Section 25-2221 provides that its procedure for counting days is to be applied when there is a “period of time within which an act is to be done in any action or proceeding” (emphasis supplied). There is no question that by requiring defendants to surrender themselves within 3 days of failing to appear as ordered, § 29-908 creates a period of time in which an act is to be done. In addition, our prior cases appear to have treated a criminal prosecution as an “action or proceeding” for purposes of § 25-2551.",
"We do not, however, understand § 29-908 to require defendants to perform the time- sensitive act of surrendering themselves following a failure to appear in the action or proceeding. Section 29-908 makes it a crime for certain individuals to willfully fail (1) to appear for court when legally required and (2) to surrender themselves within 3 days. It does not, however, direct to whom those defendants must surrender or provide any indication that their required surrender must take place to the court in the criminal proceeding. We see nothing in the statute that would prevent a defendant who failed to appear for a required court appearance from surrendering to law enforce- ment in the county in which he or she was ordered to appear within 3 days and thereby avoiding a violation of § 29-908. Yet, in that scenario, the defendant is not taking any action in the criminal proceeding.",
"The defendant is simply surrendering to law enforcement to avoid committing a criminal offense. The failure to surrender within 3 days of being ordered to appear is an essential element of a violation of § 29-908, but the defendant is not required to take that action in the under- lying proceeding. Accordingly, § 25-2221, by its terms, does not apply. We acknowledge that this court has not always adhered closely to the text of § 25-2221 in determining whether its - 653 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 method for computing time should be applied. In State ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 (1994), we applied § 25-2221 as we were determining whether state- ments describing proposed constitutional amendments were timely filed with the Secretary of State.",
"We concluded that § 25-2221 applied in reliance on a treatise, which stated that “[a] statutory rule for the computation of time is usually con- strued as a general provision relating to all acts required and permitted by law, unless an intention to the contrary affirma- tively appears or a different construction seems imperative . . . .” State ex rel. Wieland v. Beermann, 246 Neb. at 812, 523 N.W.2d at 523, quoting 86 C.J.S. Time § 8 (1954) (internal quotation marks omitted). To the extent we suggested in State ex rel. Wieland that § 25-2221 should be “construed as a general provision relat- ing to all acts required and permitted by law,” we glossed over § 25-2221’s text. Unlike some time computation statutes from other states, see, e.g., 5 Ill. Comp. Stat. Ann. 70/1.11 (West 2016) (“[t]he time within which any act provided by law is to be done shall be computed by . .",
". .”), § 25-2221 does not state that its method of time computation should be applied to any and all acts required by law. As we have noted, it applies only to those acts which must be done “in any action or pro- ceeding.” It is the function of the Legislature, through the enactment of statutes, to declare what is the law and public policy of this state. Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d 754 (2019). The Legislature has specified the circumstances in which the method of computing time outlined in § 25-2221 is to be applied. We are obligated to follow its policy direction. Because § 25-2221 does not apply to determining the 3-day surrender period of § 29-908, we interpret the reference in § 29-908 to 3 days according to its plain and ordinary meaning of 3 calendar days. See In re Guardianship of Eliza W., 304 Neb.",
"995, 938 N.W.2d 307 (2020). With this understanding in mind, it becomes clear that the State introduced sufficient - 654 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. HASSAN Cite as 309 Neb. 644 evidence that Hassan failed to surrender himself within 3 days of the preliminary hearing. As we have discussed, Hassan failed to appear for the preliminary hearing on Thursday, October 24, 2019, and was then arrested on Monday, October 28. As more than 3 calendar days elapsed between his failure to appear and his arrest, there was evidence by which the jury could have found each of the essential elements of a violation of § 29-908. CONCLUSION Because we find that Hassan’s assignments of error lack merit, we affirm. Affirmed."
]
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594 F.3d 893 (2010) Patrick J. DEVLIN, Plaintiff-Appellant, v. Richard S. KALM, et al., Defendants-Appellees. No. 09-1376. United States Court of Appeals, Sixth Circuit. Argued: December 1, 2009. Decided and Filed: February 12, 2010. ARGUED: Patrick J. Devlin, Patrick J. Devlin, P.C., Grand Rapids, Michigan, for Appellant. Ann M. Sherman, Jason D. Hawkins, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF: Patrick J. Devlin, Patrick J. *894 Devlin, P.C., Grand Rapids, Michigan, for Appellant. Ann M. Sherman, Barbara A. Schmidt, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. Before GUY, ROGERS, and GRIFFIN, Circuit Judges.
OPINION ROGERS, Circuit Judge. Plaintiff Patrick J. Devlin appeals the district court's decision to dismiss his 42 U.S.C. § 1983 complaint under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The procedural posture of this case does not warrant the application of Younger. On remand, however, the district court may consider other possible bases for dismissal or stay. While employed at the Michigan Gaming Control Board (MGCB), Devlin filed two citizen suits in state court seeking to compel enforcement of the state's liquor licensing laws and the MGCB's employee qualification rules. After newspapers quoted Devlin in articles about these citizen suits, the MGCB terminated Devlin's employment. Devlin filed the present federal suit against various state officials,[1] and, later on the same date, Devlin grieved his termination in the Michigan Civil Services Commission (MCSC).[2] In his MCSC grievance, Devlin alleges that his termination violated state civil service rules, and he seeks reinstatement and back pay, or front pay from his termination date to his planned retirement. The MCSC stayed these proceedings on Devlin's motion. In his federal suit, Devlin alleges that his termination violated his rights under the First Amendment, the Due Process Clause, and state law, and he seeks injunctive and monetary relief.[3] Defendants moved to dismiss Devlin's federal suit based on Younger, and the district court dismissed the case on that basis. Under Younger, "absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions." New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 364, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The Supreme Court has extended Younger to bar federal courts from interfering in some state civil suits and administrative proceedings. Id. at 369-72, 109 S.Ct. 2506; Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 & n. 2, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). However, Younger cases generally have a common procedural posture: In the typical Younger case, the federal plaintiff is a defendant in ongoing or threatened state court proceedings seeking to enjoin continuation of those state proceedings. Moreover, the basis for the federal relief claimed is generally available to the would-be federal plaintiff as a defense in the state proceedings. *895 Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 30 (6th Cir.1984). Therefore, Younger does not apply when "the federal plaintiffs are also plaintiffs in the state court action" and "the plaintiffs are not attempting to use the federal courts to shield them from state court enforcement efforts." Id. (emphasis in original). Accordingly, Younger does not prevent the federal court from ruling on Devlin's claims in the present suit because Devlin is the plaintiff in both the federal and state proceedings, and Devlin does not seek to enjoin the state proceedings or otherwise use the federal court to shield him from state enforcement efforts. This approach follows the Supreme Court's statement in Ohio Civil Rights Commission that applying Younger to a state administrative proceeding was consistent with the absence of an administrative exhaustion requirement because the ongoing state proceedings in that case were "coercive rather than remedial." 477 U.S. at 627 n. 2, 106 S.Ct. 2718. Other circuits have accordingly limited Younger in § 1983 claims to cases where there are "coercive" state proceedings. See, e.g., Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 522 (1st Cir.2009) (stating that "post-hoc remedial proceedings initiated by the [federal] plaintiffs [after a state agency's adverse decision] are not the type [of proceeding] to which deference under Younger applies. Rather, proceedings must be coercive, and in most-cases, state-initiated, in order to warrant abstention."); Brown ex rel. Brown v. Day, 555 F.3d 882, 889 (10th Cir.2009) (holding that Younger does not bar a Medicaid beneficiary's federal suit challenging termination of benefits, though that beneficiary also filed a state action on the same ground, because "[t]he state did not compel [the federal plaintiff] to participate in the [state] proceedings" and "[the federal plaintiff] seeks not to enjoin the state proceedings, but to secure relief from the state's allegedly unlawful conduct by recovering her Medicaid benefits"); Marks v. Stinson, 19 F.3d 873, 885 (3d Cir.1994) (quoting Crawley and noting that "[a] federal plaintiff may pursue parallel actions in the state and federal courts so long as the plaintiff does not seek relief in the federal court that would interfere with the state judicial process"). Defendants argue that abstention is appropriate under Middlesex County Ethics Committee, 457 U.S. at 423, 102 S.Ct. 2515, and Fieger v. Thomas, 74 F.3d 740 (6th Cir.1996). In both cases, an attorney who suffered an adverse decision from the state's lawyer disciplinary body filed a federal suit seeking to enjoin the state proceedings and alleging that those proceedings violated his federal constitutional rights. Middlesex County, 457 U.S. at 428-29, 102 S.Ct. 2515; Fieger, 74 F.3d at 741. In both cases, the federal court declined under Younger to rule on the constitutional claims due to the ongoing state proceedings. Middlesex County, 457 U.S. at 431-37, 102 S.Ct. 2515; Fieger, 74 F.3d at 750. These cases do not preclude the federal court from ruling in this case on Devlin's claims because the MCSC proceedings differ from the lawyer disciplinary proceedings at issue in Middlesex County and Fieger. Those lawyer disciplinary proceedings were initiated by the state to redress a wrong allegedly committed by the federal plaintiff, whereas the MCSC proceedings at issue here were initiated by Devlin, the federal plaintiff, to redress a wrong allegedly committed by the state. Moreover, unlike the federal plaintiffs in Middlesex County and Fieger, Devlin does not seek to enjoin the MCSC proceedings, but rather seeks consistent forms of relief in federal and state proceedings. Accordingly, Younger does not bar the present federal suit. The judgment *896 of the district court is vacated and the case is remanded. Our decision today takes no position on whether Devlin's case should be dismissed or stayed on other theories, such as abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), or Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We also decline to rule on Defendant McClelland's alternative motion to dismiss for failure to state a claim upon which relief can be granted because the district court did not comment on this motion. See Mount Clemens v. EPA, 917 F.2d 908, 916 n. 2 (6th Cir.1990). NOTES [1] Defendants are Richard S. Kalm (Executive Director, MGCB), Frederick J. Cleland (Deputy Director for Licensing, MGCB), Eric T. Bush (Administrative Manager, MGCB), Dale E. Beachnau (Human Resources Administrator, Michigan Department of Treasury), Michael Davis (Labor Relations Representative, Michigan Department of Treasury), Dominick P. Alagna (Casino Employee Licensing Manager, MGCB), and Janet M. McClelland (Acting State Personnel Director, MGCB). [2] The MCSC is the state body charged with "mak[ing] rules and regulations covering all personnel transactions, and regulat[ing] all conditions of employment in the classified [state civil] service." Mich. Const. art. XI, § 5. [3] The district court sua sponte declined to exercise supplemental jurisdiction over Devlin's state law claim. | 10-30-2013 | [
"594 F.3d 893 (2010) Patrick J. DEVLIN, Plaintiff-Appellant, v. Richard S. KALM, et al., Defendants-Appellees. No. 09-1376. United States Court of Appeals, Sixth Circuit. Argued: December 1, 2009. Decided and Filed: February 12, 2010. ARGUED: Patrick J. Devlin, Patrick J. Devlin, P.C., Grand Rapids, Michigan, for Appellant. Ann M. Sherman, Jason D. Hawkins, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF: Patrick J. Devlin, Patrick J. *894 Devlin, P.C., Grand Rapids, Michigan, for Appellant. Ann M. Sherman, Barbara A. Schmidt, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.",
"Before GUY, ROGERS, and GRIFFIN, Circuit Judges. OPINION ROGERS, Circuit Judge. Plaintiff Patrick J. Devlin appeals the district court's decision to dismiss his 42 U.S.C. § 1983 complaint under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The procedural posture of this case does not warrant the application of Younger. On remand, however, the district court may consider other possible bases for dismissal or stay. While employed at the Michigan Gaming Control Board (MGCB), Devlin filed two citizen suits in state court seeking to compel enforcement of the state's liquor licensing laws and the MGCB's employee qualification rules. After newspapers quoted Devlin in articles about these citizen suits, the MGCB terminated Devlin's employment. Devlin filed the present federal suit against various state officials,[1] and, later on the same date, Devlin grieved his termination in the Michigan Civil Services Commission (MCSC).",
"[2] In his MCSC grievance, Devlin alleges that his termination violated state civil service rules, and he seeks reinstatement and back pay, or front pay from his termination date to his planned retirement. The MCSC stayed these proceedings on Devlin's motion. In his federal suit, Devlin alleges that his termination violated his rights under the First Amendment, the Due Process Clause, and state law, and he seeks injunctive and monetary relief. [3] Defendants moved to dismiss Devlin's federal suit based on Younger, and the district court dismissed the case on that basis.",
"Under Younger, \"absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions.\" New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 364, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). The Supreme Court has extended Younger to bar federal courts from interfering in some state civil suits and administrative proceedings. Id. at 369-72, 109 S.Ct. 2506; Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 & n. 2, 106 S.Ct.",
"2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). However, Younger cases generally have a common procedural posture: In the typical Younger case, the federal plaintiff is a defendant in ongoing or threatened state court proceedings seeking to enjoin continuation of those state proceedings. Moreover, the basis for the federal relief claimed is generally available to the would-be federal plaintiff as a defense in the state proceedings. *895 Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 30 (6th Cir.1984). Therefore, Younger does not apply when \"the federal plaintiffs are also plaintiffs in the state court action\" and \"the plaintiffs are not attempting to use the federal courts to shield them from state court enforcement efforts.\" Id. (emphasis in original). Accordingly, Younger does not prevent the federal court from ruling on Devlin's claims in the present suit because Devlin is the plaintiff in both the federal and state proceedings, and Devlin does not seek to enjoin the state proceedings or otherwise use the federal court to shield him from state enforcement efforts. This approach follows the Supreme Court's statement in Ohio Civil Rights Commission that applying Younger to a state administrative proceeding was consistent with the absence of an administrative exhaustion requirement because the ongoing state proceedings in that case were \"coercive rather than remedial.\"",
"477 U.S. at 627 n. 2, 106 S.Ct. 2718. Other circuits have accordingly limited Younger in § 1983 claims to cases where there are \"coercive\" state proceedings. See, e.g., Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 522 (1st Cir.2009) (stating that \"post-hoc remedial proceedings initiated by the [federal] plaintiffs [after a state agency's adverse decision] are not the type [of proceeding] to which deference under Younger applies. Rather, proceedings must be coercive, and in most-cases, state-initiated, in order to warrant abstention. \"); Brown ex rel. Brown v. Day, 555 F.3d 882, 889 (10th Cir.2009) (holding that Younger does not bar a Medicaid beneficiary's federal suit challenging termination of benefits, though that beneficiary also filed a state action on the same ground, because \"[t]he state did not compel [the federal plaintiff] to participate in the [state] proceedings\" and \"[the federal plaintiff] seeks not to enjoin the state proceedings, but to secure relief from the state's allegedly unlawful conduct by recovering her Medicaid benefits\"); Marks v. Stinson, 19 F.3d 873, 885 (3d Cir.1994) (quoting Crawley and noting that \"[a] federal plaintiff may pursue parallel actions in the state and federal courts so long as the plaintiff does not seek relief in the federal court that would interfere with the state judicial process\").",
"Defendants argue that abstention is appropriate under Middlesex County Ethics Committee, 457 U.S. at 423, 102 S.Ct. 2515, and Fieger v. Thomas, 74 F.3d 740 (6th Cir.1996). In both cases, an attorney who suffered an adverse decision from the state's lawyer disciplinary body filed a federal suit seeking to enjoin the state proceedings and alleging that those proceedings violated his federal constitutional rights. Middlesex County, 457 U.S. at 428-29, 102 S.Ct. 2515; Fieger, 74 F.3d at 741. In both cases, the federal court declined under Younger to rule on the constitutional claims due to the ongoing state proceedings. Middlesex County, 457 U.S. at 431-37, 102 S.Ct. 2515; Fieger, 74 F.3d at 750. These cases do not preclude the federal court from ruling in this case on Devlin's claims because the MCSC proceedings differ from the lawyer disciplinary proceedings at issue in Middlesex County and Fieger. Those lawyer disciplinary proceedings were initiated by the state to redress a wrong allegedly committed by the federal plaintiff, whereas the MCSC proceedings at issue here were initiated by Devlin, the federal plaintiff, to redress a wrong allegedly committed by the state.",
"Moreover, unlike the federal plaintiffs in Middlesex County and Fieger, Devlin does not seek to enjoin the MCSC proceedings, but rather seeks consistent forms of relief in federal and state proceedings. Accordingly, Younger does not bar the present federal suit. The judgment *896 of the district court is vacated and the case is remanded. Our decision today takes no position on whether Devlin's case should be dismissed or stayed on other theories, such as abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), or Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct.",
"1236, 47 L.Ed.2d 483 (1976). We also decline to rule on Defendant McClelland's alternative motion to dismiss for failure to state a claim upon which relief can be granted because the district court did not comment on this motion. See Mount Clemens v. EPA, 917 F.2d 908, 916 n. 2 (6th Cir.1990). NOTES [1] Defendants are Richard S. Kalm (Executive Director, MGCB), Frederick J. Cleland (Deputy Director for Licensing, MGCB), Eric T. Bush (Administrative Manager, MGCB), Dale E. Beachnau (Human Resources Administrator, Michigan Department of Treasury), Michael Davis (Labor Relations Representative, Michigan Department of Treasury), Dominick P. Alagna (Casino Employee Licensing Manager, MGCB), and Janet M. McClelland (Acting State Personnel Director, MGCB). [2] The MCSC is the state body charged with \"mak[ing] rules and regulations covering all personnel transactions, and regulat[ing] all conditions of employment in the classified [state civil] service.\"",
"Mich. Const. art. XI, § 5. [3] The district court sua sponte declined to exercise supplemental jurisdiction over Devlin's state law claim."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1378001/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. 65762 / November 16, 2011 ADMINISTRATIVE PROCEEDING File No. 3-14631 ORDER INSTITUTING ADMINISTRATIVE PROCEEDINGS PURSUANT TO SECTION 15(b) OF THE SECURITIES EXCHANGE ACT OF 1934, MAKING FINDINGS, AND IMPOSING REMEDIAL SANCTIONS
In the Matter of MICHAEL CAMERON VAN ALPHEN, Respondent.
I. The Securities and Exchange Commission (“Commission”) deems it appropriate and in the public interest that public administrative proceedings be, and hereby are, instituted pursuant to Section 15(b) of the Securities Exchange Act of 1934 (“Exchange Act”) against Michael Cameron Van Alphen (“Van Alphen” or “Respondent”). II. In anticipation of the institution of these proceedings, Respondent has submitted an Offer of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings herein, except as to the Commission’s jurisdiction over him and the subject matter of these proceedings, and the findings contained in Section III.2 below, which are admitted, Respondent consents to the entry of this Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Securities Exchange Act of 1934, Making Findings, and Imposing Remedial Sanctions (“Order”), as set forth below.
III. On the basis of this Order and Respondent’s Offer, the Commission finds that: 1. Van Alphen, age 30, is a Utah resident. Van Alphen used the mails or instrumentalities of interstate commerce to induce investors to purchase promissory notes from Crown Capital Management, LLC and related entities. This conduct took place over a period of months and on a regular basis during that period. Van Alphen acted as a broker, and thus as an associated person of that unregistered broker-dealer, by: (1) actively soliciting investors; (2) handling investor funds; (3) accepting orders from investors; (4) receiving transaction based compensation of approximately thirty thousand dollars; and (5) offering and arranging lines of credit for his investors via his shelf corporations to provide investors with a means of acquiring investment capital. Van Alphen was not registered as a broker-dealer or an associated person of a registered broker-dealer at the time the sales took place. 2. On February 7, 2011, Van Alphen was convicted of one count of securities fraud in violation of Utah Code Ann § 61-1-1, one count of sales by an unlicensed agent in violation of Utah Code Ann § 61-1-3 and one count of communications fraud in violation of Utah Code Ann § 76-10-1801 before the Fourth Judicial District Court, Utah County, Utah in State of Utah v. Van Alphen (Case No. 101402231). Van Alphen was sentenced to seven days in jail, fifteen years probation, fined $10,000, and ordered to pay $3,306,400 in restitution. 3. Section 15(b)(6)(A) of the Exchange Act authorizes the Commission to institute administrative proceedings and seek remedial sanctions (including a bar) against any person associated with a broker-dealer if it is in the public interest and, among other things, the person associated with it has willfully violated any of the provisions of the federal securities laws, has been convicted of an offense that involves the sale of a security, or has been enjoined from registering with the Commission in specified capacities or engaging in or continuing any conduct or practice in connection with the purchase or sale of a security. IV. In view of the foregoing, the Commission deems it appropriate and in the public interest to impose the sanctions agreed to in Respondent Van Alphen’s Offer. Accordingly, it is hereby ORDERED pursuant to Section 15(b)(6) of the Exchange Act and that Respondent Van Alphen be, and hereby is: barred from association with any broker, dealer, investment adviser, municipal securities dealer, or transfer agent; and barred from participating in any offering of a penny stock, including: acting as a promoter, finder, consultant, agent or other person who engages in activities with a 2
broker, dealer or issuer for purposes of the issuance or trading in any penny stock, or inducing or attempting to induce the purchase or sale of any penny stock. Any reapplication for association by the Respondent will be subject to the applicable laws and regulations governing the reentry process, and reentry may be conditioned upon a number of factors, including, but not limited to, the satisfaction of any or all of the following: (a) any disgorgement ordered against the Respondent, whether or not the Commission has fully or partially waived payment of such disgorgement; (b) any arbitration award related to the conduct that served as the basis for the Commission order; (c) any self-regulatory organization arbitration award to a customer, whether or not related to the conduct that served as the basis for the Commission order; and (d) any restitution order by a self-regulatory organization, whether or not related to the conduct that served as the basis for the Commission order.
By the Commission.
Elizabeth M. Murphy Secretary
3 | [
"UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. 65762 / November 16, 2011 ADMINISTRATIVE PROCEEDING File No. 3-14631 ORDER INSTITUTING ADMINISTRATIVE PROCEEDINGS PURSUANT TO SECTION 15(b) OF THE SECURITIES EXCHANGE ACT OF 1934, MAKING FINDINGS, AND IMPOSING REMEDIAL SANCTIONS In the Matter of MICHAEL CAMERON VAN ALPHEN, Respondent. I. The Securities and Exchange Commission (“Commission”) deems it appropriate and in the public interest that public administrative proceedings be, and hereby are, instituted pursuant to Section 15(b) of the Securities Exchange Act of 1934 (“Exchange Act”) against Michael Cameron Van Alphen (“Van Alphen” or “Respondent”). II. In anticipation of the institution of these proceedings, Respondent has submitted an Offer of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission, or to which the Commission is a party, and without admitting or denying the findings herein, except as to the Commission’s jurisdiction over him and the subject matter of these proceedings, and the findings contained in Section III.2 below, which are admitted, Respondent consents to the entry of this Order Instituting Administrative Proceedings Pursuant to Section 15(b) of the Securities Exchange Act of 1934, Making Findings, and Imposing Remedial Sanctions (“Order”), as set forth below.",
"III. On the basis of this Order and Respondent’s Offer, the Commission finds that: 1. Van Alphen, age 30, is a Utah resident. Van Alphen used the mails or instrumentalities of interstate commerce to induce investors to purchase promissory notes from Crown Capital Management, LLC and related entities. This conduct took place over a period of months and on a regular basis during that period. Van Alphen acted as a broker, and thus as an associated person of that unregistered broker-dealer, by: (1) actively soliciting investors; (2) handling investor funds; (3) accepting orders from investors; (4) receiving transaction based compensation of approximately thirty thousand dollars; and (5) offering and arranging lines of credit for his investors via his shelf corporations to provide investors with a means of acquiring investment capital.",
"Van Alphen was not registered as a broker-dealer or an associated person of a registered broker-dealer at the time the sales took place. 2. On February 7, 2011, Van Alphen was convicted of one count of securities fraud in violation of Utah Code Ann § 61-1-1, one count of sales by an unlicensed agent in violation of Utah Code Ann § 61-1-3 and one count of communications fraud in violation of Utah Code Ann § 76-10-1801 before the Fourth Judicial District Court, Utah County, Utah in State of Utah v. Van Alphen (Case No. 101402231).",
"Van Alphen was sentenced to seven days in jail, fifteen years probation, fined $10,000, and ordered to pay $3,306,400 in restitution. 3. Section 15(b)(6)(A) of the Exchange Act authorizes the Commission to institute administrative proceedings and seek remedial sanctions (including a bar) against any person associated with a broker-dealer if it is in the public interest and, among other things, the person associated with it has willfully violated any of the provisions of the federal securities laws, has been convicted of an offense that involves the sale of a security, or has been enjoined from registering with the Commission in specified capacities or engaging in or continuing any conduct or practice in connection with the purchase or sale of a security. IV. In view of the foregoing, the Commission deems it appropriate and in the public interest to impose the sanctions agreed to in Respondent Van Alphen’s Offer. Accordingly, it is hereby ORDERED pursuant to Section 15(b)(6) of the Exchange Act and that Respondent Van Alphen be, and hereby is: barred from association with any broker, dealer, investment adviser, municipal securities dealer, or transfer agent; and barred from participating in any offering of a penny stock, including: acting as a promoter, finder, consultant, agent or other person who engages in activities with a 2 broker, dealer or issuer for purposes of the issuance or trading in any penny stock, or inducing or attempting to induce the purchase or sale of any penny stock.",
"Any reapplication for association by the Respondent will be subject to the applicable laws and regulations governing the reentry process, and reentry may be conditioned upon a number of factors, including, but not limited to, the satisfaction of any or all of the following: (a) any disgorgement ordered against the Respondent, whether or not the Commission has fully or partially waived payment of such disgorgement; (b) any arbitration award related to the conduct that served as the basis for the Commission order; (c) any self-regulatory organization arbitration award to a customer, whether or not related to the conduct that served as the basis for the Commission order; and (d) any restitution order by a self-regulatory organization, whether or not related to the conduct that served as the basis for the Commission order. By the Commission. Elizabeth M. Murphy Secretary 3"
]
| /litigation/admin/2011/34-65762.pdf | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Exhibit 99.1 COMPANY PRESS RELEASE Arête Industries, Inc. Announces Conversion of Officers and Directors Debt For Immediate Release Wednesday, May 2, 2011 WESTMINSTER, Colorado, May 2, 2011 (Business Wire) Arête Industries, Inc. (OTC-QB: ARETD) announced that on May 2, 2011, that three of its officers/directors have agreed to convert $500,000 of the debt owed to them from the Company in exchange for 62,500 shares of common stock at $8.00 per share. The Board of Directors voted to allow Donald W. Prosser, Chief Executive Officer; Charles B. Davis, Chief Operating Officer; and William Stewart, Corporate Secretary to convert $500,000 of debt, owed to them, in exchange for 62,500 shares of common shares or $8.00 per share. These shares will be 144 stock and subject to a one year lock-up period. The $8.00 conversion price is 1.127% premium to the Friday April 29, 2011 close price. “The conversion of this debt is part of our capital plan for 2011. We believe it demonstrates our confidence in our future.As part of our operating plan we are in the process of completing the purchase of the oil and gas properties in the next several weeks and finalizing the commitment for our banking credit line” stated Donald W. Prosser, Chief Executive Officer and Chairman of Arête Industries, Inc. About the Company Arête Industries, Inc. is a publicly traded company. The Company is the operator of a gas gathering system and is in the process of buying oil and gas properties in the Rocky Mountain Region of the United States. Statement as to Forward Looking Statements. Certain statements contained herein, which are not historical, are forward-looking statements that are subject to risks and uncertainties not known or disclosed herein that could cause actual results to differ materially from those expressed herein. These statements may include projections and other “forward-looking statements” within the meaning of the federal securities laws. Any such projections or statements reflect Arête’s current views about future events and financial performance. No assurances can be given that such events or performance will occur as projected and actual results may differ materially from those projected. Important factors that could cause the actual results to differ materially from those projected include, without limitation, Arête’s inability to meet the conditions to acquiring its current business including providing financing to provide for servicing current and new contracts; unexpected difficulties encountered in the investment market, competition, government regulation or other action, the ability of management to execute its plans to meet its goals and other risks inherent in their businesses that are detailed in their Securities and Exchange Commission (“SEC”) filings. For Further Information Contact: Company Contact: Arête Industries, Inc. Donald W. Prosser, CEO Email: dprosser@areteindustries.com Arête Industries, Inc. P. O. Box 141 Westminster, Colorado 80036 Voice: 303-427-8688 www.areteindustries.com | [
"Exhibit 99.1 COMPANY PRESS RELEASE Arête Industries, Inc. Announces Conversion of Officers and Directors Debt For Immediate Release Wednesday, May 2, 2011 WESTMINSTER, Colorado, May 2, 2011 (Business Wire) Arête Industries, Inc. (OTC-QB: ARETD) announced that on May 2, 2011, that three of its officers/directors have agreed to convert $500,000 of the debt owed to them from the Company in exchange for 62,500 shares of common stock at $8.00 per share. The Board of Directors voted to allow Donald W. Prosser, Chief Executive Officer; Charles B. Davis, Chief Operating Officer; and William Stewart, Corporate Secretary to convert $500,000 of debt, owed to them, in exchange for 62,500 shares of common shares or $8.00 per share.",
"These shares will be 144 stock and subject to a one year lock-up period. The $8.00 conversion price is 1.127% premium to the Friday April 29, 2011 close price. “The conversion of this debt is part of our capital plan for 2011. We believe it demonstrates our confidence in our future.As part of our operating plan we are in the process of completing the purchase of the oil and gas properties in the next several weeks and finalizing the commitment for our banking credit line” stated Donald W. Prosser, Chief Executive Officer and Chairman of Arête Industries, Inc. About the Company Arête Industries, Inc. is a publicly traded company. The Company is the operator of a gas gathering system and is in the process of buying oil and gas properties in the Rocky Mountain Region of the United States. Statement as to Forward Looking Statements.",
"Certain statements contained herein, which are not historical, are forward-looking statements that are subject to risks and uncertainties not known or disclosed herein that could cause actual results to differ materially from those expressed herein. These statements may include projections and other “forward-looking statements” within the meaning of the federal securities laws. Any such projections or statements reflect Arête’s current views about future events and financial performance. No assurances can be given that such events or performance will occur as projected and actual results may differ materially from those projected.",
"Important factors that could cause the actual results to differ materially from those projected include, without limitation, Arête’s inability to meet the conditions to acquiring its current business including providing financing to provide for servicing current and new contracts; unexpected difficulties encountered in the investment market, competition, government regulation or other action, the ability of management to execute its plans to meet its goals and other risks inherent in their businesses that are detailed in their Securities and Exchange Commission (“SEC”) filings. For Further Information Contact: Company Contact: Arête Industries, Inc. Donald W. Prosser, CEO Email: dprosser@areteindustries.com Arête Industries, Inc. P. O. Box 141 Westminster, Colorado 80036 Voice: 303-427-8688 www.areteindustries.com"
]
| 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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Petition for writ of certiorari to the Appellate Court of Illinois, First District denied. | 10-24-2022 | [
"Petition for writ of certiorari to the Appellate Court of Illinois, First District denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8402797/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Roe, J. Defendant appeals from a conviction of being an accessory to a first degree robbery. Allegedly, he drove two men, Carlson and Olson, from Spokane to the scene of the crime in Okanogan County. These two men hid in the restaurant, were spotted by the police and, while seeking to get away, took money from an employee in the lounge; they were caught. The next day defendant Vavra was arrested and charged as an accessory. Both Carlson and Olson pleaded guilty and agreed to testify against Vavra. Carlson avoided being charged as a habitual criminal and Olson, 18 years old, was given leniency. Defendant claims error in permitting an unlisted witness, Glen Bovee of Spokane, to testify and also claims that failure of the prosecutor to disclose impeaching evidence regarding Bovee denied him a fair trial. RCW 10.37.030 requires the prosecuting attorney to file and give defense counsel a list of the witnesses whom he intends to use at the trial. The original list given by the prosecutor to defendant's counsel did not include the name of Glen Bovee. Later Bovee was subpoenaed to testify and his name was added to the list. At the time of trial defendant's attorney agreed to proceed with the understanding that Bovee would be available to the defense for an interview as soon as he arrived for the trial. Bovee was interviewed by defendant's attorney but no continuance or additional time to interview was sought. The statute as implemented by CrR 4.7 (discovery— prosecutor's obligations and defendant's obligations) is designed to protect both parties against surprise. State v. Cooper, 26 Wn.2d 405, 174 P.2d 545 (1946). Compliance with that statute is not mandatory, State v. Jones, 70 *144Wn.2d 591, 595, 424 P.2d 665 (1967), and the court may permit testimony by witnesses who have not been listed, State v. Leosis, 160 Wash. 176, 294 P. 1115 (1931). An additional purpose of this statute is to enable the parties to inquire into the habits, character and standing of the witnesses and to permit the jurors to be questioned in voir dire concerning their knowledge of and acquaintance with the witnesses who will testify. State v. Thompson, 59 Wn.2d 837, 842, 370 P.2d 964 (1962). Reversal for noncompliance with this statute arises from an abuse of discretion by the trial court or some substantial injury to the defendant. State v. Jones, supra. The trial court's discretion to allow unlisted witnesses to testify should not be overruled absent a manifest abuse of discretion. State v. Woods, 3 Wn. App. 691, 693, 477 P.2d 182 (1970) outlines the prerequisites for an effective claim of noncompliance with the statute: [H]e must in fact be surprised, and he must make a timely claim that he is. He must additionally request a continuance of the trial for a reasonable time in order that his counsel may prepare to cross-examine the witness and he may secure rebuttal testimony if it is available, and also make it appear that he will be prejudiced if such opportunity be not afforded him. State v. Willis, 37 Wn.2d 274, 278, 223 P.2d 453 (1950). State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969) held a belated endorsement of two witnesses was an oversight by the prosecutor and did not constitute error when the witnesses were examined by defense counsel during a recess granted by the court. There was no request for a continuance. In that case, at no time did the defendant indicate he needed more time to prepare for the testimony of additional witnesses or to secure rebuttal witnesses. In State v. Hoggatt, 38 Wn.2d 932, 234 P.2d 495 (1951), a formal motion for a continuance was held unnecessary if sufficient facts which appear in the record indicate the defense desired and sought a continuance. In State v. Willis, 37 Wn.2d 274, 279, 223 P.2d 453 (1950), the court stated: *145[I]n the application of the rule due protection must be afforded a defendant if he objects to such action [adding witnesses], is in fact surprised, asks for a continuance of the trial, and makes a showing of prejudice. In Willis, the court found the defendant had been prejudiced, not only in calling a surprise witness, but that such witness was an expert testifying upon a highly technical subject which was a vital issue to the case. Defendant has not demonstrated abuse of the trial court's discretion in permitting Mr. Bovee to testify. Another factor is present, however, which we believe violates the spirit of the rule for a full and frank disclosure. CrR 4.7(c)(3) specifically requires the prosecutor to disclose, upon request of the defendant, any relevant material and information regarding the relationship, if any, of specified persons to the prosecuting authority. Also, CrR 4.7(h)(2) fastens a continuing duty upon the prosecutor to disclose additional information or material which is discoverable. The purpose of the rules is to ensure a fair trial, among other things, so that rebuttal testimony may be obtained and more particularly so that impeachment evidence may be ascertained. In this case defense counsel suspected that the witness Bovee, who was facing an unrelated charge in Spokane County, might have been offered some "deal" or agreement to testify against Vavra. When Bovee was called as a witness by the State, he was asked on direct examination, "Do you know of any promise or consideration that the Okanogan County Prosecutor's Office would give you in a Spokane matter for your testimony today?" Bovee answered, "None". On cross examination, Bovee was asked, "Isn't it a fact, Mr. Bovee, that the Okanogan County Prosecutor is going to put in a good word for you in Spokane on your charges? A If the Okanogan County Prosecutor is going to do that I am not aware of it." Bovee denied the prosecutor would come to Spokane for him. The defense contended that while the witness Bovee may not have known of an arrangement whereby the Okanogan County Prosecutor *146would assist Bovee on the Spokane charge, nevertheless, in fact such an arrangement had been made and this was withheld from defense counsel. In view of a supporting affidavit submitted by defendant on appeal, this matter was remanded to the trial court for a finding of fact concerning this question. In a post-trial hearing, the court found that in fact there was some understanding between the Okanogan County Prosecutor and the witness Bovee's Spokane attorney to the effect that after Bovee testified in Okanogan County, its prosecutor would go to Spokane and make a statement on behalf of Mr. Bovee at his Spokane sentencing; that further, if Mr. Bovee had participated in a crime with Mr. Vavra within the confines of Okanogan County, the prosecutor would not proceed with prosecution of Mr. Bovee if he testified favorably for the prosecution in Okanogan County against Vavra. This agreement between the prosecutor in Okanogan County and the witness Bovee's counsel in Spokane County was not communicated to defense counsel until sometime after defendant Vavra had been convicted and, in all probability, Mr. Bovee's counsel communicated the terms of that agreement to Bovee on the first day of the trial and before Bovee testified in the case of State v. Vavra. We must reverse the conviction. Such an understanding or agreement between the prosecutor and the only independent critical witness which linked defendant Vavra with the actual robbery should have been disclosed to defense counsel for the purpose of possible impeachment. The jurors may well have found that the leniency and favoritism shown to the critical independent witness whose testimony was required to link Vavra with the crime made him less believable, and thus it was error not to disclose the terms of this arrangement to defense counsel. Defendant also contends that knitting by one juror during voir dire was sufficient misconduct to violate his right to a fair trial. The trial judge directed his bailiff to request that the juror stop knitting; the problem was apparently resolved. No one examined the juror to deter*147mine attentiveness. Although defendant claims jury misconduct, he cites no cases in support of his contention that a juror's knitting during voir dire constitutes misconduct and the record is entirely devoid of proof that a knitting woman is not a listening or thinking one. Most errors occurring during voir dire examination of a prospective jury are correctable by admonitions and instructions and are addressed largely to the trial court's sound discretion. 2 L. Orland, Wash. Prac. § 196 (3d ed. 1972). For a more aggravated situation, see Casey v. Williams, 47 Wn.2d 255, 287 P.2d 343 (1955), termed '"The Case of the Somnolent Juror'", where there was no error. Accordingly, the judgment of conviction is reversed and a new trial is ordered. McInturff, C.J., and Green, J., concur. | 07-23-2022 | [
"Roe, J. Defendant appeals from a conviction of being an accessory to a first degree robbery. Allegedly, he drove two men, Carlson and Olson, from Spokane to the scene of the crime in Okanogan County. These two men hid in the restaurant, were spotted by the police and, while seeking to get away, took money from an employee in the lounge; they were caught. The next day defendant Vavra was arrested and charged as an accessory. Both Carlson and Olson pleaded guilty and agreed to testify against Vavra. Carlson avoided being charged as a habitual criminal and Olson, 18 years old, was given leniency. Defendant claims error in permitting an unlisted witness, Glen Bovee of Spokane, to testify and also claims that failure of the prosecutor to disclose impeaching evidence regarding Bovee denied him a fair trial. RCW 10.37.030 requires the prosecuting attorney to file and give defense counsel a list of the witnesses whom he intends to use at the trial. The original list given by the prosecutor to defendant's counsel did not include the name of Glen Bovee.",
"Later Bovee was subpoenaed to testify and his name was added to the list. At the time of trial defendant's attorney agreed to proceed with the understanding that Bovee would be available to the defense for an interview as soon as he arrived for the trial. Bovee was interviewed by defendant's attorney but no continuance or additional time to interview was sought. The statute as implemented by CrR 4.7 (discovery— prosecutor's obligations and defendant's obligations) is designed to protect both parties against surprise. State v. Cooper, 26 Wn.2d 405, 174 P.2d 545 (1946). Compliance with that statute is not mandatory, State v. Jones, 70 *144Wn.2d 591, 595, 424 P.2d 665 (1967), and the court may permit testimony by witnesses who have not been listed, State v. Leosis, 160 Wash. 176, 294 P. 1115 (1931).",
"An additional purpose of this statute is to enable the parties to inquire into the habits, character and standing of the witnesses and to permit the jurors to be questioned in voir dire concerning their knowledge of and acquaintance with the witnesses who will testify. State v. Thompson, 59 Wn.2d 837, 842, 370 P.2d 964 (1962). Reversal for noncompliance with this statute arises from an abuse of discretion by the trial court or some substantial injury to the defendant. State v. Jones, supra. The trial court's discretion to allow unlisted witnesses to testify should not be overruled absent a manifest abuse of discretion. State v. Woods, 3 Wn. App. 691, 693, 477 P.2d 182 (1970) outlines the prerequisites for an effective claim of noncompliance with the statute: [H]e must in fact be surprised, and he must make a timely claim that he is. He must additionally request a continuance of the trial for a reasonable time in order that his counsel may prepare to cross-examine the witness and he may secure rebuttal testimony if it is available, and also make it appear that he will be prejudiced if such opportunity be not afforded him. State v. Willis, 37 Wn.2d 274, 278, 223 P.2d 453 (1950). State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969) held a belated endorsement of two witnesses was an oversight by the prosecutor and did not constitute error when the witnesses were examined by defense counsel during a recess granted by the court.",
"There was no request for a continuance. In that case, at no time did the defendant indicate he needed more time to prepare for the testimony of additional witnesses or to secure rebuttal witnesses. In State v. Hoggatt, 38 Wn.2d 932, 234 P.2d 495 (1951), a formal motion for a continuance was held unnecessary if sufficient facts which appear in the record indicate the defense desired and sought a continuance. In State v. Willis, 37 Wn.2d 274, 279, 223 P.2d 453 (1950), the court stated: *145[I]n the application of the rule due protection must be afforded a defendant if he objects to such action [adding witnesses], is in fact surprised, asks for a continuance of the trial, and makes a showing of prejudice.",
"In Willis, the court found the defendant had been prejudiced, not only in calling a surprise witness, but that such witness was an expert testifying upon a highly technical subject which was a vital issue to the case. Defendant has not demonstrated abuse of the trial court's discretion in permitting Mr. Bovee to testify. Another factor is present, however, which we believe violates the spirit of the rule for a full and frank disclosure. CrR 4.7(c)(3) specifically requires the prosecutor to disclose, upon request of the defendant, any relevant material and information regarding the relationship, if any, of specified persons to the prosecuting authority. Also, CrR 4.7(h)(2) fastens a continuing duty upon the prosecutor to disclose additional information or material which is discoverable. The purpose of the rules is to ensure a fair trial, among other things, so that rebuttal testimony may be obtained and more particularly so that impeachment evidence may be ascertained. In this case defense counsel suspected that the witness Bovee, who was facing an unrelated charge in Spokane County, might have been offered some \"deal\" or agreement to testify against Vavra. When Bovee was called as a witness by the State, he was asked on direct examination, \"Do you know of any promise or consideration that the Okanogan County Prosecutor's Office would give you in a Spokane matter for your testimony today?\"",
"Bovee answered, \"None\". On cross examination, Bovee was asked, \"Isn't it a fact, Mr. Bovee, that the Okanogan County Prosecutor is going to put in a good word for you in Spokane on your charges? A If the Okanogan County Prosecutor is going to do that I am not aware of it.\" Bovee denied the prosecutor would come to Spokane for him. The defense contended that while the witness Bovee may not have known of an arrangement whereby the Okanogan County Prosecutor *146would assist Bovee on the Spokane charge, nevertheless, in fact such an arrangement had been made and this was withheld from defense counsel. In view of a supporting affidavit submitted by defendant on appeal, this matter was remanded to the trial court for a finding of fact concerning this question. In a post-trial hearing, the court found that in fact there was some understanding between the Okanogan County Prosecutor and the witness Bovee's Spokane attorney to the effect that after Bovee testified in Okanogan County, its prosecutor would go to Spokane and make a statement on behalf of Mr. Bovee at his Spokane sentencing; that further, if Mr. Bovee had participated in a crime with Mr. Vavra within the confines of Okanogan County, the prosecutor would not proceed with prosecution of Mr. Bovee if he testified favorably for the prosecution in Okanogan County against Vavra. This agreement between the prosecutor in Okanogan County and the witness Bovee's counsel in Spokane County was not communicated to defense counsel until sometime after defendant Vavra had been convicted and, in all probability, Mr. Bovee's counsel communicated the terms of that agreement to Bovee on the first day of the trial and before Bovee testified in the case of State v. Vavra.",
"We must reverse the conviction. Such an understanding or agreement between the prosecutor and the only independent critical witness which linked defendant Vavra with the actual robbery should have been disclosed to defense counsel for the purpose of possible impeachment. The jurors may well have found that the leniency and favoritism shown to the critical independent witness whose testimony was required to link Vavra with the crime made him less believable, and thus it was error not to disclose the terms of this arrangement to defense counsel. Defendant also contends that knitting by one juror during voir dire was sufficient misconduct to violate his right to a fair trial. The trial judge directed his bailiff to request that the juror stop knitting; the problem was apparently resolved. No one examined the juror to deter*147mine attentiveness.",
"Although defendant claims jury misconduct, he cites no cases in support of his contention that a juror's knitting during voir dire constitutes misconduct and the record is entirely devoid of proof that a knitting woman is not a listening or thinking one. Most errors occurring during voir dire examination of a prospective jury are correctable by admonitions and instructions and are addressed largely to the trial court's sound discretion. 2 L. Orland, Wash. Prac. § 196 (3d ed. 1972). For a more aggravated situation, see Casey v. Williams, 47 Wn.2d 255, 287 P.2d 343 (1955), termed '\"The Case of the Somnolent Juror'\", where there was no error. Accordingly, the judgment of conviction is reversed and a new trial is ordered. McInturff, C.J., and Green, J., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6852517/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Motion granted and operation of injunction order stayed until July 1, 1931. Present — Lazansky, P. J., Kapper, Hagarty and Davis, JJ.; Carswell, J., not voting. | 01-08-2022 | [
"Motion granted and operation of injunction order stayed until July 1, 1931. Present — Lazansky, P. J., Kapper, Hagarty and Davis, JJ. ; Carswell, J., not voting."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5319560/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
COURT OF CHANCERY OF THE STATE OF DELAWARE
MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734
July 30, 2021
Via U.S. Mail Via File & ServeXpress Janusz Kecki Tiffany M. Shrenk, Esquire 9050 Cherry Avenue MacElree Harvey, Ltd. Orangevale, CA 95662 5721 Kennett Pike Centreville, DE 19807 Via U.S. Mail Derek Chabrowski 43021 North 43rd Drive Phoenix, AZ 85087
RE: Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ
Dear Mr. Kecki, Mr. Chabrowski, and Counsel,
I write to address the motion for summary judgment and to dismiss
(the “Motion”) filed by defendant Texas Enterprises, LLC (“Enterprises,” or
the “Company”), which has been deemed unopposed by plaintiffs Janusz Kecki
and Derek Chabrowski (collectively, “Plaintiffs”).1 The Motion presents the
question of whether Plaintiffs may ask this Court to revisit the accuracy of the
Company’s equityholders as of March 2, 2015, as presented to the United States
Bankruptcy Court for the Eastern District of Texas (the “Bankruptcy Court”) with
1 Docket Item (“D.I.”) 77. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 2 of 9
the Company’s petition for bankruptcy. I conclude this Court lacks subject matter
jurisdiction to do so, and grant the Motion and dismiss Plaintiffs’ claim.
I. BACKGROUND
On March 2, 2015, Enterprises filed a voluntary petition for Chapter 11
proceedings in the Bankruptcy Court.2 The petition included a “List of Equity
Security Holders” (the “List”) listing four individuals, including Kecki with a 15%
stake3 Chabrowski was not on the List, and was instead identified as a creditor.4
On March 17, 2016, the Bankruptcy Court entered an Order Confirming the First
Amended Plan of Reorganization of the Company.5
On December 14, 2017, Plaintiffs filed a pro se complaint in this Court
seeking a declaratory judgment to identify the equity owners of the Company at the
time it entered into the Chapter 11 proceedings.6 Specifically, Plaintiffs challenge
the accuracy of the List; Chabrowski contends he held a 15% stake in the
Company on March 2, 2015,7 when the bankruptcy petition was filed (the “Petition
2 D.I. 78. The bankruptcy case is Case No. 15-20032. 3 Id. 4 Id. 5 See D.I. 21 Ex A. 6 See D.I. 1 [hereinafter “Compl.”]. 7 D.I. 11 at 10. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 3 of 9
Date”). Plaintiffs allege the List and bankruptcy petition were submitted “for the
sole purpose of defrauding the shareholders of their investments in the company.”8
On April 17, 2018, Plaintiffs moved for summary judgment, which I denied
at the November 14 hearing and in an order that same day.9 While Kecki’s interest
appeared undisputed, Chabrowski’s interest was disputed and other issues
precluded summary judgment.10 In particular, I asked the parties to provide
supplemental briefing on “(i) whether the confirmation plan in the Chapter 11
proceedings released or barred any of Plaintiffs’ claims, [and] (ii) whether the
Bankruptcy Court made any factual or legal findings regarding the Company’s
equity ownership as of March 2, 2015.”11 No supplemental briefing followed; the
Company’s counsel withdrew; and the case languished.
On May 16, 2019, Petitioners filed what I deemed another motion for
summary judgment.12 The Company failed to retain new counsel by the Court’s
deadline, and so the motion went unopposed. On August 20, I granted summary
judgment on the narrow undisputed issue that Kecki was a 15% equity holder in
8 Compl. ¶ 16. 9 D.I. 28; D.I. 29. 10 D.I. 29. 11 Id. ¶ 6. 12 D.I. 39. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 4 of 9
the Company on the Petition Date.13 I denied summary judgment as to
Chabrowski’s equity interest in the Company on that date, and again sought the
parties’ views on the effect of the bankruptcy proceedings on this case.14
Neither party addressed those issues until February 2021, when the
Company, represented by new counsel, filed the Motion.15 Plaintiffs did not timely
respond to the Motion, so it was deemed unopposed.16 The Motion contends
Chabrowski’s claim challenging the accuracy of the List are “pre-bankruptcy
claims not properly before this Court” under several theories, including a lack of
subject matter jurisdiction, preclusion under bankruptcy law and the bankruptcy
bar date, res judicata and issue preclusion, and overripeness.17 The Motion is
granted.
II. ANALYSIS
I address subject matter jurisdiction first, as I can only substantively review
the claims if I have jurisdiction to do so.18 “When considering a motion to dismiss
13 D.I. 48. 14 Id. 15 D.I. 77. 16 D.I. 89. 17 Op. Br. at 6–7. 18 See K & K Screw Prods., L.L.C. v. Emerick Cap. Invs., Inc., 2011 WL 3505354, at *6 (Del. Ch. Aug. 9, 2011) (“Because the issue of subject matter jurisdiction is a potentially Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 5 of 9
under Court of Chancery Rule 12(b)(1), the Court’s first task, when appropriate, is
to assess whether the fundamental predicates to subject matter jurisdiction exist.”19
“The plaintiff ‘bears the burden of establishing this Court's jurisdiction,’ and when
determining whether that burden has been met, the Court may consider the
pleadings and matters ‘extrinsic to the pleadings.’”20 This Court does not have
subject matter jurisdiction to hear a claim if there is an adequate remedy at law.21
And, consistent with that principle and principles of comity and federalism, where
bankruptcy courts have been granted exclusive jurisdiction, this Court lacks subject
matter jurisdiction.22
This Court lacks jurisdiction to assess the accuracy of the List as presented
with the Company’s bankruptcy petition.
dispositive threshold issue, I consider first whether the Complaint pleads a justiciable case or controversy.”). 19 Hall v. Coupe, 2016 WL 3094406, at *2 (Del. Ch. May 25, 2016) (citing Dover Hist. Soc’y v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003)). 20 Id. (quoting Pitts v. City of Wilm., 2009 WL 1204492, at *5 (Del. Ch. Apr. 27, 2009)). 21 10 Del. C. § 342. 22 Anderson v. Pa. Mfr.’s Ass’n Ins. Co., 2007 WL 1248490, at *1 (Del. Com. Pl. Feb. 23, 2007). Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 6 of 9
Filings of bankruptcy petitions are a matter of exclusive federal jurisdiction. State courts are not authorized to determine whether a person’s claim for relief under a federal law, in a federal court, and within that court’s exclusive jurisdiction, is an appropriate one. Such an exercise of authority would be inconsistent with and subvert the exclusive jurisdiction of the federal courts by allowing state courts to create their own standards as to when persons may properly seek relief in cases Congress has specifically precluded those courts from adjudicating. The ability collaterally to attack bankruptcy petitions in the state courts would also threaten the uniformity of federal bankruptcy law, a uniformity required by the Constitution. U.S. Const. art. I, § 8, cl. 4.23
“Congress’ grant to the federal courts of exclusive jurisdiction over bankruptcy
petitions precludes collateral attacks on such petitions in state courts . . . .”24 Even
if the bankruptcy court has not addressed the issue presented to the state court, the
state court lacks jurisdiction: “[i]n state cases concerning proper notice or other
bankruptcy matters never addressed by the bankruptcy courts, courts have ruled
that subject matter jurisdiction is exclusively federal.”25
To the extent Chabrowski claims he failed to receive adequate notice of the
Company’s bankruptcy proceeding, as a creditor or otherwise, the adequacy of that
23 Gonzalez v. Parks, 830 F.2d 1033, 1035 (9th Cir. 1987) (citation omitted). 24 Id. at 1035–36. 25 Anderson, 2007 WL 1248490, at *3 (citing In re McGhan, 288 F.3d 1172, 1180 (9th Cir. 2002)). Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 7 of 9
notice is also an issue exclusively for the Bankruptcy Court.26 “Determination of
the adequacy of notice required for automatic discharge is a core proceeding over
which [Delaware] Court[s] lack authority.”27 “Determination of whether a creditor
was listed and whether notice was adequate are core proceeding[s] over which I
should not exercise jurisdiction.”28
Indeed, it appears Plaintiffs have already pursued the avenue available to
them: petitioning the Bankruptcy Court for relief. That Court denied
Chabrowski’s motion to reopen the proceedings after the Chapter 11 plan was
confirmed.29 This Court cannot disturb that order. “[B]ankruptcy court orders are
not subject to collateral attack in other courts.”30 A state court modification of a
bankruptcy court order “would constitute an unauthorized infringement upon the
bankruptcy court’s jurisdiction.”31 And “[a] Bankruptcy Court’s order of
confirmation is treated as a final judgment. If the Bankruptcy Court had
26 See McGhan, 288 F.3d at 1178 (addressing a state court’s consideration of notice to a listed creditor, like Chabrowski, and noting state courts have statutory concurrent jurisdiction to adjudicate the adequacy of notice to unlisted creditors). 27 Anderson, 2007 WL 1248490, at *2; see McGhan, 288 F.3d at 1190. 28 Anderson, 2007 WL 1248490, at *2. 29 D.I. 21, Ex. A, at D.I. 134-35. 30 Anderson, 2007 WL 1248490, at *2; McGhan, 288 F.3d at 1179 (quoting Gruntz v. Cty. of L.A., 202 F.3d 1074, 1082 (9th Cir. 2000)). 31 Gruntz, 202 F.3d at 1082. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 8 of 9
jurisdiction to render that judgment, a party bound by that judgment cannot attack
that judgment in a collateral proceeding.”32
Finally, I note Plaintiffs’ allegation that the Company filed for bankruptcy
as part of a scheme to defraud Chabrowski and Kecki of their investments in the
Company and net the Company’s president sole ownership of the Company for a
low price.33 Federal authority appears split on the question of whether state courts
may entertain a claim that filing for bankruptcy was improper because it was part
of a fraudulent scheme or an abuse of process.34 Plaintiffs’ claim does not require
me to wade into this issue today; they seek only declaratory relief “identifying the
names and the percentage of ownership in the company, held by each shareholder
at the time that the company was entered into voluntary Chapter 11 bankruptcy.”35
I read Plaintiffs to allege that the bankruptcy proceeding was part of a fraudulent
scheme only for color and context, not as a standalone claim for abuse of process
32 In re Bally’s Grand Deriv. Litig., 1997 WL 305803, at *7 (Del. Ch. June 4, 1997); accord Anderson, 2007 WL 1248490, at *2 (“[A]ny state judicial proceeding that modifies a discharge order would also be void.”). 33 Compl. ¶ 16. 34 Nelson v. Emerson, 2008 WL 1961150, at *8 n.51 (Del. Ch. May 6, 2008). Since then- Vice Chancellor Strine noted the split of authority in 2008, the split has deepened. Compare In re Bral, 622 B.R. 737, 744–47 (9th Cir. 2020), with Rosenberg v. DVI Receivables XVII, LLC, 835 F.3d 414 (3d Cir. 2016), and Robbins v. Fulton Bank, N.A., 2018 WL 1693386 (E.D. Pa. Apr. 6, 2018). 35 Compl. ¶ 23. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 9 of 9
or similar. Today, I hold only that this Court lacks subject matter jurisdiction over
collateral attacks on the bankruptcy petition itself, including the List, and the
Bankruptcy Court’s order denying Chabrowski’s motion to reopen the proceedings
to challenge that List. That holding disposes of Plaintiffs’ claim.
III. CONCLUSION
For the foregoing reasons, the Company’s motion to dismiss for lack of
subject matter jurisdiction is GRANTED. The August 20, 2019, order granting
summary judgment on Kecki’s interest is VACATED as having been entered
without subject matter jurisdiction.36 IT IS SO ORDERED.
Sincerely,
/s/ Morgan T. Zurn
Vice Chancellor
MTZ/ms
36 D.I. 48. | 07-30-2021 | [
"COURT OF CHANCERY OF THE STATE OF DELAWARE MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734 July 30, 2021 Via U.S. Mail Via File & ServeXpress Janusz Kecki Tiffany M. Shrenk, Esquire 9050 Cherry Avenue MacElree Harvey, Ltd. Orangevale, CA 95662 5721 Kennett Pike Centreville, DE 19807 Via U.S. Mail Derek Chabrowski 43021 North 43rd Drive Phoenix, AZ 85087 RE: Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ Dear Mr. Kecki, Mr. Chabrowski, and Counsel, I write to address the motion for summary judgment and to dismiss (the “Motion”) filed by defendant Texas Enterprises, LLC (“Enterprises,” or the “Company”), which has been deemed unopposed by plaintiffs Janusz Kecki and Derek Chabrowski (collectively, “Plaintiffs”).1 The Motion presents the question of whether Plaintiffs may ask this Court to revisit the accuracy of the Company’s equityholders as of March 2, 2015, as presented to the United States Bankruptcy Court for the Eastern District of Texas (the “Bankruptcy Court”) with 1 Docket Item (“D.I.”) 77. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 2 of 9 the Company’s petition for bankruptcy.",
"I conclude this Court lacks subject matter jurisdiction to do so, and grant the Motion and dismiss Plaintiffs’ claim. I. BACKGROUND On March 2, 2015, Enterprises filed a voluntary petition for Chapter 11 proceedings in the Bankruptcy Court.2 The petition included a “List of Equity Security Holders” (the “List”) listing four individuals, including Kecki with a 15% stake3 Chabrowski was not on the List, and was instead identified as a creditor.4 On March 17, 2016, the Bankruptcy Court entered an Order Confirming the First Amended Plan of Reorganization of the Company.5 On December 14, 2017, Plaintiffs filed a pro se complaint in this Court seeking a declaratory judgment to identify the equity owners of the Company at the time it entered into the Chapter 11 proceedings.6 Specifically, Plaintiffs challenge the accuracy of the List; Chabrowski contends he held a 15% stake in the Company on March 2, 2015,7 when the bankruptcy petition was filed (the “Petition 2 D.I. 78.",
"The bankruptcy case is Case No. 15-20032. 3 Id. 4 Id. 5 See D.I. 21 Ex A. 6 See D.I. 1 [hereinafter “Compl.”]. 7 D.I. 11 at 10. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 3 of 9 Date”). Plaintiffs allege the List and bankruptcy petition were submitted “for the sole purpose of defrauding the shareholders of their investments in the company.”8 On April 17, 2018, Plaintiffs moved for summary judgment, which I denied at the November 14 hearing and in an order that same day.9 While Kecki’s interest appeared undisputed, Chabrowski’s interest was disputed and other issues precluded summary judgment.10 In particular, I asked the parties to provide supplemental briefing on “(i) whether the confirmation plan in the Chapter 11 proceedings released or barred any of Plaintiffs’ claims, [and] (ii) whether the Bankruptcy Court made any factual or legal findings regarding the Company’s equity ownership as of March 2, 2015.”11 No supplemental briefing followed; the Company’s counsel withdrew; and the case languished.",
"On May 16, 2019, Petitioners filed what I deemed another motion for summary judgment.12 The Company failed to retain new counsel by the Court’s deadline, and so the motion went unopposed. On August 20, I granted summary judgment on the narrow undisputed issue that Kecki was a 15% equity holder in 8 Compl. ¶ 16. 9 D.I. 28; D.I. 29. 10 D.I. 29. 11 Id. ¶ 6. 12 D.I. 39. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 4 of 9 the Company on the Petition Date.13 I denied summary judgment as to Chabrowski’s equity interest in the Company on that date, and again sought the parties’ views on the effect of the bankruptcy proceedings on this case.14 Neither party addressed those issues until February 2021, when the Company, represented by new counsel, filed the Motion.15 Plaintiffs did not timely respond to the Motion, so it was deemed unopposed.16 The Motion contends Chabrowski’s claim challenging the accuracy of the List are “pre-bankruptcy claims not properly before this Court” under several theories, including a lack of subject matter jurisdiction, preclusion under bankruptcy law and the bankruptcy bar date, res judicata and issue preclusion, and overripeness.17 The Motion is granted. II.",
"ANALYSIS I address subject matter jurisdiction first, as I can only substantively review the claims if I have jurisdiction to do so.18 “When considering a motion to dismiss 13 D.I. 48. 14 Id. 15 D.I. 77. 16 D.I. 89. 17 Op. Br. at 6–7. 18 See K & K Screw Prods., L.L.C. v. Emerick Cap. Invs., Inc., 2011 WL 3505354, at *6 (Del. Ch. Aug. 9, 2011) (“Because the issue of subject matter jurisdiction is a potentially Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 5 of 9 under Court of Chancery Rule 12(b)(1), the Court’s first task, when appropriate, is to assess whether the fundamental predicates to subject matter jurisdiction exist.”19 “The plaintiff ‘bears the burden of establishing this Court's jurisdiction,’ and when determining whether that burden has been met, the Court may consider the pleadings and matters ‘extrinsic to the pleadings.’”20 This Court does not have subject matter jurisdiction to hear a claim if there is an adequate remedy at law.21 And, consistent with that principle and principles of comity and federalism, where bankruptcy courts have been granted exclusive jurisdiction, this Court lacks subject matter jurisdiction.22 This Court lacks jurisdiction to assess the accuracy of the List as presented with the Company’s bankruptcy petition.",
"dispositive threshold issue, I consider first whether the Complaint pleads a justiciable case or controversy.”). 19 Hall v. Coupe, 2016 WL 3094406, at *2 (Del. Ch. May 25, 2016) (citing Dover Hist. Soc’y v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003)). 20 Id. (quoting Pitts v. City of Wilm., 2009 WL 1204492, at *5 (Del. Ch. Apr. 27, 2009)). 21 10 Del. C. § 342. 22 Anderson v. Pa. Mfr.’s Ass’n Ins. Co., 2007 WL 1248490, at *1 (Del. Com. Pl. Feb. 23, 2007). Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 6 of 9 Filings of bankruptcy petitions are a matter of exclusive federal jurisdiction. State courts are not authorized to determine whether a person’s claim for relief under a federal law, in a federal court, and within that court’s exclusive jurisdiction, is an appropriate one. Such an exercise of authority would be inconsistent with and subvert the exclusive jurisdiction of the federal courts by allowing state courts to create their own standards as to when persons may properly seek relief in cases Congress has specifically precluded those courts from adjudicating.",
"The ability collaterally to attack bankruptcy petitions in the state courts would also threaten the uniformity of federal bankruptcy law, a uniformity required by the Constitution. U.S. Const. art. I, § 8, cl. 4.23 “Congress’ grant to the federal courts of exclusive jurisdiction over bankruptcy petitions precludes collateral attacks on such petitions in state courts . . . .”24 Even if the bankruptcy court has not addressed the issue presented to the state court, the state court lacks jurisdiction: “[i]n state cases concerning proper notice or other bankruptcy matters never addressed by the bankruptcy courts, courts have ruled that subject matter jurisdiction is exclusively federal.”25 To the extent Chabrowski claims he failed to receive adequate notice of the Company’s bankruptcy proceeding, as a creditor or otherwise, the adequacy of that 23 Gonzalez v. Parks, 830 F.2d 1033, 1035 (9th Cir. 1987) (citation omitted). 24 Id.",
"at 1035–36. 25 Anderson, 2007 WL 1248490, at *3 (citing In re McGhan, 288 F.3d 1172, 1180 (9th Cir. 2002)). Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 7 of 9 notice is also an issue exclusively for the Bankruptcy Court.26 “Determination of the adequacy of notice required for automatic discharge is a core proceeding over which [Delaware] Court[s] lack authority.”27 “Determination of whether a creditor was listed and whether notice was adequate are core proceeding[s] over which I should not exercise jurisdiction.”28 Indeed, it appears Plaintiffs have already pursued the avenue available to them: petitioning the Bankruptcy Court for relief.",
"That Court denied Chabrowski’s motion to reopen the proceedings after the Chapter 11 plan was confirmed.29 This Court cannot disturb that order. “[B]ankruptcy court orders are not subject to collateral attack in other courts.”30 A state court modification of a bankruptcy court order “would constitute an unauthorized infringement upon the bankruptcy court’s jurisdiction.”31 And “[a] Bankruptcy Court’s order of confirmation is treated as a final judgment. If the Bankruptcy Court had 26 See McGhan, 288 F.3d at 1178 (addressing a state court’s consideration of notice to a listed creditor, like Chabrowski, and noting state courts have statutory concurrent jurisdiction to adjudicate the adequacy of notice to unlisted creditors).",
"27 Anderson, 2007 WL 1248490, at *2; see McGhan, 288 F.3d at 1190. 28 Anderson, 2007 WL 1248490, at *2. 29 D.I. 21, Ex. A, at D.I. 134-35. 30 Anderson, 2007 WL 1248490, at *2; McGhan, 288 F.3d at 1179 (quoting Gruntz v. Cty. of L.A., 202 F.3d 1074, 1082 (9th Cir. 2000)). 31 Gruntz, 202 F.3d at 1082. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 8 of 9 jurisdiction to render that judgment, a party bound by that judgment cannot attack that judgment in a collateral proceeding.”32 Finally, I note Plaintiffs’ allegation that the Company filed for bankruptcy as part of a scheme to defraud Chabrowski and Kecki of their investments in the Company and net the Company’s president sole ownership of the Company for a low price.33 Federal authority appears split on the question of whether state courts may entertain a claim that filing for bankruptcy was improper because it was part of a fraudulent scheme or an abuse of process.34 Plaintiffs’ claim does not require me to wade into this issue today; they seek only declaratory relief “identifying the names and the percentage of ownership in the company, held by each shareholder at the time that the company was entered into voluntary Chapter 11 bankruptcy.”35 I read Plaintiffs to allege that the bankruptcy proceeding was part of a fraudulent scheme only for color and context, not as a standalone claim for abuse of process 32 In re Bally’s Grand Deriv.",
"Litig., 1997 WL 305803, at *7 (Del. Ch. June 4, 1997); accord Anderson, 2007 WL 1248490, at *2 (“[A]ny state judicial proceeding that modifies a discharge order would also be void.”). 33 Compl. ¶ 16. 34 Nelson v. Emerson, 2008 WL 1961150, at *8 n.51 (Del. Ch. May 6, 2008). Since then- Vice Chancellor Strine noted the split of authority in 2008, the split has deepened. Compare In re Bral, 622 B.R. 737, 744–47 (9th Cir. 2020), with Rosenberg v. DVI Receivables XVII, LLC, 835 F.3d 414 (3d Cir. 2016), and Robbins v. Fulton Bank, N.A., 2018 WL 1693386 (E.D.",
"Pa. Apr. 6, 2018). 35 Compl. ¶ 23. Janusz Kecki, et al. v. Texas Enterprises, LLC, Civil Action No. 2017-0892-MTZ July 30, 2021 Page 9 of 9 or similar. Today, I hold only that this Court lacks subject matter jurisdiction over collateral attacks on the bankruptcy petition itself, including the List, and the Bankruptcy Court’s order denying Chabrowski’s motion to reopen the proceedings to challenge that List. That holding disposes of Plaintiffs’ claim. III. CONCLUSION For the foregoing reasons, the Company’s motion to dismiss for lack of subject matter jurisdiction is GRANTED. The August 20, 2019, order granting summary judgment on Kecki’s interest is VACATED as having been entered without subject matter jurisdiction.36 IT IS SO ORDERED. Sincerely, /s/ Morgan T. Zurn Vice Chancellor MTZ/ms 36 D.I. 48."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4708046/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
392 A.2d 383 (1978) Walter GARDNER and Jane Gardner v. WEST-COL, INC. and John L. Whalen, Trustee. No. 75-77. Supreme Court of Vermont. September 11, 1978. *384 Allan R. Keyes and John J. Zawistoski of Ryan, Smith & Carbine, Ltd., Rutland, for plaintiffs. Valsangiacomo, Heilmann & Detora, Barre, for West-Col, Inc. Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ. BILLINGS, Justice. This is an appeal by the defendant West-Col, Inc. (hereinafter West-Col) and by the trustee from a judgment awarding plaintiffs recovery of a $10,000 deposit, including any interest accumulated thereon, made pursuant to an agreement for the sale of real property, plus $3,484.78 incurred by plaintiffs in pre-purchase expenses, and dismissing West-Col's counterclaim. Plaintiffs alleged that West-Col breached the contract; West-Col counterclaimed for "slander of title." Trial was by the court, which made findings of fact revealing the following. On April 14, 1973, West-Col and plaintiffs' assignor entered into a purchase and sales agreement with respect to the Colonial Inn in Arlington with a $10,000 deposit given to the trustee. In the agreement, West-Col warranted that all permits and *385 licenses necessary to operate the Colonial Inn as a restaurant and inn were in full force and effect; the purchaser was not obligated to close if such permits and licenses were not in effect at closing. A closing was scheduled for May 19, 1973. On May 19, however, valid food and beverage licenses did not exist. Also, it appeared to plaintiffs' counsel that lack of compliance with fire regulations would prevent the acquisition of those licenses. Thus, the transaction was not consummated. On May 19, at the closing, plaintiffs offered to close at a later date if deficiencies reported by the Fire Marshal were corrected. On May 22, West-Col's president wrote plaintiffs that any deficiencies reported by the Fire Marshal would be corrected. A June 9 closing was scheduled, and West-Col's counsel advised plaintiffs' counsel sometime between June 2 and June 9 that the fire deficiencies would be remedied. At the June 9 closing, however, West-Col's president indicated surprise at the Fire Marshal's report and stated that West-Col would not remedy the deficiencies. The proceedings terminated, and this suit, commenced June 1, was prosecuted. From these facts, the trial court concluded that West-Col was unable to comply with the terms and conditions of the sales agreement on May 19, because the requisite licenses were not in effect. The trial court further concluded that plaintiffs' May 19 offer "to close at a later date, conditioned upon [West-Col] correcting the fire regulation deficiencies, and the agreement to comply by [West-Col's president's] letter of the same date, constituted a novation, the consideration being that no escrow would be required and that plaintiffs would close regardless of the lack of licenses." Thus, the court held that West-Col's president's stated refusal on June 9 to correct the deficiencies was a breach of the agreement entitling plaintiffs to recover. On appeal, appellants claim error in the court's conclusion of a novation of the sales contract in that no letter dated May 19, 1973, can be found in the record. Also, appellants contend that any acceptance of plaintiffs' May 19 offer was made conditional on a May 23 closing, which did not occur. Secondly, appellants challenge the admission into evidence of the Fire Marshal's report. Thirdly, appellants allege error generally in the trial court's failure to find that plaintiffs breached the agreement first. Lastly, appellants claim the trial court erroneously dismissed their counterclaim. Appellants' first attack is on the trial court's conclusion that a novation of the sales agreement occurred. They state that the conclusion, quoted above, must fall because there is no May 19 letter from West-Col agreeing to correct the fire regulation deficiencies. This argument lacks any merit whatsoever. In its conclusion, the trial court is obviously referring to the May 22 letter written by West-Col's president in which he commits West-Col to satisfy any deficiencies in the Fire Marshal's report. This type of mistake does not rise to the level of reversible error. See Cass-Warner Corp. v. Brickman, 126 Vt. 329, 333, 229 A.2d 309, 312 (1967). Appellants next attack the court's conclusion of a novation on the ground that any acceptance expressed by the May 22, letter was conditioned on a May 23 closing, which did not occur. The May 22 letter states that: [West-Col is] willing to close tomorrow [May 23] . . . the Fire Inspector ha[s] made his inspection Tuesday morning [May 22] and . . . [West-Col is] willing to correct any and all deficiencies which he sets forth in his report which he will be sending me in due course and that if [plaintiffs do] not close on Wednesday, May 23, it will be [their] last opportunity.. . . [West-Col is] now willing to commit to satisfy at the expense of West-Col, Inc. any deficiencies set forth in the Fire Marshal's report. The letter does not clearly condition agreement to correct the deficiencies on a May 23 closing. Also, the plaintiffs introduced evidence that West-Col, through counsel, continued to advise plaintiffs' counsel after May 23 that the deficiencies would be corrected. *386 Where the meaning of a writing is uncertain and extrinsic evidence is introduced in aid of its interpretation, the question of its meaning is one of fact to be decided by the fact finder. William Feinstein Brothers, Inc. v. L. Z. Hotte Granite Co., 123 Vt. 167, 171, 184 A.2d 540, 542 (1962). Thus, the trial court's determination that the May 22 letter expresses an unconditional acceptance of plaintiffs' offer to modify the agreement must stand unless it is clearly erroneous. Bemis v. Lamb, 135 Vt. ___, ___, 383 A.2d 614, 617 (1978); V.R.C.P. 52(a). From our review of the record, including the letter and the evidence that West-Col's counsel stated in early June, 1973, that the deficiencies would be corrected, we cannot say that the trial court's interpretation of the letter is clearly erroneous and not fairly and reasonably supported by the record. Appellants next allege error in the admission of the Fire Marshal's report. They claim that the report was admitted contrary to the dictates of 12 V.S.A. §§ 1692, 1697, 1700, 1701, and V.R.C.P. 44(a)(1). In the trial court, however, the objection was based generally on relevancy; it was argued that a Fire Marshal's report was not required by the agreement and that no modification of the agreement had been shown providing for such a requirement. Because of the difference between the grounds of objection presented below and those presented to us here, this issue has not been preserved for review. V.R. C.P. 46. See Vladyka v. Page, 135 Vt. ___, ___, 373 A.2d 539, 539-40 (1977). Appellants' third challenge to the trial court's decision urges that the plaintiffs, not West-Col, breached the sales agreement first. Appellants argue that plaintiffs repudiated the contract by demanding compliance with the Fire Marshal's report prior to May 19, thus excusing the absence of valid licenses on May 19. Also, appellants charge that plaintiffs again breached the contract by refusing to close on June 9, when all the required licenses were in effect. Based on testimony and letters presented in evidence, the trial court interpreted the discussion regarding the fire regulation deficiencies as an offer to change the contract, rather than as a repudiation. Giving due regard to the trial court's opportunity to hear the evidence firsthand, we do not find the trial court's interpretation to be clearly erroneous. Furthermore, from a review of the record, we cannot say that the facts establish that plaintiffs repudiated the agreement prior to May 19 as a matter of law. With regard to the June 9 closing, because of the change in the agreement, the existence or nonexistence of the formerly required licenses was immaterial. The new agreement required West-Col to remedy the fire regulation deficiencies; West-Col clearly breached this agreement by the stated refusal of its president on June 9 to correct those deficiencies. Finally, appellants complain that the trial court failed to make required findings when it dismissed the counterclaim based on slander of title. The trial court stated only: "The allegations of the Counterclaim are not supported by the evidence." When findings of fact are requested, as they were here, the trial court is bound to make findings upon all material issues raised by the pleadings and evidence. Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 170, 352 A.2d 676, 677 (1976). But we will not reverse for lack of findings on material issues where an element of the claim for relief has not been proved at trial. See In re New England Telephone and Telegraph Co., 120 Vt. 181, 193, 136 A.2d 357, 365 (1957). An essential element of the cause of action for slander of title is special damages. W. Prosser, The Law of Torts § 128, at 920 (4th ed. 1971). These damages must be proved by the injured party as a prerequisite to recovery. Id. § 128, at 922. At minimum, the injured party must demonstrate that any damages result from the "slander" and not from other factors. See Id. § 128, at 923-24. Here West-Col's expert testified at trial that the fair market value of the subject property had declined $30,000 from the time suit was brought to *387 the date of trial. The basis for his opinion on value at the date of trial, however, was that the "real estate business today is at its worst level in many years." No evidence was presented to tie any damages to the alleged "slander." The failure of proof of special damages renders the trial court's lack of findings harmless. Affirmed. | 10-30-2013 | [
"392 A.2d 383 (1978) Walter GARDNER and Jane Gardner v. WEST-COL, INC. and John L. Whalen, Trustee. No. 75-77. Supreme Court of Vermont. September 11, 1978. *384 Allan R. Keyes and John J. Zawistoski of Ryan, Smith & Carbine, Ltd., Rutland, for plaintiffs. Valsangiacomo, Heilmann & Detora, Barre, for West-Col, Inc. Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ. BILLINGS, Justice. This is an appeal by the defendant West-Col, Inc. (hereinafter West-Col) and by the trustee from a judgment awarding plaintiffs recovery of a $10,000 deposit, including any interest accumulated thereon, made pursuant to an agreement for the sale of real property, plus $3,484.78 incurred by plaintiffs in pre-purchase expenses, and dismissing West-Col's counterclaim. Plaintiffs alleged that West-Col breached the contract; West-Col counterclaimed for \"slander of title.\" Trial was by the court, which made findings of fact revealing the following. On April 14, 1973, West-Col and plaintiffs' assignor entered into a purchase and sales agreement with respect to the Colonial Inn in Arlington with a $10,000 deposit given to the trustee. In the agreement, West-Col warranted that all permits and *385 licenses necessary to operate the Colonial Inn as a restaurant and inn were in full force and effect; the purchaser was not obligated to close if such permits and licenses were not in effect at closing.",
"A closing was scheduled for May 19, 1973. On May 19, however, valid food and beverage licenses did not exist. Also, it appeared to plaintiffs' counsel that lack of compliance with fire regulations would prevent the acquisition of those licenses. Thus, the transaction was not consummated. On May 19, at the closing, plaintiffs offered to close at a later date if deficiencies reported by the Fire Marshal were corrected. On May 22, West-Col's president wrote plaintiffs that any deficiencies reported by the Fire Marshal would be corrected. A June 9 closing was scheduled, and West-Col's counsel advised plaintiffs' counsel sometime between June 2 and June 9 that the fire deficiencies would be remedied. At the June 9 closing, however, West-Col's president indicated surprise at the Fire Marshal's report and stated that West-Col would not remedy the deficiencies. The proceedings terminated, and this suit, commenced June 1, was prosecuted. From these facts, the trial court concluded that West-Col was unable to comply with the terms and conditions of the sales agreement on May 19, because the requisite licenses were not in effect. The trial court further concluded that plaintiffs' May 19 offer \"to close at a later date, conditioned upon [West-Col] correcting the fire regulation deficiencies, and the agreement to comply by [West-Col's president's] letter of the same date, constituted a novation, the consideration being that no escrow would be required and that plaintiffs would close regardless of the lack of licenses.\" Thus, the court held that West-Col's president's stated refusal on June 9 to correct the deficiencies was a breach of the agreement entitling plaintiffs to recover.",
"On appeal, appellants claim error in the court's conclusion of a novation of the sales contract in that no letter dated May 19, 1973, can be found in the record. Also, appellants contend that any acceptance of plaintiffs' May 19 offer was made conditional on a May 23 closing, which did not occur. Secondly, appellants challenge the admission into evidence of the Fire Marshal's report. Thirdly, appellants allege error generally in the trial court's failure to find that plaintiffs breached the agreement first. Lastly, appellants claim the trial court erroneously dismissed their counterclaim. Appellants' first attack is on the trial court's conclusion that a novation of the sales agreement occurred. They state that the conclusion, quoted above, must fall because there is no May 19 letter from West-Col agreeing to correct the fire regulation deficiencies.",
"This argument lacks any merit whatsoever. In its conclusion, the trial court is obviously referring to the May 22 letter written by West-Col's president in which he commits West-Col to satisfy any deficiencies in the Fire Marshal's report. This type of mistake does not rise to the level of reversible error. See Cass-Warner Corp. v. Brickman, 126 Vt. 329, 333, 229 A.2d 309, 312 (1967). Appellants next attack the court's conclusion of a novation on the ground that any acceptance expressed by the May 22, letter was conditioned on a May 23 closing, which did not occur. The May 22 letter states that: [West-Col is] willing to close tomorrow [May 23] . . . the Fire Inspector ha[s] made his inspection Tuesday morning [May 22] and . .",
". [West-Col is] willing to correct any and all deficiencies which he sets forth in his report which he will be sending me in due course and that if [plaintiffs do] not close on Wednesday, May 23, it will be [their] last opportunity.. . . [West-Col is] now willing to commit to satisfy at the expense of West-Col, Inc. any deficiencies set forth in the Fire Marshal's report.",
"The letter does not clearly condition agreement to correct the deficiencies on a May 23 closing. Also, the plaintiffs introduced evidence that West-Col, through counsel, continued to advise plaintiffs' counsel after May 23 that the deficiencies would be corrected. *386 Where the meaning of a writing is uncertain and extrinsic evidence is introduced in aid of its interpretation, the question of its meaning is one of fact to be decided by the fact finder. William Feinstein Brothers, Inc. v. L. Z. Hotte Granite Co., 123 Vt. 167, 171, 184 A.2d 540, 542 (1962). Thus, the trial court's determination that the May 22 letter expresses an unconditional acceptance of plaintiffs' offer to modify the agreement must stand unless it is clearly erroneous. Bemis v. Lamb, 135 Vt. ___, ___, 383 A.2d 614, 617 (1978); V.R.C.P. 52(a). From our review of the record, including the letter and the evidence that West-Col's counsel stated in early June, 1973, that the deficiencies would be corrected, we cannot say that the trial court's interpretation of the letter is clearly erroneous and not fairly and reasonably supported by the record.",
"Appellants next allege error in the admission of the Fire Marshal's report. They claim that the report was admitted contrary to the dictates of 12 V.S.A. §§ 1692, 1697, 1700, 1701, and V.R.C.P. 44(a)(1). In the trial court, however, the objection was based generally on relevancy; it was argued that a Fire Marshal's report was not required by the agreement and that no modification of the agreement had been shown providing for such a requirement. Because of the difference between the grounds of objection presented below and those presented to us here, this issue has not been preserved for review. V.R. C.P. 46. See Vladyka v. Page, 135 Vt. ___, ___, 373 A.2d 539, 539-40 (1977). Appellants' third challenge to the trial court's decision urges that the plaintiffs, not West-Col, breached the sales agreement first. Appellants argue that plaintiffs repudiated the contract by demanding compliance with the Fire Marshal's report prior to May 19, thus excusing the absence of valid licenses on May 19. Also, appellants charge that plaintiffs again breached the contract by refusing to close on June 9, when all the required licenses were in effect.",
"Based on testimony and letters presented in evidence, the trial court interpreted the discussion regarding the fire regulation deficiencies as an offer to change the contract, rather than as a repudiation. Giving due regard to the trial court's opportunity to hear the evidence firsthand, we do not find the trial court's interpretation to be clearly erroneous. Furthermore, from a review of the record, we cannot say that the facts establish that plaintiffs repudiated the agreement prior to May 19 as a matter of law. With regard to the June 9 closing, because of the change in the agreement, the existence or nonexistence of the formerly required licenses was immaterial. The new agreement required West-Col to remedy the fire regulation deficiencies; West-Col clearly breached this agreement by the stated refusal of its president on June 9 to correct those deficiencies. Finally, appellants complain that the trial court failed to make required findings when it dismissed the counterclaim based on slander of title.",
"The trial court stated only: \"The allegations of the Counterclaim are not supported by the evidence.\" When findings of fact are requested, as they were here, the trial court is bound to make findings upon all material issues raised by the pleadings and evidence. Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 170, 352 A.2d 676, 677 (1976). But we will not reverse for lack of findings on material issues where an element of the claim for relief has not been proved at trial. See In re New England Telephone and Telegraph Co., 120 Vt. 181, 193, 136 A.2d 357, 365 (1957).",
"An essential element of the cause of action for slander of title is special damages. W. Prosser, The Law of Torts § 128, at 920 (4th ed. 1971). These damages must be proved by the injured party as a prerequisite to recovery. Id. § 128, at 922. At minimum, the injured party must demonstrate that any damages result from the \"slander\" and not from other factors. See Id. § 128, at 923-24. Here West-Col's expert testified at trial that the fair market value of the subject property had declined $30,000 from the time suit was brought to *387 the date of trial. The basis for his opinion on value at the date of trial, however, was that the \"real estate business today is at its worst level in many years.\"",
"No evidence was presented to tie any damages to the alleged \"slander.\" The failure of proof of special damages renders the trial court's lack of findings harmless. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2064735/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
United States Department of Labor Employees’ Compensation Appeals Board __________________________________________ P.P., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Sacramento, CA, Employer __________________________________________
) ) ) ) ) ) ) )
Appearances: Ron Watson, for the appellant Office of Solicitor, for the Director
Docket No. 08-2043 Issued: June 8, 2009
Case Submitted on the Record
DECISION AND ORDER Before: COLLEEN DUFFY KIKO, Judge MICHAEL E. GROOM, Alternate Judge JAMES A. HAYNES, Alternate Judge
JURISDICTION On July 21, 2008 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ nonmerit decisions dated May 19, 2008, which denied his request for reconsideration on the grounds that it was not timely filed and failed to establish clear evidence of error and, November 29, 2007, denying an oral hearing. Because more than one year has elapsed from the last merit decision dated October 16, 2006 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3. ISSUES The issues are: (1) whether the Office properly denied appellant’s request for an oral hearing as untimely; and (2) whether the Office properly refused to reopen appellant’s claim for reconsideration of the merits of his claim on the grounds that it was untimely filed and failed to show clear evidence of error.
FACTUAL HISTORY On August 29, 2006 appellant, then a 47-year-old city letter carrier, filed an occupational disease claim alleging that his federal employment duties caused his right shoulder condition. He submitted an August 29, 2006 work restriction report from Carol D. Wilhite, a family nurse practitioner, who stated that appellant had a labral tear of the shoulder, as noted on magnetic resonance imaging (MRI) scan, and was able to work with restrictions. Ms. Wilhite also noted that appellant needed to proceed with surgery. A copy of the August 12, 2006 letter from appellant’s health care provider pertaining to the requested shoulder arthroscopy was also submitted. In a September 14, 2006 letter, the Office advised appellant that additional factual and medical evidence was needed to establish his claim. It noted the medical slips from a nurse practitioner were not considered medical evidence as they were not from a physician. No additional evidence was received. By decision dated October 16, 2006, the Office denied appellant’s claim. It found that the claimed work events occurred as alleged but there was no medical evidence from a physician which provided a diagnosis that could be connected to the events. On November 2, 2007 the Office received an oral hearing request which was postmarked October 27, 2007. In an attached note dated October 9, 2007, appellant indicated that his primary care physician and care manager had been deployed in the military and had little opportunity to treat him. He had recently been assigned a new primary care manager and asked that the Office take into consideration the circumstances of his situation. By decision dated November 29, 2007, the Office denied appellant’s request for an oral hearing on the grounds that his request was not made within 30 days of the Office’s October 16, 2006 decision. It determined that appellant’s claim could equally well be addressed through the reconsideration process. On February 13, 2008 appellant requested reconsideration. He noted that on February 4, 2008 his care was assigned to Dr. Michael A. Meeker, a Board-certified family practitioner. Appellant indicated that a statement from Dr. Meeker was enclosed which supported his claim. He stated that Dr. Meeker clarified the medical issues and explained the details of his injury as well as the results of that injury to his current condition. No additional medical evidence, however, was received. In a May 19, 2008 decision, the Office denied appellant’s February 13, 2008 reconsideration request. It found that the request was untimely and failed to present clear evidence of error of the Office’s October 16, 2006 decision. LEGAL PRECEDENT -- ISSUE 1 Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that, before review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
2
of the decision, to a hearing on his claim before a representative of the Secretary.1 Section 10.615 of the federal regulations implementing this section of the Act provides that a claimant shall be afforded a choice of an oral hearing or a review of the written record.2 The Office’s regulations provide that the request must be sent within 30 days of the date of the decision for which a hearing is sought and also that the claimant must not have previously submitted a reconsideration request (whether or not it was granted) on the same decision.3 The Board has held that the Office, in its broad discretionary authority in the administration of the Act,4 has the power to hold hearings in certain circumstances where no legal provision was made for such hearings and that the Office must exercise this discretionary authority in deciding whether to grant a hearing.5 The Office’s procedures, which require the Office to exercise its discretion to grant or deny a hearing when the request is untimely or made after reconsideration, are a proper interpretation of Board precedent.6 ANALYSIS -- ISSUE 1 The Office denied appellant’s claim on October 16, 2006. Appellant’s request for an oral hearing before the Office’s Branch of Hearings and Review was postmarked October 27, 2007. As his request for a review was filed more than 30 days after the October 16, 2006 decision, the Board finds that the Office properly found that the request was untimely. Although the Office determined that appellant’s request was untimely, it nevertheless exercised its discretion by further considering his request for review. It determined that appellant could equally well pursue his claim by submission of a request for reconsideration along with new evidence. Accordingly, the Board finds that the Office properly exercised its discretion in denying appellant’s request for review. There is no evidence of an abuse of discretion in this case.7
1
5 U.S.C. § 8124(b)(1).
2
20 C.F.R. § 10.615.
3
Id. at § 10.616(a).
4
5 U.S.C. §§ 8101-8193.
5
Marilyn F. Wilson, 52 ECAB 347 (2001).
6
Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992). 7
See Daniel J. Perea, 42 ECAB 214 (1990).
3
LEGAL PRECEDENT -- ISSUE 2 Section 8128(a) of the Act vests the Office with discretion to determine whether it will review an award for or against compensation: “The Secretary of Labor may review an award for or against payment of compensation at anytime on his own motion or on application. The Secretary, in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or (2) award compensation previously refused or discontinued.”8 The Office, through regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that the Office will not review a decision unless the application for review is filed within one year of the date of that decision.9 However, the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the claimant’s application for review shows clear evidence of error on the part of the Office in its most recent merit decision. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided by the Office. The evidence must be positive, precise and explicit and must be manifested on its face that the Office committed an error.10 Evidence that does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.11 It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.12 This entails a limited review by the Office of the evidence previously of record and whether the new evidence demonstrates clear error on the part of the Office.13 The Board makes an independent determination as to whether a claimant has submitted clear evidence of error on the part of the Office.14
8
5 U.S.C. § 8128(a).
9
20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).
10
20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).
11
Jimmy L. Day, 48 ECAB 652 (1997).
12
Id.
13
Id.
14
Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).
4
ANALYSIS -- ISSUE 2 The Office issued a merit decision in appellant’s claim on October 16, 2006. Appellant requested reconsideration on February 13, 2008, more than one year after the Office’s October 16, 2006 decision. Therefore, his request was untimely. However, the Office will reopen the claim for a merit review, despite the untimely reconsideration request, if the request shows clear evidence of error by the Office in its October 16, 2006 decision, which denied appellant’s claim on the grounds he failed to submit medical opinion evidence establishing a causal relationship between his diagnosed shoulder condition and the duties of his federal employment. The Board finds that appellant has not established clear evidence of error on the part of the Office. While appellant’s reconsideration request indicated a report from Dr. Meeker was attached, the record contains no report from Dr. Meeker or any other physician in support of appellant’s reconsideration request. Causal relationship is a medical issue.15 Appellant did not submit any evidence with his reconsideration request sufficient to prima facie shift the weight of the evidence in his favor and raise a substantial question as to the correctness of the Office’s decision. Therefore, appellant has not established clear evidence of error. On appeal, appellant’s representative argued that appellant submitted medical documentation signed by Dr. Moon Y. Jeu on or shortly after October 19, 2006. The record, however, does not contain such evidence. Appellant’s representative additionally argued that it was appellant’s understanding that a waiver of time limits had been granted due to the unusual circumstance of his physician serving his country and therefore unavailable to provide the requested medical documentation. However, Office regulations provide that the only exception to the requirement for filing a reconsideration request within one year occurs where the claimant can establish through probative medical evidence that he was unable to communicate in any way and that his testimony was necessary in order to obtain modification of the Office’s decision.16 No such showing has been made in this case. CONCLUSION The Board finds that the Office properly denied appellant’s request for an oral hearing as untimely. The Board further finds that appellant’s untimely request for reconsideration did not establish clear evidence of error on the part of the Office.17
15
Mary J. Briggs, 37 ECAB 578 (1986).
16
20 C.F.R. § 10.607(c).
17
On appeal, appellant submitted new factual evidence. As this evidence was not a part of the record at the time the Office made its final decision, the Board is precluded from reviewing the evidence. See 20 C.F.R. § 501.2(c).
5
ORDER IT IS HEREBY ORDERED THAT the May 19, 2008 and November 29, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed. Issued: June 8, 2009 Washington, DC
Colleen Duffy Kiko, Judge Employees’ Compensation Appeals Board
Michael E. Groom, Alternate Judge Employees’ Compensation Appeals Board
James A. Haynes, Alternate Judge Employees’ Compensation Appeals Board
6 | 06-08-2009 | [
"United States Department of Labor Employees’ Compensation Appeals Board __________________________________________ P.P., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Sacramento, CA, Employer __________________________________________ ) ) ) ) ) ) ) ) Appearances: Ron Watson, for the appellant Office of Solicitor, for the Director Docket No. 08-2043 Issued: June 8, 2009 Case Submitted on the Record DECISION AND ORDER Before: COLLEEN DUFFY KIKO, Judge MICHAEL E. GROOM, Alternate Judge JAMES A. HAYNES, Alternate Judge JURISDICTION On July 21, 2008 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ nonmerit decisions dated May 19, 2008, which denied his request for reconsideration on the grounds that it was not timely filed and failed to establish clear evidence of error and, November 29, 2007, denying an oral hearing. Because more than one year has elapsed from the last merit decision dated October 16, 2006 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R.",
"§§ 501.2(c) and 501.3. ISSUES The issues are: (1) whether the Office properly denied appellant’s request for an oral hearing as untimely; and (2) whether the Office properly refused to reopen appellant’s claim for reconsideration of the merits of his claim on the grounds that it was untimely filed and failed to show clear evidence of error. FACTUAL HISTORY On August 29, 2006 appellant, then a 47-year-old city letter carrier, filed an occupational disease claim alleging that his federal employment duties caused his right shoulder condition. He submitted an August 29, 2006 work restriction report from Carol D. Wilhite, a family nurse practitioner, who stated that appellant had a labral tear of the shoulder, as noted on magnetic resonance imaging (MRI) scan, and was able to work with restrictions. Ms. Wilhite also noted that appellant needed to proceed with surgery. A copy of the August 12, 2006 letter from appellant’s health care provider pertaining to the requested shoulder arthroscopy was also submitted.",
"In a September 14, 2006 letter, the Office advised appellant that additional factual and medical evidence was needed to establish his claim. It noted the medical slips from a nurse practitioner were not considered medical evidence as they were not from a physician. No additional evidence was received. By decision dated October 16, 2006, the Office denied appellant’s claim. It found that the claimed work events occurred as alleged but there was no medical evidence from a physician which provided a diagnosis that could be connected to the events. On November 2, 2007 the Office received an oral hearing request which was postmarked October 27, 2007. In an attached note dated October 9, 2007, appellant indicated that his primary care physician and care manager had been deployed in the military and had little opportunity to treat him.",
"He had recently been assigned a new primary care manager and asked that the Office take into consideration the circumstances of his situation. By decision dated November 29, 2007, the Office denied appellant’s request for an oral hearing on the grounds that his request was not made within 30 days of the Office’s October 16, 2006 decision. It determined that appellant’s claim could equally well be addressed through the reconsideration process. On February 13, 2008 appellant requested reconsideration. He noted that on February 4, 2008 his care was assigned to Dr. Michael A. Meeker, a Board-certified family practitioner. Appellant indicated that a statement from Dr. Meeker was enclosed which supported his claim. He stated that Dr. Meeker clarified the medical issues and explained the details of his injury as well as the results of that injury to his current condition. No additional medical evidence, however, was received.",
"In a May 19, 2008 decision, the Office denied appellant’s February 13, 2008 reconsideration request. It found that the request was untimely and failed to present clear evidence of error of the Office’s October 16, 2006 decision. LEGAL PRECEDENT -- ISSUE 1 Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that, before review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance 2 of the decision, to a hearing on his claim before a representative of the Secretary.1 Section 10.615 of the federal regulations implementing this section of the Act provides that a claimant shall be afforded a choice of an oral hearing or a review of the written record.2 The Office’s regulations provide that the request must be sent within 30 days of the date of the decision for which a hearing is sought and also that the claimant must not have previously submitted a reconsideration request (whether or not it was granted) on the same decision.3 The Board has held that the Office, in its broad discretionary authority in the administration of the Act,4 has the power to hold hearings in certain circumstances where no legal provision was made for such hearings and that the Office must exercise this discretionary authority in deciding whether to grant a hearing.5 The Office’s procedures, which require the Office to exercise its discretion to grant or deny a hearing when the request is untimely or made after reconsideration, are a proper interpretation of Board precedent.6 ANALYSIS -- ISSUE 1 The Office denied appellant’s claim on October 16, 2006.",
"Appellant’s request for an oral hearing before the Office’s Branch of Hearings and Review was postmarked October 27, 2007. As his request for a review was filed more than 30 days after the October 16, 2006 decision, the Board finds that the Office properly found that the request was untimely. Although the Office determined that appellant’s request was untimely, it nevertheless exercised its discretion by further considering his request for review. It determined that appellant could equally well pursue his claim by submission of a request for reconsideration along with new evidence. Accordingly, the Board finds that the Office properly exercised its discretion in denying appellant’s request for review. There is no evidence of an abuse of discretion in this case.7 1 5 U.S.C.",
"§ 8124(b)(1). 2 20 C.F.R. § 10.615. 3 Id. at § 10.616(a). 4 5 U.S.C. §§ 8101-8193. 5 Marilyn F. Wilson, 52 ECAB 347 (2001). 6 Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992). 7 See Daniel J. Perea, 42 ECAB 214 (1990). 3 LEGAL PRECEDENT -- ISSUE 2 Section 8128(a) of the Act vests the Office with discretion to determine whether it will review an award for or against compensation: “The Secretary of Labor may review an award for or against payment of compensation at anytime on his own motion or on application.",
"The Secretary, in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or (2) award compensation previously refused or discontinued.”8 The Office, through regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that the Office will not review a decision unless the application for review is filed within one year of the date of that decision.9 However, the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the claimant’s application for review shows clear evidence of error on the part of the Office in its most recent merit decision. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided by the Office. The evidence must be positive, precise and explicit and must be manifested on its face that the Office committed an error.10 Evidence that does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.11 It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.12 This entails a limited review by the Office of the evidence previously of record and whether the new evidence demonstrates clear error on the part of the Office.13 The Board makes an independent determination as to whether a claimant has submitted clear evidence of error on the part of the Office.14 8 5 U.S.C.",
"§ 8128(a). 9 20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998). 10 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 11 Jimmy L. Day, 48 ECAB 652 (1997). 12 Id. 13 Id. 14 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 4 ANALYSIS -- ISSUE 2 The Office issued a merit decision in appellant’s claim on October 16, 2006. Appellant requested reconsideration on February 13, 2008, more than one year after the Office’s October 16, 2006 decision. Therefore, his request was untimely. However, the Office will reopen the claim for a merit review, despite the untimely reconsideration request, if the request shows clear evidence of error by the Office in its October 16, 2006 decision, which denied appellant’s claim on the grounds he failed to submit medical opinion evidence establishing a causal relationship between his diagnosed shoulder condition and the duties of his federal employment. The Board finds that appellant has not established clear evidence of error on the part of the Office. While appellant’s reconsideration request indicated a report from Dr. Meeker was attached, the record contains no report from Dr. Meeker or any other physician in support of appellant’s reconsideration request.",
"Causal relationship is a medical issue.15 Appellant did not submit any evidence with his reconsideration request sufficient to prima facie shift the weight of the evidence in his favor and raise a substantial question as to the correctness of the Office’s decision. Therefore, appellant has not established clear evidence of error. On appeal, appellant’s representative argued that appellant submitted medical documentation signed by Dr. Moon Y. Jeu on or shortly after October 19, 2006. The record, however, does not contain such evidence. Appellant’s representative additionally argued that it was appellant’s understanding that a waiver of time limits had been granted due to the unusual circumstance of his physician serving his country and therefore unavailable to provide the requested medical documentation.",
"However, Office regulations provide that the only exception to the requirement for filing a reconsideration request within one year occurs where the claimant can establish through probative medical evidence that he was unable to communicate in any way and that his testimony was necessary in order to obtain modification of the Office’s decision.16 No such showing has been made in this case. CONCLUSION The Board finds that the Office properly denied appellant’s request for an oral hearing as untimely. The Board further finds that appellant’s untimely request for reconsideration did not establish clear evidence of error on the part of the Office.17 15 Mary J. Briggs, 37 ECAB 578 (1986). 16 20 C.F.R. § 10.607(c). 17 On appeal, appellant submitted new factual evidence. As this evidence was not a part of the record at the time the Office made its final decision, the Board is precluded from reviewing the evidence. See 20 C.F.R. § 501.2(c). 5 ORDER IT IS HEREBY ORDERED THAT the May 19, 2008 and November 29, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.",
"Issued: June 8, 2009 Washington, DC Colleen Duffy Kiko, Judge Employees’ Compensation Appeals Board Michael E. Groom, Alternate Judge Employees’ Compensation Appeals Board James A. Haynes, Alternate Judge Employees’ Compensation Appeals Board 6"
]
| https://www.dol.gov/sites/dolgov/files/ecab/decisions/2009/Jun/08-2043.pdf | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
635 N.E.2d 184 (1994) In the matter of Marie D. ST. AMAND-ZION, Appellant, v. REVIEW BOARD OF THE INDIANA DEPARTMENT OF EMPLOYMENT AND TRAINING SERVICES, Sandra D. Leek, George H. Baker and Mark T. Robbins, As Members of and As Constituting the Review Board of the Indiana Department of Employment and Training Services, and Medco Center, Appellees. No. 93A02-9210-EX-497. Court of Appeals of Indiana, Fourth District. May 31, 1994. Georgia C. Luks, South Bend, for appellant. Richard A. Rice, Sopko & Firth, South Bend, for appellees. *185 RILEY, Judge.
STATEMENT OF THE CASE Claimant-Appellant Marie St. Amand-Zion (Claimant) appeals a decision by the Review Board of the Indiana Department of Employment and Training Services (Review Board) denying her unemployment benefits following her termination from Employer-Appellee Medco Center. We dismiss.
ISSUE Claimant raises a single issue for our review. However, we are precluded from addressing the issue because we do not have jurisdiction to entertain the appeal.
FACTS AND PROCEDURAL HISTORY Claimant was employed by Medco as a certified nursing assistant until her termination for allegedly disregarding company rules. She applied for unemployment compensation, and a deputy for the Review Board found she qualified for such compensation. Medco filed a notice of appeal, and an appeal hearing was set. Notice of the hearing was sent to Claimant, but was not sent to Claimant's attorney. Neither Claimant nor her attorney attended the hearing. Medco did attend the hearing, and it presented evidence in an effort to prove that the rule Claimant violated was known, reasonable, and uniformly enforced. The administrative law judge entered a decision reversing the deputy's earlier determination. Claimant filed a "Request for Appeal to the Review Board" in which she alleged that a new hearing was proper because her attorney did not receive notice of the hearing date. The Review Board affirmed the administrative law judge's determination, and Claimant now appeals on the basis that notice to her attorney was required by Ind.Trial Rule 5(B). Her appeal is taken under Ind.Appellate Rule 4(C).[1]
DISCUSSION AND DECISION Ind.Appellate Rule 7.2(A)(1) states that the record of proceedings filed with this court must include "an assignment of errors for reviews from administrative decisions taken directly to the Court of Appeals under Appellate Rule 4(C)." IND. CODE 22-4-17-12(f) also requires the inclusion of an assignment of errors. The timely filing of an assignment of errors is a jurisdictional act. South Madison Commun. School Corp. v. Review Bd. of the Ind. Dep't of Employment & Training Services (1993), Ind. App., 622 N.E.2d 1042, 1043 (citing Lashley v. Centerville-Abington Community Sch. (1973), 155 Ind. App. 556, 293 N.E.2d 519). Failure to file the assignment of errors must result in dismissal for lack of jurisdiction. Id. (citing Ind. Bell Tel. Co., Inc. v. T.A.S.I., Inc. (1982), Ind. App., 433 N.E.2d 1195). Our review of the record filed in this case discloses that an assignment of errors was not timely filed.[2] As Claimant has not invoked the jurisdiction of this court, the cause must be dismissed. Two cases decided on this date examine the issue of whether the filing of an assignment of errors is a jurisdictional act. In Hogan v. Review Bd. of the Ind. Dep't of Employment and Training Services (1994), Ind. App., 635 N.E.2d 172, 178, the Second *186 District holds that "failure to include [an assignment of errors] does not deprive [this court] of jurisdiction, nor prevent us from exercising our inherent power to hear this cause." 635 N.E.2d at 179. Conversely, in Claywell v. Review Bd. of the Ind. Dep't of Employment and Training Services (1994), Ind. App., 635 N.E.2d 181, 182 the Fifth District holds that filing of the assignment is a jurisdictional act. Hogan is based upon Lugar v. State (1978), 270 Ind. 45, 383 N.E.2d 287, wherein our supreme court stated that it has "the inherent discretionary power to entertain an appeal after the time allowed [to file a praecipe] has expired." Hogan, 635 N.E.2d at 176 (quoting Lugar, 383 N.E.2d at 288-89). From this statement, the Second District surmises that an appellant's failure to comply with the rules of procedure does not deprive an appellate court of jurisdiction, but merely gives the court the option to refuse to consider the appeal. Hogan, 635 N.E.2d at 176. In Claywell, the Fifth District points out that the rule requiring the filing of an assignment of errors, unlike the rule considered in Lugar, is a statutory mandate that "we are not free to ignore." 635 N.E.2d at 183. We agree with the Fifth District that we do not have the authority to circumvent mandatory statutes. The Fifth District notes that even if it were to agree with the Hogan court that the filing of an assignment of errors is not a jurisdictional act, Claywell's case was not a case where an appellate court should exercise discretionary powers to entertain an untimely appeal. Claywell, 635 N.E.2d at 183. The court also notes that Lugar only authorizes the exercise of inherent power "in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist."[3]Id. (quoting Lugar, 383 N.E.2d at 289). The court goes on to hold that "the case before us today does not involve a matter of great public interest or extraordinary circumstances."[4]Id. We agree with the Fifth District's reading of Lugar. We also agree that a case involving the denial of unemployment compensation is not the "rare and exceptional case" which would warrant the exercise of inherent power to entertain an untimely appeal.
CONCLUSION By failing to timely file an assignment of errors, Claimant has failed to invoke the jurisdiction of this court. Thus, Claimant's appeal must be dismissed. MILLER and BARTEAU, JJ., concur. NOTES [1] App.R. 4(C) states that the "Court of Appeals shall have jurisdiction to entertain actions in aid of its appellate jurisdiction and to review decisions of ... the Department of Employment and Training Services ... and review final decisions of administrative bodies, boards, and persons as provided by statute for the Appellate Court and Court of Appeals." [2] This appeal was filed on November 23, 1992. On February 18, 1993, the Review Board filed a motion to dismiss because of deficiencies in the record and brief filed by Claimant. In that motion, the Review Board pointed out that Claimant's failure to file an assignment of errors necessitated dismissal for lack of jurisdiction. On March 16, 1993, Claimant filed a request for an extension of time to supplement her brief and the record. On June 29, 1993, this court denied the Review Board's motion to dismiss and granted Claimant's motion for extension. Claimant subsequently filed an assignment of errors.
Our June 29, 1993, ruling was in error. An erroneous ruling is not binding upon this court when it is corrected in the process of considering a current appeal. See CNA Insurance Co. v. Vellucci (1992), Ind. App., 596 N.E.2d 926, 927 (holding that this court may reconsider an erroneous ruling as long as the appeal is current). [3] In Lugar, the appellant's attorney did not comply with procedural rules because he was "serving in the legislature at the same time he was attempting to prepare a brief in a matter of great importance, involving millions of public dollars and private pension benefits." Lugar, 383 N.E.2d at 289. [4] In Claywell, the appellant was appealing the denial of unemployment compensation by the Review Board. | 10-30-2013 | [
"635 N.E.2d 184 (1994) In the matter of Marie D. ST. AMAND-ZION, Appellant, v. REVIEW BOARD OF THE INDIANA DEPARTMENT OF EMPLOYMENT AND TRAINING SERVICES, Sandra D. Leek, George H. Baker and Mark T. Robbins, As Members of and As Constituting the Review Board of the Indiana Department of Employment and Training Services, and Medco Center, Appellees. No. 93A02-9210-EX-497. Court of Appeals of Indiana, Fourth District. May 31, 1994. Georgia C. Luks, South Bend, for appellant. Richard A. Rice, Sopko & Firth, South Bend, for appellees. *185 RILEY, Judge. STATEMENT OF THE CASE Claimant-Appellant Marie St. Amand-Zion (Claimant) appeals a decision by the Review Board of the Indiana Department of Employment and Training Services (Review Board) denying her unemployment benefits following her termination from Employer-Appellee Medco Center. We dismiss. ISSUE Claimant raises a single issue for our review. However, we are precluded from addressing the issue because we do not have jurisdiction to entertain the appeal. FACTS AND PROCEDURAL HISTORY Claimant was employed by Medco as a certified nursing assistant until her termination for allegedly disregarding company rules. She applied for unemployment compensation, and a deputy for the Review Board found she qualified for such compensation.",
"Medco filed a notice of appeal, and an appeal hearing was set. Notice of the hearing was sent to Claimant, but was not sent to Claimant's attorney. Neither Claimant nor her attorney attended the hearing. Medco did attend the hearing, and it presented evidence in an effort to prove that the rule Claimant violated was known, reasonable, and uniformly enforced. The administrative law judge entered a decision reversing the deputy's earlier determination. Claimant filed a \"Request for Appeal to the Review Board\" in which she alleged that a new hearing was proper because her attorney did not receive notice of the hearing date. The Review Board affirmed the administrative law judge's determination, and Claimant now appeals on the basis that notice to her attorney was required by Ind.Trial Rule 5(B). Her appeal is taken under Ind.Appellate Rule 4(C).",
"[1] DISCUSSION AND DECISION Ind.Appellate Rule 7.2(A)(1) states that the record of proceedings filed with this court must include \"an assignment of errors for reviews from administrative decisions taken directly to the Court of Appeals under Appellate Rule 4(C).\" IND. CODE 22-4-17-12(f) also requires the inclusion of an assignment of errors. The timely filing of an assignment of errors is a jurisdictional act. South Madison Commun. School Corp. v. Review Bd.",
"of the Ind. Dep't of Employment & Training Services (1993), Ind. App., 622 N.E.2d 1042, 1043 (citing Lashley v. Centerville-Abington Community Sch. (1973), 155 Ind. App. 556, 293 N.E.2d 519). Failure to file the assignment of errors must result in dismissal for lack of jurisdiction. Id. (citing Ind. Bell Tel. Co., Inc. v. T.A.S.I., Inc. (1982), Ind. App., 433 N.E.2d 1195). Our review of the record filed in this case discloses that an assignment of errors was not timely filed. [2] As Claimant has not invoked the jurisdiction of this court, the cause must be dismissed.",
"Two cases decided on this date examine the issue of whether the filing of an assignment of errors is a jurisdictional act. In Hogan v. Review Bd. of the Ind. Dep't of Employment and Training Services (1994), Ind. App., 635 N.E.2d 172, 178, the Second *186 District holds that \"failure to include [an assignment of errors] does not deprive [this court] of jurisdiction, nor prevent us from exercising our inherent power to hear this cause.\" 635 N.E.2d at 179. Conversely, in Claywell v. Review Bd. of the Ind. Dep't of Employment and Training Services (1994), Ind.",
"App., 635 N.E.2d 181, 182 the Fifth District holds that filing of the assignment is a jurisdictional act. Hogan is based upon Lugar v. State (1978), 270 Ind. 45, 383 N.E.2d 287, wherein our supreme court stated that it has \"the inherent discretionary power to entertain an appeal after the time allowed [to file a praecipe] has expired.\" Hogan, 635 N.E.2d at 176 (quoting Lugar, 383 N.E.2d at 288-89). From this statement, the Second District surmises that an appellant's failure to comply with the rules of procedure does not deprive an appellate court of jurisdiction, but merely gives the court the option to refuse to consider the appeal. Hogan, 635 N.E.2d at 176.",
"In Claywell, the Fifth District points out that the rule requiring the filing of an assignment of errors, unlike the rule considered in Lugar, is a statutory mandate that \"we are not free to ignore.\" 635 N.E.2d at 183. We agree with the Fifth District that we do not have the authority to circumvent mandatory statutes. The Fifth District notes that even if it were to agree with the Hogan court that the filing of an assignment of errors is not a jurisdictional act, Claywell's case was not a case where an appellate court should exercise discretionary powers to entertain an untimely appeal. Claywell, 635 N.E.2d at 183. The court also notes that Lugar only authorizes the exercise of inherent power \"in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.\"[3]Id. (quoting Lugar, 383 N.E.2d at 289). The court goes on to hold that \"the case before us today does not involve a matter of great public interest or extraordinary circumstances.\"[4]Id.",
"We agree with the Fifth District's reading of Lugar. We also agree that a case involving the denial of unemployment compensation is not the \"rare and exceptional case\" which would warrant the exercise of inherent power to entertain an untimely appeal. CONCLUSION By failing to timely file an assignment of errors, Claimant has failed to invoke the jurisdiction of this court. Thus, Claimant's appeal must be dismissed. MILLER and BARTEAU, JJ., concur. NOTES [1] App.R.",
"4(C) states that the \"Court of Appeals shall have jurisdiction to entertain actions in aid of its appellate jurisdiction and to review decisions of ... the Department of Employment and Training Services ... and review final decisions of administrative bodies, boards, and persons as provided by statute for the Appellate Court and Court of Appeals.\" [2] This appeal was filed on November 23, 1992. On February 18, 1993, the Review Board filed a motion to dismiss because of deficiencies in the record and brief filed by Claimant. In that motion, the Review Board pointed out that Claimant's failure to file an assignment of errors necessitated dismissal for lack of jurisdiction.",
"On March 16, 1993, Claimant filed a request for an extension of time to supplement her brief and the record. On June 29, 1993, this court denied the Review Board's motion to dismiss and granted Claimant's motion for extension. Claimant subsequently filed an assignment of errors. Our June 29, 1993, ruling was in error. An erroneous ruling is not binding upon this court when it is corrected in the process of considering a current appeal. See CNA Insurance Co. v. Vellucci (1992), Ind. App., 596 N.E.2d 926, 927 (holding that this court may reconsider an erroneous ruling as long as the appeal is current). [3] In Lugar, the appellant's attorney did not comply with procedural rules because he was \"serving in the legislature at the same time he was attempting to prepare a brief in a matter of great importance, involving millions of public dollars and private pension benefits.\" Lugar, 383 N.E.2d at 289.",
"[4] In Claywell, the appellant was appealing the denial of unemployment compensation by the Review Board."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2069002/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment This is the response to amendment for application 16/096132 filed 06/16/2021. Claims 1-3, 5-6, and 15-18 are currently pending and have been fully considered. Claims 4, 7-14, and 19-20 have been cancelled.
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.
Claim 2 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 1 recites the limitation “an internal combustion engine fuel being a mixture of paraffinic diesel and fossil fuel. Claim 2 recites the limitation wherein the internal combustion engine fuel is paraffinic diesel. It is unclear what claim 2 is trying to recite.
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(d): (d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph: Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 recites the limitation Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. 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 1-3, 5-6 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over YEH (USPGPUB 2002/0108298). YEH teaches a diesel fuel composition comprising a major amount of a base fuel (major portion of an internal combustion fuel) and a relatively minor amount of at least one chemical component (minor portion of a fuel component) other than generated in a refinery stream. Although YEH does not explicitly mention the amount, one of ordinary skill in the art would interpret “a major amount” as more than 50% and “a minor amount” as less than 50%. YEH teaches in paragraph 10 that the chemical component includes ethers. The ethers are taught to contain from 5 to 20 carbon atoms. The two hydrocarbyl groups are attached to ethereal oxygen may be in the form of primary, secondary, or tertiary alkyl groups, aryl groups. Examples are listed that include anisole. YEH does not explicitly teach 5 or more aryl ethers. However, YEH teaches in paragraph 4 that the diesel fuel composition comprises at least one chemical component.
When the at least one chemical component (such as 5 or more) are similar to anisoles, the anisoles would be considered to be 100% wt. of the fuel component. Regarding claim 1, the claim appears to be an attempt at defining a product by its process. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. YEH teaches in paragraph 4 that the diesel fuel composition comprises at least one chemical component. YEH also teaches anisole. It would be obvious to one of ordinary skill in the art to use a blend of aryl ethers similar to anisole with a reasonable expectation of success.
Regarding claim 5, YEH teaches anisole in paragraph 10. Regarding claim 6, YEH teaches in claim 6 that the mixture of chemical components has a T50 that is below 240°C. Regarding claim 7, it would be obvious to one of ordinary skill in the art to choose aryl ethers as the only type of chemical components based on the disclosure of YEH. Regarding claims 15-17, the claim appears to be an attempt at defining a product by its process. It appears that the compounds formed would be aryl ethers. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. . Claim Rejections - 35 USC § 103 Claims 1-3, 5-7 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over BOOT (NL2008052C2). BOOT teaches a fuel composition comprising a base fuel, a C1-C4 alcohol and an oxygenate. BOOT teaches in lines 31-35 of page 2 that the base fuel is chosen from diesel fuel. BOOT teaches in lines 1-6 of page 3 that the base fuel is present in 70 vol% or higher (major portion of an internal combustion engine fuel) while the C1-C4 alcohols is present in an amount of 9.9 vol% or less (less than 1 wt% of compounds have a free alcohol group) and oxygenate is present in an amount of 2-30 vol% (minor portion). Oxygenates (fuel component) that may be used include cyclic essential oils or cyclic compounds or cyclic derivatives or mixtures. Especially preferred are taught to include anisole (aryl ether) and guaiacol. BOOT does not appear to explicitly teach that the oxygenate comprises five or more aryl ethers.
It would be obvious to one of ordinary skill in the art to use a mixture of compounds that are similar to anisole and guaiacol with a reasonable expectation of success. When the mixtures of cyclic compounds are compounds that are similar to anisoles, the mixtures of cyclic compounds would be considered to be 100% wt. of the fuel component. Regarding claim 1, the claim appears to be an attempt at defining a product by its process. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. Regarding claims 2 and 3, BOOT teaches in lines 31-35 of page 2 that the base fuel is chosen from diesel fuel, as well as Fischer-Tropsch fuels (paraffinic diesel) or mixtures thereof.
Regarding claim 7, the oxygenate may be anisole. Regarding claims 15-17, the claim appears to be an attempt at defining a product by its process. It appears that the compounds formed would be aryl ethers. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. Regarding claim 18, BOOT teaches in lines 1-5 of page 1 that the fuel composition may be used in an engine and diesel fuel is taught by BOOT. It is known in the art to use a diesel fuel in an internal combustion engine.
Response to Arguments The previous rejection in view of SINGERMAN (U.S. 4312636) has been withdrawn in light of applicant’s amendment to parent claim 1 to require the internal combustion fuel to be a mixture of paraffinic diesel and fossil diesel. Applicant's arguments regarding YEH and BOOTS, filed 06/16/2021, have been fully considered but they are not persuasive. Applicant argues that YEH does not teach the use of at least 5 aryl ethers. Applicant argues that YEH does not mention examples of the amount of anisole used in fuel blends. Although YEH does not explicitly mention the amount, one of ordinary skill in the art would interpret “a major amount” as more than 50% and “a minor amount” as less than 50%. YEH teaches in paragraph 10 that the chemical component includes ethers. The ethers are taught to contain from 5 to 20 carbon atoms. The two hydrocarbyl groups are attached to ethereal oxygen may be in the form of primary, secondary, or tertiary alkyl groups, aryl groups. Examples are listed that include anisole. Applicant argues that there is no mention of how to increase the distillation range. This is not relevant as the claims are directed toward composition claims.
Once again, this is not relevant as the claims are directed toward compositions claims and [E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. YEH explicitly teaches blends of diesel with paraffinic diesel and the addition of anisole as a compound. Applicant argues that it is unexpected that the addition of aryl ethers to paraffinic diesel markedly decrease cloud point vs the addition of aryl ethers to fossil fuel.
Applicant has not provided sufficient evidence that the number (a mixture of 5 or more) aryl ethers is critical. The addition of anisole and compounds similar to anisole to a blend of paraffinic diesel and fossil diesel is taught by YEH explicitly. Applicant further argues that the YEH teaches the presence of alcohol. YEH teaches in paragraph 8 that the diesel fuel compositions are substantially free of C1-C2 alcohols. Applicant argues that YEH teaches that the preferred ethers are not aryl ethers as taught in YEH. YEH explicitly teaches anisole. Applicant argues that BOOT also does not teach the mixture of 5 or more aryl ethers. BOOT teaches oxygenates that are mixtures of cyclic compounds. BOOT explicitly teaches the use of anisole. It would be obvious to one of ordinary skill in the art to use a mixture of compounds that are similar to anisole with a reasonable expectation of success.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. SINGERMAN (U.S. 4312636) teaches in the abstract a novel anisole mixture containing anisole and a mixture of alkyl anisoles and liquid hydrocarbon fuels containing said novel anisole mixture. SINGERMAN teaches in lines 1-16 of column 2 that the number of individual anisoles being about 8 to about 30. Applicant argues that SINGERMAN does not mention examples of the amount of anisole used in fuel blends. SINGERMAN teaches in lines 27-42 of column 5 that the fuel composition may comprise from about 1 to about 25 weight percent which would be considered a minor amount.
. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PREM SINGH can be reached on 5712726381. 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
/MING CHEUNG PO/Examiner, Art Unit 1771
/ELLEN M MCAVOY/Primary Examiner, Art Unit 1771 | 2021-10-05T04:30:55 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment This is the response to amendment for application 16/096132 filed 06/16/2021. Claims 1-3, 5-6, and 15-18 are currently pending and have been fully considered. Claims 4, 7-14, and 19-20 have been cancelled.",
"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. Claim 2 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 1 recites the limitation “an internal combustion engine fuel being a mixture of paraffinic diesel and fossil fuel. Claim 2 recites the limitation wherein the internal combustion engine fuel is paraffinic diesel. It is unclear what claim 2 is trying to recite. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C.",
"112(d): (d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph: Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. Claim 3 is rejected under 35 U.S.C.",
"112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 recites the limitation Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. 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 1-3, 5-6 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over YEH (USPGPUB 2002/0108298). YEH teaches a diesel fuel composition comprising a major amount of a base fuel (major portion of an internal combustion fuel) and a relatively minor amount of at least one chemical component (minor portion of a fuel component) other than generated in a refinery stream. Although YEH does not explicitly mention the amount, one of ordinary skill in the art would interpret “a major amount” as more than 50% and “a minor amount” as less than 50%. YEH teaches in paragraph 10 that the chemical component includes ethers. The ethers are taught to contain from 5 to 20 carbon atoms.",
"The two hydrocarbyl groups are attached to ethereal oxygen may be in the form of primary, secondary, or tertiary alkyl groups, aryl groups. Examples are listed that include anisole. YEH does not explicitly teach 5 or more aryl ethers. However, YEH teaches in paragraph 4 that the diesel fuel composition comprises at least one chemical component. When the at least one chemical component (such as 5 or more) are similar to anisoles, the anisoles would be considered to be 100% wt. of the fuel component.",
"Regarding claim 1, the claim appears to be an attempt at defining a product by its process. \"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.\" In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966.",
"YEH teaches in paragraph 4 that the diesel fuel composition comprises at least one chemical component. YEH also teaches anisole. It would be obvious to one of ordinary skill in the art to use a blend of aryl ethers similar to anisole with a reasonable expectation of success. Regarding claim 5, YEH teaches anisole in paragraph 10. Regarding claim 6, YEH teaches in claim 6 that the mixture of chemical components has a T50 that is below 240°C. Regarding claim 7, it would be obvious to one of ordinary skill in the art to choose aryl ethers as the only type of chemical components based on the disclosure of YEH. Regarding claims 15-17, the claim appears to be an attempt at defining a product by its process.",
"It appears that the compounds formed would be aryl ethers. \"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.\" In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. . Claim Rejections - 35 USC § 103 Claims 1-3, 5-7 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over BOOT (NL2008052C2). BOOT teaches a fuel composition comprising a base fuel, a C1-C4 alcohol and an oxygenate. BOOT teaches in lines 31-35 of page 2 that the base fuel is chosen from diesel fuel. BOOT teaches in lines 1-6 of page 3 that the base fuel is present in 70 vol% or higher (major portion of an internal combustion engine fuel) while the C1-C4 alcohols is present in an amount of 9.9 vol% or less (less than 1 wt% of compounds have a free alcohol group) and oxygenate is present in an amount of 2-30 vol% (minor portion).",
"Oxygenates (fuel component) that may be used include cyclic essential oils or cyclic compounds or cyclic derivatives or mixtures. Especially preferred are taught to include anisole (aryl ether) and guaiacol. BOOT does not appear to explicitly teach that the oxygenate comprises five or more aryl ethers. It would be obvious to one of ordinary skill in the art to use a mixture of compounds that are similar to anisole and guaiacol with a reasonable expectation of success. When the mixtures of cyclic compounds are compounds that are similar to anisoles, the mixtures of cyclic compounds would be considered to be 100% wt.",
"of the fuel component. Regarding claim 1, the claim appears to be an attempt at defining a product by its process. \"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.\"",
"In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. Regarding claims 2 and 3, BOOT teaches in lines 31-35 of page 2 that the base fuel is chosen from diesel fuel, as well as Fischer-Tropsch fuels (paraffinic diesel) or mixtures thereof. Regarding claim 7, the oxygenate may be anisole. Regarding claims 15-17, the claim appears to be an attempt at defining a product by its process. It appears that the compounds formed would be aryl ethers. \"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself.",
"The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.\" In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. Regarding claim 18, BOOT teaches in lines 1-5 of page 1 that the fuel composition may be used in an engine and diesel fuel is taught by BOOT. It is known in the art to use a diesel fuel in an internal combustion engine. Response to Arguments The previous rejection in view of SINGERMAN (U.S. 4312636) has been withdrawn in light of applicant’s amendment to parent claim 1 to require the internal combustion fuel to be a mixture of paraffinic diesel and fossil diesel.",
"Applicant's arguments regarding YEH and BOOTS, filed 06/16/2021, have been fully considered but they are not persuasive. Applicant argues that YEH does not teach the use of at least 5 aryl ethers. Applicant argues that YEH does not mention examples of the amount of anisole used in fuel blends. Although YEH does not explicitly mention the amount, one of ordinary skill in the art would interpret “a major amount” as more than 50% and “a minor amount” as less than 50%. YEH teaches in paragraph 10 that the chemical component includes ethers. The ethers are taught to contain from 5 to 20 carbon atoms. The two hydrocarbyl groups are attached to ethereal oxygen may be in the form of primary, secondary, or tertiary alkyl groups, aryl groups. Examples are listed that include anisole. Applicant argues that there is no mention of how to increase the distillation range. This is not relevant as the claims are directed toward composition claims. Once again, this is not relevant as the claims are directed toward compositions claims and [E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production, if the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.\"",
"In re Thorpe, 111 F.2d 695, 698, 227 USPQ 964, 966. YEH explicitly teaches blends of diesel with paraffinic diesel and the addition of anisole as a compound. Applicant argues that it is unexpected that the addition of aryl ethers to paraffinic diesel markedly decrease cloud point vs the addition of aryl ethers to fossil fuel. Applicant has not provided sufficient evidence that the number (a mixture of 5 or more) aryl ethers is critical. The addition of anisole and compounds similar to anisole to a blend of paraffinic diesel and fossil diesel is taught by YEH explicitly.",
"Applicant further argues that the YEH teaches the presence of alcohol. YEH teaches in paragraph 8 that the diesel fuel compositions are substantially free of C1-C2 alcohols. Applicant argues that YEH teaches that the preferred ethers are not aryl ethers as taught in YEH. YEH explicitly teaches anisole. Applicant argues that BOOT also does not teach the mixture of 5 or more aryl ethers. BOOT teaches oxygenates that are mixtures of cyclic compounds. BOOT explicitly teaches the use of anisole. It would be obvious to one of ordinary skill in the art to use a mixture of compounds that are similar to anisole with a reasonable expectation of success. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"SINGERMAN (U.S. 4312636) teaches in the abstract a novel anisole mixture containing anisole and a mixture of alkyl anisoles and liquid hydrocarbon fuels containing said novel anisole mixture. SINGERMAN teaches in lines 1-16 of column 2 that the number of individual anisoles being about 8 to about 30. Applicant argues that SINGERMAN does not mention examples of the amount of anisole used in fuel blends. SINGERMAN teaches in lines 27-42 of column 5 that the fuel composition may comprise from about 1 to about 25 weight percent which would be considered a minor amount. . Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, PREM SINGH can be reached on 5712726381. 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 /MING CHEUNG PO/Examiner, Art Unit 1771 /ELLEN M MCAVOY/Primary Examiner, Art Unit 1771"
]
| 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 |
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 1-25 are allowed. The following is an examiner’s statement of reasons for allowance: The present invention is directed towards a substrate processing apparatus. Independent Claims 1, 12, 21, and 25 identify the following uniquely distinct combination of features: Claim 1: “each of the more than one independent unidirectional torque transmission band having a corresponding band height for the predetermined arm link height and a variable lateral thickness such that each of the more than one independent unidirectional torque transmission band includes a segment of laterally increased cross section for the corresponding band height,” in combination with the other claim limitations. Claim 12: “a band segment coupled to at least one lateral side of the respective one of the more than one independent unidirectional torque transmission band, the band segment being configured to form a structural doubler member to change a thickness of the respective one of the more than one independent unidirectional torque transmission band,” in combination with the other claim limitations. Claim 21: “each of the more than one independent unidirectional torque transmission band having a corresponding band height for the predetermined arm link height and a variable lateral thickness such that each of the more than one independent unidirectional torque transmission Claim 25: “a first band portion extending longitudinally between the first and second pulleys and a second band portion extending longitudinally between the first and second pulleys where a thickness of the second band portion is greater than a thickness of the first band portion,” in combination with the other claim limitations.
The independent claims overcome the prior art of record since they require the above-cited limitations. The prior art of record does not disclose nor make obvious this combination of limitations, as understood by the Examiner. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RONALD P JARRETT whose telephone number is (571)272-8311. The examiner can normally be reached on M-F: 9:00 am - 6:00 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
/RONALD P JARRETT/Primary Examiner, Art Unit 3652 | 2021-08-08T15:07:26 | [
"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 1-25 are allowed. The following is an examiner’s statement of reasons for allowance: The present invention is directed towards a substrate processing apparatus. Independent Claims 1, 12, 21, and 25 identify the following uniquely distinct combination of features: Claim 1: “each of the more than one independent unidirectional torque transmission band having a corresponding band height for the predetermined arm link height and a variable lateral thickness such that each of the more than one independent unidirectional torque transmission band includes a segment of laterally increased cross section for the corresponding band height,” in combination with the other claim limitations. Claim 12: “a band segment coupled to at least one lateral side of the respective one of the more than one independent unidirectional torque transmission band, the band segment being configured to form a structural doubler member to change a thickness of the respective one of the more than one independent unidirectional torque transmission band,” in combination with the other claim limitations.",
"Claim 21: “each of the more than one independent unidirectional torque transmission band having a corresponding band height for the predetermined arm link height and a variable lateral thickness such that each of the more than one independent unidirectional torque transmission Claim 25: “a first band portion extending longitudinally between the first and second pulleys and a second band portion extending longitudinally between the first and second pulleys where a thickness of the second band portion is greater than a thickness of the first band portion,” in combination with the other claim limitations. The independent claims overcome the prior art of record since they require the above-cited limitations. The prior art of record does not disclose nor make obvious this combination of limitations, as understood by the Examiner. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to RONALD P JARRETT whose telephone number is (571)272-8311.",
"The examiner can normally be reached on M-F: 9:00 am - 6:00 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. 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.",
"/RONALD P JARRETT/Primary Examiner, Art Unit 3652"
]
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383 S.C. 303 (2009) 680 S.E.2d 273 Jack R. BENNETT, Respondent, v. STATE of South Carolina, Petitioner. No. 26658. Supreme Court of South Carolina. Submitted March 18, 2009. Re-filed July 13, 2009. *305 Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen Ratigan, all of Columbia, for Petitioner. Division of Appellate Defense, of Columbia, and Susannah Conyers Ross, of Ross & Enderlin, of Greenville, for Respondent.
ORDER The opinion previously filed in this matter on June 1, 2009 is hereby withdrawn, and the attached opinion is substituted in its place. IT IS SO ORDERED. /s/ Jean H. Toal, C.J. /s/ John H. Waller, Jr., J. /s/ Costa M. Pleicones, J. /s/ Donald W. Beatty, J. /s/ John W. Kittredge, J. Chief Justice TOAL: In this case, we granted a writ of certiorari to review the post-conviction relief (PCR) court's grant of Respondent Jack Randall Bennett's request for relief. The State argues that the PCR court erred in ruling that Respondent received ineffective assistance of trial counsel and appellate counsel. *306 We find that Respondent's trial counsel and appellate counsel were not ineffective and reverse the PCR court's grant of relief.
FACTS/PROCEDURAL HISTORY On the evening of October 13, 1998, Respondent was at the home of Robert Garland (the Victim) in Marietta, South Carolina. Also present were Lisa Ward (Ms. Ward) and Respondent's wife, Elizabeth Bennett (Ms. Bennett). Respondent and the Victim drank large quantities of beer and moonshine throughout the evening. Additionally, Respondent admits to ingesting multiple Valium pills. During the course of the evening, Respondent became violent with Ms. Bennett. The Victim and Ms. Ward ejected Respondent from the home. Breaking through the front door, Respondent re-entered the Victim's home and beat him severely. In January 2001, Respondent was tried for assault and battery with intent to kill (ABWIK), possession of a weapon during the commission of a violent crime, and first-degree burglary. Ms. Bennett was not present for the trial but the trial court admitted her out-of-court statements. Ms. Ward testified that while Respondent was assaulting the Victim, Ms. Bennett hysterically screamed, "He's going to kill me." Trial counsel objected to the admission of the statement on hearsay grounds. The trial judge ruled that Ms. Bennett's statement was an excited utterance, and thus admissible as an exception to the rule excluding hearsay testimony. Ms. Ward continued her testimony stating that as the two women were exiting the home, Ms. Bennett screamed, "[p]lease hurry, please hurry, because if he gets hold of me, he's going to kill me." Trial counsel did not renew his objection. Next, the State presented Officer Keith Morecraft to read into evidence a statement he took from Ms. Bennett at the crime scene ninety (90) minutes to two hours after the crime had occurred. Trial counsel objected on both hearsay and Confrontation Clause grounds. The trial court overruled the objection and allowed Officer Morecraft to read the statement into evidence. *307 The jury found Respondent guilty and sentenced him to concurrent terms of eighteen (18) years for ABWIK, five (5) years for possession of a weapon during the commission of a violent crime, and eighteen (18) years for first-degree burglary. Appellate counsel filed an appeal pursuant to Anders,[1] which the court of appeals dismissed. State v. Bennett, Op. No. 2002-UP-452 (S.C. Ct.App. filed June 20, 2002). Respondent filed an application for PCR. After a hearing, the PCR court granted Respondent's request for relief. The PCR court found that trial counsel provided Respondent with ineffective assistance in failing to adequately object to the admission of Ms. Bennett's out-of-court statements. The PCR court also found that appellate counsel provided Respondent with ineffective assistance in failing to brief issues concerning the admission of Ms. Bennett's out-of-court statements.[2]
STANDARD OF REVIEW In post-conviction relief proceedings, the burden of proof is on the applicant to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). If the PCR court's finding is supported by any evidence of probative value in the record, it should be upheld. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).
LAW/ANALYSIS The State argues the PCR court erred in granting relief on the grounds that trial counsel and appellate counsel provided ineffective assistance to Respondent. We agree. For an applicant to be granted post-conviction relief as a result of ineffective assistance of counsel, the applicant must show that 1) counsel's performance was deficient,[3] and 2) *308 he was prejudiced by counsel's deficient performance.[4]See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006).
I. Trial Counsel The State argues that the PCR court erred in finding trial counsel ineffective. We agree. We find that trial counsel's performance was not deficient and, therefore, his assistance was not ineffective. Trial counsel clearly objected on hearsay grounds to the admission of Ms. Ward's testimony concerning Ms. Bennett's out-of-court statement. The trial court correctly ruled that the statements were admissible as excited utterances and overruled trial counsel's objection.[5] Trial counsel's decision not to renew his objection to Ms. Ward's continuing testimony as to Ms. Bennett's out-of-court statements did not constitute deficient assistance. The second statement offered by Ms. Ward was essentially identical to the first; therefore, because the trial court had already ruled on the issue, it was not necessary for trial counsel to renew his objection. See State v. McDaniel, 320 S.C. 33, 37, 462 S.E.2d 882, 884 (Ct.App.1995) ("so long as the judge had an opportunity to rule on an issue, and did so, it was not incumbent upon defense counsel to harass the judge by parading the issue before him again."). Additionally, trial counsel clearly objected to the admission of Ms. Bennett's out-of-court statement given to Officer Morecraft. Trial counsel made this objection on multiple relevant grounds and argued it forcefully. Because trial counsel unmistakably *309 represented the interests of his client on this issue, his performance was not deficient. We find that there is no evidence of probative value in the record to support the PCR court's finding that trial counsel's performance was deficient. Therefore, with respect to the PCR court's grant of Respondent's requested relief on the grounds of ineffective assistance of trial counsel, we reverse.
II. Appellate Counsel The State argues that the PCR court erred in finding appellate counsel ineffective. We agree. A criminal defendant is constitutionally entitled to the effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 398, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). However, counsel is not required to raise every non-frivolous claim, but may select among them in order to maximize the likelihood of a favorable outcome. Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). Generally, in analyzing a claim of ineffective assistance of appellate counsel, this Court applies the Strickland test just as it would when analyzing a claim of ineffective assistance of trial counsel.[6]See Southerland v. State, 337 S.C. 610, 616, 524 S.E.2d 833, 836 (1999). Thus, in this case, we ask 1) whether appellate counsel's performance was deficient, and 2) whether Respondent was prejudiced by appellate counsel's deficient performance. Even if appellate counsel's performance was deficient, we find that such performance did not prejudice Respondent. In order to show that he was prejudiced by appellate counsel's performance, a PCR applicant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." *310 Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. Ms. Bennett's out-of-court statements admitted at trial were cumulative evidence and not necessary to prove Respondent's guilt. Appellate counsel's performance did not prejudice Respondent and was, therefore, not ineffective. Accordingly, we find that the PCR court erred in finding that Respondent received ineffective assistance of appellate counsel.
CONCLUSION For the foregoing reasons, we hold that the PCR court erred in ruling that trial counsel and appellate counsel were ineffective, and we reverse the PCR court's order granting relief. WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur. NOTES [1] Pursuant to Anders v. California, "if [appellate] counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). [2] The issue appellate counsel briefed in the Anders appeal was unrelated to the admission of Ms. Bennett's out-of-court statements. [3] In order to prove that counsel's performance was deficient, an applicant must show that his counsel failed to render reasonably effective assistance under prevailing professional norms. Cherry v. State, 300 S.C. at 117-18, 386 S.E.2d at 625. [4] In order to prove that he was prejudiced by his counsel's deficiency, an applicant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997). [5] Additionally, Respondent's own defense that he was entering the home to protect Ms. Bennett opened the door to these statements. [6] Appellate counsel filed an Anders brief, as opposed to a brief on the merits. Even in this context, when analyzing a claim of ineffective assistance of appellate counsel, we apply the Strickland test. See Smith v. Robbins, 528 U.S. 259, 284, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (finding that even where appellate counsel believes his client's appeal is without merit and thus files an Anders brief, the appellant may have been entitled to a merits brief and the challenge of appellate counsel's performance should be reviewed under Strickland.) | 10-30-2013 | [
"383 S.C. 303 (2009) 680 S.E.2d 273 Jack R. BENNETT, Respondent, v. STATE of South Carolina, Petitioner. No. 26658. Supreme Court of South Carolina. Submitted March 18, 2009. Re-filed July 13, 2009. *305 Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen Ratigan, all of Columbia, for Petitioner. Division of Appellate Defense, of Columbia, and Susannah Conyers Ross, of Ross & Enderlin, of Greenville, for Respondent. ORDER The opinion previously filed in this matter on June 1, 2009 is hereby withdrawn, and the attached opinion is substituted in its place. IT IS SO ORDERED. /s/ Jean H. Toal, C.J. /s/ John H. Waller, Jr., J.",
"/s/ Costa M. Pleicones, J. /s/ Donald W. Beatty, J. /s/ John W. Kittredge, J. Chief Justice TOAL: In this case, we granted a writ of certiorari to review the post-conviction relief (PCR) court's grant of Respondent Jack Randall Bennett's request for relief. The State argues that the PCR court erred in ruling that Respondent received ineffective assistance of trial counsel and appellate counsel. *306 We find that Respondent's trial counsel and appellate counsel were not ineffective and reverse the PCR court's grant of relief. FACTS/PROCEDURAL HISTORY On the evening of October 13, 1998, Respondent was at the home of Robert Garland (the Victim) in Marietta, South Carolina. Also present were Lisa Ward (Ms. Ward) and Respondent's wife, Elizabeth Bennett (Ms. Bennett). Respondent and the Victim drank large quantities of beer and moonshine throughout the evening.",
"Additionally, Respondent admits to ingesting multiple Valium pills. During the course of the evening, Respondent became violent with Ms. Bennett. The Victim and Ms. Ward ejected Respondent from the home. Breaking through the front door, Respondent re-entered the Victim's home and beat him severely. In January 2001, Respondent was tried for assault and battery with intent to kill (ABWIK), possession of a weapon during the commission of a violent crime, and first-degree burglary. Ms. Bennett was not present for the trial but the trial court admitted her out-of-court statements. Ms. Ward testified that while Respondent was assaulting the Victim, Ms. Bennett hysterically screamed, \"He's going to kill me.\" Trial counsel objected to the admission of the statement on hearsay grounds. The trial judge ruled that Ms. Bennett's statement was an excited utterance, and thus admissible as an exception to the rule excluding hearsay testimony.",
"Ms. Ward continued her testimony stating that as the two women were exiting the home, Ms. Bennett screamed, \"[p]lease hurry, please hurry, because if he gets hold of me, he's going to kill me.\" Trial counsel did not renew his objection. Next, the State presented Officer Keith Morecraft to read into evidence a statement he took from Ms. Bennett at the crime scene ninety (90) minutes to two hours after the crime had occurred. Trial counsel objected on both hearsay and Confrontation Clause grounds. The trial court overruled the objection and allowed Officer Morecraft to read the statement into evidence. *307 The jury found Respondent guilty and sentenced him to concurrent terms of eighteen (18) years for ABWIK, five (5) years for possession of a weapon during the commission of a violent crime, and eighteen (18) years for first-degree burglary.",
"Appellate counsel filed an appeal pursuant to Anders,[1] which the court of appeals dismissed. State v. Bennett, Op. No. 2002-UP-452 (S.C. Ct.App. filed June 20, 2002). Respondent filed an application for PCR. After a hearing, the PCR court granted Respondent's request for relief. The PCR court found that trial counsel provided Respondent with ineffective assistance in failing to adequately object to the admission of Ms. Bennett's out-of-court statements. The PCR court also found that appellate counsel provided Respondent with ineffective assistance in failing to brief issues concerning the admission of Ms. Bennett's out-of-court statements. [2] STANDARD OF REVIEW In post-conviction relief proceedings, the burden of proof is on the applicant to prove the allegations in his application.",
"Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). If the PCR court's finding is supported by any evidence of probative value in the record, it should be upheld. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). LAW/ANALYSIS The State argues the PCR court erred in granting relief on the grounds that trial counsel and appellate counsel provided ineffective assistance to Respondent. We agree. For an applicant to be granted post-conviction relief as a result of ineffective assistance of counsel, the applicant must show that 1) counsel's performance was deficient,[3] and 2) *308 he was prejudiced by counsel's deficient performance.",
"[4]See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006). I. Trial Counsel The State argues that the PCR court erred in finding trial counsel ineffective. We agree. We find that trial counsel's performance was not deficient and, therefore, his assistance was not ineffective. Trial counsel clearly objected on hearsay grounds to the admission of Ms. Ward's testimony concerning Ms. Bennett's out-of-court statement.",
"The trial court correctly ruled that the statements were admissible as excited utterances and overruled trial counsel's objection. [5] Trial counsel's decision not to renew his objection to Ms. Ward's continuing testimony as to Ms. Bennett's out-of-court statements did not constitute deficient assistance. The second statement offered by Ms. Ward was essentially identical to the first; therefore, because the trial court had already ruled on the issue, it was not necessary for trial counsel to renew his objection. See State v. McDaniel, 320 S.C. 33, 37, 462 S.E.2d 882, 884 (Ct.App.1995) (\"so long as the judge had an opportunity to rule on an issue, and did so, it was not incumbent upon defense counsel to harass the judge by parading the issue before him again.\"). Additionally, trial counsel clearly objected to the admission of Ms. Bennett's out-of-court statement given to Officer Morecraft. Trial counsel made this objection on multiple relevant grounds and argued it forcefully.",
"Because trial counsel unmistakably *309 represented the interests of his client on this issue, his performance was not deficient. We find that there is no evidence of probative value in the record to support the PCR court's finding that trial counsel's performance was deficient. Therefore, with respect to the PCR court's grant of Respondent's requested relief on the grounds of ineffective assistance of trial counsel, we reverse. II. Appellate Counsel The State argues that the PCR court erred in finding appellate counsel ineffective. We agree. A criminal defendant is constitutionally entitled to the effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 398, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). However, counsel is not required to raise every non-frivolous claim, but may select among them in order to maximize the likelihood of a favorable outcome. Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).",
"Generally, in analyzing a claim of ineffective assistance of appellate counsel, this Court applies the Strickland test just as it would when analyzing a claim of ineffective assistance of trial counsel. [6]See Southerland v. State, 337 S.C. 610, 616, 524 S.E.2d 833, 836 (1999). Thus, in this case, we ask 1) whether appellate counsel's performance was deficient, and 2) whether Respondent was prejudiced by appellate counsel's deficient performance. Even if appellate counsel's performance was deficient, we find that such performance did not prejudice Respondent. In order to show that he was prejudiced by appellate counsel's performance, a PCR applicant must show that \"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\" *310 Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. Ms. Bennett's out-of-court statements admitted at trial were cumulative evidence and not necessary to prove Respondent's guilt. Appellate counsel's performance did not prejudice Respondent and was, therefore, not ineffective.",
"Accordingly, we find that the PCR court erred in finding that Respondent received ineffective assistance of appellate counsel. CONCLUSION For the foregoing reasons, we hold that the PCR court erred in ruling that trial counsel and appellate counsel were ineffective, and we reverse the PCR court's order granting relief. WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur. NOTES [1] Pursuant to Anders v. California, \"if [appellate] counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.\" 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed.",
"2d 493 (1967). [2] The issue appellate counsel briefed in the Anders appeal was unrelated to the admission of Ms. Bennett's out-of-court statements. [3] In order to prove that counsel's performance was deficient, an applicant must show that his counsel failed to render reasonably effective assistance under prevailing professional norms. Cherry v. State, 300 S.C. at 117-18, 386 S.E.2d at 625. [4] In order to prove that he was prejudiced by his counsel's deficiency, an applicant must show that \"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\"",
"Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). \"A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial.\" Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997). [5] Additionally, Respondent's own defense that he was entering the home to protect Ms. Bennett opened the door to these statements. [6] Appellate counsel filed an Anders brief, as opposed to a brief on the merits. Even in this context, when analyzing a claim of ineffective assistance of appellate counsel, we apply the Strickland test. See Smith v. Robbins, 528 U.S. 259, 284, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (finding that even where appellate counsel believes his client's appeal is without merit and thus files an Anders brief, the appellant may have been entitled to a merits brief and the challenge of appellate counsel's performance should be reviewed under Strickland.)"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1286658/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Robert H. Dudley, Justice. Hubert Lawson was injured in a single vehicle accident while riding on the bed of a truck owned and operated by his father, Donald Lawson. Hubert was the named insured in an automobile liability insurance policy issued by appellant, Mid-Continent Casualty Company. The policy described his automobile as the insured vehicle. Donald was the named insured in an automobile liability insurance policy issued by appellee, State Farm Automobile Mutual Insurance Company. The truck owned and operated by Donald at the time of Hubert’s injuries was described as the insured vehicle in appellee’s policy. Pursuant to the personal injury protection provision in the policy as required by the no-fault statute, Ark. Stat. Ann. § 66-4014 (Repl. 1980 and Supp. 1985), appellant Mid-Continent paid Hubert’s medical bills and lost wages. Mid-Continent then sued appellee State Farm, contending that under Ark. Stat. Ann. § 66-4016 (Repl. 1980), State Farm’s policy was the applicable policy for Hubert’s no-fault benefits since it was the insurer of the vehicle involved in the accident. The trial court granted a judgment on the pleadings pursuant to A.R.C.P. Rule 12(c), and held that the applicable policy for no-fault benefits was issued by the carrier for the injured party rather than by the carrier for the vehicle in which the injury occurred. We affirm. Ark. Stat. Ann. § 66-4014, provides in pertinent part: Every automobile liability insurance policy covering any private passenger motor vehicle . . . shall provide minimum . . . benefits ... to the named insured . . . [and] to passengers injured while occupying the insured motor vehicle . . . without regard to fault. . . . Under the above quoted statement, both carriers were required to provide personal injury protection coverage for Hubert’s damages since Hubert was a “passenger injured while occupying the insured motor vehicle” under appellee State Farm’s policy and was a “named insured . . . injured in a motor vehicle accident” under appellant Mid-Continent’s policy. The quoted statute does not provide which company has the applicable policy. Both parties agree that the answer is found in Ark. Stat. Ann. § 66-4016. The first sentence of § 66-4016, in the pertinent part, provides: The coverages provided in ... § 66-4014 . . . shall apply only to occupants of the insured vehicle and to persons struck by the insured vehicle . . . , and to none other. The above sentence limits the persons to whom coverage applies, but does not state which policy is the applicable policy. Appellant contends that language in Travelers Insurance Co. v. Estes, 283 Ark. 61, 670 S.W.2d 451 (1984) provides that the coverage applies to the insured vehicle “and no other.” That case is on a different issue, and we do not consider the language controlling. The answer to the question, which policy is applicable, is found in the second, and final, sentence of § 66-4016. It provides: Provided, however, said coverages shall not be . . . payable, if . . . coverages are afforded to said occupants ... [of the] insured vehicle. . . as a named insured . . . under another valid and collectible automobile insurance policy. This sentence plainly means that when benefits are payable to a named insured, benefits “shall not be . . . payable” as a result of occupying an insured vehicle. Thus, in the event that more than one policy has personal injury protection coverage, the insured’s own policy shall provide primary coverage. Affirmed. Purtle, J., not participating. | 09-07-2022 | [
"Robert H. Dudley, Justice. Hubert Lawson was injured in a single vehicle accident while riding on the bed of a truck owned and operated by his father, Donald Lawson. Hubert was the named insured in an automobile liability insurance policy issued by appellant, Mid-Continent Casualty Company. The policy described his automobile as the insured vehicle. Donald was the named insured in an automobile liability insurance policy issued by appellee, State Farm Automobile Mutual Insurance Company. The truck owned and operated by Donald at the time of Hubert’s injuries was described as the insured vehicle in appellee’s policy. Pursuant to the personal injury protection provision in the policy as required by the no-fault statute, Ark. Stat. Ann. § 66-4014 (Repl. 1980 and Supp. 1985), appellant Mid-Continent paid Hubert’s medical bills and lost wages. Mid-Continent then sued appellee State Farm, contending that under Ark. Stat. Ann.",
"§ 66-4016 (Repl. 1980), State Farm’s policy was the applicable policy for Hubert’s no-fault benefits since it was the insurer of the vehicle involved in the accident. The trial court granted a judgment on the pleadings pursuant to A.R.C.P. Rule 12(c), and held that the applicable policy for no-fault benefits was issued by the carrier for the injured party rather than by the carrier for the vehicle in which the injury occurred. We affirm. Ark. Stat. Ann. § 66-4014, provides in pertinent part: Every automobile liability insurance policy covering any private passenger motor vehicle . . .",
"shall provide minimum . . . benefits ... to the named insured . . . [and] to passengers injured while occupying the insured motor vehicle . . . without regard to fault. . . . Under the above quoted statement, both carriers were required to provide personal injury protection coverage for Hubert’s damages since Hubert was a “passenger injured while occupying the insured motor vehicle” under appellee State Farm’s policy and was a “named insured . . . injured in a motor vehicle accident” under appellant Mid-Continent’s policy. The quoted statute does not provide which company has the applicable policy. Both parties agree that the answer is found in Ark. Stat.",
"Ann. § 66-4016. The first sentence of § 66-4016, in the pertinent part, provides: The coverages provided in ... § 66-4014 . . . shall apply only to occupants of the insured vehicle and to persons struck by the insured vehicle . . . , and to none other. The above sentence limits the persons to whom coverage applies, but does not state which policy is the applicable policy. Appellant contends that language in Travelers Insurance Co. v. Estes, 283 Ark. 61, 670 S.W.2d 451 (1984) provides that the coverage applies to the insured vehicle “and no other.” That case is on a different issue, and we do not consider the language controlling. The answer to the question, which policy is applicable, is found in the second, and final, sentence of § 66-4016. It provides: Provided, however, said coverages shall not be . . . payable, if .",
". . coverages are afforded to said occupants ... [of the] insured vehicle. . . as a named insured . . . under another valid and collectible automobile insurance policy. This sentence plainly means that when benefits are payable to a named insured, benefits “shall not be . . . payable” as a result of occupying an insured vehicle. Thus, in the event that more than one policy has personal injury protection coverage, the insured’s own policy shall provide primary coverage. Affirmed. Purtle, J., not participating."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7823517/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.3
(LOGO) [c09216c0921601.gif]
Georgia Department of Community Health 2 Peachtree Street, NW Atlanta, GA 30303-3159 Rhonda M. Medows, MD, Commissioner Sonny Perdue, Governor www.dch.georgia.gov
July 10, 2006 Sent Via: Certified Mail / Return Receipt Requested David McNichols Peachstate Health Plan, Inc. 3200 Highland Pkwy., SE Suite 300 Smyrna, GA 30082
RE: NOTICE OF RENEWAL FOR FISCAL YEAR 2007 Contract# 0653
Dear Mr. McNichols: This letter serves as written notice that the Department of Community Health (hereinafter “DCH” or the “Department”) is exercising its option to renew the above-referenced contract for an additional State fiscal year, subject to the terms and conditions of the underlying contract (the “Contract”) and any applicable subsequent amendments. The Contract, as renewed, shall terminate on June 30, 2007. All terms and conditions of the contract, including reimbursement, shall remain as stated in the original contract and any amendments thereto. In addition, below is a list of items necessary to update your contract information. It is essential that this information is provided as soon as possible, but no later than September 1, 2006. If you are unable to respond in that time, please notify us by written correspondence (email is acceptable). Please review your current contract and send the following documents if applicable:
• Certificate of Insurance; • Payment and/or Performance Bonds; • Top-level management names, titles, areas of responsibility and resumes; • Organizational Chart; • The names, titles, areas of responsibility, and resumes for all employees assigned to perform work on the contract during fiscal year 2007; • The names, titles, areas of responsibility, and resumes for all employees anticipated to perform work on the contract during fiscal year 2007; • The names and business addresses of all subcontractors performing work on the Contract during fiscal year 2007;
Equal Opportunity Employer
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• The names and business addresses of all subcontractors anticipated to perform work on the Contract during fiscal year 2007; • A copy of your last audit report from an independent Certified Public Accountant firm for the period covering Fiscal Year 2006, if available, or the last conducted audit report; and • A copy of your business continuity plan or similar document (optional).
Enclosed is an additional copy of this letter. Please sign both copies where indicated retaining one for your files and returning the other via fax and mail before close of business June 30, 2006 to: Georgia Department of Community Health Contracts Administration 2 Peachtree Street, NW, 40th Floor Atlanta, Georgia 30303-3159 Fax: (404) 463-5025 Please contact me at (404) 463-1930 or via email at bshepard@dch.ga.gov should you have any questions or require additional information. We look forward to continuing with your contract in Fiscal Year 2007.
Sincerely, /s/ Joanne Mitchell Joanne Mitchell Contract Manager
CC: Charemon Grant, Esq. General Counsel File
Signature of Acceptance: We, PEACH STATE HEALTH PLAN, do hereby acknowledge the renewal of our contract, Contract #0653 agree to the renewal terms as heretofore stated by the duly authorized signature below:
/s/ David McNichols 7/26/2006 Authorized Signature Date PRESIDENT, CEO | [
"Exhibit 10.3 (LOGO) [c09216c0921601.gif] Georgia Department of Community Health 2 Peachtree Street, NW Atlanta, GA 30303-3159 Rhonda M. Medows, MD, Commissioner Sonny Perdue, Governor www.dch.georgia.gov July 10, 2006 Sent Via: Certified Mail / Return Receipt Requested David McNichols Peachstate Health Plan, Inc. 3200 Highland Pkwy., SE Suite 300 Smyrna, GA 30082 RE: NOTICE OF RENEWAL FOR FISCAL YEAR 2007 Contract# 0653 Dear Mr. McNichols: This letter serves as written notice that the Department of Community Health (hereinafter “DCH” or the “Department”) is exercising its option to renew the above-referenced contract for an additional State fiscal year, subject to the terms and conditions of the underlying contract (the “Contract”) and any applicable subsequent amendments. The Contract, as renewed, shall terminate on June 30, 2007.",
"All terms and conditions of the contract, including reimbursement, shall remain as stated in the original contract and any amendments thereto. In addition, below is a list of items necessary to update your contract information. It is essential that this information is provided as soon as possible, but no later than September 1, 2006. If you are unable to respond in that time, please notify us by written correspondence (email is acceptable). Please review your current contract and send the following documents if applicable: • Certificate of Insurance; • Payment and/or Performance Bonds; • Top-level management names, titles, areas of responsibility and resumes; • Organizational Chart; • The names, titles, areas of responsibility, and resumes for all employees assigned to perform work on the contract during fiscal year 2007; • The names, titles, areas of responsibility, and resumes for all employees anticipated to perform work on the contract during fiscal year 2007; • The names and business addresses of all subcontractors performing work on the Contract during fiscal year 2007; Equal Opportunity Employer -------------------------------------------------------------------------------- • The names and business addresses of all subcontractors anticipated to perform work on the Contract during fiscal year 2007; • A copy of your last audit report from an independent Certified Public Accountant firm for the period covering Fiscal Year 2006, if available, or the last conducted audit report; and • A copy of your business continuity plan or similar document (optional).",
"Enclosed is an additional copy of this letter. Please sign both copies where indicated retaining one for your files and returning the other via fax and mail before close of business June 30, 2006 to: Georgia Department of Community Health Contracts Administration 2 Peachtree Street, NW, 40th Floor Atlanta, Georgia 30303-3159 Fax: (404) 463-5025 Please contact me at (404) 463-1930 or via email at bshepard@dch.ga.gov should you have any questions or require additional information. We look forward to continuing with your contract in Fiscal Year 2007. Sincerely, /s/ Joanne Mitchell Joanne Mitchell Contract Manager CC: Charemon Grant, Esq. General Counsel File Signature of Acceptance: We, PEACH STATE HEALTH PLAN, do hereby acknowledge the renewal of our contract, Contract #0653 agree to the renewal terms as heretofore stated by the duly authorized signature below: /s/ David McNichols 7/26/2006 Authorized Signature Date PRESIDENT, CEO"
]
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